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Law & the Courts

A Revealing Leftist Defense of Wisconsin’s Shameful Political Prosecutions

At long last — two weeks after three conservative women came forward to describe their experience with the abusive, politically-motivated “John Doe” investigations in Wisconsin – leftist writers have offered a full-throated defense not just of the investigation itself but of the terrifying and intimidating raids. Writing in the Huffington Post, Mary Bottari and Brendan Fischer (from the Center for Media and Democracy) argue that the John Doe investigations were nothing more and nothing less than bipartisan efforts to investigate “serious allegations of corruption” against Scott Walker, and the raids described in the article simply represent “standard law enforcement practices.” These arguments, however, are unsupported by the applicable law or the facts underlying the investigation. 

Let’s take, for example, the alleged “serious allegations of corruption.” Here’s how Bottari and Fischer lay out their case:

Republican prosecutors gathered evidence of Walker secretly raising millions of dollars for the supposedly “independent” nonprofit Wisconsin Club for Growth (WiCFG), with the express purpose of bypassing campaign finance disclosure laws. Talking points prepared for the governor advised him to “stress that donations to WiCFG are not disclosed,” to call the group “his 501c4,” and to tell donors “that you can accept corporate contributions and it is not reported.”

They continue:

And evidence suggests that Walker had a lot to hide.

There is the secret $700,000 donation to WiCFG from an out-of-state mining company, Gogebic Taconite, which at the time was pushing for an open-pit mine in Northern Wisconsin (and got it, after Walker won re-election).

And there’s the undisclosed $1.5 million donation from billionaire John Menard, whose company Menard’s Hardware was awarded $1.8 million in tax credits from the jobs agency Walker chairs, not to mention a drop-off in environmental law enforcement.

WiCFG spent at least $9.1 million during the recall elections, and funneled at least $10 million more to other politically-active groups like Wisconsin Manufacturers & Commerce, while reporting that it spent $0 on politics to the IRS.

Sounds ominous, right? Well, Bottari and Fischer are simply reporting constitutionally-protected issue advocacy and constitutionally-protected donor anonymity. The Left may despise the current state of campaign finance law and First Amendment jurisprudence, but their fear and loathing does not render lawful political activity unlawful. And if you doubt whether the John Doe investigations of the recall elections focus on conservative political speech, take a close look at the affidavit they link as supporting the notion that the controversial pre-dawn raids were supported by probable cause. The affidavit demands information from a vast network of conservatives and conservative groups, all tied to the fundamentally flawed legal theory that sought to improperly regulate conservative issue advocacy. Don’t take my word for it, however. Here’s a quote from the judicial order finally quashing the subpoenas:

I conclude the subpoenas do not show probable cause that the moving parties committed any violations of the campaign finance laws. I am persuaded the statutes only prohibit coordination by candidates and independent organizations for a political purpose, and political purpose, with one minor exception not relevant here . . . requires express advocacy. There is no evidence of express advocacy. (Emphasis added.)

Here’s a basic legal principle: if the “crimes” investigated are not crimes at all, then there will never exist “probable cause” to search a “suspect’s” home. Soon enough, however, the Wisconsin Supreme Court will issue a ruling that should dispel any lingering legal uncertainty surrounding the legal theories supporting the most recent round of John Doe investigations. If the court follows relevant First Amendment precedent, it’s likely to uphold the trial court’s finding — that the most recent John Does were fatally flawed from their inception.

But what about the conduct of the raids themselves? How do Botarri and Fischer justify the battering rams, the police swarming through homes and into sleeping kids’ rooms, and the screaming, taunting investigators? Well, that’s just how it’s done, apparently:

Although search warrants are issued by a judge, in response to a petition from a prosecutor, how the warrants are executed is left to law enforcement–so any critique of the John Doe “raids” is really a complaint about standard law enforcement practices, former prosecutors and law enforcement officers tell CMD. And nothing described by the National Review appeared out of the ordinary for executing search warrants to secure evidence that could be destroyed, they say . . . “Safety is always a concern,” McCann told CMD. “Even a law-abiding person may have firearms, and they might wake up after you enter home, get startled, and grab for a weapon.” Mahoney described an instance he had a gun drawn on him while executing a search warrant for a white-collar crime, and says that sheriff’s deputies regularly find weapons during searches.

Although the National Review leads with the claim that officers brought a battering ram to the home of one Walker aide, Mahoney says this is standard.

“You are required to knock and give people a reasonable time to open the door, but you are also required to execute the warrant with necessary force,” he said. “So if they don’t open the door, you don’t leave a calling card and say ‘I’ll be back in an hour.’ If they are not home or not answering, you sometimes have to knock down the door.”

Ahh, safety. Because nothing defuses tension like pounding so loudly on a door that the homeowner actually believes they’re facing a home invasion. Keep in mind that none of the individuals who came forward to National Review were charged with a crime. And the “evidence” they were looking for in the October, 2013 series of raids was of “crimes” that weren’t crimes at all. As for the claim that “nothing” described in the article appeared out of the ordinary, Milwaukee County Sheriff David Clarke disagrees:

A simple knock on the door by a couple of suit wearing investigators with one…one uniform back-up to verify who they were was all that was necessary to execute this search warrant. Would they do this in this fashion at a day care center with kids there if they were looking into a drug operation? The answer is no.

The Left has long tried to argue that bipartisan law enforcement participation in the John Does meant that they couldn’t possibly be politically-motivated, but the participation of opportunistic alleged Republicans hardly means that a concerted attack on conservatives (yes, there’s a difference) wasn’t politically-motivated.

Finally, Botarri and Fischer (and the Wisconsin Journal Sentinel) call for the John Does to be “open to the public.” After years of prosecution-enforced secrecy combined with intrusive, unconstitutional searches, this demand is extraordinarily disingenuous. Essentially, the Left is demanding that the court dump reams of private information obtained through illegal search warrants into the public square — continuing the punishment of conservative speech. To the contrary, if the Wisconsin Supreme Court affirms the ruling of the trial court quashing the John Doe subpoenas, then the investigation should end, and the subpoenaed and seized information should be returned to the targeted conservatives and conservative groups.

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