Wisconsin Witch Hunt Goes Down in Flames
The state Supreme Court gave a thorough smackdown.
In Wisconsin, the “John Doe II investigation” undertaken against Governor and now-presidential candidate Scott Walker and his supporters by Milwaukee district attorney John Chisholm, a partisan Democrat hack, has been thoroughly repudiated by the Wisconsin Supreme Court.
“To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law,” the Court stated. “Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge [Gregory] Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.”
The Court then leveled both barrels at special prosecutor Francis Schmitz, who had targeted Walker and 29 conservative groups, based on the theory that these groups had illegally coordinated their activities during recall campaigns of Walker and other Republican legislators. In reality, all of them were targeted for supporting Act 10, which curtailed the power of public service employee unions. “The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection,” the Court stated. Even more damning, the Court excoriated the special prosecutor’s “theories,” explaining they “would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.”
And that’s exactly what happened to those entangled in the second effort to bring Walker down following Democrats’ failure to remove the governor in the recall election in 2012. In April, National Review’s David French documented the Gestapo-like tactics employed by these would-be totalitarians, who conducted raids in which dozens of police equipped with battering rams surrounded and ransacked homes, seizing personal computers and other family belongings. And on the way out, these government invaders issued a warning to everyone involved: Don’t utter a word to anyone about what happened, because a gag order is in place.
Despite that ostensible confidentiality, at least one of the families raided by these thugs had their names leaked to the media.
One of the targeted groups, Wisconsin Club for Growth (WCFG) and its founder Eric O'Keefe, fought back, filing a lawsuit in Waukesha County Circuit Court for himself and on “behalf of others similarly situated.” He alleged prosecutors violated his First Amendment rights and that Wisconsin’s Government Accountability Board (GAB) backed that effort using powers they didn’t have. At the state level, Judge Gregory Peterson, who replaced Judge Barbara Kluka after she recused herself without offering a reason, sided with O'Keefe and blocked multiple subpoenas. Peterson’s ruling prompted O'Keefe to file suit against Chisholm and a number of additional defendants in federal court. When U.S. District Judge Rudolph Randa granted a preliminary injunction halting the investigation, and hammered prosecutors “for exercising issue advocacy speech rights that on their face are not subject to the regulations or statutes the defendants seek to enforce,” the Seventh Circuit Court of Appeals dismissed the case on appeal. They claimed the federal Anti-Injunction Act did not allow them to issue injunctions in some state court-related cases. An appeal to the United States Supreme Court followed, but SCOTUS declined to hear it.
Now all of these various machinations have been rendered irrelevant. That’s because the Wisconsin Supreme Court used the state constitution to nix this partisan witch hunt. And since that Court gets the final say on what the state constitution requires, the 4-2 ruling quashes further federal involvement.
The ruling infuriated Schmitz, who had tried to tilt the Court in his favor in February when he insisted that Judges Michael Gableman and David Prosser recuse themselves because they had received campaign contributions from the groups under investigation. They refused, and Court rules say political spending on its own is insufficient to force a judge’s recusal.
Schmitz took yet another hit when the Court lauded O'Keefe and company for pursuing justice — and hammered the special prosecutor yet again:
“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.”
One need only imagine what might have happened if these innocent citizens didn’t have the wherewithal to challenge this blatant abuse. As Prosser wrote, the subpoenas were “so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison.”
Todd Graves, the attorney who represented O'Keefe and the WCFG, said more litigation was possible, indicating that exposing how this investigation was conducted takes precedence over monetary damages. “Sometimes,” Graves said, “embarrassment is more important than money.”
Perhaps, but embarrassment is insufficient as well. The public intimidation of innocent people, the concomitant attempt to destroy their reputations as a “message” to other would be donors and the attempt to criminalize free speech demands justice. A vigorous investigation of the John Doe investigators is a great place to start.