Red Queen v. John Doe: First the sentence ('not guilty!') and never the evidence | WisCommunity

Red Queen v. John Doe: First the sentence ('not guilty!') and never the evidence

Politics in Wisconsin seem more and more like they function as part of Lewis Carroll's "Alice in Wonderland" -- and, especially, Carroll's followup fantasy, "Through the Looking Glass." Increasingly, political interests active in (though not always native to) this state seek to point the finger of blame at others and project upon those others their own failings.

Latest example: The informally monikered "Son of Doe" secret investigation into possible, illegal collusion between the Scott Walker recall campaign and supposedly independent, "non-campaign" groups that spent a ton of money indirectly or directly supporting the beseiged governor's campaign. "Son of Doe" is an inquiry that apparently grew out of an earlier Doe which led to six convictions involving supporters and staffers of Scott Walker when he was Milwaukee County executive.

Here's the Alice in Wonderland part: Two of the apparent targets in the current probe (the Walker campaign itself is reportedly a third) have now filed a federal lawsuit claiming their free-speech rights are being trampled. Eric O'Keefe and his Wisconsin Club for Growth are mighty upset that they're the subjects of an investigation. After all, how dare anyone in the local and state justice system examine anything they've done -- even if there's reason to believe they might have done something wrong.

Indeed, O'Keefe and the club say they should be excused from having to cooperate with the inquiry altogether, and that the prosecutors should have to pay them civil damages. That's for allegedly violating their constitutional rights by, you know, asking them questions and looking at their books and stuff.

Yes, that's right. The Red Queen in "Alice" ran a supposed justice system where first the sentence was decreed and only then the evidence revealed. Borrowing from that, O'Keefe and company in so many words seem to be saying this: First, let's have the sentence -- which O'Keefe and his club seek to make disappear, which by default would imply they are not guilty. And only after that should anyone deal with the evidence, although, unlike the Red Queen, Keefe and company want to prevent any of the Doe's information from reaching the light of day, ever. It's for them to know and the public to find out, and the public doesn't have the right to find out. speech! Right to privacy! This is truly an Alice in Wonderland argument for suspects in a criminal investigation: You can't investigate us, ever, because to do it you actually have to investigate us! And that very investigation violates our right both to speak freely and retain our privacy. Well, okey-dokey, Mr. O'Keefe!

The O'Keefe/Club for Growth lawsuit is thus quite the reach. After all, in America, how often do suspects in an on-going criminal investigation succeed in suing investigators, judges and prosecutors to leave them alone before the case is even complete, before charges are even issued, much less dropped? Yet here we are in Wonderland, where everything is done in reverse.

The O'Keefe argument may be rhetorically satisfying but legally speaking it smacks of the extremely lightweight variety we also saw when 501(c)4 quasi-political groups complained that the Internal Revenue Service actually had the temerity to do its job and review their applications for tax-exempt status. Just give us the exemption, dammit! You can't question what we've put down there on paper speech! Right to privacy!

I won't here revisit all the pertinent details of the Sons of Doe case, which I have discussed previously here at Uppity. Besides, other sources closer to the legal and political mayhem are doing a better job of explaining it than I ever could, including these latest developments -- see links below. But do consider the following couple of aspects to this case:

* O'Keefe claims his rights have been violated because word that he is a target of the investigation has leaked out, while he's burdened by what he calls a "gag order." Most recently, on a filing by the probe's special prosecutor, a filing necessitated by an earlier attempt to quash the case, his initials EOK were (perhaps inadvertently) left visible in an otherwise "redacted" document. But that seems moot, since O'Keefe earlier had already outed himself as having received a subpoena issued by the Doe investigators -- and he did it in the pages of the Wall Street Journal.

If you value your privacy, why reveal a private investigation that hasn't named you? And then feel free to sue because your reputation is now allegedly sullied by the revelation? And then complain that you were under court order not to discuss the case, even though you did anyway? I'm no lawyer, but this to me does not seem like a very serious legal argument.

Indeed, what all this suggests is that even if O'Keefe is not guilty of suspected campaign law violations or even ever charged, he is potentially on the hook for illegally revealing important details about the secret Doe probe, in service to an expansive though somewhat frivolous effort to prematurely end that investigation. Such an effort might in fact even be regarded by the law as an obstruction of justice. Risky, in that case, but if you're worried about what might be revealed in a full and completed inquiry, perhaps you'd consider it worth the risk to try neutering an integral component of the Wisconsin justice system.

* O'Keefe and his group make a claim to the effect that their political effectiveness has been compromised by news of the case, as prospective supporters and contributors are now staying away. Yes, it's often  embarrassing and even financially stressful when a person is charged with a crime. Usually, however, as all journalists know, people merely being investigated in connection with a crime are not named until they are charged. And as far as anyone has demonstrated, O'Keefe was not named -- until he named himself.

* In their filing, O'Keefe and his club say prosectors in the Doe case have leaked information to help the Democratic Party (a serious but as yet unsubstantiated charge). In the process, claims the lawsuit, the reputations of the plaintiffs were damaged. But significant leaks of information were published in the same Wall Street Journal that published O'Keefe's revelation he was subpoenaed in the case. What are the odds that innately cautious (hence, a Doe probe) prosecutors would give the conservative Wall Street Journal a complete copy of a judge's secret ruling that basically shot down the prosecutors' plan to issue more subpeonas? Call me too logical, but I don't think it was the prosecutors who leaked that unfavorable ruling. And who else even knew about the ruling? Bingo!

* Ironically, much of the 76-page, O'Keefe/Club for Growth filing is redacted and not available to the public, precisely because it involves a secret John Doe probe. Thus, this is to some extent a case of the pot calling the kettle black. And perhaps getting away with it, at least for now in the court of public opinion. Because, when you consider the big picture here, you may quickly agree that this entire matter is about who controls information, and how or whether they get to use it.

And so, we're one step closer to the day when the only probes permissible under Republican rule in Wisconsin may be the ultrasound kind that the GOP governor and GOP lawmakers insist be inserted coercively into the vaginas of abortion-seeking women.


February 11, 2014 - 11:31am