There has been a development in Horner et al. v Herring. That is the lawsuit filed under Virginia’s Freedom of Information Act seeking whatever analysis, opinion or any other record led to the Virginia Office of Attorney General offering the stunning conclusion that it possesses the legal authority to bring in a Michael Bloomberg-funded prosecutor, “to advance the agenda represented by” Bloomberg’s climate litigation Center.
On May 2, 2019 the Circuit Court of Richmond (VA) heard OAG’s “Plea in Nulla Bona” — a plea never before advanced in Virginia’s somewhat robust history of jurisprudence that dates back to the colonists, as the Judge acknowledged. OAG also sought to renew its “Demurrer”, which is Virginia’s version of “failure to state a claim”. On January 28, 2019, the Court had already overruled that move, ordering OAG to Answer the lawsuit.
But AG Herring’s Office has been monomaniacal about disposing of this case without having to answer any of the specific allegations raised, which would open the door to relevant discovery inquiries. These inquiries would, naturally, confront the numerous inconsistencies in OAG’s records and other statements.
Coincidentally, the same obsession has marked the behavior of Maryland’s OAG, UCLA Law School, and pretty much any institution drawing scrutiny for its role in the climate litigation industry. (After several delays, Maryland AG Frosh finally answered that suit late on May 6, 2019, which act also made it the sole OAG claiming it can hide its application for Bloomberg’s resources from the public).
This time the Richmond Court somewhat split the baby. It declined to strike the invented “Plea in Nulla Bona”, apparently choosing instead to effectively convert it into a plea that actually exists, which is commonly called a Plea in Bar. This sets up a mini-trial on the issue several months hence — after plaintiffs engage in limited discovery.
This means we should soon see answers to basic questions, all of which exist solely as a result of OAG’s own highly curious behavior.
VA OAG insists there are “no records” reflecting any actual consideration of the legal propriety of entering this unprecedented arrangement, despite requirements in state law and the AG’s own policy suggesting it is not. However, consider the following timeline and mileposts relevant to these claims—
- On August 25, 2017, David Hayes, Executive Director of Bloomberg’s Center, wrote to senior, political staff of more than a dozen Democratic attorneys general including Herring’s staff, soliciting proposals: Bloomberg would provide outside attorneys, a public relations service, and privately hired in-house prosecutors, seconded to AGs to “advanc[e] progressive clean energy, climate change, and environmental legal positions.” Applications for these resources were due by September 15, 2017.
- On September 15, 2017, VA OAG’s Donald Anderson wrote on behalf of AG Herring offering up that Office, if given these resources, “to advance the agenda represented by” Bloomberg’s Center. Anderson also writes,
“…there are no Virginia-specific limitations or requirements that would apply to the OAG’s employment of a NYU fellow as a Special Assistant Attorney General. We have also reviewed the Virginia Rules of Professional Conduct and find no concern about the proposed arrangement”.
- When writing to Hayes on January 30, 2018, Anderson confirmed that VA OAG did in fact undertake a “formal approval” process about its participation:
“I have been waiting for formal approval to proceed, which I have now been assured is coming.
I have asked for potential dates for the meeting you have suggested.
In the meantime, I would appreciate your input on the attached draft of a job posting that uses much of what Liz sent but in a format similar to what we usually do here.”
- Before the Court in January 2019, OAG suggested that all consideration of the legal authority was conducted by sticking one’s head in another’s doorway, or possibly by the water cooler:
12· · · · · · We are allowed to talk to each other.· FOIA is
13· ·for documents, are there documents, not did anyone talk
14· ·about it, not was there ever any thought about it, not
15· ·did Mr. Anderson walk down the hall to his superior and
16· ·say I’ve gotten this inquiry, can I do this.· There might
17· ·have been conversations.· I wasn’t privy to those, I
18· ·don’t know, but there very well could have been, but they
19· ·would not have generated documents, and they would not
20· ·be — there is nothing that is subject to FOIA.· There’s
21· ·no document to produce.
- On December 6, 2017, Hayes wrote to Anderson to accept the Herring application. “I bring good news. As you know, during our first round of reviews, we were not able to provide your office with a Special Assistant Attorney General (SAAG) fellow to work on clean energy, climate and environmental matters. We have completed a second round of reviews, and I am pleased to report that we are now able to do so. Coincidentally, and happily, I was at an event last event with AG Herring and was able to share this good news with Mark directly.” RFP, offer, acceptance.
- Then, on December, 13, 2017 Bloomberg’s Center attributed a quote to Herring claiming VA OAG was indeed participating: “I’m glad Virginia is participating in [the Bloomberg/NYU] fellowship program. I look forward to the opportunities this partnership will provide to address climate change and protect our environment for future generations.” This is not ambiguous.
- Yet despite the AG applying, being accepted, publicly acknowledging participation, and acknowledging in writing a formal process was underway, Donald Anderson swore an Affidavit dated and filed with the Court on February 19, 2019 that stated in pertinent part (¶ 4):
“The Office ultimately declined to participate in the NYU fellow program.”
- Given this, and all of those records communicating its participation, OAG was then asked under FOIA for any records declining to participate in the NYU scheme. The one that it had agreed, in writing, to participate in. On February 27, 2019, OAG responded it had “no records” communicating any such thing.
- Michael Bloomberg spent nearly $3 million getting Mark Herring elected and re-elected Attorney General of Virginia. Michael Bloomberg also created a group that offered VA OAG resources to advance “progressive legal positions”.
- VA OAG took Bloomberg’s group up on the offer, going one better, offering to use the Office “to advance the agenda represented by” the group. VA OAG also set the salary ($81,500 per year plus benefits, to be paid by Bloomberg’s group).
- VA OAG — a legal office, and one operating under statutory authority — assures Bloomberg’s group this arrangement is actually authorized under Virginia law. Virginia law appears in fact to prohibit it.
- VA OAG assures FOIA requesters that it never actually engaged in any such analysis to that effect other than possibly thinking about it or discussing it among colleagues.
- Bloomberg’s group accepted VA OAG’s application.
- Bloomberg’s group released a long statement by Herring expressly confirming his office’s participation.
- VA OAG informs Bloomberg’s group it engaged in a “formal approval” process. Any such process that did not address the legal authority to engage in the arrangement would be highly unusual, to say the least.
- OAG informs the Court, in a sworn statement, that in fact it declined to participate.
- When asked for any records expressing this, to NYU or to anyone, OAG says there are “no records”. If OAG also declined to participate via private thought, or by poking one’s head in a colleague’s door, it has not yet said.
- In notable contrast, these numerous affirmations of participation are in writing.
- Meanwhile, after being sued to get the bottom of the contradictions, OAG serially insinuates that, ok, look, hypothetically, if there were records, OAG views them as outside the scope of FOIA. (Note: VA FOIA requires an office to identify any records it wants to withhold, for whatever reason.)
Virginia’s legislature had enough when learning about the cavalier dismissal of the AG’s statutory limitations. Earlier in 2019 it passed yet further restrictions to try and head off this effort to do what Virginia law and OAG policy already prohibit.
Virginia’s taxpayers are owed an answer to these questions arising solely as a result of the Office of Attorney General’s questionable behavior and contradictions. No state office should promise a donor, however major, that it will take the donor’s resources “to advance the agenda represented by” the donor’s pet project. Particularly in law enforcement, further still after making this spectacular representation, defiance and dragging out the right-to-know process to avoid answering questions is the opposite of what Virginians should expect of their public officials.