Video: John Doe case halted by injunction … again

posted at 4:41 pm on May 8, 2014 by Ed Morrissey

No, this isn’t a rerun of yesterday’s post about the ruling on the John Doe probe, but it almost qualifies. It turns out that Judge Rudolph Randa ran afoul of a technicality when issuing his injunction against state prosecutors and their secret investigation of conservative activists supporting Scott Walker during the recall election. Prosecutors had filed a separate appeal, and an injunction is not permissible under that circumstance — unless the judge rules the appeal frivolous. After being corrected by the Seventh Circuit, Randa dotted the Is and crossed the Ts today:

The on-again, off-again investigation of campaign spending during Gov. Scott Walker’s 2012 recall election was halted Thursday for the second time in less than 48 hours.

U.S. District Judge Rudolph Randa in Milwaukee stopped the secret probe Tuesday night, but that order was blocked Wednesday by a panel of the 7th Circuit Court of Appeals in Chicago.

That court said Randa didn’t have the authority to make Tuesday’s decision but gave him a map to reissue his order — and on Thursday he did so.

In fact, he did so rather emphatically:

For example, Francis Schmitz argues that the complaint fails to explain how he is “involved” in any ongoing deprivations. But Schmitz is the appointed leader of the investigation. Even if he‟s just a figurehead, Schmitz is clearly “involved.” Schmitz further disclaims any retaliatory motive, but as the Court explained in its injunction order, such a finding is not necessary for the entry of injunctive relief. ECF No. 181 at 21. Similarly, John Chisholm, Bruce Landgraf, and David Robles (the Milwaukee Defendants) complain that they are “entitled to an explanation as to how plaintiffs‟ complaint seeks relief that is properly-characterized as prospective with respect to them specifically.” ECF No. 158. The Court is left to wonder if the Milwaukee Defendants actually read the complaint because the complaint does seek relief that is properly characterized as prospective with respect to them specifically.

Indeed, that the plaintiffs “rather easily” stated a claim under Ex Parte Young is confirmed by the Court‟s subsequent grant of prospective, injunctive relief. The Court has no idea why the defendants even attempted to raise this issue as a defense. It is, as the plaintiffs argue, the height of frivolousness.

To be clear, the Court is absolutely convinced that the defendants‟ attempt to appeal this issue is a frivolous effort to deprive the Court of its jurisdiction to enter an injunction.

The entire opinion is a surprisingly stinging rebuke to the prosecutors, especially to their claims of immunity from lawsuits because of their jobs:

As to absolute immunity, the Court held that the prosecutor-defendants are not entitled to this defense because of their admission that the John Doe proceeding seeks “information necessary to determine whether probable cause exists that Wisconsin‟s campaign finance laws have been violated.” April 8 Decision and Order at 15. A prosecutor “does not enjoy absolute immunity before he has probable cause.” Whitlock v. Brueggemann, 682 F.3d 567, 579 (7th Cir. 2012). The defendants are not entitled to a “status” immunity simply because they are prosecutors.

This restores the earlier injunction, which the prosecutors will now have to appeal on its merits to the Seventh Circuit. As the Journal Sentinel notes, though, the appellate judges seem to have some sympathy for Randa’s reasoning, if not his procedural assumptions. They all but laid out how to reimpose the injunction in their order yesterday. Getting a stay now will require something other than a technicality, and at least a demonstrably good chance that they will win on the merits of their appeal.

The Wall Street Journal editorial board expressed its delight today in the original injunction:

We’ve been telling you for months about the secret Wisconsin John Doe, which operates like a grand jury and forces targets to remain silent. The targets are right-of-center groups disliked by Milwaukee County District Attorney John Chisholm, his special prosecutor Francis Schmitz, and the left-leaning state Government Accountability Board that regulates campaign finance.

Prosecutors were able to leak details with impunity until one of the targets, Eric O’Keefe, went public to us last November about the abuse of power. He also sought Washington attorney David Rivkin to file a federal civil-rights lawsuit to shut down the probe, and that’s what Judge Randa responded to on Tuesday. …

Whether or not they ever brought charges, they also knew their probe would effectively shut down center-right spending as Mr. Walker and Republicans try to win re-election this year. The Wisconsin Club for Growth spent some $8 million on advertising or grants to other groups in 2012 during the recall campaign against Mr. Walker. In 2013 it spent $1.7 million but has been silent since the John Doe subpoenas hit in October.

Similar damage has been done to conservative groups across the state. According to the Wisconsin Democracy Campaign, Wisconsin Manufacturers and Commerce spent some $4 million during the recall campaign in 2012, but aside from a small local radio campaign about an asbestos trust issue this year, the group has been off the air.

Like the IRS targeting of conservative nonprofits, the Wisconsin John Doe shows how campaign-finance laws have become a liberal weapon to silence political opponents. Prosecutors claim to be fighting the risk of corruption from “dark money” in politics. But their enforcement attempts, done in secret and unrestrained by Constitutional guardrails, have become far more politically corrupting.

Indeed. The circumstances revealed in Randa’s original order should be enough to horrify activists all along the political spectrum. Let’s hope that the next appeal attempt results in a similar rebuke to those who use their office to silence their opposition through intimidation and worse.

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, but that order was blocked Wednesday by a panel of the 7th Circuit Court of Appeals in Chicago

…shocked!

KOOLAID2 on May 8, 2014 at 4:47 PM

Shorter Judge Rudolph Randa: “Now go away or I will taunt you for a second time”

WisRich on May 8, 2014 at 4:51 PM

I really hate what the Fascist-Democrats are doing to this country.

rbj on May 8, 2014 at 4:51 PM

For a guy that’s as good as he is in dodging so many bullets, and looking graceful whilst doing so, why has no one shoved him at a higher office yet?

EvilMonk on May 8, 2014 at 4:52 PM

Like the IRS targeting of conservative nonprofits, the Wisconsin John Doe shows how campaign-finance laws have become a liberal weapon to silence political opponents. Prosecutors claim to be fighting the risk of corruption from “dark money” in politics. But their enforcement attempts, done in secret and unrestrained by Constitutional guardrails, have become far more politically corrupting

…not just the conservative non-profits!…they demanded lists of people who contributed to those non-profits!…and guess what happened to those people by the undermanned IRS who can only audit 1% of the population?…10% were audited!

KOOLAID2 on May 8, 2014 at 4:52 PM

John Chisholm

Now I’m going to have the theme from the John Wayne movie in my head all day.

Mark1971 on May 8, 2014 at 4:53 PM

Essentially, the prosecutors are barred from pursuing the investigation unless they get an order from the appellate court. They do not have to return/destroy their evidence yet, but if they lose on appeal they almost certainly will have to return all the seized property and records and destroy everything else.

The odds of winning an appeal seem to be strongly against them. The immunity argument is a definite loser, as the point at which immunity attaches is well established law. In their zeal to exploit a bad law to attack their political opponents the prosecutors exposed themselves to litigation. Randa’s ruling effectively gutted that law, so there won’t be any more abuses either, unless something totally unexpected happens on appeal.

novaculus on May 8, 2014 at 4:55 PM

PROSECUTORIAL MALFEASANCE = a specialty of ALL d-cRAT socialist extremists in anyway associated with the law.

MicahStone on May 8, 2014 at 4:55 PM

Things like this make me understand just how important the Constitution really is! That being said, it is also understandable why the left tries to skirt it’s written intent. They loudly proclaim that some things that are there aren’t and that some things are there that aren’t. Here we see the left trying to use law agencies for political gain the constitution be damned not unlike Obama with his executive orders etc. Not artfully worded but I hope you get my meaning.

jainphx on May 8, 2014 at 4:58 PM

Secret Search Warrants, gag orders, Police not allowing “suspects” to contact attorneys, illegal restraint, double secret probation subpoenas, etc.

When did North Korea invade and conquer Wisconsin? I missed that on the evening news.

Johnnyreb on May 8, 2014 at 5:05 PM

Things like this make me understand just how important the Constitution really is! That being said, it is also understandable why the left tries to skirt it’s written intent. They loudly proclaim that some things that are there aren’t and that some things are there that aren’t. Here we see the left trying to use law agencies for political gain the constitution be damned not unlike Obama with his executive orders etc. Not artfully worded but I hope you get my meaning.

jainphx on May 8, 2014 at 4:58 PM

The progressives used “Rules for Radicals” to attain power and have continued to use it ever since. What changed was the election of Obama in which they felt they could finally remove the mask.

WisRich on May 8, 2014 at 5:08 PM

Tlaloc hardest hit.

CurtZHP on May 8, 2014 at 5:11 PM

These fascist-leaning Leftest ideologues NEVER cease in their efforts to silence any and all PERCEIVED or likely opposition to their power grabs and political machinations. They have become experts of the political fix, cynical and crooked purveyors of targeted crony capitalism, professionals at using Mafia-like intimidation via the Bureaucracy, liars and the personification of corruption of the lowest order. Dorian Grey would be proud.

vnvet on May 8, 2014 at 5:12 PM

U.S. criticizes racist North Korean screed against Obama

UN Chief releases statement; fines Jung $2.5M, bans Jung from internet for life, and forces sale of NKorea.

BobMbx on May 8, 2014 at 5:14 PM

So if I understand this correctly: the prosecutor-defendants were trying to take this to court to find out if they had enough information to take it to court.

Nice!

“you are accused and if you deny it, you’ve only proven your guilt!”

Ace ODale on May 8, 2014 at 5:15 PM

why has no one shoved him at a higher office yet?

EvilMonk on May 8, 2014 at 4:52 PM

.
I don’t think Walker accepts shoving very well.

ExpressoBold on May 8, 2014 at 5:17 PM

Chisholm and company desperately tried to keep their case alive until they could file criminal charges against all the targets and thus render Eric O’Keefe’s/Wisconsin Club for Growth’s lawsuit moot. (Un)fortunately, they miscalculated that they could keep dodging the courts until 5:01 pm June 2.

Why is that time/date so important? Petitions to get onto the fall election cycle ballot, as well as statements of non-candidacy, are due to the Government “Accountability” Board (an active partner with Chisholm in trying to sink Walker) by 5:00 pm June 2.

At a minimum, filing charges at that late date, explicitly against the Scott Walker campaign, would leave the campaign under the taint of (faux) corruption, one I’m certain Chisholm and the GAB would drag out past the election.

Their likely hope, however, is even more sinister – get a handpicked judge Lawgiver-In-Black to declare that, since Walker and every conservative group are on trial for violating campaign finance law, they cannot do any campaign-related business. Even though the Wisconsin Supreme Court would eventually overturn that on a 4-3 ruling, given Chief Justice Shirley Abrahamson (who controls who gets onto the GAB board) controls when that overturn will be released, there is no hope that a judgement to that effect will be released in a timely manner.

Steve Eggleston on May 8, 2014 at 5:18 PM

Steve Eggleston on May 8, 2014 at 5:18 PM

Interesting analysis.

WisRich on May 8, 2014 at 5:21 PM

The immunity argument is a definite loser, as the point at which immunity attaches is well established law.

Immunity is lost when it violates “clearly established law”; it doesn’t “attach” at that point.

will77jeff on May 8, 2014 at 5:22 PM

…not just the conservative non-profits!…they demanded lists of people who contributed to those non-profits!…and guess what happened to those people by the undermanned IRS who can only audit 1% of the population?…10% were audited!

KOOLAID2 on May 8, 2014 at 4:52 PM

And in a separate lawsuit, the Presstitute Organs are demanding those ill-gotten lists so they can do to those donors what their allies did to Brendan Eich and what they did to gun permit owners in New York.

Steve Eggleston on May 8, 2014 at 5:23 PM

Now the people of Wisconsin should sue these miscreants for misappropriation of state funds.

jake49 on May 8, 2014 at 5:25 PM

Steve Eggleston on May 8, 2014 at 5:18 PM

The thought of Shirley Abrahamson and Ann Walsh Bradley, totally trashing their offices, cursing the day Judge Randa was born, makes me smile.

Hopefully no conservative justice was close by! :)

WisRich on May 8, 2014 at 5:26 PM

For a guy that’s as good as he is in dodging so many bullets, and looking graceful whilst doing so, why has no one shoved him at a higher office yet? haven’t dems character assassinated him yet?

t8stlikchkn on May 8, 2014 at 5:26 PM

“you are accused and if you deny it, you’ve only proven your guilt!”

Ace ODale on May 8, 2014 at 5:15 PM

If she floats, she’s a witch, if she drowns – well she’s dead anyway, which was the goal all along.

Missy on May 8, 2014 at 5:29 PM

Steve Eggleston on May 8, 2014 at 5:18 PM

Interesting take. I assumed there were multiple agendas, among them to use taxpayer dollars to attack their political enemies and impose costs and inconvenience without regard to the ultimate outcome, which also serves to intimidate anyone who might be inclined to participate politically in a similar way. If they found any real violations, that would just be icing on the cake.

You think they had concrete plans to time their next move to handcuff Walker and the conservative groups in the run-up to the election. Frankly, from what I’ve seen of Dane Co. judges, you may be right.

novaculus on May 8, 2014 at 5:30 PM

Interesting analysis.

WisRich on May 8, 2014 at 5:21 PM

I admit it’s out there, but given the two John Does and the net results from the 2002 Legislative caucus “scandal”, an attempt by then-Dane County District Attorney Brian Blanchard (D-Madison) to seize control of both houses of the Legislature, the Assembly Democrat caucus, and the Democrat primary for attorney general for the Madison branch of the Democrat Party of Wisconsin, as well as what’s happened on the federal level,….

Side note, Blanchard, who along with Joanne Kloppenburg (yes, THAT Joanne Kloppenburg), eventually got themselves seats on the Madison-based 4th District Court of Appeals, and they found themselves two of the three judges Lawgivers-In-Black hearing the state counterpart to O’Keefe’s federal lawsuit. Do you need two guesses as to how they ruled?

Steve Eggleston on May 8, 2014 at 5:30 PM

Now the people of Wisconsin should sue these miscreants for misappropriation of state funds.

jake49 on May 8, 2014 at 5:25 PM

There is a reason why the persecutors are also being sued in their personal capacities – federal law enacted in the wake of the 1960s civil-rights abuses in the South allows victims to seek monetary damages from the personal wealth of government officials who violate the victims’ civil rights.

Steve Eggleston on May 8, 2014 at 5:34 PM

The defendants are not entitled to a “status” immunity simply because they are prosecutors.

Time for some lawsuits! Fine and/or throw some of these lefty zealots in prison for a couple of years – THAT WILL SEND A MESSAGE!

GarandFan on May 8, 2014 at 5:35 PM

When did North Korea invade and conquer Wisconsin? I missed that on the evening news.

Johnnyreb on May 8, 2014 at 5:05 PM

They controlled the People’s Republic of Madistan and the DemocRATic Republic of Milwaukee long before the first Krazy Kim came to power.

Steve Eggleston on May 8, 2014 at 5:38 PM

U.S. criticizes racist North Korean screed against Obama

BobMbx on May 8, 2014 at 5:14 PM

.
And the foreign policy geniuses who generally ignore NoKo screens had to respond….

The White House — which often ignores the rhetorical excesses of the North Korean regime — suggested that the new comments from the Korean Central News Agency were especially repugnant.

“While the North Korean Government-controlled media are distinguished by their histrionics, these comments are particularly ugly and disrespectful,” Caitlin Hayden, a spokeswoman for the National Security Council, said in a statement.

.
This Øbama character can be tricked into anything. ANYTHING!

ExpressoBold on May 8, 2014 at 5:46 PM

Go, Scott, go.

cdog0613 on May 8, 2014 at 5:49 PM

So if I understand this correctly: the prosecutor-defendants were trying to take this to court to find out if they had enough information to take it to court.

Nice!

“you are accused and if you deny it, you’ve only proven your guilt!”

Ace ODale on May 8, 2014 at 5:15 PM

No – they were trying to say that because they are Democrat/liberal government prosecutors/persecutors, they are gods whose motives and tactics could not be questioned, least of all by their targets/political enemies.

Steve Eggleston on May 8, 2014 at 6:05 PM

Joanne Kloppenburg (yes, THAT Joanne Kloppenburg),

eeeghad, Eggleston, it …is…alive. Prosser’s victory stake thru her heart didn’t work…The Thing That Wouldn’t Die

gracie on May 8, 2014 at 6:05 PM

Nicely put, Ed Morrissey

Viator on May 8, 2014 at 6:08 PM

eeeghad, Eggleston, it …is…alive. Prosser’s victory stake thru her heart didn’t work…The Thing That Wouldn’t Die

gracie on May 8, 2014 at 6:05 PM

The Left had to address what was the most-effective argument against her back in 2011 – her complete lack of judicial experience. Since they control who gets onto the 4th District (it is based in Madison, after all), they got her a win on that seat.

Steve Eggleston on May 8, 2014 at 6:14 PM

The arguments build for a Brown-vs-Board of Ed case on campaign finance spending.

njcommuter on May 8, 2014 at 6:33 PM

The entire opinion is a surprisingly stinging rebuke to the prosecutors,

Yes, it reads, again, as distinctly not appropriate for a judge. I’ll be shocked if the circuit court upholds his decision. he’s basically written “I have a huge conflict of interest” in bright red crayon on the plantiff’s case.

Tlaloc on May 8, 2014 at 6:55 PM

information necessary to determine whether probable cause exists that Wisconsin‟s campaign finance laws have been violated.”

I wonder why they only went fishing against thier political opponenets? There were no contributions on the other side?

Officials pulling this crap need to start going to prison. A real ‘don’t drop the soap’ prison.

forest on May 8, 2014 at 6:57 PM

These guys are just digging the holes for themselves very very deep.
I like the “just because” thinking from them… there “might” be evidence of wrong doing in the mounds of garbage that they pretty much assaulted to get.

They have everything, they are most likely going to dump all the names of people on every list that they have… well… it will get “leaked” and they will use the public opinion shaming.
These guys are desperate. Like a wild rabid animal that is cornered. They have NOTHING. If they did they would have been public hangings. The GOP is clean.

watertown on May 8, 2014 at 7:00 PM

Yes, it reads, again, as distinctly not appropriate for a judge. I’ll be shocked if the circuit court upholds his decision. he’s basically written “I have a huge conflict of interest” in bright red crayon on the plantiff’s case.

Tlaloc on May 8, 2014 at 6:55 PM

Only if you subscribe to the twin theories that liberal prosecutors/judgesLawgivers-In-Black (and only liberal prosecutors/LIBs) can and should create law out of thin air and that conservatives, by virtue of being conservative and thus subhuman, have no rights.

Then again, based on your body of “work”, you do.

Steve Eggleston on May 8, 2014 at 7:02 PM

As to absolute immunity, the Court held that the prosecutor-defendants are not entitled to this defense because of their admission that the John Doe proceeding seeks “information necessary to determine whether probable cause exists that Wisconsin‟s campaign finance laws have been violated.”

BUT if we can’t raid your house, seize your papers and computers, and investigate your personal life… how can we prove you’re guilty of something?!

I mean we KNOW you’re guilty, so we’re just digging for proof… why wont you let us dig into our enemies so we can show you they’re evil crooks like we know they are?

We have to have the proof, but you won’t let us dig endlessly on suspicions whit no evidence?

JEEZ you guys have a lot of rules.

gekkobear on May 8, 2014 at 7:09 PM

Worth repeating that Judge Randa is a bush 41 appointee, so don’t give me any crap that elections don’t have consequences.

When it comes to judicial appointments, the worst republican is still better than the best RAT.

matthew8787 on May 8, 2014 at 7:12 PM

matthew8787 on May 8, 2014 at 7:12 PM

Liberals have understood this a long time ago. They knew that most of the population would resist most of their policies, so if they stocked the courts with judges who side with them, it would be easier to enact the policies knowing that even if they got challenged, the judges would still be partisan and side with them, effectively telling the citizens to go pound sand a like it.

watertown on May 9, 2014 at 8:32 AM

Steve, a question.

Clearly you have a Wisconsin democrat party conspiracy in play at the moment. That seems obvious, and one poster’s comment about a Brown type of civil rights case being a possibility is interesting. However, is there any possibility this would create a call to action in Wisconsin to eliminate the infrastructure that allows this to happen in the first place? Does Walker have the votes to kill this review board? And on a side note, what are the chances these prosecuters could face disbarment? It seems they are using their office to foment a criminal conspiracy to essentially eliminate the ability of their political opponents to use their first amendment free speech rights.

Zomcon JEM on May 9, 2014 at 9:14 AM

Even my 14 year old is appalled – denying someone the right to call their attorney was when she started calling Chisolm “fascist” (her Honors World History class has given her quite the political vocabulary, and she understands 20th century world history better than many adults now).

Back to the issue – O’Keefes attorneys are hinting that they’ll start disclosure soon, hauling in all of the Dem operatives and sitting them down for a little chat.

The horse is already out of the barn though – whatever plans the Club for Growth had are in the DA’s office and have probably been handed over to the Dems by now.

Club for Growth estimates that they lost $2,000,000 by being unable to fundraise (they couldn’t fundraise without disclosing that they were under investigation, and they couldn’t disclose they were under investigation, because of the John Doe laws). Any one who contributed to them is liable to be swept up in the investigation….and probably turned over to the IRS for a friendly little audit.

The Dems did not take well to losing 4 years ago, and they aren’t taking it well now.

Daisy_WI on May 9, 2014 at 9:18 AM

Daisy_WI on May 9, 2014 at 9:18 AM

Thats all the plan. And it worked. What can you do now with mid terms so close? This alone could sway the elections, and even if these guys are found at fault, you can not undo the damage once the election happens.

watertown on May 9, 2014 at 10:08 AM