My column for the West Bend Daily News is online. Here you go:
“The petition for a writ of certiorari is denied.” With those nine words from the U.S. Supreme Court, the long, winding road of the illegal and immoral John Doe investigation has come to an end. But with that end, there is a lot of work to be done to clean up the mess, right the wrongs committed and rewrite the laws to ensure rogue prosecutors are checked before they can do so much damage.
The John Doe process, which is unique to Wisconsin, allows prosecutors extraordinary powers to investigate people in exchange for utter secrecy to protect the lives and reputations of the targets of the investigations. In this case, Milwaukee County District Attorney and former chief investigator Francis Schmitz ran roughshod over the rules. In a wide-ranging investigation that included unannounced pre-dawn raids of people’s homes by armed police, confiscation of years’ worth of files and communications, capturing of electronic and phone communications through service providers without notifying the targets, and several other brute force investigatory tactics, the John Doe prosecutors thoroughly uprooted the lives of dozens of conservatives in Wisconsin.
Throughout the investigation, there were several leaks to the media and the media even happened to know when some of the unannounced raids were taking place so they could record it for their news broadcasts. Even as recently as a few weeks ago, more than a thousand pages of documents that are supposed to have been kept secret by the prosecutors were leaked to the British media, where it will be difficult for American law enforcement to track down the source.
It is clear that, from the beginning, John Chisholm and his cohorts used the power of their offices to target conservatives and bully them into silence while allowing the information they collected to be leaked to the media to influence elections.
After years of legal wrangling and news stories, it is worth backing up and remembering what Chisholm was trying to prosecute. He was trying to prosecute conservatives — only conservatives — for exercising their First Amendment right of free speech. The judges overseeing the John Doe process told Chisholm what he was trying to prosecute was not a crime. The Wisconsin Supreme Court told him the same thing. The federal Court of Appeals said the same thing. But the prosecutors were not acting as prosecutors enforcing the law. They were acting as political agents prosecuting their enemies for laws that do not exist.
In responding to the Supreme Court’s denial, Chisholm reiterated as much when he said, “We look forward to the day when Wisconsin adopts a more enlightened view of the need for transparency in campaign finance.” In other words, he knows that he was trying to prosecute conservatives for laws that he would like to exist, but do not, and cannot as long as the First Amendment still holds sway.
The fight is not over yet. The prosecutors have already demonstrated they are not honorable and not above political retribution. They still possess thousands of documents about dozens of people they should never have taken. Even if they claim to return or destroy those documents now, as the Wisconsin Supreme Court ordered months ago, the victims can have little assurance that copies do not exist to be used by their enemies in the years to come. That is why the state attorney general must aggressively investigate and prosecute whoever already leaked documents over the past several years. Only by strict enforcement of the law can future potential malcontents be deterred.
Also, the Legislature took a small step to reform the John Doe process by preventing it from being used for political infractions. They need to go the rest of the way by completely repealing the John Doe process. While it can be argued to have some value, its potential for abuse by dishonorable prosecutors is too great. All of Wisconsin’s citizens are at risk of the abuse of this process and should be protected — not just the politicians. Forty-nine other states manage to prosecute people for crimes without this process. So can Wisconsin.
Thankfully, this abusive John Doe is over. Now we must ensure that no prosecutor is ever allowed to use it to abuse Wisconsinites again.