The Unconstitutionality of the Exxon Subpoena

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December 3, 2015|Exxon, Lysenkoism, New York Attorney General Eric Schneiderman, Prosecutorial Discretion, subpoena power

The Unconstitutionality of the Exxon Subpoena

by PHILIP HAMBURGER | 13 Comments

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

I.

Federal and state constitutional law traditionally left government no power to demand testimony, papers, or other information, except under the authority of a judge or a legislative committee. In the absence of a legislative investigation, and prior to a court case, the government could demand information only by getting a warrant signed by a judge based on probable cause or by asking a court overseeing a grand jury to issue a subpoena