REVIEW & OUTLOOK
A Free Speech ‘Scheme’
Prosecutors repudiated in court smear Scott Walker and his allies.Updated June 20, 2014 8:16 p.m. ET
So the national press corps has finally decided to pay attention to the John Doe probe into the political allies of Wisconsin Gov. Scott Walker. Having ignored the story when two judges ruled against the prosecutors’ theory of the case, the press now broadcasts that theory as if it were a fact, not a discredited accusation. The episode further underscores the injustice at the heart of this politicized investigation.
The news reports are jumping on snippets of some 266 pages of documents that the Seventh Circuit Court of Appeals released to the public on Thursday. The breathless page-one stories claim that prosecutors believe Mr. Walker and his allies were part of a “criminal scheme” to coordinate their activities and thus violated campaign-finance laws.
The key point to understand is that this isn’t an indictment, and it isn’t even evidence built into a legal case. It is merely a prosecutorial theory floated to justify a secret grand-jury fishing expedition. The documents have been under seal. The Seventh Circuit released them only because they are related to a federal civil-rights lawsuit against the Wisconsin prosecutors that has already resulted in a federal judge stopping the John Doe with a preliminary injunction.
The other crucial point is that the two judges who have looked closely at the evidence have found no violations of law. To the contrary, both judges have ruled that the prosecutors’ theory of illegal campaign coordination is faulty and itself a violation of the defendants’ right to free political speech. The document dump amounts to prosecutors losing in court but then having the press treat the prosecutors’ claims as if they were the gospel truth.
Take the phrase “criminal scheme,” the words used by special prosecutor Francis Schmitz in December 2013 before John Doe Judge Gregory Peterson. The Wisconsin state judge demolished the charge in his ruling a month later in which he quashed the prosecutors’ subpoenas and ordered seized property returned to those under investigation.
The prosecutors failed to show evidence of probable cause that a crime had been committed, Judge Peterson wrote, because the political groups engaged exclusively in issue advocacy, which is protected by the First Amendment. “Before there is coordination, there must be political purposes,” the judge wrote. “Without political purposes, coordination is not a crime.”
As we reported in November, the Doe investigation began in October with kitchen-sink subpoenas and pre-dawn police raids on the homes of targets, and continued with a secret investigation that silenced conservative groups at the beginning of an election cycle. The tactics were so outrageous and legally dubious that one of the targets, Eric O’Keefe of the Wisconsin Club for Growth, filed the federal lawsuit against prosecutors.
In May federal Judge Rudolph Randa issued a rare preliminary injunction based on his judgment that Mr. O’Keefe had a significant likelihood of winning on the merits. “O’Keefe and the Club obviously agree with Governor Walker’s policies, but
coordinated ads in favor of those policies carry no risk of corruption because the Club’s interests are already aligned with Walker and other conservative politicians,” Judge Randa wrote. Prosecutors are appealing the Peterson and Randa rulings.
The Doe’s underlying theory was also ruled improper by a unanimous panel of the Seventh Circuit Court of Appeals in an unrelated case in May. In Wisconsin Right to Life v. Barland, the court held that Wisconsin campaign finance regulations do not cover issue advocacy like that engaged in by the groups targeted by the Doe. State campaign finance regulators, the court wrote, must respect Supreme Court precedents that “ordinary political speech about issues, policy, and public officials must remain unencumbered.”
As it happens, the “coordination” prosecutors have decried in Scott Walker’s case is nearly identical to the “coordination” employed during the 2012 presidential campaign on behalf of President Obama. In February 2012, Mr. Obama’s official campaign committee “blessed” (as the Politico website put it) fundraising for Priorities USA Action, a liberal SuperPac that supported Mr. Obama and other Democratic candidates. The big dollars soon followed.
The disgrace is that all of this has been known for weeks or months, yet the media reports on Friday ignored or buried it. A reader of the New York Times and Milwaukee Journal Sentinel had to read far down the news stories to see any reference to this judicial repudiation. We realize that these liberal publications have been asleep on this story, but you’d think they’d have more respect for First Amendment law.
Meanwhile, the document dump is serving a political purpose that prosecutors have intended from the start—to tarnish Mr. Walker as he seeks re-election. The prosecutors “by their position appear to seek refuge in the Court of Public Opinion, having lost in this Court on the law,” Judge Randa wrote this week in an order on the unsealing of documents in his own court, shortly after the Seventh Circuit made its documents public. Their position in favor of unsealing is “at odds with their duty as prosecutors which is to see that in any John Doe proceeding the rights of the innocent are protected in pursuit of a criminal investigation.”
This is typical of the behavior of Milwaukee District Attorney John Chisholm and Assistant DAs Bruce Landgraf and David Robles from the beginning. The Democrats hired Mr. Schmitz, a nominal Republican, as special prosecutor to put a nonpartisan gloss on an investigation that the DAs realized would be seen for the political prosecution it was.
In a 2013 petition to Judge Barbara Kluka (the John Doe judge before Judge Peterson), the five district attorneys involved in the Doe ask the judge to appoint a special prosecutor for fear that the “partisan political affiliations of the undersigned elected DAs will lead to public allegations of impropriety.” Democratic prosecutors will be painted as conducting a “partisan witch hunt,” they wrote, while Republican prosecutors would be accused of “pulling punches.” The District Attorneys then recommend that Judge Kluka specifically select Mr. Schmitz as the “independent” special prosecutor. This document remains under seal, but we’ve obtained a copy.
In his own affidavit in response to another lawsuit, this one in state court, Mr. Schmitz acknowledges that the real work in the Doe investigation was handled by the prosecutors who appointed him. “While I have assumed the responsibility for the investigatory decisions made in the John Doe proceedings, I myself have not made application for any form of subpoena, subpoena duces tecum or search warrant from the John Doe judge.”
The real “scheme” in Wisconsin is the attempt by prosecutors to criminalize political speech. This has national echoes in the attempt by the IRS to target nonprofit groups that also wanted to participate in politics. The courts sometimes catch up with these dirty tricks, but in the meantime in Wisconsin they can smear candidates and their supporters who have done nothing wrong. Mr. O’Keefe’s civil-rights lawsuit seeks damages from prosecutors in both their personal and professional capacities, and justice will be done if they pay dearly in both