On Friday, we discussed the WSJ opinion page’s arcane and rhetorical legal argument in support of Exxon. In that vein, the Attorneys General of Texas and Alabama now offer up another defense of Exxon on procedural grounds, reports POLITICO PRO. (The Washington Times also has a story, but is much more general and First Amendment-focused.)
In response to the Virgin Islands' subpoena by AG Claude Walker, Exxon filed a lawsuit last month against the firm that the Virgin Islands hired to undertake the litigation, Cohen Millstein. Now AGs Ken Paxton (TX) and Luther Strange (AL) have filed a Plea in Intervention that objects to Walker’s subpoena on the grounds that his use of a private law firm to carry out the investigation is “an unconstitutional delegation of prosecutorial power.”
Their basic argument is that since the private law firm is likely working for a contingency fee, they’re not disinterested parties (because they’ll only get paid if the prosecution is successful.) When Exxon first made this claim itself back in April, legal professor Milan Markovic said the move is so unusual and so unlikely to succeed that he doubted even “Exxon thinks it will prevail.” Instead, he suggested that Exxon’s decision could be an attempt to secure a court more sympathetic to its case by bringing the suit to Texas instead of the D.C. Superior Court.
[Continued after the jump]
On the same day that Texas and Alabama filed their support for Exxon, the Competitive Enterprise Institute filed a motion to dismiss the VI subpoena in the DC Court under the Anti-SLAPP Act, which is designed to protect people who speak out against powerful interests from being sued by said interests. SLAPP stands for “Strategic Litigation Against Public Participation” and is usually brought against someone for the sole purpose of burdening them with a costly court battle and thereby preventing them from exercising their First Amendment right to free speech. The Anti-SLAPP Act forbids such lawsuits. But since fraud isn’t protected by free speech, the likelihood that CEI will succeed is questionable.
CEI has also released an email it received from the lawyer handling the case for the VI, which reiterates the fact that fraud isn’t protected by free speech. It also seems to suggest that the USVI will, within the next few days, be dropping the subpoena but could reissue it. We will have to wait and see what exactly this means.
Regardless, with these filings in addition to last week’s WSJ op-ed, we can see that instead of arguing that Exxon is innocent, its defenders are instead arguing over legal technicalities. There’s an old saying in law that if the facts are on your side, you pound the facts into the table. If the law is on your side, pound the law into the table. And if you have neither, just pound the table.
So far we’ve seen them pound the law with these sorts of procedural defenses, and just plain pound the table with their (failed for tobacco) first amendment/free speech defense.
Whether or not they’ll get around to pounding the facts remains to be seen.
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