John Doe (WI) Tag

Welcome to the Soviet Socialist Republic of Wisconsin Democratic Prosecutors:

The early-morning paramilitary-style raids on citizens’ homes were conducted by law enforcement officers, sometimes wearing bulletproof vests and lugging battering rams, pounding on doors and issuing threats. Spouses were separated as the police seized computers, including those of children still in pajamas. Clothes drawers, including the children’s, were ransacked, cellphones were confiscated and the citizens were told that it would be a crime to tell anyone of the raids.

That's what George Will calls The nastiest political tactic this year. Will was describing how dozens of conservative activists were targeted by Milwaukee County District Attorney John Chisholm in connection with the John Doe (No.2) investigation of supposed campaign law violations. That would be the same John Chisholm whose wife is a school union representative and who, according to a whistleblower, drove the investigation out of fury over Governor Scott Walker's collective bargaining reform bill. John Doe No. 2 relates to Walker's recall campaign, in which he defeated a national union effort to oust him, and whether there was illegal coordination with the conservatives who were targeted in the raid. A state court judge already has ruled that even if there was such coordination, it was not illegal. A federal District Court ruled the same way, but was reversed by the federal appeals court primarily on procedural grounds as to whether a federal court should interfere in a state investigation. The federal case may be headed to the U.S. Supreme Court in what could be another blockbuster campaign regulation case on the scale of Citizens United, if the court takes the case. In a second federal case brought by a different conservative group, the same District Judge ordered Wisconsin not to enforce its coordination law as relates to issue advocacy.  We'll see if that holds up on appeal. More from Will's column, calling John Doe No. 2 the "nastiest episode" of this political season:

The 7th Circuit Court of Appeals has vacated a District Court injunction prohibiting Wisconsin prosecutors from utilizing a "John Doe" proceeding investigating Scott Walker and conservatives. (Full Opinion embedded at bottom of post.) The Court ruled that it was an issue for the state courts, not the federal courts. While not ruling on the ultimate issue of whether the conduct at issue was protected under the First Amendment, the Court ruled that the law on that issue was not so clear that a federal court could take the extraordinary step of enjoining a state court issue. The Court suggested that the U.S. Supreme Court may have to one day decide whether "issue advocacy" is beyond the purview of campaign regulation. Whether the John Doe targets/plaintiff will try to get the Supreme Court to take the case at this stage to decide the constitutional issues remains to be seen. Whether the Supreme Court would take the case also is a question mark. Because the state courts already were addressing the issue, and in fact a state court judge had refused to issue any more subpoenas effectively halting the case, the Appeals Court deferred to the state court system to resolve the issues. From the Opinion:

The issuance of injunctive relief directly against Judge Peterson is hard to justify in light of the Anti-­‐‑Injunction Act, and the district court did not try to do so. The Anti-­Injunction Act embodies a fundamental principle of federalism: state courts are free to conduct their own litigation, without ongoing supervision by federal judges, let alone threats by federal judges to hold state judges in contempt.... One important question is whether the plaintiff suffers irreparable injury. O’Keefe and the Club say yes, because donations have dried up, but that’s not the right temporal perspective. We must ask whether the injury would be irreparable if the federal court were to stay its hand. And it is hard to see that kind of injury, because plaintiffs obtained effective relief from Judge Peterson before the federal judge acted—indeed, before filing this suit.... A second important question is whether the plaintiff has adequate remedies at law (which is to say, without the need for an injunction). That Judge Peterson entertained and granted the motion to quash shows that the answer is yes. A third important question is whether federal relief is appropriate in light of normal jurisprudential principles, such as the rule against unnecessary constitutional adjudication.....Yet the district court waded into a vexed field of constitutional law needlessly. Judge Peterson had already concluded that the investigation should end as a matter of state law, because prosecutor Schmitz lacks evidence that state law has been violated. The result is an injunction unnecessary at best, advisory at worst.

The Appeals Court refused to decide the First Amendment issue, ruling that the John Doe plaintiffs (who received subpoenas) may one day be vindicated, but that vindication on constitutional grounds would have to come from the Supreme Court:

Plaintiffs’ claim to constitutional protection for raising funds to engage in issue advocacy coordinated with a politician’s campaign committee has not been established “beyond debate.” To the contrary, there is a lively debate among judges and academic analysts. The Supreme Court regularly decides campaign-­‐‑finance issues by closely divided votes. No opinion issued by the Supreme Court, or by any court of appeals, establishes (“clearly” or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-­‐‑advocacy groups—let alone that the First Amendment forbids even an inquiry into that topic. The district court broke new ground. Its views may be vindicated, but until that day public officials enjoy the benefit of qualified immunity from liability in damages. This makes it unnecessary for us to consider whether any defendant also enjoys the benefit of absolute prosecutorial immunity, which depends on the capacities in which they may have acted at different times.....

So where does this leave us? The John Doe investigation now will be fought in the Wisconsin state courts. That creates a cloud of uncertainty for Wisconsin conservatives, but as of this moment, the state courts effectively have halted the investigation. The Appeals Court ordered the case dismissed, but that seems odd (I want to reflect on this) since there are damage claims apart from the injunction. UPDATE: The attorneys for the John Doe Plaintiffs issued the following statement:

Statement of David B. Rivkin, Jr., Attorney for the Wisconsin Club for Growth and Eric O’Keefe The Seventh Circuit’s decision today, while disappointing, does not revive the John Doe investigation, which John Doe Judge Gregory Peterson found violated state law. It does not lend any support to Milwaukee County District Attorney John Chisholm’s allegations against the Wisconsin Club for Growth, given that he has failed to identify a single advertisement by the Club that was coordinated with Scott Walker or even had anything to do with Walker’s campaign. And it does not alter our resolve. We will ask the Seventh Circuit to correct today’s mistaken decision, and we will continue to fight this abuse of government power. Today’s decision does not honor a federal court’s duty to vindicate and protect Americans’ rights under the U.S. Constitution. The Wisconsin Club for Growth and Eric O’Keefe did not only challenge a subpoena or a John Doe proceeding—as the Seventh Circuit assumed—but a years’ long campaign of harassment and intimidation by Milwaukee County District Attorney John Chisholm to retaliate against the Club, Mr. O’Keefe, Wisconsin conservatives, and Governor Scott Walker. According to a whistleblower who worked under Chisholm, the District Attorney declared it his “personal duty to stop Walker” and undermine Walker’s economic reforms—a vow that led to his targeting nearly the entirety of Wisconsin’s conservative movement. The Seventh Circuit’s view that a federal court is powerless to enjoin this blatant abuse of prosecutorial power in violation of citizens’ First Amendment rights is simply wrong.

Here is the Opinion:

In our post on September 9, we asked Was Prosecutor’s union-operative wife behind “John Doe” investigation of Scott Walker?. That post was based on a report by the well-regarded legal reporter Stuart Taylor about anti-Scott Walker political bias in the office of Milwaukee District Attorney John Chisholm, who has led the "John Doe" investigations against Walker and a wide-range of conservative activists in Wisconsin. In his report, District attorney’s wife drove case against Wis. Gov. Walker, insider says, Taylor reported, among other things:

…. Walker became a national figure in 2011, when his “Budget Repair” bill cut state spending and sharply curbed public employee unions — perhaps the biggest reversal of public union power in U.S. history. Conservatives were delighted and liberals alarmed. Now a longtime Chisholm subordinate reveals for the first time in this article that the district attorney may have had personal motivations for his investigation. Chisholm told him and others that Chisholm’s wife, Colleen, a teacher’s union shop steward at St. Francis high school, a public school near Milwaukee, had been repeatedly moved to tears by Walker’s anti-union policies in 2011, according to the former staff prosecutor in Chisholm’s office. Chisholm said in the presence of the former prosecutor that his wife “frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved … She took it personally.”

The reaction to Taylor's report was furious and aggressive, but from an unlikely source: The Milwaukee Journal Sentinel, which not only outed Taylor's confidential source, but personally attacked the source in a detailed column by reporter/columnist Daniel Bice, Source who accused Chisholm of vendetta has troubled past. When I first read Bice's column, the two things struck me.

We have covered the onslaught unleashed by Democratic District Attorney John Chisholm on Governor Scott Walker and conservatives in Wisconsin many, many times. We note the obsessive nature of the investigation, and how it seemed that Chisholm found the man -- Scott Walker -- and was searching for the crime. In a blockbuster revelation, Stuart Taylor at Legal Newsline reports that Chisholm's wife, who is a union operative, may be the motivating force, District attorney’s wife drove case against Wis. Gov. Walker, insider says:

.... Walker became a national figure in 2011, when his “Budget Repair” bill cut state spending and sharply curbed public employee unions — perhaps the biggest reversal of public union power in U.S. history. Conservatives were delighted and liberals alarmed. Now a longtime Chisholm subordinate reveals for the first time in this article that the district attorney may have had personal motivations for his investigation. Chisholm told him and others that Chisholm’s wife, Colleen, a teacher’s union shop steward at St. Francis high school, a public school near Milwaukee, had been repeatedly moved to tears by Walker’s anti-union policies in 2011, according to the former staff prosecutor in Chisholm’s office. Chisholm said in the presence of the former prosecutor that his wife “frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved … She took it personally.” Citing fear of retaliation, the former prosecutor declined to be identified and has not previously talked to reporters.

Wisconsin Gov. Scott Walker has been the subject of a brutal smear campaign by local district attorneys using the so-called "John Doe" procedure, as discussed in my post Media Malpractice – Report false criminal accusations against Walker, but not contrary judicial rulings. I also encourage you to read Gabriel Malor's column, A Basic Primer On The Scott Walker Case For Ignorant Reporters. Since it's obvious the media, particularly on the left, is running with the false accusations to damage Walker's current 2014 gubernatorial campaign and possible 2016 presidential bid, it's important that the media malpractice be exposed and the lies refuted. As with smears against Republicans in the past, it's not about the particularly target, in this case Walker.  It's about the media's desire to take down potential Republican candidates early and often, without regard to the truth. We've seen it already in the disgusting attack in The New Republic by Alec MacGillis claiming that Walker's success is based on white racism, New Republic’s race-baiting of Scott Walker just a 2016 warm up. Gov. Walker has written the following column, which he is encouraging others to run. It's a way of going around the mainstream media. Every single conservative blog and website should run this column. Here is Gov. Walker's column: