A federal judge reaffirmed an order that Massachusetts Attorney General Maura Healey must submit to questioning by lawyers for ExxonMobil over her investigation of the oil industry giant.
U.S. District Court Judge Ed Kinkeade on Monday rejected Healey’s motion to cancel a deposition he had previously ordered, a virtually unprecedented decision that could expose the investigative tactics of a law enforcement agency to its target.
Kinkeade has ordered Healey to answer Exxon’s questions in a Dallas courtroom deposition Dec. 13. The mandate is part of a sweeping discovery order issued by the judge in October that also could open the door for Exxon to plow through Healey’s internal records related to her investigation.
Healy filed a motion Tuesday asking Kinkeade to stay his order until she has time to file an appeal with the U.S. Circuit Court of Appeals.
Tom McGarity, a University of Texas law professor, said the deposition order is unprecedented based on a judge believing a state prosecutor has allowed political bias to drive a case.
“I’ve never heard of such a thing,” he said. “The court certainly has the power to order a deposition, but I have never heard of that happening in anything like this.”
That bold order flowing from a Texas court has allowed Exxon wide latitude in defending itself against multiple investigations. It also foreshadows a new legal standard that could have chilling consequences on attorneys general across the county, McGarity and other legal experts warn.
“That’s a message to AGs that if they are considering bringing a case against industry, they could be open to questioning about their motive,” McGarity said. “That’s a message the AGs will hear. They may not be intimidated, but it is something that will be a factor in their decisions about what cases, what industry to pursue.”
Healey has been pushing back on the judge’s order that she both open her records to inspection by Exxon as well as travel to Texas to be interrogated by Exxon lawyers, saying that not only does Texas lacks jurisdiction but the order is extraordinary because it allows the target of her investigation to investigate her agency.
“Well-established precedent requires that depositions of high-ranking officials only occur in exceptional circumstances that are not present here,” attorneys for Healey argued in a motion to vacate the deposition order.
Healey had asked the judge to withdraw his deposition order, requesting it be stayed until a hearing could be conducted on all of the arguments being raised.
Saying only that he was rejecting Healey’s requests after “careful consideration,” Kinkeade let stand the deposition order in a one-page decision.
The judge earlier had ordered Healey to submit to Exxon’s written questions and appear in person for a deposition over her probe of the oil giant’s climate change research, saying it will allow him to determine whether “bias or prejudgment” influenced her decision to launch her investigation last April.
Legal experts say Healey likely would refuse to answer most questions. They also say that Exxon could agree to schedule the deposition in Massachusetts to better accommodate Healey’s schedule.
The deposition is part of a larger Exxon legal maneuver in which the company has asked Kinkeade for an injunction blocking both Healey’s investigation and the investigation underway by New York Attorney General Eric Schneiderman, who also has been put on notice that he may have to appear for a deposition.
Exxon did not respond to a request to comment on Monday’s ruling.
Schneiderman filed a motion Monday to block the deposition and discovery orders, saying they would undermine the integrity of an ongoing law enforcement investigation.
“The discovery requests seek privileged, protected testimony, because the deposition of the Attorney General and Senior NYOAG attorneys would necessarily elicit privileged information, and the document requests and written discovery plainly seek privileged information,” according to the motion.
Healey has vowed to fight all of Exxon’s maneuvers.
“Allowing discovery to go forward here would set a troubling precedent by allowing the target of a state government investigation to confound and effectively halt state law enforcement efforts by filing suit in the target’s favored federal forum and permitting the target to ‘investigate the investigator,’” Healey’s attorneys said in a memorandum of law filed in support of the motion to dismiss the deposition.
Healey’s attorneys also said Exxon has betrayed its “contentious, even baiting” strategy for questioning Healey by asking her in written questions previously authorized by the judge to “State, identify, and describe the basis for Your belief that investigating a single company will help combat or limit climate change.”
“It illustrates precisely why depositions of high ranking officials is heavily disfavored.”
Exxon has argued that it should be allowed to question Healey to expose her alleged abuse of prosecutorial authority and her personal biases.
“The Attorney General has no discretion to misuse her prosecutorial powers to stifle ExxonMobil’s speech in an attempt to place a thumb on the scale of an ongoing policy debate,” according to the company’s response to Healey’s motion.
Allowing Exxon to question Healey in the midst of her investigation is like letting a mob figure question investigators about their probe of underworld crime, said Brad Campbell, president of the Conservation Law Foundation.
“It turns law enforcement on its ear,” he said. “It removes the advantage of conducting an investigation without the subject of that investigation being privy to law enforcement’s strategy and tactics.”
That’s one reason federal courts do not generally interfere with state prosecutors, he said.
“What this ruling does is create a special set of rules for Exxon and presumably any other company with Exxon’s resources to second guess an attorney general’s ability to conduct investigations,” Campbell said.