AGs United for Clean Power press conference on March 29 in New York.The last several weeks have seen extraordinary developments in the climate-change investigation of ExxonMobil. What once was an investigation of ExxonMobil by states attorneys general has become an inquiry into the misconduct of the attorneys general. First came a mid-September order from Judge Ed Kinkeade, of the U.S. District Court for Northern Texas. Exxon had received a subpoena requiring massive disclosure—a subpoena (or “Civil Investigative Demand”) signed not by a judge but merely by the Attorney General of Massachusetts, Maura Healey—and the company responded by suing to enjoin its enforcement. Ordinarily (under the Younger abstention doctrine) a federal court would hesitate…
The Unconstitutionality of the Exxon Subpoena
What is the power of an attorney general to pry into private papers? Earlier this month, New York Attorney General Eric Schneiderman issued a subpoena to Exxon, demanding that the company turn over many of its records, so that he could investigate it for fraudulent statements about the climate. Many Americans cheered. The subpoena, however, comes with constitutional dangers.
The exact content of the subpoena is not yet known. It appears, however, to have come from Attorney General Schneiderman rather than from a grand jury, and if this is true, it is problematic.
