The Mysterious Silence of John Chisholm
His unwillingness to answer challenges to John Doe raises questions.
The secrecy orders are one of the most controversial elements of the two John Doe investigations related to Scott Walker–the first of his Milwaukee County administration and the second as to whether his gubernatorial campaign coordinated with outside advocacy groups. The secrecy, has of course left the public at a disadvantage in trying to understand what is going on.
The public’s right to know is widely recognized as a value in a free society. Judge Neal Nettesheim’s order allowing records to be used in connection with Cindy Archer’s suit against five DA office employees lists several reasons for removing the secrecy order. One is to “explain to the public the context in which the civil proceedings were brought in relation to the John Doe investigation.”
Wisconsin Justice Shirley Abrahamson underlined the dangers of excessive secrecy in her dissent to the Wisconsin Supreme Court’s decision to shut down the second John Doe probe. “The court’s treatment of the John Doe material runs directly counter to the public’s longstanding and firmly established right to access judicial records,” she wrote.
Criticism of the secrecy orders has also been a mainstay of the attack on the John Doe investigations coming from the right side of the political spectrum.
These all reflect a recognition that public understanding is an important value in a free society and that, while secrecy may be necessary in a criminal investigation, there is at best a trade-off. The benefits of secrecy need to be balanced against the costs. Secrecy orders conflict with the American tradition of openness in government so they should be carefully tailored to fit the needs and periodically reexamined to see whether they are still justified.
From the viewpoint of the public’s right to know, Archer has performed a public service in bringing her suit. Information contained in the responses to her claims gives the public a view of both the rationale and execution of one of the search warrants for the first time. As my earlier column noted, many of the claims were false or exaggerated.
Secrecy allows speculation to run rampant. On the right, the theory that the investigations were a liberal effort to defeat Walker seem to have been accepted uncritically. On the left, the shut-down of the investigation and the order to destroy or return evidence is widely viewed as evidence of a cover-up.
From a public policy perspective, secrecy has played into the hands of those wishing to end all limits on the growing influence of money in elections. It has led to the overthrow of the Wisconsin law requiring that activity coordinated with campaigns be treated as a contribution to the campaign, and that in turn has put Wisconsin out of sync with federal law. It has also given impetus to the planned overthrow of the Government Accountability Board and its replacement with a much more partisan—and probably toothless—body.
In ordering the first John Doe investigation, Judge Nettesheim gave four reasons given for the secrecy order:
1) To prevent persons from collecting perjured testimony for any future trial,
2) To prevent those interested in thwarting the inquiry from tampering with prospective testimony or secreting evidence.
3) To render witnesses more free in their disclosures.
4) To prevent testimony which may be mistaken, untrue or irrelevant from becoming public.
The first three are aimed primarily at protecting the investigation. Without secrecy, subsequent witnesses might trim their testimony to fit the story from previous witnesses. The third reason suggests that witnesses may feel pressure from others. The two Wall Street Journal editorials excoriating Walker for rumors he had tried to settle with Milwaukee County District Attorney John Chisholm suggest this was a legitimate concern. However, now that the investigation has ended, the reasons for secrecy which support an ongoing investigation would no longer apply.
Judge Nettesheim’s fourth reason is aimed at protecting those members of the public who may have been drawn into the investigation. The fact that evidence is collected at their house or that they are interviewed does not prove they are guilty of a crime, but might be embarrassing or worse if word leaks out. Even if a particular person was indifferent to embarrassment, disclosing the questions from investigators might disclose who else is being investigated. On the Archer tape it is clear there is great interest in whether John Hiller, Walker’s campaign treasurer, was given an unfair advantage in the competition to rent office space to Milwaukee County.
The Cindy Archer pleadings originally named five employees of the Milwaukee DA office as defendants, including Chisholm, two of his assistant DAs, and two investigators with the office. (A recently amended pleading added an additional investigator.) Chisholm and his fellow prosecutors have different attorneys defending them than the investigators do and they seem to be pursuing different legal strategies: they consistently offer less information than the investigators.
For instance, in the response to the accusations made in Archer’s original pleadings, the investigators give far more information than the prosecutors. Most of the documents released, including the tape of the interview with Archer, were released by the investigators. They are also far more forthcoming when describing the investigation. An example is their response to Archer’s charge that the DA did nothing in response to the report that money was missing until Walker emerged as the leading candidate for governor.
In another example, the investigators described why the investigation expanded from the original theft from a charity to four other prosecutions: Brian Pierick for possession of child pornography, Kelly Rindfleisch and Darlene Wink for campaign work on county time, and William Gardner for circumventing Wisconsin’s limit on political contributions.
Another divide between the prosecutors and the investigators shows up on the issue of discovery. The prosecutors oppose discovery; the investigators seem to welcome it. Following a conference which the judge summarized as allowing Archer to submit amended pleadings, the prosecutors’ lawyer sent a letter to the judge suggesting that the judge also stayed discovery. The investigators’ attorney responded that he did not hear the judge say anything about staying discovery.
Part of the difference may stem from the difference in the legal status of the two groups. The lawsuit targets both as individuals. In general public employees enjoy what is called “qualified immunity” so long as their actions are reasonable. In addition, prosecutors—but not investigators—enjoy “absolute immunity,” as do judges, so long as they are acting as prosecutors. This greatly simplifies the prosecutors’ defense if the court agrees that they were acting as prosecutors during the investigations.
The attractiveness of the absolute immunity defense for the prosecutors is easy to understand. Archer’s original pleadings included 165 points, most of which are impossible to test. For example, many of the charges seem to assert an ability to read Chisholm’s mind. The amended pleadings, just released as I write this, add another 60 points. It appears for every claim proved wrong—such as the claim that Archer was refused an attorney—her lawyers will add another two.
While understandable, the absolute immunity defense, if successful, does not serve the public interest in learning how the investigations were conducted. Critics are likely to accuse Chisholm of winning on a technicality. Thus winning on those terms plays into the hands of the investigation’s critics.
Consider the charge that the expansion of the investigations proves they were fishing expeditions. The investigators make a plausible case that investigation of one crime led to evidence of another, but the case is not proven one way or another. The question is whether in each case the investigators stumbled across potential violations or proactively searched them out.
One of the dangers of secrecy is that the guardians of the secrets can choose which secrets to make public and decide to release only those secrets that support their case. The Gableman decision is quite open about doing this, saying “we can interpret the secrecy order and modify it to the extent necessary for the public to understand our decision herein.” As Justice Abrahamson observes, “The majority opinion and Justice Prosser‘s concurrence decide that the secrecy order does not bind the justices of this court. The secrecy order, in their view, binds only the parties and the public.”
One cannot rule out that the investigators are doing just what the state Supreme Court did, selectively releasing information that serves their case. At least that is what the critics could charge if the Archer case is ended before the evidence is put to a trial. But the critics can go further and point to Chisholm’s unwillingness to share information, and ask: what is he hiding?