Lawfare against conservatives in Wisconsin stopped cold

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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 Watch​dog​.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.

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.