Schimel Switches Strategy on John Doe

There was a time when both political parties in Wisconsin took pride in our reputation for squeaky clean politics. That era has ended.

This is reflected in the three current litigations resulting from the John Doe investigations. The investigations started when Milwaukee prosecutors pursued a public corruption investigation (John Doe I) and obtained six convictions. Evidence uncovered during Doe I led them to pursue a second public corruption investigation (John Doe II).

On a 4 to 2 vote the Wisconsin Supreme Court shut down Doe II, ruling that the First Amendment to the U.S. Constitution protected coordination between candidates and outside groups, so long as it involved only “issue advocacy,” which does not include an explicit admonition to vote for or against a particular candidate.

Three Wisconsin District Attorneys then appealed the State Supreme Court’s decision to the U.S. Supreme Court using a “petition for a writ of certiorari.” The DAs made two arguments: (1) that the state Supreme Court’s decision conflicted with a long series of U.S. Supreme Court decisions and (2) that the state justices should have recused themselves due to conflicts of interest resulting from very large spending supporting their elections by the outside groups under investigation and because at least one of the justices was a likely target of the investigation.

Doe Appeal to the US Supreme Court

Initially all challengers to Doe II (called “Unnamed Movants” because they wished to remain anonymous) waived their right to respond to this appeal. It is likely they feared that doing so would call the court’s attention to it. At least one of the justices then requested a response by August 15.

On August 15th the eight Unnamed Movants filed a total of three responses. Wisconsin Attorney General Brad Schimel also filed a brief in the name of Jefferson County Judge David Wambach who has apparently been named as the latest judge to oversee John Doe-related issues, replacing reserve Judge Gregory Peterson.

Schimel’s brief makes three main arguments. The first is that there was no need for the justices to recuse themselves because of the amount of time elapsed between the outside group spending on their election and when they voted to end the investigation.

The second is that the investigation could not be restarted today because of subsequent changes in state law, including measures banning John Doe investigations of political corruption.

The third is particularly interesting because it largely ignores the Wisconsin Supreme Court’s First Amendment argument. Instead Schimel argues that the Wisconsin Supreme Court ended the investigation because of the varying contexts in which state law uses the term “political purposes”.

One section of the law regulates independent expenditures. To conform to U.S. Supreme Court decisions, in this section the term “political purposes” was narrowed to “express advocacy” communications, those explicitly endorsing or opposing a candidate.

Schimel argues that this narrowing applies to the section requiring that spending by outside groups for political purposes which are coordinated with a candidate be reported as campaign contributions. Schimel’s attempt to change the grounds of the Wisconsin Supreme Court’s ruling seems to reflect a recognition that the First Amendment argument it used does not stand up.

Equating “political purpose” with express advocacy, however, makes hash of another section of state law. It prohibits diverting donations made with a political purpose to other uses, aimed at preventing personal use of campaign contributions. Schimel’s interpretation would seem to require campaigns to track whether or not contributions were for express advocacy or issue advocacy.

So far, two amicus briefs have been submitted. Both urge the court to accept the petition. One by the Center for Media and Democracy, the Brennan Center for Justice, and Common Cause Wisconsin, makes two points:

First, the Court should confirm that precedent allows regulation of coordinated campaign expenditures to … prevent corruption through campaign contribution limits. Second, the Court should clarify that the refusal of two Wisconsin Supreme Court justices to recuse themselves deprived the petitioners a fair trial, and damaged public confidence in the courts by demeaning the reputation and integrity of the Wisconsin Supreme Court.

The Constitutional Accountability Center concludes that “the judicial conflicts of interest in this case were so extreme as to violate the due process clause’s guarantee of an impartial adjudicator.”

MacIver lawsuit

The conservative MacIver Institute recently brought a lawsuit against Chisholm and others in his office, the Special Prosecutor, and Government Accountability Board staff alleging violation of the federal Stored Communications Act. The suit argues that the Doe judge does not qualify as “a court of competent jurisdiction” under the act and therefore cannot order a search. It appears that none of the cases cited in the complaint have dealt with this particular issue.

Archer appeal

Cindy Archer was one of the people investigated as part of Doe I. She was interviewed by the Milwaukee DA office under a grant of immunity, but never charged. The interest in Archer was apparently triggered by evidence that Walker’s campaign treasurer tried to leverage his political connections to gain an advantage in the county’s bidding process.

Archer sued Chisholm and several of her employees, alleging violation of her civil rights. Federal Judge Lynn Adelman dismissed her suit, concluding that all the defendants enjoyed both absolute and qualified immunity. Archer’s lead attorney is David Rivkin who was also the lead in the earlier suit brought by Eric O’Keefe against Chisholm that was thrown out by the 7th Circuit Court of Appeals. Rivkin and O’Keefe appear to be the sources of most of the stories in the right-wing blogosphere asserting — with no evidence — that searches in both Doe investigations violated due process.

As she promised, Archer has appealed Judge Adelman’s decision to the 7th Circuit. The appeal largely repeats charges in the original lawsuit but adds charges that the Doe I judge did not adequately supervise the investigation. Chisholm’s response is due October 17.

In the original complaint Rivkin alleged various gross violations of Archer’s rights during the search of her Madison house, including that investigators used screaming to intimidate her, that upon entering her house, they threw “the warrant at her without giving her an opportunity to read it,” and that no “one informed her that she had a constitutional right to remain silent and the right to an attorney.” If true, the Archer suit would have been well justified.

However, an audio tape of the search proved these claims false. Rivkin then submitted a revised complaint that omitted these and similar claims (see here for a list of eleven claims appearing in the first complaint but missing from the second).

Lacking specific abuses, Rivkin concentrated on the claim that the investigation was “retaliatory,” for the sole purpose of punishing Archer for her support of Scott Walker’s policies and with no expectation of convictions. However, this charge conflicts with the six convictions in Doe I.

Law professors Erwin Chemerinsky, Glenn Reynolds, and Ilya Somin submitted an amicus brief arguing that Judge Adelman should not have dismissed these claims. This brief was greeted with great glee by some on the right because a 2007 New York Times article described Chemerinsky as a liberal. Whatever the professors’ political leanings, they have bought into Archer’s claims, calling the Does “the best example to date of the danger, in this era of extreme partisan animus, that unless deterred by the availability of a retaliatory-investigation First Amendment claim, law-enforcement officials will abuse public resources to hinder their political opponents and thereby help their political allies.”

Judge Adelman took the opposite view:

The subjects of the investigation … had significant resources and were willing to bring numerous lawsuits in an attempt to shut the investigation down. It is not an overstatement to say that the opponents of the investigation made it very difficult for the defendants to proceed.

Besieging public officials with lawsuits is precisely the kind of activity that can inhibit if not intimidate an official and cause her to refrain from taking action which, however justified, might engender more lawsuits. … the reason for the immunity doctrine, to enable public officials to do their job free from fear of being subjected to unwarranted litigation, has particular salience in the present case.

I think Adelman has the better of this argument. The ferocious attack on the prosecutors is certain to discourage future investigations into political wrongdoing.

However, this investigation has been shrouded in so much secrecy that it has allowed opponents of the Does to create their own myths free of contradiction. A defense of the charge of animus might open some very relevant secrets, for instance: what was the communication that triggered Doe II? Did the participants in coordination efforts ever acknowledge they were breaking the law? The Wisconsin Supreme Court’s extraordinary efforts to keep secret the answers to these and other questions is a tacit admission that there is something very relevant that might be revealed.