Wisconsin Supreme Court: the partisan John Doe investigation was unsupported in reason or law

posted at 10:01 am on July 16, 2015 by Gabriel Malor

The long unraveling of the so-called “John Doe II investigation” convened by partisan district attorneys in Wisconsin is now complete. This case was about using vague campaign-finance rules to intimidate conservative groups and smear Republican officials, including Gov. Scott Walker. No charges were filed in the John Doe II investigation and it was halted by both the state and federal courts.

Today, the Wisconsin Supreme Court releases its final disposition in the case:

To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.  Consequently, the investigation is closed.  Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.  All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

The theory of the prosecutor’s case was that conservative groups had illegally coordinated with candidates for office by means of issue advocacy. Applying well-settled principles of election law, the Wisconsin high court holds that this goes too far because “[d]iscussion of issues cannot be suppressed simply because the issues may also be pertinent in an election.” The courts have long treated express advocacy—that is, speech directly supporting a candidate for election—as wholly separate from issue advocacy—that is, speech about political issues. The court explains that, insofar as the Wisconsin statute purports to regulate issue advocacy the way that it does express advocacy, it is overbroad and vague under both the First Amendment to the U.S. Constitution and Wisconsin’s own Article 1, Section 3.

The court did not spare the feelings of the special prosecutor. As my pal @Popehat noted, “unsupported in reason” is a particularly harsh thing to say. The court did not stop there:

The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection.  The special prosecutor’s theories, rather than “assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth, 354 U.S. at 484, instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.  In short, the special prosecutor completely ignores the command that, when seeking to regulate issue advocacy groups, such regulation must be done with “narrow specificity.”  Barland II, 751 F.3d at 811 (quotations omitted).

The Court’s conclusion lauds the targeted individuals and groups for fighting back against the investigation:

Our lengthy discussion of these three cases can be distilled into a few simple, but important, points.  It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.   In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them.  It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.  Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution.  Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

This is extraordinarily firm language about the disposition of these cases. Moreover, the Wisconsin court’s use of the state’s constitution to invalidate the investigation forecloses additional appeal to the federal courts for the partisan district attorneys, despite what they may be claiming. The Wisconsin Supreme Court gets the last say on what the state’s constitution requires. They did so here, making federal intervention moot.

This decision does not punish the instigators of the John Doe II investigation, beyond tanking their reputations for pursuing what a concurring justice calls “a fishing expedition into the lives, work, and thoughts of countless citizens.” A federal civil rights lawsuit was shut down by the 7th Circuit last year on the grounds that it was premature to involve the federal courts before the state courts had a chance to resolve the claims. That lawsuit, or one like it, may be revived. A state action for civil damages is also a possibility.

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Another story the lapdog media will either spin or ignore completely.

fragglerock61 on July 16, 2015 at 10:15 AM

Already been done.

…When it is covered, you get something like today’s NY Times article on the subject, which is worth studying because it’s written in such a clever manner. You could read the entire thing from beginning to end without realizing what the prosecutors actually did in the investigations, or why it was so dangerous. To the Times, this was just a case in which conservative justices decided to protect Scott Walker—or, they seem to want their readers to think that.

Excellent take-down of NYT propaganda piece.

AesopFan on July 16, 2015 at 4:52 PM

While the harsh words were nice to read, it won’t stop the practice from being tried again and again until someone pays a price. I laughed out loud at the possibilities of the prosecutors “reputation” being ruined. Please, it has been enhanced by the very people that initiated this mess and they will just do “better” next time. Add to the fact that all of this takes YEARS it is unrealistic to expect even the offended public to hold on to their anger.

And the decision only said they had to shut down this particular investigation, not that the law was annulled because it was fundamentally unConstitutional.

AesopFan on July 16, 2015 at 4:53 PM

I didn’t read thru all the thread, so someone may have an answer, but – isn’t impeachment on the table here?

Clearly the people’s representatives SHOULD have something to say about this.

questionmark on July 16, 2015 at 4:55 PM

‘stimulating vigorous campaigns on a fair and equal basis’

On this point it can never achieve its objective. These two notions are polar opposites when it comes to their implementation.

Equality means that everyone is treated the same.
Fairness means that everyone is treated based on individual circumstances.

Every time you treat someone exceptionally, you are treating people less “the same”, and thus, less equally. Inversely, every time you disregard additional factors and treat people the same, you are treating them “less fairly”. They are on opposite ends of the spectrum.

Something can have aspects of both but it cannot be wholly both at once. Pulling in one direction comes at the expense of the other. And the prime directive of America is not “fairness”, but “equality”.

The Schaef on July 16, 2015 at 10:20 AM

Jurisprudence has the concept of “equity” to reconcile legal decisions and keep equality and fairness in balance. The flaw is that partisan judges will always put their thumbs on the scales.

AesopFan on July 16, 2015 at 4:55 PM

What you say is true, for rabid partisans. Wisconsin has more than their fair share. But most of their voters… most of their liberal voters, are ordinary folks who are decent and, more importantly, see themselves as decent and moral. They will not be unmoved by the political ads that talk about the indecent things this prosecutor and his allies did.

Remember, while deeply blue, this state elected Scott Walker twice after they knew exactly what they were getting.

Immolate on July 16, 2015 at 10:33 AM

What you say is true: when Democrats actually learn what their leaders are doing, they find it just as revolting as conservatives do.
The trick is, thanks to DeMedia and campaign finance laws implemented per Wisconsin, and the IRS, they generally don’t know what their leaders are doing until it becomes so major and gruesome that they do find out despite best efforts to keep it hidden.

It’s a rigged game.

AesopFan on July 16, 2015 at 4:58 PM

However, fortunately I did stumble across this gem while scanning:

“You cannot win,” the old man mumbled as he shuffled across the polished floor toward the object of his lesson. “You may stop them boy, now and then, for a time, but in the end, the tide of socialism is inexorable.”

He stopped and slowly looked up, his eyebrows raised in anticipation of a response. Before him, perched upon a grotesque throne crafted from bleached human skulls sat a surprisingly mild looking man, mature yet still youthful. The man leaned forward, a wry grin on his face. “That is an old man’s philosophy, grandfather. The fatalism of one who has seen too much. Nobody wins, you say, and it may be true, but some most certainly lose.”

His gesture toward the skulls upon which he sat drew a dismissive “harumph” from the old man, who then turned and slowly began shuffling back from whence he came, thumping his walking stick loudly as he went. The younger man sat back, perching his chin upon his templed hands, and chuckled darkly. Yes indeed, there were so many, many losers.

Immolate on July 16, 2015 at 10:52 AM


questionmark on July 16, 2015 at 4:58 PM

Great news for Wisconsin, Citizens, and the Constitution. This is what happens when Conservatives vote and fight, and stay in the battle. This was Kristallnacht for conservatives and we fought back and won. Had this succeeded the tactic would have gone national.

CoolHandLuke on July 16, 2015 at 10:38 AM

The Left fights a war of attrition.
They will take this tactic and use it again anyway, wherever they find an opening, and not all such instances will be fought and defeated.
The struggle against evil (yes, I think it rises to that level) is never-ending, and requires ceaseless vigilance.

AesopFan on July 16, 2015 at 4:59 PM

Conservatives cannot win. The best you can do, as here, is that if you fight hard enough for long enough you can achieve a stalemate, but there is zero chance of an actual victory. They have to stop committing crimes against you, but they cannot be held accountable for those crimes.

I am reminded of the story of Sisyphus.

GrumpyOldFart on July 16, 2015 at 10:25 AM

This court ruling is a repudiation of certain individuals. Don’t confuse it with a blow struck for liberty; it is not.

gryphon202 on July 16, 2015 at 10:40 AM

As you say.

AesopFan on July 16, 2015 at 5:00 PM

“That is an old man’s philosophy, grandfather. The fatalism of one who has seen too much. Nobody wins, you say, and it may be true, but some most certainly lose.”

Immolate on July 16, 2015 at 10:52 AM

No matter how good a defender you are, if you cannot attack your opponent, the battle can only end in your defeat.

If there was a non-zero chance of the perpetrators being held accountable for their crimes, I’d agree with you. As Larry Niven put it, “Believing won’t make it happen, but not believing will make it not happen.”

Show me that there is a non-zero chance of the perpetrators being held accountable and I’ll ante up. I’ll listen to what you have to say with my mind as open as I can get it. I have seen nothing to suggest that such is the case. More to the point, I have seen nothing to suggest that such will ever be the case short of the overthrow of the republic and the founding of a new one. Given that, you’ll forgive me if I go with the evidence instead of what I wish were true.

GrumpyOldFart on July 16, 2015 at 12:18 PM

AesopFan on July 16, 2015 at 5:04 PM

I wish the Court had dumped on the left-wing judge/magistrate who repeatedly granted every raid and abuse.

matthew8787 on July 16, 2015 at 12:54 PM


AesopFan on July 16, 2015 at 5:05 PM

So the conservative justices refused to recuse themselves from ruling on a case they personally profited by?

What a shock.

Tlaloc on July 16, 2015 at 4:30 PM

Nice top-spin you got there.
If the contributions were made after the cases came to court, you might have a good point.
If the contributions were made before the cases came to court with the intent of influencing the judges, that was a really good gamble, as it was by no means certain they would end up in this particular court.
Show us where any political contributions came in labeled “payment for shutting down totally unConstitutional John Doe investigations” —
or maybe they just contributed to these judges because they agree on the same juridical principles that support conservative values.

AesopFan on July 16, 2015 at 5:16 PM

Laws can be unconstitutional as written.

Laws can be unconstitutional as applied.

Seems to me, whatever the merits of the law, the Court decided that the way it was being applied violated constitutional rights. Since the Court concluded that the prosecutors had no basis for their investigation in law or in reason, applying the law as justification for rousting citizens based on their apparent exercise of their freedom of expression was unconstitutional abuse of the discretion granted to prosecutors.

Be interesting to see if what seems to be an extravagant abuse of prosecutorial discretion might be grounds to impose civil fines and damages on those who acted in that fashion. Prosecutors normally have a pretty absolute immunity when it comes to exercising their discretion because of the nature of the job.

Russ808 on July 16, 2015 at 5:48 PM

Now that Kennedy’s lawless, fascist, treasonous SCOTUS has lovingly insured I have the right to marry my toaster (oh he’s had the hots for me for SO LONG!) does anyone really imagine these lawless prosecutors that don’t give a crap for the law even remotely care about anything the court says or does?
Read C.S. Lewis’s Perelandra Trilogy to see where we are in the devil’s schemes as God prepares us for Judgment Day, God save us.

russedav on July 16, 2015 at 6:14 PM

Dont worry, as a final token, there will be a “leak” like every time a judge tells them to STOP and return whatever, as a last ditch effort to smear whoever they can.

watertown on July 17, 2015 at 1:36 AM

Something that needs to be in this post, Gabe, is the vote. It was 4-2, and that disturbs me. This case is so clearly egregious that 2 Wisconsin Supreme Court justices siding with this out of control prosecutor means that far too many don’t take our rights seriously. From the dissent:

In dissent, Justice Shirley Abrahamson wrote that the ruling had loosened campaign finance rules and that “the majority opinion’s theme is ‘Anything Goes.’”

“The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment,” she wrote. “In doing so, the majority opinion delivers a significant blow to Wisconsin’s campaign finance law and to its paramount objectives of ‘stimulating vigorous campaigns on a fair and equal basis’ and providing for ‘a better informed electorate.’”

It is hard to imagine a more out of touch with liberty opinion.

NotCoach on July 16, 2015 at 10:10 AM

So the Wis SC has its own Sotomayor? Not surprising. What’s surprising is that no progressive groups there advocate political issues. I suppose it’s possible since they specialize in character assassination.

Festus on July 17, 2015 at 12:16 PM

Chisholm belongs in prison.

Jaibones on July 17, 2015 at 10:57 PM