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theodore M I R A L D I mpa ... editor, publisher, writer. katherine molé mfa ... art director
Sunday, November 10, 2019
New York AG’s Office Totally DISGRACED Itself In The EXXON Trial
Shutterstock Post Editorial Board
Closing arguments finished up Thursday in the People of New York v. ExxonMobil — a trial that has utterly disgraced the people’s representatives, prosecutors from the state Attorney General’s Office.
Time and again, state Supreme Court Justice Judge Barry Ostrager chided the prosecution — for being unprepared, for indulging in “agonizing, repetitious questioning about documents that are not being disputed”; for pretending a witness was an expert when she wasn’t; for presenting an expert (paid $1,050 an hour) who wouldn’t stop “rambling” and more.
At one point, he snapped: “OK, that’s the fifth time that he has given you the same answer.” At another, he all but accused the state of manipulating Exxon’s stock price on the basis of false information — in a trial where the state was trying to show that Exxon was doing that.
All that’s left is a charge under the Martin Act, which allows for criminal guilt for an accidental misrepresentation that might mislead the public. But the state failed to even produce any clear evidence that Exxon ever misled the public in any respect, even inadvertently.
That’s a huge comedown for a prosecution that opened under the banner “#ExxonKnew.”
To be clear, the main blame for this debacle falls on disgraced former AG Eric Schneiderman, who started the whole thing as an exercise in headline-hunting back in 2015. He handed off the actual work to subordinates who repeatedly revised the entire theory of the case — that is, the wrong they claimed Exxon had committed — with the charges growing less explosive every time.
They originally claimed Exxon had suppressed research — when in fact its scientists have always published freely, and the company has openly discussed the risks of climate change and so on in its annual reports and on its website.
Then they suggested the company had deceived investors by “overstating” its assets by “trillions.” But it turned out Exxon had clearly disclosed all the relevant info.
Finally, they claimed it used one risk-assessment standard in public, another in private. But the Securities and Exchange Commission cleared Exxon on that front before this trial even opened.
It seems the prosecutors feared it would just be too humiliating to admit they had nothing, and hoped they’d somehow stumble on . . . something.
Still, Thursday’s final retreat, dropping most charges at the very end, was a shocker. It left the judge dismissing those charges “with prejudice,” so the state can never refile them. And Exxon’s infuriated lawyers say those claims “have cost in many respects the most severe reputation harm to the company and to the executives,” so they want still stronger sanctions.
Judge Ostrager has 30 days to issue a decision. The prosecutors are surely praying he’ll find the Martin Act gives them so much leeway that he actually has to find Exxon guilty. If so, it’ll be a blaring alarm to businesses to have nothing to do with New York, because they have no hope of a fair break here.
Otherwise, the judge should explore every possible option for censuring the state’s attorneys — whose abuse of power here has been utterly mind-blowing.