January 11, 2014

"On Friday a Wisconsin judge struck a major blow for free political speech when he quashed subpoenas to conservative groups..."

"... and ordered the return of property to the targets of a so-called John Doe campaign-finance probe," write the editors of The Wall Street Journal, who got access to the judge's secret opinion. Judge Gregory A. Peterson wrote that the subpoenas "do not show probable cause" that the targeted conservative groups —  Friends of Scott Walker, Wisconsin Manufacturers & Commerce Inc., the Wisconsin Club for Growth, and Citizens for a Strong America — "committed any violations of the campaign finance laws." The judge, as the WSJ puts it, "bluntly rejects the prosecutor's theory of illegal coordination between the groups and the Walker campaign."

Wisconsin's campaign finance statutes ban coordination between independent groups and candidates for a "political purpose." But a political purpose "requires express advocacy," the judge wrote, and express advocacy means directly advocating the election or defeat of a candidate.

"There is no evidence of express advocacy" and therefore "the subpoenas fail to show probable cause that a crime was committed," Judge Peterson wrote. Even "the State is not claiming that any of the independent organizations expressly advocated" for the election of Mr. Walker or his opponent, he added. Instead they did "issue advocacy," which focuses on specific political issues.

This means that prosecutors essentially invented without evidence the possibility of criminal behavior to justify the subpoenas and their thuggish tactics. At least three targets had their homes raided at dawn, with police turning over belongings, seizing computers and files, and even barring phone calls.

The judge's order vindicates our suspicion that the John Doe probe is a political operation intended to shut up Mr. Walker's allies as he seeks re-election this year....

Democrats would love to intimidate and muzzle the local activists who rallied to Mr. Walker's recall defense.

46 comments:

PB Reader said...

Sure, return the information after they've already seen it and have what they wanted to use for intimidation of Walker supporters.

Insufficiently Sensitive said...

The muzzle appears to be the major hope of leftist Democrats who cannot make their own case, and cannot stand to see diverse opinions appear in opposition.

They already own most of the megaphones of the major media, but are driving further for a total monopoly over public opinion by silencing their opponents.

You'd think that they were wistful for the good old days and powers of Joseph Djugashvili's regime, and are yearning to recreate it.

Eric the Fruit Bat said...

One man's fishing expedition is another man's snipe hunt.

Birkel said...

Garage mahal hardest hit.

heyboom said...

Is this really a major blow to free political speech? Really?

CWJ said...

Uh no.

Because the word in the quote is "for" not "to."

madAsHell said...

major blow to free political speech

I think it's poorly worded. It's a blow to those with John Doe subpoenas looking to squelch opposing viewpoints....but maybe you understood that as well.

Virgil Hilts said...

Blow for free political speech (I misread it the first time too). How are Francis Schmitz's tactics not as bad (in every ethical and legal sense) as what Christie's staff did?

Birkel said...

Virgil Hilts:
The explanation you seek is hidden between the parenthesis.

Chris Christie (R)
Bruce Landgraf (D)
Scott Walker (R)
Mark Sokolich (D)

See how easy this game is?

heyboom said...

Okay fine, is it really a major blow for free political speech? Really?

Meade said...

Birkel said…
"Garage mahal hardest hit."

Ha. Good one. But it's Saturday. Garage is out on an expedition, fishing for real fish.

Titus said...

Wisconsin is totally boring....

Tim said...

They probably had time to get rid of the "secret routers" by now.

Original Mike said...

But, but, but, ... Citizens United, ALEC, the Koch brothers!!!

Big Mike said...

@Meade, garage had better not be hunting unless it's for ruffed grouse, cottontail rabbits, or squirrels.

On the other hand if he claims to be hunting squirrels he'll build up points with your spouse.

alan markus said...

Garage mahal hardest hit.


Garage Mahal Finds Out About the Court Decision

Big Mike said...

@Meade, but if that's garage in the picture, he needs to be congratulated on catching a pretty good-sized Northern Pike.

John Vaci said...

Where is the US attorney? Why even have one if justice will not be defended?
If you don't beat down thugs, they multiply like rats.

OnWisconsin1987 said...

Although I have no sympathy for this investigation, you don't need PC for a subpoena. Unlike obtaining search warrants or wire-taps, a prosecutor isn't required to meet any standard before issuing a subpoena. That's what investigations are all about. You suspect criminal wrongdoing and go about accumulating evidence until you have enough for indictment. If not, the case gets closed.

Jason said...

Garage Mahal - Walker indictment :: Linus - Great Pumpkin.

Illuninati said...

Thank God there are still a few honest judges.

Birkel said...

OnWisconsin1987:
Not required to meet "any standard"?

What sort of hell hole world do you envision?
In your view a prosecutor can start issuing subpoenas without regard to the law.

And in this case that appears to be exactly what the judge found.

Fen said...

Insufficiently Sensitive:
The muzzle appears to be the major hope of leftist Democrats who cannot make their own case, and cannot stand to see diverse opinions appear in opposition.

They already own most of the megaphones of the major media, but are driving further for a total monopoly over public opinion by silencing their opponents.

You'd think that they were wistful for the good old days and powers of Joseph Djugashvili's regime, and are yearning to recreate it.


Well said. This is who they are. This is why I hate them. This is why they deserve to be put down.

james conrad said...

It is long past time to jail prosecutors who violate their oath of office and engage in political witch hunts.
Immunity has become a shield for rogue court officers, time to shut that down.

OnWisconsin1987 said...

Sorry Birkel, but that is our world. At some later point (such as a lawsuit), it could be found that there was an abuse of process in issuing GJ paper, but there really are no constraints on whom or what to subpoena. While subject to abuse, it makes sense. It would be silly to require some evidence before a subpoena is issued because the whole point of a GJ investigation is to gather evidence.

Darrell said...

Garage Mahal will be around shortly to say he never paid attention to any of this and that he couldn't care less. Then he will try and deliver another dig at Walker or talk about a jail wing filled with Walker aides.

Darrell said...

Of course Democrats are appealing the ruling as we talk about it.

Birkel said...

OnWisconsin1987:

So I'm to tale your word over that of a federal judge and my own experience?!?
Pass.

In 1987s world it would be ok for prosecutors to issue subpoenas because the ex-wife has a new boyfriend.
--illegal

In 1987s world it would be ok for a prosecutor to issue subpoenas because they received a traffic ticket and the officer deserves comeuppance.
--illegal

Et. Fucking. Cetera.

Fen said...

This is the kinda thing they did to Palin to hinder her activity as Governor of Alaska - tie her up with frivolous lawsuits to the point she was spending more time as a defendant than an executive. Then when she resigned because she thought the people of Alaska deserved to have a State Governor, the Left mocked her for "quiting".

If the Right had any spine, they would do the same thing to Obama. And when the Left complained, say "fuck you"

OnWisconsin1987 said...

Birkel:

Thompson is a state judge, not a federal judge.

I'm a federal prosecutor so I too know a few things about GJs and subpoenas.

Here's a quote from Branzburg v. Hayes -- "Because its task is to inquire into the existence of possible criminal conduct and to return only well founded indictments, its investigative powers are necessarily broad.
'It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.' Blair v. United States, 250 U. S. 273, 250 U. S. 282 (1919)."

And all of your 1987s hypos are improper -- not because probable cause (or another other standard) is lacking, but because it's an abuse of process. The impropriety will be discovered and the prosecutor reprimanded.

Virgil Hilts said...

OnWisconsin1987:
As a federal prosecutor, please give us your opinion as to the ethics of what occurred here: (i) John Doe subpoenas that prohibited the recipients from disclosing to the public what was happening; (ii) people being served after hours at their homes and having their computers seized and files search. Would you have been fine with this happening to Alt Althouse based on nothing more than a prosecutor's "hunch" that she might have been part of the suspected coordination, with Ann subject to criminal prosecution if she violated the gag order and described the search to anyone? Please enlighten those of us who think this is fucking outrageous.

Glenn Howes said...

I'm curious as to where the Attorney General of Wisconsin is in this scenario. Wouldn't it be his job to investigate abuses of power by a City or County Attorney's office?

Also, shouldn't the Legislature be removing these nonsensical laws that make a difference between endorsing a candidate and the ideas the candidate espouses?

OnWisconsin1987 said...

Cooler King:

As I said in my first post, I have no sympathy with this investigation which appears politically motivated.

Though licensed in Wisconsin, I not not familiar with WI law on GJs and subpoenas. With one or two exceptions, in the federal system, the Rule 6 secrecy provisions do NOT apply to witnesses. So, placing a gag order on a GJ witness would be improper on the federal level. As a general rule, because witnesses are normally free to discuss what they said or produced before a GJ, prosecutors wait before going "covert" with their investigations. But Wisconsin law applies, not Rule 6. I have never heard of a gag order on a GJ witness, outside of banks.

A subpoena duces tecum can be used to obtain documents (of a non-target). For a target, assuming no consent, the prosecutor would need a search warrant, supported by probable cause.

From what I have read, I agree that this investigation is outrageous and politically motivated. To use one of Instapundits' phrases, "tar and feathers" time for the prosecutor heading the investigation.

traditionalguy said...

Quashed poenas with onions makes a good casserole for a victory dinner.

Governor Walker must be celebrating big time. He could serve Crushed Christie dipped in New Jersey stupid sauce for desert.

Walker's campaign aides are now free excited to start the campaign, while Christie's are fired, angry and seeking revenge.

Virgil Hilts said...

OnWisconsin1987:
Thanks for the response!

Birkel said...

Key quotes from 1987s citation:

"...possible criminal conduct..."
"...not to be limited narrowly..."

If there is nothing upon which to base a criminal charge and it is merely a fishing expedition, as here, the powers are propely limited. But please let's pretend otherwise.

(And sorry about saying federal when I clearly should've typed state.)

Birkel said...

And let's be completely clear...
The promulgation of laws, federal and state, that require no mens rea means there is always a likelihood of some criminal conduct.

You say it makes sense to give prosecutors such wide latitude with the hope that any procedural misconduct will be rectified later. I call bullshit. The corrections always come after the intended effects are accomplished -- political and electoral. And cover is always offered to the "well-intentioned" over-zealous prosecutors.

While the rule you suggest may have made sense before Leftists started their long march (say, in 1919) limitations are more necessary now than ever.

John Cunningham said...

of course, the investigation itself is the punishment. seizure of papers and computers, forcing people to run up legal fees, endless demands for testimony, ARE the punishment.

OnWisconsin1987 said...

Birkel:

That's our system. It is subject to abuse like so many other areas. As a footnote, abuse of process during GJ proceedings is consistently in the top 5 of all complaints investigated by DOJ's OPR. But getting back to the original point: a prosecutor does not need to go to a judge and establish probable cause or a reasonable and articulable suspicion before he is allowed to issue a subpoena; it violates separation of powers. Judges are not even involved in the issuance of subpoenas. If there is abuse (and there has been), it gets dealt with later.

Now of course the use of John Doe subpoenas raises serious concerns and can easily be abused by over zealous or ethically challenged prosecutors.

garage mahal said...

"Garage mahal hardest hit."

The hardest hit are the fish beneath my feet. Bwahaha. That's what I did today. You?

A. Shmendrik said...

The crazed opponents of Gov. Walker have been blown.

Fen said...

Quashed poenas with onions makes a good casserole for a victory dinner. Governor Walker must be celebrating big time.

We'll see. Hillary's campaign can still turn this into a bumpersticker meme that can't be refuted without putting the Low Information Voters to sleep.

Like the "no WMDs in Iraq" bullshit.

Krumhorn said...

It's the same game plan of the No on 8 crowd. Discover who contributed in support, and then descend on them at their place of work and cause havoc. Waitresses who gave $100 lost their jobs.

There is nothing to compare to the raw ugliness of the lefties

-Krumhorn

Terry Canaan said...

These guys have been found guilty of campaign shenanigans in other states, so of course that means there's no reason to suspect them of anything here.

Wisconsin elections continue to be a rigged game. It's not voters without ID that's the reason people have no confidence in Wisconsin elections, it's the campaign corruption, the voter suppression, and the gerrymandering.

tim in vermont said...

Sorry, but lack of voter IDs does cause lack of confidence in elections, your personal beliefs notwithstanding.

Are all lefties this solipsistic?

Fen said...

Silly Tim. Don't you realize that voter fraud is a myth? Because so few are caught and prosecuted.

Or somesuch liberal logic...