Lawfare against conservatives in Wisconsin stopped cold

By Steve Eggleston

From time to time, I have covered the attempt by the liberals in and contracted by the Milwaukee County District Attorney’s office and the Government Accountability Board to silence every conservative group of note in Wisconsin through Wisconsin’s unique John Doe investigatory process because they, and Governor Scott Walker, were successful in neutering the public employee unions here. I haven’t been nearly as thorough as the people at Watchdog.org, especially Matt Kittle. Once again, I recommend reading through all 222 parts of their series.

I have good news – on Thursday, Wisconsin Supreme Court shut down that persecution for good.

The Supreme Court actually decided three separate cases which they consolidated; two unnamed petitioners seeking to end the investigation because they claim no crime was committed, three unnamed petitioners (including the two mentioned above) seeking to “unbundle” the five-county investigation on technical grounds, and the special prosecutor seeking to have the second presiding judge’s quashing of numerous subpoenas issued by the first presiding judge reversed. Conservatives won on the first and third cases, but lost on the least-important second.

On the first case, the majority on the Supreme Court really dropped the hammer. Like the federal Seventh Circuit Court of Appeals before it in a case known as Barland II, they ruled that Wisconsin’s campaign finance laws are unconstitutionally broad and vague on both federal and state grounds. They further held that even if independent groups were coordinating with campaigns on issue-advocacy ad campaigns, that coordination is protected under both the state and federal constitutions, and as such, is not a crime. As the prosecutors alleged only coordination on issue advocacy and never alleged coordination on express advocacy, the majority wrote as paragraph 11:

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.

Related to that, they turned back special prosecutor Francis Schmitz’s attempt to unquash the subpoenas quashed by the second presiding judge, Gregory Peterson as the quashing was a discretionary decision made by Peterson and thus not subject to the supervisory writ sought by Schmitz. They further note that Peterson’s reasoning for the quash, that what was being claimed by the prosecution was not a crime, was affirmed by them in the first case, and that Peterson served the role as “a check on the prosecutor and on the complainant to ensure that the subject(s) of the investigation receive(s) due process of law” that Barbara Kluka, the first presiding judge, failed to serve as.

The same limiting factors on supervisory writs cost the three unnamed petitioners on the “bundling” case. Here, the majority noted that multi-county John Doe investigations presided over by the same reserve judge are problematic, and that the circumstances of the appointment of a special prosecutor by Kluka, though judicially sanctioned via an earlier Supreme Court ruling, did very likely violate state law on when a special prosecutor may be appointed.

So, what now? Even though Eric O’Keefe’s federal lawsuit against the prosecutors ultimately ended in dismissal, mostly because the state issues had not been resolved, there are already lawsuits in state courts against the prosecutors. There are already proposals to reform the John Doe process and radically reform the out-of-control Government “Accountability” Board beginning to percolate in the Legislature. There is also the long-shot possibility of getting Walker to use his statutory authority to remove Milwaukee County District Attorney John Chisholm for prosecutorial misconduct.