Conservative stance in Doe wrangling comes down to one simplistic, wrong-headed, self-serving argument | WisCommunity

Conservative stance in Doe wrangling comes down to one simplistic, wrong-headed, self-serving argument

Conservative political groups are filing lawsuits early and often in an unprecedented attempt to stop the now widely known John Doe investigation before the inquiry is complete and before it has issued any criminal charges. That's the secret Doe inquiry into whether those conservative groups illegally colluded with the Scott Walker campaign in the recall elections. And the fundamental argument the groups reply upon increasingly betrays a complete, if perhaps willful, misunderstanding of the Constitution's guarantees of liberty and free speech.

The groups argue that the mere existence of the investigation violates their individual or collective civil rights. Why, prosecutors have actually been collecting evidence and issuing subpoenas! Outrageous! Or not. After all, the John Doe process has been enshrined in our laws since before Wisconsin became a state.

Now, could legitimate legal tools like John Doe probes be misused by prosecutors? In theory, yes, but Wisconsin's Doe process is pretty well developed and organized, and it cannot negate the due-process protections afforded in the ordinary courts upon which it relies. Other than rhetorical calumny, the conservative groups suggest nothing substantive in their attack, other than their newly invented reasons why this Doe (and perhaps, in its wake, all of them) should be limited or abolished. Indeed, their attack appears to be the real attempt to misuse the Doe process.

Republicans hate trial lawyers but loves them some judges, which is why a couple of years ago Wisconsin's GOP provided itself a shiny new, legislative mandate to file lawsuits in any state court jurisdiction the party's appartachiks prefer, which is why they increasingly prefer to go court shopping in GOP-centric Waukesha County. It's like when they were for recall elections before they were against them. Their modus: One very conservative standard for everyone else; another, very liberal standard for themselves, though they be putative conservatives. And their standards are ethically quite situational.

Which may explain why the conservative groups complaining in the press and in court about this Doe case have in so many words implied that somehow, just because of who they are, they have a legal right to complete and total anonymity and freedom from legal scrutiny to do and say whatever they like, however they like. Never mind that Wisconsin law itself clearly suggests elsewise. Nor under federal law are such groups supposed to be involved with political campaigns, given their tax-exempt status as not-for-profit "educational" institutions. Only a wishy-washy IRS implementation of its own rules has allowed that activity. Thus, this conservative movement pokes its camel nose into the political campagin tent. The Doe probe is all about determining the extent of that jiggery-pokery, and whether it abides by Wisconsin's particular limits.

Mind you, these conservative groups have a bigger agenda than merely evading potential prosecution. As part of their "best defense is a good offense" maneuver, they have made themselves into test cases in an effort to get the courts to take more steps away from democracy, seeking additional rulings that lead in the direction they prefer. That direction is away from reasonable checks and balances, away from transparency in our electoral process, and toward more shadowy, dark-money, anything-goes lawlessness. They're out to de-fang the justice system, rendering it inert on the subject of political campaign financing. Hey, what could possibly go wrong?

The conservative groups also have now sued the State of Wisconsin Government Accountability Board, which oversees state elections and whose non-partisan members, all former judges, approved the Doe, which itself is overseen by another judge. By conservative standards, the main problem with these particular judges apparently is that they don't always see eye to eye with Republicans. So let's get out that judicial shopping cart!

Eric O’Keefe is a director of one of the groups -- the right-wing Wisconsin Club for Growth. In one of the lawsuits against the Doe prosecutors (actually, just one of those prosecutors, who happens unlike several others on the case to be a Democrat), O'Keefe not only cites the alleged violation of his free speech rights; his attorneys also argue in court against the legitimacy of reported settlement talks involving Doe prosecutors and Gov. Scott Walker.  Any such settlement apparently would further violate O'Keefe's rights, or so goes the O'Keefe argument. Because, you see, Federal Judge Rudolph Randa already says so.

On the other hand: Since the previous century and the one before it, prosecutors regularly have agreed to such deals with some suspects in order to speed the judicial process and sometimes to obtain cooperation investigating other suspects. Then again, federal judges have not until now shown a propensity for interfering in such state judicial matters, ordering as Randa did a halt to an investigation before it was even complete. In any truly just world where the red queen of hearts wasn't trying to change the rules at whim and on the fly, O'Keefe would in the first place have no standing to sue, since the Doe probe was undisclosed until, it would seem, he illegally disclosed it. In what sort of endeavor does a person claim the right to seek a boon based upon that same person's prior and continuing abuse of the law? Answer: an illegitimate one.

But put aside all the conservative gesturing, posturing and massive court filings. The fundamental flaw in the arguments of O'Keefe and the third-party conservative groups comes down to this:

Where, exactly, in Wisconsin or federal law, or in the Constitution's limited guarantees of free expression, privacy and right to avoid self-incrimination, does it say that law enforcement and judicial authorities don't meanwhile retain the right to investigate possible crimes? Because, when you cut through the BS, that's the summary rationale in the conservative lawsuits attempting to kill the Doe investigation: You can't investigate us! Because ... free speech! Civil rights!

Conservatives have blown a lot of wind about the secret character of the Doe probe, but that secrecy is a feature, not a defect. As Marcus J. Berghahn, with the Madison-based Hurley, Burish & Stanton law firm has pointed out in a very concise and clear essay (see URL below), Wisconsin's John Doe process has several purposes. Among them is the pursuit of evidence of possible crimes while protecting "innocent citizens from the fallout of frivolous prosecutions." Another is to collect information in a way that among other things prevents interested parties from thwarting the inquiry by tampering with testimony or hiding evidence. I mean, Elliot Ness and the Untouchables weren't obliged to telegram the Chicago mob announcing they would be raiding what they suspected were Al Capone's illicit liquor warehouses.

Yes, like you and me, Mr. O'Keefe has a right to express himself. He and his group have a right to spend money in support of political candidates they prefer. But that's not a license to do anything they like, however they like, irrespective of the law and without any official scrutiny ever. Moreover, O'Keefe's claim that the Doe should be ended because it has sullied the reputations of himself and his organization is, to put a fine point on it, laughable. After all, the fact that he and the Club for Growth were being investigated was a secret, until he himself revealed that secret.

In November 2013, O'Keefe told the Wall Street Journal and thus the world at large that he had received a subpoena the previous month regarding the Doe investigation. Now O'Keefe evidently is upset that his reputation is being sullied in public. Well, sir, that's why Wisconsin's John Doe process was created back in the 19th Century -- to protect possible innocents like you from unwarranted public recrimination. But, ta-dah! Thanks to you, the public is now free to make up its own mind, minus the very privacy the Doe was created to provide you.

But it's obvious O'Keefe was being more sly than reckless in outing himself. Ever since, the conservative groups in question have been trying to use the revelation to quash the now-public Doe -- and perhaps, if they even care, the Doe process altogether. In making it known through the opinion pages of the Wall Street Journal that he was a target, O'Keefe arguably subverted the probe's purpose. Just as arguably, in filing lawsuits to halt the probe while it is still collecting information, the conservative groups may in effect be seeking to hide or tamper with evidence. I'm no prosecutor, but I suspect such reflections have occurred to more than a few attorneys or judges familiar with this area of law.

Indeed, O'Keefe actually got friendly, conservative, activist Federal Judge Randa to rule that the Doe should end and evidence already collected from the groups should be destroyed -- an order reversed by a federal appeals court. It later turned out that Randa has often attended all-expenses paid conservative junkets. Who needs a fair, well-regulated, well-tested, confidential, fact-finding process when you can instead groom and feed your own judge to make summary declarations? Who needs to hide or tamper with evidence when you can just get a judge to order it destroyed before it might be used in an actual criminal trial?

The conservative legal blitzkrieg is clearly a reach, maybe even a very desperate and risky reach, but the potential benefits are substantial. Just imagine: Being able to do whatever you like to support political candidates of your liking, totally in secret and without fear of legal inquiry. Tempting, huh?  Would you sell your political soul to get that kind of power? Would you wreck democracy in the effort? On both counts, these guys seem willing.


May 31, 2014 - 1:08pm