In a ruling this morning, the Wisconsin Supreme Court rendered official what observers have long known: Wisconsin Democrats did, in fact, launch a massive, multi-county “John Doe” investigation of the state’s conservatives, featuring extraordinarily broad subpoenas and coordinated “paramilitary” raids of private homes; the “crimes” that provided the investigation’s pretext were not crimes at all, but First Amendment-protected speech; and the legal theory underpinning the investigation was bunk, “unsupported in either reason or law,” as the court put it.
In two separate reports, National Review described these raids in detail. (The court cited our reports in its opinion.) On October 3, 2013, multiple Wisconsin conservatives were awakened by a persistent pounding on the door, their houses were illuminated by floodlights, and police — sometimes with guns drawn — poured into their homes. Once inside, the investigators turned the private residences of these innocent conservative citizens “upside down,” seeking an extraordinarily broad range of documents and information. These raids were supplemented by subpoenas that secured for investigators massive amounts of electronic information. The court was obviously disturbed:
The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing. Millions of documents, both in digital and paper copy, were subpoenaed and/or seized. Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. The special prosecutor obtained virtually every document possessed by the Unnamed Movants relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013). Such documents were subpoenaed and/or seized without regard to content or relevance to the alleged violations of Ch. 11. As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos.
The raid victims have suffered severe, long-term consequences as a result of these raids. Almost to a person, they say they no longer feel secure in their own homes. They report watching what they say, terrified that overt political involvement could lead their homes to be invaded again. One victim said, “I tried to create a home where the kids always feel safe. Now they know they’re not. They know men with guns can come in their house, and there’s nothing we can do.” Another victim — whose son was home alone when police arrived, guns drawn — is haunted by this chilling thought: “He could have been in the shower. They could have broken the door down. He could have been shot. Over politics.”
The abuse has been stopped, but this victory — important as it is — will be hollow indeed if there is no accountability.
The Democratic prosecutor’s legal theory — the theory that launched this multi-county reign of terror — was that various Wisconsin conservatives engaged in “illegally coordinated issue advocacy” in violation of Chapter 11 of the Wisconsin Statutes. To prove his case, the prosecutor sought authority under the state’s broad “John Doe” statute to launch a secret investigation of dozens of Wisconsin conservatives and conservative groups. The John Doe statute empowered the prosecutor to issue gag orders on raid targets, prohibiting them from defending themselves even as leaks to the press cast them as suspected criminals. The Court has now ruled that the legal reasoning from which the entire investigation proceeded was fatally flawed.
The problem with the prosecutor’s theory, according to today’s ruling, is that Chapter 11 applies only to “express advocacy” — speech that “expressly advocates the election, defeat, recall or retention of a clearly identified candidate or a particular vote at a referendum.” Consequently, the court held:
The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor’s theories, rather than ‘assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people’ . . . instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.
In its first story about the court’s ruling, the New York Times claimed that the case raised “broader questions about how political campaigns and independent groups may interact in the wake of the Citizens United decision by the Supreme Court in 2010, which gave wide latitude to outside campaign spending.” This is wrong. The legal precedent granting broad constitutional protection for issue advocacy is quite clear. The “broader questions” raised by the case are far more consequential: Will the aftermath of the John Doe witch hunt halt a disturbing trend toward attempting to criminalize political disagreements (see, for example, the sham prosecution of Rick Perry in Texas)? Will prosecutors face any legal consequences for launching such an extraordinarily abusive investigation of what is without question constitutionally protected speech?
The John Doe-related legal proceedings are far from over. Already, raid victims have filed lawsuits against the prosecutors, alleging systematic and intentional violations of their civil rights. Further litigation is likely. Yet no amount of money can compensate the victims for the moments of sheer terror and the months of deep anxiety that followed the John Doe raids. Eric O’Keefe and the Wisconsin Club for Growth launched the legal challenges that culminated in today’s ruling, and in challenging the partisan prosecutor O’Keefe directly defied the prosecutor’s gag orders at great personal risk. Reached for comment, he notes that the defense of liberty should not rest with judges alone. “It does not take a law degree to know that raiding family homes in the dark to look for political papers is un-American,” he says. “We should not have to wait for judges to tell us that. Legislators across the country need to step up and confront the assaults on liberty coming from the permanent government.”
The abuse has been stopped, but this victory — important as it is — will be hollow indeed if there is no accountability. For the raid victims and their families, justice is still long-delayed. If prosecutors do not face any real consequences for their actions, then justice — ultimately — will be denied.
— David French is an attorney and a staff writer at National Review.