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.
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.