Bruce Murphy
Murphy’s Law

The Revenge of Scott Walker?

Law killing John Doe law assures no more such probes targeting him. But was reform needed?

By - Oct 27th, 2015 10:22 am
Gov. Scott Walker. Photo from the State of Wisconsin.

Gov. Scott Walker. Photo from the State of Wisconsin.

No one ever said Scott Walker lacked chutzpah. On Friday the governor signed a law that will largely end John Doe investigations, two of which had targeted him. The first one resulted in six convictions, including three of his staff who served him when he was county executive. The second one was shut down by the Wisconsin Supreme Court before it could complete its work. He and his staff are now safe from any further such probes. The New York Times, in an editorial, called it “The Revenge of Scott Walker.”

Wisconsin’s John Doe law goes back to the 19th century and has been used many times since then to go after wrong-doers, yet never has there been a move by either Democrats or Republicans to overthrow the law. Yet after more than a century of its use, we’re now told it is an outrageous and unusual law that is not used by other states. That certainly sounds bad, so why didn’t Republicans call for a study, for a history of the law’s use in this state or an analysis of how the law compares to those in other states and its costs and benefits?

Instead they moved to passage as quickly as possible while offering some suspect attacks on the John Doe.

Rep. Joe Sanfelippo (R-New Berlin) compared the Doe investigators’ behavior to that of the Nazis in World War II. Aside from the offensiveness of comparing a police state that killed six million Jews to prosecutors who inconvenienced a small group of people with their investigations, Sanfelippo offered no evidence for his claim of officers “terrorizing people in their homes.”

The idea that prosecutors oversaw “paramilitary” raids violating suspect’s rights has been repeated like a broken record but never proven. The only recording of these investigations released shows a very polite investigator who gave the suspect, Cindy Archer, her Miranda rights and in fact was quite empathic to her, no doubt in hopes of getting her to talk. The Wisconsin Supreme Court, in its decision shutting down the John Doe probe, accepted the unproven horror stories without adjudicating the issue, without requesting briefs by either side on the matter or allowing the prosecutors to respond. (As I’ve previously reported, the four justices making this ruling had all gotten more than half of the financial support for their election to office from two parties to the case.)

As special prosecutor Francis Schmitz noted, “There has been no fact-finding hearing conducted at any level establishing… that search warrants were executed unprofessionally or that persons were denied an opportunity to contact their attorneys. All of these search warrants were audio-recorded and it is wrong for the court to accept as true the information alleged.”

But we will never hear these audio recordings. The Supreme Court called for all evidence to be destroyed. And the new law Walker just signed also bars Schmitz and his fellow prosecutors from ever discussing the case while allowing those investigated, led by the ever-effusive Eric O’Keefe, head of the Wisconsin Club for Growth, complete freedom to trash the prosecutors.

Walker called the new law a “common sense reform..” that would “protect free speech,” while Republican legislators hailed it as a victory for the First Amendment. They’ve cited two ways speech is curtailed.

First, as O’Keefe’s lawyer argued, the Doe investigation sought to prevent O’Keefe and company from spending money on political advocacy and exercising their free speech. But as the late Justice Patrick Crooks noted in his dissent to the Wisconsin Supreme Court decision, O’Keefe was merely constrained from coordinating those activities with political campaigns, a coordination the U.S. Supreme Court has for decades said is not allowed under the law.  “In the absence of coordination, the contributor is free to discuss candidates and issues,” Crooks noted.

The second example of free speech being violated, according to Republicans, is that O’Keefe and other parties being investigated were barred under the old law from discussing the case with anyone. The idea of this secrecy is that those being investigated can’t collude to make sure their answers to questions don’t contradict. Convenient for the prosecution, but is it “screamingly unconstitutional,” as U.S. 7th Circuit Court Judge Frank Easterbrook declared in an oral argument? It does leave you wondering: how is this handled in other states and what are the costs and benefits of that approach? But no such analysis was undertaken by the legislature.

Republicans have also echoed talk radio entertainers like Charlie Sykes who’ve called the John Doe probe a partisan “witch hunt.” There’s no doubt that Democratic Milwaukee County D.A. John Chisholm, who oversaw the probe, is aggressive, but in a bipartisan way. He had previously investigated two Democratic county supervisors, including a case involving then board member Johnny Thomas that Sykes blasted as a clear case of “prosecutorial over-reach.” But however tough Chisholm is, he had to convince many in the state’s legal community to join in or approve the probe. That included special prosecutor Schmitz, who voted for Walker in the recall election and was once a member of the Republican Party, two Republican district attorneys helping in the investigation, Jane Kohlwey of Columbia County and Kurt Klomberg of Dodge County, and three circuit court judges appointed by Republicans, who made decisions facilitating the investigation.

Republican legislators have also argued that the new law would protect people from prosecutorial overreach. Nonsense. As the Times noted, “Grand juries conduct investigations like this every day, at much greater expense and inefficiency, and rarely to any protest.” The old law required any prosecutor conducting a John Doe to get permission from a judge and in fact the judge overseeing the second John Doe probe, Gregory Peterson, had some misgivings, and halted the probe until higher courts took up the issue.

All that said, it may be that the old law needed to be reconsidered and reformed in some way. But the Republicans basically trashed the law, and in a manner that leaves you thinking they couldn’t make the case to overturn it.

If Republicans feel secret John Doe investigations are so horrible, why not commission a study that we can all learn from, to show the need for reform?

And if John Doe probes are so unjust, why does this new law still allow them to be conducted in the case of serious crimes except those committed by politicians? Why are only those committing political felonies, like bribing a public official, totally protected from a Doe investigation?

Finally, if the Doe probe is such a clear case of prosecutorial overreach, why not demand that Chisholm and Schmitz testify and explain their actions so we the public can understand how truly egregious this investigation was. Instead, the new law muzzled Chisholm and all the prosecutors, both Democrats and Republicans, preventing them from ever discussing the case. The new law also muzzled the members of the Government Accountabilty Board, all retired judges of whom the majority are Republicans, from ever discussing the case. Meanwhile their critics are legally free to trash the prosecutors and the GAB.

The new law is likely to make it harder to prosecute corrupt politicians of either party. Assembly leader Peter Barca (D-Kenosha) charged Republicans with “an abuse of power.” He might have added that they are guilty of cowardice. Frightened that they might be exposed for passing this largely unneeded law, they moved as quickly as possible while preventing any real public policy discussion. It’s getting to be an ugly habit.

Categories: Murphy's Law, Politics

27 thoughts on “Murphy’s Law: The Revenge of Scott Walker?”

  1. Scott Lenkey says:

    It’s as sad as it is frightening.

  2. wisconsin Conservative Digest says:

    Amateur reporting Bruce.

  3. blurondo says:

    The Tea Party = racism + retaliation.

  4. Kevin Baas says:

    Well thought out. Brought up some good questions / points that I didn’t even think of.

  5. Peter Felknor says:

    WCD: Exactly how is this “amateur reporting”? Specifics, please.

  6. Kevin Baas says:

    I get the feeling that in just saying its “amateur reporting” — whatever that means — he was hoping to avoid having to name any specifics. Seems like the goal was just to insult for the sake of it.

  7. John Michlig says:

    The always ironic “wisconsin Conservative Digest” tosses allegations of “amateur reporting” while forgetting how a comma works.

  8. Paul Berge says:

    This was the Corrupt Politicians Protection Act, pure and simple.

  9. tim haering says:

    Amateur reporting? It’s commentary. “I heard that Commentary and Dissent had merged and formed Dysentery.” — Alvy SInger. I heard calumny merged with columnist and formed calumnist. Write on, Bruce.

  10. Wisconsin Liberal Digest says:

    Asking for specifics from someone that uses a fake screen name?

  11. John says:

    His name is Bob Dohnal. He runs a great website, full of in depth and unbiased reporting any Journalist would be proud of.

  12. Kevin Baas says:

    Somehow i’m skeptical of that. From what I’ve seen of conservative sites, they can’t even get basic science right. And as far as news goes, Fox news is a prime example: watching it actually makes you LESS informed than people who don’t watch any news at all. ( ) There’s the question there of correlation vs. causation, though. Harder to demonstrate, but possible. Though certainly in favor of causation is that on trusted fact-checking sites, they’ve one the pants-on-fire award pretty much every year, and more than 60% of the checked “facts” are lies

    A bit of a digression there – we’re not talking about Fox. I’m just saying claiming that a conservative site offers “in depth and unbiased reporting” bears with it a substantial burden of evidence. The journalistic integrity of conservative sites and news sources, especially well-known ones, are usually found to be greatly wanting.

  13. John Michlig says:

    How could a web site with “Conservative” (or “Liberal,” or “Elvis Rules!”) in its title be anything but unbiased?

  14. John says:

    I was being wholeheartedly sarcastic. The guy is a troll and sadly representative of politics these days. Caters to low information voters.

  15. Allison says:

    I will enjoy watching all the liberals on this entertainment disguised as news blog constantly obsessed with Scott Walker line up like lemmings next year to vote for Hillary Clinton. At least Walker didn’t have his own personal email server to be wiped clean once he decided to run for prez. I would hope the liberals here would hold her to the same standard as Walker. Doubtful. They’ll be busy doing what they always do, yelling/screaming/calling the Republicans racist/sexist/homophobes.

    FYI-She is the candidate tight with the Wall Street banks, who voted to send us into on failed wars in Iraq and Afghanistan, authorized more domestic surveillance, and as First Lady supported Defense of Marriage and NAFTA. Hillary 2016!

  16. John Michlig says:

    “Allison,” that was certainly a collection of words.

  17. John Michlig says:

    Kevin, I admire your patience, but I don’t think a person who ignores “resulted in six convictions” is going to be bothered by Walker’s activities. After all, God talks to him and stuff.

  18. Justin says:

    Bruce, excellent reporting and writing once again!!! However, Bruce, I am concerned for your health and safety if you continue to expose the corruption of Scott Walker and his allies in Wisconsin. Scott Walker and his Republican allies have CRUSHED anyone who dared to stand in their way of making Wisconsin the most CORRUPT state in America.

    We already live in a state where the legal signing of a petition to recall Governor Walker can be used to deny employment for state, local, and private employers. In Walker’s Wisconsin, it is already legal for employers to refuse to hire on the basis of political beliefs and affiliation. Many private employers posted on their FaceBook sites that the first pre-employment screening tool they use, to this day, is the Walker Recall Petition registry. Many private employers tell applicants not to even bother applying if they do not support Governor Walker 100% today or if they signed any petition to recall a Republican or Governor Walker.

    How long will it be before Bruce’s office is raided by a Wisconsin State Police Strike Team and Bruce Murphy is arrested and thrown in prison for Crimes Against the State? In Walker’s Wisconsin, writing about the massive corruption that plagues all levels of Republican dominated state government will soon be illegal and punished by arrest and imprisonment. Bruce, we love the great investigative reporting you do, but in a state dominated by REPUBLICAN CORRUPTION, is it worth your career or your freedom to continue to expose the corruption of Scott Walker and his Republican allies?

    Look what Steven Biskupic did to Georgia Thompson to create an “issue” for Mark Green to run for Governor on. What do you think it would be worth to Scott Walker to have YOU permanently silenced, either by arrest or whatever means are necessary?

    Please be careful Bruce. There is NO LIMIT to the level of Republican CORRUPTION in Walker’s Wisconsin.

  19. Matt W. says:

    The ignorance of the average conservative never ceases to amaze me.

  20. Vincent Hanna says:

    OK I really strongly dislike Walker and the Republicans in the state legislature, but Justin you can’t be serious? That post is like the polar opposite of Glenn Beck claiming Obama would imprison his political opponents in FEMA camps. Walker is not going to have a journalist put in prison. This isn’t Turkey.

  21. Justin says:

    Yes I am serious. This isn’t Turkey, this is Walker’s Wisconsin. Scott Walker will do whatever, to anyone, that he can get away with. If he felt his big money donors would support him arresting and imprisoning his opponents, he would do it in a heartbeat. Georgia Thompson is lucky that she was allowed to LIVE when Biskupic manufactured “evidence” to throw her in jail. Walker won’t make that mistake again.

  22. Marie says:

    Justin describes an extreme case–and Bruce may be protected from retaliation in part by his public role. However, those seeking employment with the state, or perhaps a loan etc. are certainly vulnerable. The proposed changes to the civil service structure would mean that prospective hirees would be screened by the Department of Adminstration, part of the Governor’s office. Sanctioned cronyism and “purity” testing.

    Walker rejected a proposed student appointee to the UW Board of Trustees because he had signed a recall petition. This is the kind of cronyism/patronage that takes place in totalitarian countries. Just because we still have some legal recourse (though a Supreme Court primarily funded by the same people who engineered the gerrymandered GOP takeover. It may take decades or longer to recover from orchestrated single party control and corruption.

  23. Vincent Hanna says:

    Marie what you are describing is not the same as imprisoning or even assassinating political opponents. Justin is off the deep end. There is plenty of legitimate Walker criticism. We don’t need to resort to claims that he will have the opposition murdered. Don’t right-wing loons still claim Bill Clinton had Vince Foster killed? That’s crazy talk.

  24. John Michlig says:

    One of the things Mr. Murphy has working in his favor is the otherwise sad fact that Walker and his ilk have come to the conclusion — correctly — that the average voter in Wisconsin does not care what they read in black and white (if, indeed, they spend the time required to even glance at anything that might reveal something negative about their Ear-to-God hero).

    Look no further than “Allison” above. Could she possibly of even SKIMMED the article above before tossing the radio-talk word salad they typed in her comment? (And is “she” not aware that the subject of a great many Walkergate email messages was planting comments on internet articles and message boards?)

    However, I will say that Mr. Murphy has no hope of ever getting the position of marketing director at the state division of tourism, for instance.

    With all that said, let’s also not lose sight of the fact that we live in a state where people harvest names from recall petitions and use them against persons with whom they disagree. I myself have been treated to the sight of my signature via posted or mailed PDF three times already.

    That’s just… odd. And it’s the legacy of Scott Walker, unfortunately. To be kind: He represents pious ignorance that does not mind existing in the center of a Mos Eisley-like hive of scum and villainy that no longer bothers with the pretense of “public service” or “ethics” in their statements and behaviors – – and criminal convictions.

    But, the guys on the radio like him, and you don’t have to actually – God forbid – READ the radio.

  25. Marie says:

    @Vincent. Good point. I agree that focusing on what’s already happening–and real ramifications–is sufficient. Those assaults are bad enough and must be exposed in detail.

    No matter how corrupt Wisconsin gets, citizens still have some tools, even if blunted, to call it out and try to stop it. Freedom of the press is still protected by the U.S. Constitution.

  26. Kevin Baas says:

    On the point of tools, and information. We kind I throw out the phrase lately if “low information voters”. The fact is, it’s not a phrase, it’s a reality. What seems obvious to you, even to the point of being boring, dull, annoying… You talk to these people and all this is entirely new information to them. And it seems to me that if they just knew about it, they’d make different decisions.

    One is naturally biased to underestimate their own knowledge. “This is obvious to me, thus everyone else knows it and it is unpersuasive.”

    There are a few errors there: firstly, that it is obvious to you means that it is obvious to them. This is false. Secondly, that is unpersuasive….

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