Bench Memos

The End of the Wisconsin John Doe Investigations

Monday, the Supreme Court of the United States denied the petition for review filed by the prosecutors in the John Doe case, a legal drama that has taken numerous twists and turns and ensnared far too many innocent bystanders. While petitions for certiorari are rarely granted — some Supreme Court terms have seen less than 2 percent of petitions granted — the State of Wisconsin nevertheless waited in anticipation to see if the John Doe saga would finally come to end. The tension increased when certain documents contained in the record were illegally provided to The Guardian, the U.K. news outlet. On Monday morning, it ended anticlimactically, with the Supreme Court simply noting, “The petition for a writ of certiorari is denied.” Three key takeaways can be gleaned from the Supreme Court’s denial.

First, it was always highly unlikely the Court was ever going to accept the cert petition in this case. The focus of the litigation centered on the meaning of Wisconsin’s campaign-finance laws. But Wisconsin courts have the final word on what state law means. To say that federal law might permit a state to forbid the conduct alleged by the Doe prosecutors, does not tell us whether a state has, in fact, done so or whether its laws are permitted by its state constitution. In other words, the issue before the Court was never really a federal question for the Court.

To the extent there was a federal question, namely forced recusal of two of the court’s justices, the court was unlikely to ever stretch the Caperton v. A.T. Massey Coal Co. decision in a way to accommodate the special prosecutor. Caperton was a 2009 case where the Supreme Court held the Due Process clause of the Fourteenth Amendment may, in some rare cases, require a judge to recuse himself. There are many problems with applying Caperton here. One was that the judges in question were elected or reelected before the investigation began. To hold that justices are forever banned from cases involving their campaign supporters (or opponents) would make recusal the rule and not the exception. If those supporters are, like here, ideological organizations, recusal would become pervasive in the most important cases before the court. In addition, even if recusal were forced, the Wisconsin Supreme Court would have likely split 2-2, leaving Judge Peterson’s decision, quashing the subpoenas and warrants and essentially ending the investigation, in place.

Second, the Wisconsin Supreme Court’s July 2015 decision stands. In denying the petition, the U.S. Supreme Court essentially affirmed the state high court’s 4-2 decision from last summer. The decision left little doubt that the special prosecutor proceeded under a faulty interpretation of Wisconsin’s campaign-finance law. In fact, the majority proclaimed “the special prosecutor’s legal theory [was] unsupported in either reason or law.” This is because the law did not apply to the conduct alleged. Most fundamentally, Wisconsin law applied only to activities undertaken for a “political purpose” — a legal term of art. It had long been understood that Wisconsin’s definition of the term was unconstitutionally overly broad and vague under the First Amendment of the United States Constitution as well as Article 1, Section 3 of the Wisconsin Constitution (the state’s free-speech clause) and had to be limited to speech that can be interpreted as nothing but an express call for the election or defeat of candidate.

Therefore, the court found that issue advocacy, “whether coordinated or not”, is beyond the reach of Wisconsin’s campaign-finance law.

Third, with all appeal options exhausted, the Wisconsin Supreme Court’s unambiguous order to end the investigation, return all property to the targets, and destroy all other records remains in place. In its July 2015 decision, the court left little doubt as to the finality of its decision. Among other things, it declared the investigation “closed” and ordered that those involved in the investigation “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.”

In denying the special prosecutor’s motion for reconsideration in December, the court reiterated its order regarding the documents, but modified it to take into consideration the possibility of an appeal of its July 2015 decision. Instead, the court held “all of these obligations must be completed within 30 days following the completion of proceedings in the U.S. Supreme Court on any petition for certiorari review.” In other words, 30 days from Monday (November 2), all steps required by the court relating to filing of documents with the Supreme Court clerk or destruction of other records must be completed. The court clearly mandated that the “prosecution team should be completely divested of all such documents, material, and electronic data.”

What should be of concern to the person or persons who leaked the documents to The Guardian is the court’s requirement that Attorney Schmitz file an affidavit. The court’s December order requires Schmitz file an affidavit averring that he collected and submitted to the clerk all originals and copies of documents and electronic data obtained in the course of the investigation. This requirement includes written statements from all members of the prosecution team and all individuals who were granted access to the John Doe documents and electronic data. While we do not know who leaked the documents to The Guardian, it is possible that whoever did so will be faced with a Hobson’s choice — falsify an affidavit filed with the state’s highest court or identify the “copies” of records or data that were provided to an outside source.

The Supreme Court’s refusal to grant the prosecutor’s petition represents a win for the First Amendment, and for anybody, Republican or Democrat, who is disturbed by the use of government resources to target political enemies on the basis of an unconstitutional legal theory. It has been said that lawyers need a little voice in the back of their heads alerting them when they have pushed the limits of the law too far. In this case, the prosecutors either do not possess such a voice, or did everything they could to stifle it during the course of the investigations and subsequent litigation. Let’s hope special prosecutors in the future aren’t so quick to suffocate that pesky little voice of reason.

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