U.S. Sup Ct refuses to hear prosecutors’ appeal from WI Sup Ct decision shutting down anti-conservative witch hunt.
Who’s the horror movie figure that keeps on popping up just when you think you’ve killed him?
That’s pretty much the nature of the anti-conservative witch hunt carried out under Wisconsin’s so-called John Doe law. Every time the investigation seemed to be beat, the investigating prosecutors would rear their ugly heads.
There was John Doe No. 1, investigating Scott Walker’s time as Milwaukee County Executive. They never came up with any wrongdoing by him. Then there was John Doe No. 2, regarding Walker’s alleged unlawful collusion with conservative groups during the recall election. It is John Doe No. 2 that has generated litigation over the past three years. In the end, every court that ruled on the issue found that the entire prosecution legal theory was legally unfounded — that even if these conservative groups did what they were alleged to have done, it was constitutionally protected speech and not illegal.
Lives were ruined over an attempt to punish constitutionally protected speech by conservatives.
We have several dozen posts about the history of John Doe No. 2 . Scroll through our John Doe (WI) tag.
The investigation was revealed in The Wall Street Journal on November 18, 2013, Wisconsin Political Speech Raid – Subpoenas hit allies of Scott Walker as his re-election campaign looms:
Americans learned in the IRS political targeting scandal that government enforcement power can be used to stifle political speech. Something similar may be unfolding in Wisconsin, where a special prosecutor is targeting conservative groups that participated in the battle over Governor Scott Walker’s union reforms.
In recent weeks, special prosecutor Francis Schmitz has hit dozens of conservative groups with subpoenas demanding documents related to the 2011 and 2012 campaigns to recall Governor Walker and state legislative leaders.
Copies of two subpoenas we’ve seen demand “all memoranda, email . . . correspondence, and communications” both internally and between the subpoena target and some 29 conservative groups, including Wisconsin and national nonprofits, political vendors and party committees. The groups include the League of American Voters, Wisconsin Family Action, Wisconsin Manufacturers & Commerce, Americans for Prosperity—Wisconsin, American Crossroads, the Republican Governors Association, Friends of Scott Walker and the Republican Party of Wisconsin.
There had been a prior disclosure of the investigation, but not by any of the participants. According to the Journal, there apparently was a leak to a Wisconsin reporter considered to have Democratic sources:
The first public reference appeared in an October 21 blog post by Daniel Bice of the Milwaukee Journal Sentinel. Mr. Bice is well known for his Democratic sources.
One of the targets then turned whistleblower and in defiance of demands for secrecy, went to the Journal:
…. The investigation is taking place under Wisconsin’s John Doe law, which bars a subpoena’s targets from disclosing its contents to anyone but his attorneys. John Doe probes work much like a grand jury, allowing prosecutors to issue subpoenas and conduct searches, while the gag orders leave the targets facing the resources of the state with no way to publicly defend themselves.
That makes it hard to confirm any details. But one target who did confirm receiving a subpoena is Eric O’Keefe, who realizes the personal risk but wants the public to know what is going on. Mr. O’Keefe is director of the Wisconsin Club for Growth, which advocates lower taxes, limited government and other conservative priorities. He has worked in political and policy circles for three decades, including stints as national director of the Libertarian Party in 1980 and a director of the Cato Institute, and he helped to found the Center for Competitive Politics, which focuses on protecting political speech.
(note: Michael Lutz in this interview from late April 2015 committed suicide in late July).
The rest, as they say, is history. A sordid, disgusting history of prosecutorial abuse and trampling of constitutional rights all in an effort to bring down Scott Walker. George Will summed the abuse up, George Will – Wisconsin John Doe Investigation a Partisan Abuse of Law Enforcement:
The prosecutors’ cynical manipulation of Wisconsin’s campaign laws is more than the mere appearance of corruption.
Eric O’Keefe’s refusal to be intimidated by lawless law enforcement officials produced Randa’s remarkably emphatic ruling against an especially egregious example of Democrats using government power to suppress conservatives’ political speech.
Wisconsin’s sordid episode began, appropriately, with a sound of tyranny — fists pounding on the doors of private citizens in pre-dawn raids. While sheriff’s deputies used floodlights to illuminate the citizens’ homes, armed raiders seized documents, computers, cellphones and other devices.
In looking back at that post, I saw that I noted that I was with O’Keefe at a wedding. I recall that he was introduced and got a standing ovation:
Here are some key posts in our extensive coverage of the John Doe investigation reflecting the abusive tactics:
- Revealed: Wisconsin John Doe investigation was full-blown anti-conservative fishing expedition
- Exposed: How Prosecutors targeted Scott Walker and conservatives
- Was Prosecutor’s union-operative wife behind “John Doe” investigation of Scott Walker?
- Wisconsin “John Doe” War on Walker wins “Nastiest Political Tactic of the Year”
- Wisconsin Dems used battering rams against Scott Walker supporters – literally
- Former Scott Walker Aide Sues prosecutors for WI John Doe “Home Invasion”
An important chapter was turned when the Wisconsin Supreme Court ordered John Doe No. 2 investigation closed.
The Court found that the actions of which Wisconsin conservatives were accused (so-called “issue coordination”) did not violate the law as written, and if it was a violation, then the law was invalid as a violation of the constitutional protections of free speech and association,Wisconsin Supreme Court stops John Doe investigation against conservatives. Here is the key passage from the Court ruling (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.
Subsequently, in October 2015, Walker has signed legislative reforms to the law meant to avoid the type of politicized witch hunts that took place under the direction of Milwaukee County Prosecutor John Chisholm, Scott Walker signs law emasculating “John Doe”
But it wasn’t over. As I noted last month, prosecutors not only attempted to get the U.S. Supreme Court to overturn the Wisconsin Supreme Court ruling, *someone* also leaked sealed court records, Wisconsin “John Doe” anti-conservative witch hunt enters new level of sleaze:
Putting aside the legalities, however, as the Supreme Court approaches its conference on whether to take the case, sealed court documents regarding Walker and other conservatives, obtained pursuant to the illegal raids, were leaked to The Guardian. The documents were analyzed under the hyperbolic headline: “Leaked court documents from ‘John Doe investigation’ in Wisconsin lay bare pervasive influence of corporate cash on modern US elections.”
In fact, there is very little surprising in The Guardian analysis. Politicians care about politics, include state Supreme Court elections. (You may remember the Prosser versus Kloppenburgelection.) Wisconin media has hype the leak as well, Leaked John Doe documents paint fuller picture of case against Scott Walker campaign, but to no greater effect. All of the things of which Walker and conservatives were accused were not illegal and were constitutionally protected.
Nonetheless, it’s extremely important that the leak was a leak, and not a hack. That means that someone with access to the documents decide to commit a crime by leaking the documents.
Well, today the U.S. Supreme Court refused to hear the case, leaving the Wisconsin Supreme Court ruling shutting down the John Doe investigation intact.
M.D. Kittle at Wisconsin Watchdog — who is THE expert on the John Doe investigations — writes:
On the third anniversary of predawn armed raids on Wisconsin homes in the name of politics, the U.S. Supreme Court has driven the final nail in the coffin of Wisconsin’s politically driven John Doe investigation.
On Monday, the high court rejected a petition by Democratic prosecutors looking to overturn the Wisconsin Supreme Court’s ruling last year declaring the campaign finance investigation unconstitutional.
“It’s the end of a 6-year witch hunt where Milwaukee County District Attorney John Chisholm took a request to investigate missing funds in 2010 and turned it into a taxpayer financed political vendetta,” Wisconsin political strategist R.J. Johnson wrote Monday on Facebook. Johnson was one of dozens of Wisconsin conservatives targeted in the abusive John Doe.
Kittle quotes reactions from several of the targets:
“The U.S. Supreme Court has rejected the appeal of the John Doe prosecutors in the First Amendment witch hunt that was aged in Wisconsin against WMC and others who educated the public with issue ads in 2012 during recall elections,” said Scott Manley, senior vice president of Government Relations for Wisconsin Manufacturers and Commerce, in a statement. WMC was among 29 conservative groups targeted in the John Doe.
“At every step of the process, the prosecutors were repudiated under the First Amendment and the Wisconsin Constitution,” Manley added.
Chisholm has not returned Wisconsin Watchdog’s many requests for comment.
Todd Graves and Edward Greim, attorneys for O’Keefe and his Wisconsin Club for Growth, said the prosecutors “have lost at every conceivable level.”
“From its inception, this proceeding was a politically motivated attack and a criminal investigation in search of a theory,” O’Keefe said in a statement. Wisconsin Club for Growth was extensively targeted in the probe.
“But even though they never brought a charge, the prosecutors did achieve one of their major goals: the unlawful seizure of millions of private communications to create a searchable database of political intelligence spanning Wisconsin and the entire country,” O’Keefe said. “This is perhaps the most disturbing legacy of John Doe II.”
Now, the ball is back to the state Supreme Court, which has said it would enforce its order should Chisholm and his fellow DAs fail in their petition before the U.S. Supreme Court.
O’Keefe said it is time for the prosecutors to “end their desperate rear-guard action, surrender these unlawfully seized materials, and submit to the lawful authority of the court system.”
Is Wisconsin John Doe really, truly, absolutely, forever dead?
Chisholm has suggested that there may be other avenues of prosecution outside the statute. So we’ll see if Wisconsin John Doe rises from the ashes of multiple court defeats.
Perhaps the only way to stick a fork in Wisconsin John Doe is to put Chishom and the others on trial. That may happen, with any luck.
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