GOP Not the Law-and-Order Party?

For decades the Republican Party prided itself as the “law and order” party. It was the political party that unquestioningly took the side of those charged to uphold the law—from local police forces to the FBI and anyone in between—whenever a controversy arose.

This pattern continued even as an influential faction of the party turned against other American institutions, including the media, higher education, and science (including evolution and climate science). If the evidence did not support one’s world view, the easiest route was to discredit the source of that evidence. Rather than propose solutions to human-caused climate change, for instance, the preferred target became science and empirical evidence.

Yet support for law enforcement, and particularly the FBI, remained high. The Gallup poll reported that in 2014, 62 percent of Republicans (and 60 percent of Democrats) rated the FBI “good” or “excellent.” Of federal agencies, only the Postal Service scored higher among Republicans—and by just one point.

In a poll taken last December, Republican support for the FBI dropped to 49 per cent, the largest drop for any federal agency. The obvious cause for the change is the investigation of Russian interference in the 2016 election and President Trump’s efforts to stop or discredit that investigation.

We in Wisconsin have seen this story before. The “John Doe” investigation of campaign finance violations started when, as part of another investigation, evidence emerged that the Scott Walker campaign was coordinating with supposedly independent groups. A recent statement from retired judges who served on the board of the Government Accountability Board (GAB), Wisconsin’s election agency, accurately summarized the situation:

The settled law at that time, affirmed by Wisconsin court decisions and past opinions of both the GAB and its predecessor Elections Board, was that expenditures and activities by outside groups undertaken in coordination with candidate campaign committees were deemed to be political contributions subject to the limitations and reporting requirements of Wisconsin’s campaign finance laws.

In this respect Wisconsin law paralleled federal law. Despite its rejection of other parts of federal campaign law, the U.S. Supreme Court upheld this restriction. In fact, in several decisions it referred to the resulting distance between campaigns and outside groups as one reason that other restrictions on independent expenditures could be safely dispensed with.

It is clear today that Walker and the outside groups broke Wisconsin law by not reporting these contributions. Yet they avoided any punishment for their law-breaking. Rather, the attempt to enforce the law resulted in the demise of the Government Accountability Board (GAB).

Whether consciously or not, it appears that President Trump and his defenders who are intent on aborting the FBI’s investigation into Russian interference in the 2016 election are following a path blazed by Walker and the outside groups supporting him:

1. Attack the motivations of the investigators

The story promoted by opponents of the investigation in both legal filings and the right-wing press was that the investigation stemmed from Milwaukee County DA John Chisholm’s unhappiness with Scott Walker‘s policies. According to this argument, the investigation aimed to harass anyone involved in these policies. Beyond pointing to the fact that Chisholm was elected as a Democrat, the critics offered little credible evidence for this charge. Since under Wisconsin law, every district attorney runs on the partisan ballot, this logic leads to the conclusion that Democrats should be be immune from investigation in counties where the district attorney is a Republican and vice versa, because any such investigation would be partisan.

When it became clear that responsibility for the investigation had been assumed by the GAB, I thought it likely that these attacks would be dampened. After all, the GAB was designed as a studiously nonpartisan agency, under the direction of a board of retired judges. Prior to becoming judges, several had served as Republican or Democratic legislators. It was hard to look at the GAB as a body with a partisan agenda.

I was wrong. Instead, assuming responsibility for the investigation sealed the fate of the GAB. In the hyper-politicized environment that Wisconsin has become in recent years to be nonpartisan is to be extremely vulnerable. Rather than wishing for fairness, Walker, Vos, Fitzgerald, and the rest of the cabal in power wanted “loyalty,” to borrow one of Trump’s favorite terms

Likewise, Trump and his allies have launched an intense campaign to slime the reputation of the FBI. The reader wishing more detail on this campaign is encouraged to take a look at the very thoughtful discussion on the Lawfare website.

2. Attack the conduct of the investigation

A second prong of the attack on the Doe investigation was a series of stories published in the right-wing press of how the process of executing search warrants was supposedly conducted. Although by different journalists and describing separate events, these accounts were strikingly similar. A common element was an abusive chief investigator who angrily shouted at the hapless residents, ordered them about, and never informed them of their right to remain silent. The authors made no attempt to verify the claims, which, when tested in court, proved to be false. Ironically, three of the credulous writers—David French, George Will, and Rich Lowry—have emerged as strong conservative critics of Trump’s lies.

Trump and his defenders follow the same script, trying to claim that the FBI is acting unfairly with regard to the Russian investigation. Representative Devin Nunes, the chair of the House intelligence committee and a Trump defender, recently issued a memo aimed at undermining the credibility of the FBI. Although Nunes does not spell out what point he means to make, the memo mainly consists of complaints about the FBI’s use of the “Steele dossier” about Trump’s ties to Russia.

Trump and his supporters are infamous for their willingness to lie. But in so doing they are also following the well-worn Walker trail in Wisconsin. The former GAB judges rather mildly point out that “the Wisconsin Supreme Court decision that ultimately terminated the second John Doe investigation significantly altered previous interpretations of the laws in question.” However, rather than taking responsibility for changing Wisconsin law, the majority opinion of the Wisconsin Supreme Court claimed that: “the special prosecutor’s legal theory is unsupported in either reason or law.” In other words, the special prosecutor grabbed an absurd theory out of the blue. That a court majority was willing to sign onto this fiction tells us a good deal more than we want to know about their respect for the truth.

It is clear from the recent demands from Robin Vos, Walker, and Scott Fitzgerald that employees of the ethics and elections commissions (which replaced the GAB) are expected to surrender their backbones. Loyalty and not law is the order of the day, in Trumpland and in Wisconsin.