Wisconsin Supreme Court ends 'John Doe' investigations
The Wisconsin state Supreme Court has ruled 4-2 that the "John Doe" investigations targeting Governor Walker and several conservative groups in the state should be ended, and that no violations of the campaign finance law occurred.
Thus ends one of the most bizarre and frightening chapters in the history of American law enforcement. The investigation into whether the Walker campaign colluded with outside groups was marked by pre-dawn SWAT raids on ordinary people's homes, as the hyper-partisan prosecutor – whose wife was an official with a local teachers' union – sought to intimidate conservatives statewide.
Justice Michael Gableman summed up the efforts of Milwaukee County prosecutor John Chisolm's and Special Prosecutor Francis Schmitz's efforts to make a collusion case in stark, accusatory language:
"It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing," Gableman wrote.
The raids on these citizens' homes have to be read to be believed. It will make you question what country you live in. NRO's David French, who has been following this story since the beginning, outlines how the raids went down:
On October 3, 2013, multiple Wisconsin conservatives were awakened by a persistent pounding on the door, their houses were illuminated by floodlights, and police — sometimes with guns drawn — poured into their homes. Once inside, the investigators turned the private residences of these innocent conservative citizens “upside down,” seeking an extraordinarily broad range of documents and information. These raids were supplemented by subpoenas that secured for investigators massive amounts of electronic information.
LI's William Jacobson has the pertinent finding:
Here is the key finding, which completely shreds both the legal theories and motives of the prosecutors, completely vindicates the targets, and praises those who fought back legally against prosecutorial misconduct (emphasis added):
¶133 Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.
While the John Doe investigations are over, the fallout from those investigations continues.
In its first story about the court’s ruling, the New York Times claimed that the case raised “broader questions about how political campaigns and independent groups may interact in the wake of the Citizens United decision by the Supreme Court in 2010, which gave wide latitude to outside campaign spending.” This is wrong. The legal precedent granting broad constitutional protection for issue advocacy is quite clear. The “broader questions” raised by the case are far more consequential: Will the aftermath of the John Doe witch hunt halt a disturbing trend toward attempting to criminalize political disagreements (see, for example, the sham prosecution of Rick Perry in Texas)? Will prosecutors face any legal consequences for launching such an extraordinarily abusive investigation of what is without question constitutionally protected speech?
Chisolm, Schmitz, and other state and local officials responsible for these investigations are going to face a slew of lawsuits – some already filed:
The John Doe-related legal proceedings are far from over. Already, raid victims have filed lawsuits against the prosecutors, alleging systematic and intentional violations of their civil rights. Further litigation is likely. Yet no amount of money can compensate the victims for the moments of sheer terror and the months of deep anxiety that followed the John Doe raids. Eric O’Keefe and the Wisconsin Club for Growth launched the legal challenges that culminated in today’s ruling, and in challenging the partisan prosecutor O’Keefe directly defied the prosecutor’s gag orders at great personal risk. Reached for comment, he notes that the defense of liberty should not rest with judges alone. “It does not take a law degree to know that raiding family homes in the dark to look for political papers is un-American,” he says. “We should not have to wait for judges to tell us that. Legislators across the country need to step up and confront the assaults on liberty coming from the permanent government.”
But AT contributor Mark Fitzgibbons believes that accountability will be elusive in these suits. In an e-mail, Mark points out that prosecutors are granted strong immunity when it comes to judge-issued search warrants. Courts usually side with the government in these cases, he writes.
Todd Graves, an attorney for the Wisconsin Club for Growth, says winning a suit is not necessary to make a point:
In an interview, Graves said more litigation was possible. Asked if the group would seek damages from prosecutors, Graves said it is more interested in making sure facts about how prosecutors operated are disclosed.
"Sometimes embarrassment is more important than money," he said.
Indeed, those who are so offended by "microaggressions" should be equally outraged at the actions of Wisconsin prosecutors. But since they're not the target, it's probable the only sound we will hear from that direction is crickets chirping.
Update: Hans von Spalovsy writes us:
Quite apart from the law, the idea than anyone would not see anything wrong with the dangerous, scary, nighttime raids on people’s homes and families, as if they were part of a drug cartel or a mob operation, is truly appalling. Even if one believes that the prosecutors were correct in their assessment of the applicable law (which I don’t) regarding issue advocacy, and that they had a right to conduct an investigation, this could have been done through routine subpoenas and a more normal civil investigative process, not SWAT-team backed search warrants in the middle of the night.
I find it horrifying that there are individuals in the campaign finance arena like the so-called “reform” organizations who filed amicus briefs supporting the prosecutors, as well as media like the New York Times, who think these types of para-military, police actions against folks involved in issue advocacy and First Amendment activity are justified. If the general counsel of the FEC had come to us with such a proposal when I was a commissioner, I would have done my best to have him fired – we don’t need such abusive, power-hungry bureaucrats working in government. And I would have done that regardless of whether his target was a Democrat, a Republican, or a member of third party. This kind of action in the political arena against anyone, regardless of party, is reprehensible.