Memo to Wisconsin's star chamber: Just the facts, please

Those of you old enough might remember the disclaimer that accompanied every episode of TV's 1950s-'60s police show, "Dragnet." A narrator would entone: "The story you are about to see is true; the names have been changed to protect the innocent." That also roughly describes one of the reasons Wisconsin law has enshrined the John Doe investigation, a kind of closed grand jury process, minus the grand jury.

John Doe probes are secret for several reasons -- protecting potential evidence from destruction or premature disclosure, for one thing. But a big aspect of Doe secrecy is to avoid what in a normal, open proceeding would mean naming names before anyone becomes a formal suspect or is charged with a crime.

Large, sweeping criminal investigations typically draw many people into their legal dragnet, and while some of those individuals may know something useful about the case, prosecutors and courts also know that the reputations of innocent persons can be harmed by a long-term, wide-sweeping and necessary search for the truth.

On the other hand, secrecy becomes moot when some of the facts of the inquiry leak out into public view. As is the case with this current Doe. It's still secret, in principle, but much sensational information about the inquiry already has leaked to public, and so it has in effect become a public investigation.

And now, thanks to the state Supreme Court, we in Wisconsin will be forced to continue living through an Alice in Wonderland landscape of legal battles over what should be private and what should be public, with some folks trying to have it both ways. More on that new development in a moment. Meanwhile, know that this strange set of events is all driven by targets of a John Doe probe, who are busy gaming the system.  

These groups themselves have employed secrecy when it benefited  them and their consorts up to and including Gov. Walker -- mainly in the course of moving around millions of dollars in anonymous, dark-money campaign donations. Yet they're fine with pretending to be aghast at similar secrecy -- legally instituted to protect the innocent -- as the justice system cautiously looks into the matter.

Of course, they're also upset that the matter is even being looked at. Because, you see, what they do and whether it's legal should be none of the public's business. Only real crimes should be investigated. Never mind that this belies cause and effect: Prosecution comes only after evidence gathering, not the reverse.

The Wisconsin Supreme Court has just made the pending Doe inquiry even more twisted and bizarre, a majority of justices ordering that in considering the merits of legal action against the secret proceeding, the court itself will make its own proceedings in three related Doe cases largely secret.

One of the big arguments by conservative political groups that are subjects of the Doe inquiry is that their reputations have been sullied. Of course, this mainly occurred because one of those same subjects leaked to the conservative Wall Street Journal word of his involvement. Oopsy-daisy.

Legal battles instigated by that individual and the group he represents then led, ironically, to further disclosures about their respective activities, based on documents formerly kept secret by the Doe investigators.

In short, the argument for quashing the probe has evolved more or less as follows: It's bad because it's a secret witch hunt! It's even worse because our names have been associated in public with it, putting our reputations into question! Because we leaked our involvement as part of our effort to keep our involvement private!

And now, the Supreme Court has decided that it will not hear oral arguments in deciding if the plaintiffs are right, thus neatly avoiding demands from newspapers that the proceedings be held in the light of open day, as Supreme Court cases routinely are. Instead, the justices will only read briefs submitted by both sides. And some if not much of the court's work afterward in rendering a decision may remain secret, as well. 

Why? Well, apparently, holding an open legal proceeding on questions about a secret legal proceeding would be too rational. Remember, that's the secret proceeding already largely forced into the open by the very folks now questioning that probe's secrecy before the high court. Any Wisconsin cow could summarize that in one vowel: Moo-t!

The other big issue in this set of cases is the conservative claim that the Doe probe is illegitimate because the activities in question are not illegal. Except that the very point of the Doe process is to ascertain if there was any illegal activity, a conclusion the prosecutors haven't yet reached. In other words, not there, yet.

If the prosecutors end up deciding there wasn't any illegal activity, or there was but the evidence is insufficient to prove that, why then, no problem. The evidence will point to that or at least the lack of any condemning facts, and the Doe will close without leading to anyone charged in an open court of law, and tried under the usual due process.

So what's the point of short-circuiting the process, other than to obtain a declaratory judgment? The plaintiffs received that ruling from a friendly federal (and Federalist Society) judge, whose ruling was later tossed by a federal appeals court. Hell, don't need no stinkin' investigation. We just told you we didn't do nuttin' wrong!

Beyond that, the plaintiffs (who might yet become defendants) insist at least in their news releases that the Doe case is a witch hunt promulgated by a politically motivated Democratic district attorney. Except that other prosecutors in other counties who are Republicans are equals in the probe, and all the DAs are led by a special prosecutor who is likewise Repubilcan. So that argument is quite a reach, unless, perhaps, you're one of those conservative Supreme Court justices who see politics wherever they look. Like under that bush over there.

Got all of that? Good. Now, let's go watch Alice's Queen of Hearts paint her roses red before clipping them at the head. Because that's no more sensible than this Doe dust-up.

Worse yet, the Supreme Court rejected the Milwaukee Journal Sentinel's request to intervene in the case on behalf of public disclosure. What, are you nuts? Decide whether a secret proceeding might be too secret in a ... a ... public proceeding?!

This may be overstating the point, somewhat, but, arguably, all these secrecy orders from the state Supreme Court seem just a step or two short of the kind of activity we might expect from the "star chamber," that relatively lawless, historical court in old England controlled by the high monarch.

[Ironically, right-wingers have turned around reality, in at least once instance openly referring to the Wisconsin John Doe itself as a star chamber, even though the Doe process has long been enshrined in state law and operates under strict judicial rules, where prosecutors work not by themselves but with oversight from Wisconsin judges. This sudden smearing of the Doe -- which process never concerned them across decades of earlier such proceedings, including the infamous and bipartisan legislative caucus scandals -- comes from a conservative political wing that's spent those same decades politicizing the elected judiciary, from Wisconsin's own Supreme Court to the nation at large. They seem not so much displeased with the probe itself as with what it might find out -- or already has.]

These Supreme Court orders were in fact so radical and breath-taking that one of the most conservative justices, David Prosser, felt obliged to issue a dissenting comment. The other conservative justices still managed to corral a majority on the matter. Chief Justice Shirley Abrahamson, who also dissented, called the court's order "highly unusual."  Which has become usual, for this particular array of justices.

Noteworthy is that several conservative Supreme Court justices benefited in their election campaigns from spending by groups that have been part of the Doe investigation. No word on whether those justices will, as requested, recuse themselves, but in issuing this secrecy order, you get the feeling they think of themselves as not only ready to decide, but morally and ethically equipped for it. Their rationale for that attitude also seems to be an open secret.

Very noteworthy is that the court's secrecy fetish in this matter should benefit Gov. Scott Walker, whose campaign apparently worked in concert with the supposedly "independent" political action groups, all of whom are party to the Doe inquiry. Walker is running for president, and by the time the court rules this summer, the Republican party will be much closer to choosing its nominee.

Many observers think the court's conservative majority will in some fashion kill or hamper the investigation. Doing it in relative obscurity would in theory help to make the facts of the case more obscure, and taint it in a sidelong manner, in turn benefitting Walker.

As Dragnet's Sgt. Joe Friday would say, the court should be concerned with "just the facts." It should also be concerned with upholding its duty to make a decision with as much transparency as possible. Otherwise, the court is operating like the Queen of Hearts, fuzzing up the issues and at the very least casting a cloud, rather than sunlight, over the entire matter.

And while that might soothe allies of the court's conservative majority, it will not help the public understand this case or bolster our collective faith in the functions of an increasingly politicized court system. All according to plan, it would seem.


March 28, 2015 - 10:09am