Exxon probe shifts fo­cus to Tiller­son

Northwest Arkansas Democrat-Gazette - - BUSINESS & FARM - STEVE PEO­PLES

NEW YORK — “Wayne Tracker” can­not be forced to tes­tify un­der oath. He does not ex­ist.

But the man who used the “Tracker” alias, U.S. Sec­re­tary of State Rex Tiller­son, can be ques­tioned — and is in­creas­ingly ex­pected to be — as New York At­tor­ney Gen­eral Eric Sch­nei­der­man ex­pands his in­ves­ti­ga­tion into whether Tiller­son’s for­mer em­ployer, ExxonMo­bil, mis­led in­vestors about the im­pact of cli­mate change.

Sch­nei­der­man’s of­fice con­sid­ers the na­tion’s chief diplo­mat a cen­tral fig­ure in a case that pits the am­bi­tious Demo­crat against a Texas en­ergy gi­ant and has di­vided at­tor­neys gen­eral na­tion­wide. Repub­li­can state pros­e­cu­tors from South Carolina to Utah, like Exxon’s high-pro­file le­gal team, ac­cuse the New York at­tor­ney gen­eral of abus­ing the power of his of­fice to score po­lit­i­cal points with his lib­eral base on a po­lit­i­cally ex­plo­sive is­sue.

It re­mains un­clear whether Sch­nei­der­man will ul­ti­mately force Tiller­son to an­swer ques­tions un­der oath, but he told The As­so­ci­ated Press he has the le­gal au­thor­ity to ques­tion the sec­re­tary of state, who served as Exxon’s chief ex­ec­u­tive of­fi­cer un­til join­ing Pres­i­dent Don­ald Trump’s ad­min­is­tra­tion.

“We haven’t got­ten to the point where that’s nec­es­sary, but yeah, we have the le­gal right to con­duct de­po­si­tions. I don’t know that we’re go­ing to have to get to Mr. Tiller­son, but sure,” Sch­nei­der­man told the AP when asked whether he has the right to ques­tion Tiller­son.

The New York at­tor­ney gen­eral’s non­cha­lant tone does not re­flect the in­ten-

● sity of the case or his of­fice’s ex­pec­ta­tion that it will likely lead to Tiller­son. But in an in­ves­ti­ga­tion that has al­ready spanned 18 months and forced Exxon to re­lease roughly 3 mil­lion in­ter­nal doc­u­ments, the con­fronta­tion could be sev­eral months or even years away.

Sch­nei­der­man opened the Exxon in­ves­ti­ga­tion in Novem­ber 2015, shortly after reach­ing a set­tle­ment with an­other fos­sil fuel gi­ant, Pe­abody Coal. In that case, Sch­nei­der­man’s of­fice de­ter­mined that the coal com­pany mis­led share­hold­ers, reg­u­la­tors and the pub­lic about the com­pany’s fi­nan­cial risks re­lated to cli­mate change.

Now, Sch­nei­der­man is us­ing the sub­poena power of his of­fice to de­ter­mine whether Exxon did the same.

The New York at­tor­ney gen­eral’s of­fice said the in­ves­ti­ga­tion has al­ready un­cov­ered “Exxon’s sig­nif­i­cant po­ten­tial in­vestor fraud,” in­clud­ing ev­i­dence that Tiller­son him­self may have ap­proved ac­count­ing dis­crep­an­cies.

After be­ing forced to pro­duce in­ter­nal com­mu­ni­ca­tions about the im­pact of

cli­mate change on its busi­ness, Exxon ear­lier this year ac­knowl­edged that Tiller­son used the “Wayne Tracker” alias dur­ing email com­mu­ni­ca­tions. The com­pany said the alias was cre­ated to help the for­mer CEO avoid a flood of mes­sages after en­vi­ron­men­tal ac­tivists ob­tained his ac­tual email ad­dress.

Most of the “Tracker” emails have been per­ma­nently deleted, Exxon said, cit­ing the com­pany’s reg­u­lar prac­tice of de­stroy­ing emails after a cer­tain pe­riod of time. Exxon of­fi­cials tes­ti­fied that the com­pany al­lowed sev­eral months of Tiller­son’s emails to be deleted even after Sch­nei­der­man’s of­fice flagged them for preser­va­tion.

For now, Exxon said that many of the mes­sages can be re­trieved by col­lect­ing emails from those he com­mu­ni­cated with.

Exxon’s le­gal team fea­tures Ted Wells, who pre­vi­ously rep­re­sented to­bacco gi­ant Philip Mor­ris and drug­mak­ers Merck and Johnson & Johnson. Wells de­clined an on-the-record in­ter­view re­quest, but he lashed out at Sch­nei­der­man dur­ing a re­cent court hear­ing.

He cast Sch­nei­der­man as an am­bi­tious politi­cian stuck in a lengthy and ex­pen­sive fish­ing ex­pe­di­tion. For

Sch­nei­der­man to con­clude his years­long in­ves­ti­ga­tion with­out bring­ing a for­mal law­suit against Exxon, Wells said, would deeply dis­ap­point Sch­nei­der­man’s lib­eral sup­port­ers be­fore his 2018 re­elec­tion.

“This is not a nor­mal in­ves­ti­ga­tion. It is a po­lit­i­cal witch hunt,” Wells told the judge. “They can­not clear Exxon. The at­tor­ney gen­eral can­not be in a po­si­tion of clear­ing the largest fos­sil fuel oil com­pany in the world.”

The po­si­tion is backed by Repub­li­can at­tor­neys gen­eral in 12 states, led by Texas At­tor­ney Gen­eral Ken Pax­ton, who filed a friend-of-the­court brief late last month in a re­lated fed­eral case brought by Exxon to try to block Sch­nei­der­man’s in­ves­ti­ga­tion. They ar­gue that the at­tor­neys gen­eral in New York — and Mas­sachusetts, which is also in­ves­ti­gat­ing Exxon — are abus­ing their power to prove a po­lit­i­cal point about cli­mate change.

At the same time, Rep. La­mar Smith, R-Texas, is us­ing his con­gres­sional sub­poena power to seek doc­u­ments from the New York at­tor­ney gen­eral’s of­fice de­tail­ing com­mu­ni­ca­tion with en­vi­ron­men­tal groups. Smith also wants to de­pose Sch­nei­der­man him­self, an or­der that the New

York Demo­crat is ig­nor­ing.

In a state­ment to the As­so­ci­ated Press, Sch­nei­der­man slammed ef­forts to “de­lay and dis­tract” from the in­ves­ti­ga­tion and vowed to con­tinue search­ing “for as long as it takes to get to the bot­tom of what re­ally hap­pened at Exxon.”

His of­fice will de­pose nine Exxon wit­nesses in the com­ing weeks in a se­ries of low­er­level de­po­si­tions in a chain that is ul­ti­mately ex­pected to lead to Tiller­son. The State Depart­ment de­clined to com­ment on Tiller­son’s in­volve­ment in the Exxon probe. The sec­re­tary of state, nom­i­nated by the Repub­li­can Trump, has re­tained a pri­vate at­tor­ney to rep­re­sent him in the mat­ter.

The judge pre­sid­ing over Sch­nei­der­man’s in­ves­ti­ga­tion, New York Supreme Court Jus­tice Barry Os­trager, has been crit­i­cal about both sides’ be­hav­ior.

“If you’re ask­ing me to state on the record that Exxon has be­haved in an ex­em­plary man­ner, I de­cline to do so,” Os­trager said in a re­cent hear­ing. “If Exxon is ask­ing me to state on the record that the New York AG has pro­ceeded in an ex­em­plary man­ner, I de­cline to do that also.”

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