The Revenge of Scott Walker?
Law killing John Doe law assures no more such probes targeting him. But was reform needed?
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.
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.