"From its inception, this proceeding was a politically motivated attack and a criminal investigation in search of a theory."

"We call upon the prosecutors to admit their wrongdoing and close their files. They should end their desperate rear-guard action, surrender these unlawfully seized materials, and submit to the lawful authority of the court system."

Says Wisconsin Club for Growth president Eric O’Keefe this morning, after the U.S. Supreme Court declined to hear take the infamous John Doe case.

"There’s nothing that special or even good about the government-run primary process."

"The delegates have been going to conventions for years and treating them like Super Bowl parties because there was nothing else to do... But this year they have the opportunity to practice a great national tradition, to exercise their legal, historical right to defeat a man who opposes most of what they believe in, and instead nominate a candidate who represents them.... I’m interested in self-governance, in having people learn what it is that they own, and then exercising that power. Our citizens have been turned into spectators—it’s what the left wants.... This is about taking back the private party system... it is a voluntary organization and it sets its own rules... [Picture the delegates] in Cleveland, grasping their legal and historical right to nominate the most powerful person in the world....The delegates may not know it, but they will not only be saving the Republican Party and the country—they’ll be reviving a tradition of self-governance."

Says Eric O’Keefe, quoted by Kimberley A. Strassel in the WSJ in "The Case for a Really Open GOP Convention/The man who defeated Wisconsin prosecutors now says party delegates have the right to choose any nominee they want, and they should use it."

"The Wisconsin Targets Tell Their Story/After victory in court, conservative activists talk on the record for the first time about their 21-month ordeal."

A must-read in The Wall Street Journal by Collin Levy. (No subscription? Google some text.)

One target did speak up in public in real time— Eric O’Keefe... The director of the Wisconsin Club for Growth knew that violating the gag order put him at personal risk, but he told me then that he had to fight because it was an assault on basic constitutional freedoms and “we have done nothing illegal.”... “I did not want to see the inside of a jail cell,” Mr. O’Keefe says, but “I didn’t want to shirk my duty to confront tyrannical behavior.”...

Now the 60-year-old Mr. O’Keefe is willing to provide more details about his decision. He says he talked it over with his children, and he and his wife, Leslie, discussed “how she should operate if I was arrested for contempt of court.” The maximum penalty in Wisconsin is a $10,000 fine and one year in jail. “She asked if she could bail me out of jail. My position was ‘no.’ ”...

"They were spying on people who were making it tough for them to retain their hold on state government,” Mr. O’Keefe says. “People often ask, ‘What were they investigating?’ That’s the wrong question. It wasn’t the what, it was the who.”

And the “who” happened to be political allies of Scott Walker, who was a political opponent of Messrs. Chisholm and Landgraf. While this story has a happy ending, it still required years of legal expense to fight back and expose the prosecutorial abuses. The targets have been vindicated, but a reckoning for prosecutors and the abusive John Doe machinery is still in order.

Eric O’Keefe on the Supreme Court's denial of cert. in the John Doe investigation case.

In the email:

Spring Green, Wisconsin (May 18, 2015) — Eric O’Keefe, a director of the Wisconsin Club for Growth and co-petitioner with the Club in the case O’Keefe v. Chisholm, issued the following statement regarding the Supreme Court’s decision today declining to hear their appeal:

“The Supreme Court’s decision not to hear our claims does not change the fact that the only court to review the John Doe investigation found it to be an abuse of civil liberties and First Amendment rights. The appeals court said that any attempt to hold John Chisholm and his associates accountable should proceed in state courts, and that's exactly what I expect to happen.”

The Supreme Court denies cert. in the John Doe case — O'Keefe v. Chisholm.

SCOTUSblog reports.

ADDED: Here's the post from last month "The Wall Street Journal urges the U.S. Supreme Court to take the free-speech case arising out of Wisconsin's John Doe investigation."

I thought the Supreme Court should take cert., but it's important to see that this case was about a federal court interfering with proceedings in state court, and at this point, the Wisconsin Supreme Court is hearing the state court case. The federal court abstained, and one of the reasons for abstention is that the state court may choose an interpretation of the state statute that would avoid the federal constitutional question. The Supreme Court's denial of cert. doesn't mean that the 7th Circuit got the abstention doctrine right.

"What did the Milwaukee Journal Sentinel know, and when did it know it?"

Asks Elizabeth Price Foley.

The question relates to the Journal-Sentinel reporters’ knowledge of a pre-dawn paramilitary-style raid of the home of Cindy Archer, a fo[r]mer aide to Wisconsin Governor Scott Walker and one of the architects of Wisconsin’s Act 10, which reformed that State’s public sector unions....

Someone had to tip the Journal-Sentinel off.  But under Wisconsin law, disclosure of a search warrant’s issuance, prior to its execution, is a Class I felony and could also violate the judge’s secrecy order of the John Doe investigation itself....

But regardless of Stein’s possible privilege, it seems evident that there is a serious and continuing leak in the Wisconsin John Doe investigation, and that it warrants an investigation of its own.

Indeed, if it hadn’t been for the courage of Eric O’Keefe of the Wisconsin Club for Growth–who has defied the ridiculous gag order imposed on John Doe targets–the only knowledge the public would have today about the investigation would come from these one-sided, pro-investigation leaks.

 Much more, including links at the link.

The Wall Street Journal urges the U.S. Supreme Court to take the free-speech case arising out of Wisconsin's John Doe investigation.

You can get to the editorial here:

On Friday the Justices will consider whether to hear O’Keefe v. Chisholm, a Section 1983 civil-rights lawsuit brought by Wisconsin Club for Growth director Eric O’Keefe against Milwaukee District Attorney John Chisholm and other prosecutors. The suit charges the prosecutors with a multi-year campaign to silence and intimidate conservative groups whose political speech they don’t like....

The 7th Circuit's decision was based not on the merits but on deference to the ongoing proceedings in state court, which theoretically could have responded to the federal constitutional questions. That is: the Younger abstention doctrine. I discussed the 7th Circuit opinion when it came out last September, saying:

There is an exception to the Younger doctrine, which the plaintiffs tried to use here, that applies when the federal rights claimants show that the prosecutors in state court are proceeding in "bad faith." The question is whether the prosecutors are really attempting to secure a valid conviction or whether they are simply using the legal process to harass the federal court plaintiffs. The 7th Circuit panel found some perplexity in the free speech issues about campaign coordination:

The Supreme Court has yet to determine what “coordination” means. Is the scope of permissible regulation limited to groups that advocate the election of particular candidates, or can government also regulate coordination of contributions and speech about political issues, when the speakers do not expressly advocate any person’s election? What if the speech implies, rather than expresses, a preference for a particular candidate’s election? If regulation of coordination about pure issue advocacy is permissible, how tight must the link be between the politician’s committee and the advocacy group? Uncertainty is a powerful reason to leave this litigation in state court, where it may meet its end as a matter of state law without any need to resolve these constitutional questions.

This is a nudge to the state judge to shut down the investigation, and yet there is something very disturbing about this ambiguity in free speech law and the leeway it gives prosecutors to stall a political group throughout a campaign season. I'd like to see the Supreme Court make this clear....

Back to the WSJ editorial:

Specific injustices aside, the U.S. Justices should also hear the case because it is part of a larger legal effort to subvert their 2010 Citizens United ruling. The game is to use the theory of “coordination,” which allows vast investigations to be instigated on the thinnest evidence, to sweep issue speech back into the regulatory umbrella of campaign-finance law.

The liberal Brennan Center for Justice is pushing regulations coast to coast that would reduce protections for issue speakers and encourage “coordination” probes. The Wisconsin case is an opening for the Court to tell prosecutors and regulators they must tread carefully when rights of free association are involved.

Wisconsin’s prosecutorial machinery has abused the law to silence disfavored political speech. This one is made to order for Supreme Court review.

I agree. The Court needs to take this case. Quite aside from all the substantive problems, the idea of deferring to the state courts is supposed to be based on the ability of the state courts to step up and deal with the substantive problems themselves. The 7th Circuit decision came out 7 months ago. Where's the action from the state courts? If there are indeed free-speech violations, they've been going on for 3 years. It's one thing for federal courts to refrain from jumping into state court proceedings that might do a decent-enough job of enforcing federal rights. But here, these proceedings have worked to suppress political speech for 2 election cycles and beyond. It's quite shocking.

Scott Walker wants nothing to do with that rape metaphor.

Eric O'Keefe, head of the Wisconsin Club for Growth, spoke on local radio yesterday about the trauma suffered by targets of the John Doe investigation. (I recommend listening to the whole show, here, to get the full sense of the abuse the John Doe investigators visited upon their targets.)

But at one point, he said: "I have read some about rape and talked to people about rape, and I am saying this very deliberately... The reactions that I got from the people I interviewed were similar to a rape victim."

He may have said that very deliberately, but the Walker campaign also deliberated and said, via spokeswoman Alleigh Marre: "Eric O'Keefe, who has no ties to the campaign, deserves nothing less than outright condemnation for his egregiously offensive remarks."

I'm guessing the Walker side of the deliberation had 2 aspects:

1. Since the John Doe accusations are about coordination with the Club for Growth, the less we seem to be on the same page with them, the better.

2. "Rape" is a hot button word. It's a word they can kill you with. RIP Todd Akin. Unless you're talking about the crime of rape — or are a liberal — stay away from that word.

"Such respect for state courts is admirable, and 'federalism' is our middle name. But..."

"... the appellate judges are underestimating the harm this probe is doing to the rights of those who've been targeted. Judge Peterson quashed the prosecution's subpoenas way back in February because there was no evidence of a crime, but Milwaukee Democratic District Attorney John Chisholm has appealed and the case is sitting, and sitting, and sitting at the Wisconsin Supreme Court."

The Wall Street Journal editors push the 7th Circuit court to side with Eric O'Keefe and the Club for Growth in their pursuit of a federal court remedy against the John Doe prosecutors.

[T]he targets sit in limbo, forced to spend money on lawyers to defend themselves rather than exercising their First Amendment right to advocate for causes. The Wisconsin Club for Growth's political fundraising has been shut down and it hasn't run a single ad in this election cycle. This is precisely why the Club and director Eric O'Keefe sought relief in federal court.

"In short, Defendants claim a carte blanche to target more or less every person or group that has ever participated in Wisconsin political or policy debates..."

"... to raid their homes, seize their records and personal effects, subpoena their emails and phone records, and threaten them with prosecution - all things that Defendants actually did in this case – merely for speaking out on the issues. It would be difficult to conceive a more offensive disregard for the First Amendment rights of citizens to advocate and associate with others to advance their beliefs through the political process, the very lifeblood of representative democracy."

From the brief filed yesterday in the 7th Circuit Court of Appeals by Eric O’Keefe and Wisconsin Club for Growth, excerpted and discussed by Professor Jacobson, whose blog post ends:

Lavrenti Beria, head of the KGB under Stalin, is reported to have said: “Show me the man and I’ll find you the crime.”

If the factual recitation in the John Doe targets’ Brief is accurate, that was exactly the methodology used by prosecutors in Wisconsin.

The man was Scott Walker, the crime has not yet been found, but in the pursuit the conservative movement was silenced and had its constitutional rights violated.

I got to Professor Jacobson via Instapundit, who said: "The Deep State isn’t that big on law, but it’s big on legal institutions."

ADDED: Here is an easily readable PDF of the document. Those with a background in Federal Courts (a subject I've taught for 30 years) should be interested in the details of the discussion of the Younger, Pullman, and Burford abstention doctrines. The John Doe investigation is a proceeding that one might argue should be allowed to take its course within the institutions of state government, especially since there is a state statute to be interpreted and applied. Why should O'Keefe and the Club be allowed to go on the offensive in federal court? Isn't that disruptive, duplicative, and disrespectful? The brief must answer those questions.

"Meet the Press" covered Rand Paul's pro bono eye surgery in Guatemala and larded it with impugnment of his motives.

"Meet the Press"'s Chris Janning accompanied the ophthamalogist senator and got plenty of access, but she took so many shots at him behind his back that it was ludicrous:

CHRIS JANSING: And now to a Meet the Press exclusive: A journey to Guatemala with Kentucky Senator -- and Doctor -- Rand Paul. Top Republicans eyeing a run for president in 2016 have spent a lot of time in two key battleground states: 20 visits to Iowa, 10 more to New Hampshire. But so far, only Paul has turned a foreign country into a unique photo op.... 

Footage of poverty-stricken eye patients.

CHRIS JANSING: ... A mission to restore sight, and hope, to the poorest of the poor. And if it all plays well to American voters it could further Rand Paul's personal mission, too -- to position himself for a race for president.

Oh, please.

"Conservatives stung by talk of John Doe settlement with Scott Walker."

Headline at the Milwaukee Journal Sentinel. Text:

A legal civil war broke out Wednesday among targets of a John Doe probe, as a conservative group sought Wednesday to block prosecutors from having settlement talks with Gov. Scott Walker's campaign.

In a letter sent Wednesday, the Washington, D.C., attorney representing the Wisconsin Club for Growth and one of its directors questioned whether a special prosecutor in the case is negotiating with the GOP governor's campaign to seek concessions that the club might oppose.

Ironic, considering that the probe is over whether the Club coordinated with Walker, but maybe this is a devious ploy to make them look like they don't coordinate!

The club and its treasurer, Eric O'Keefe, filed a federal lawsuit in February against special prosecutor Francis Schmitz and others contending the secret investigation into the 2012 recall campaigns violated their rights to free speech. This month, U.S. District Judge Rudolph Randa in Milwaukee halted the probe as he considers the group's claims.

I want to see this civil suit go forward. If the prosecutors are violating rights, I want them held to account. And if they're not, I want to hear the federal courts say so. But it's more complicated than that, because it's not as if Walker could settle O'Keefe's claim. But Walker might bind himself not to associate with the Club, when in fact there was a right of association. That is, Walker could unilaterally render the Club's right to associate unusable.

"Let me be perfectly clear: a settlement that seeks, in any fashion, to further the John Doe investigation by violating Mr. O'Keefe's or the Club's speech or associational rights would be a blatant violation of the preliminary injunction," [the Club's lawyer David] Rivkin wrote to Randall Crocker, Schmitz's attorney. "Your client cannot, via settlement or other maneuvers, attempt to circumvent the injunction — at least, he cannot do so without seriously risking a judgment of contempt."

A source with knowledge of the probe confirmed to the Milwaukee Journal Sentinel on Wednesday that other conservatives caught up in the probe are worried that the attorney for the Walker campaign, Steven Biskupic, is not being aggressive enough with prosecutors and not acting in their best interests.

But Biskupic and Walker can't talk to the press and explain any of this because Wisconsin law binds those who know about the John Doe investigation to secrecy... which is pretty frustrating, since on the level of constitutional rights, this is all about freedom of speech.

The Wall Street Journal urged Walker not to engage in any possible settlement talks with prosecutors who "need a face-saving legal exit."

"Mr. Walker is facing a rough re-election fight this year, and perhaps he and his lawyers want to remove any chance of a September or October legal surprise," the editorial reads. "Mr. Walker might think he can help himself with a settlement, but he'd be letting down his allies if he did so in a way that lets the bogus theory of illegal coordination survive....Mr. Walker is a hero to many for his fight against public unions, but he will tarnish that image if he sells out the cause for some short-term re-election reassurance."

Rick Esenberg, an attorney and president of the conservative Wisconsin Institute for Law & Liberty, said he was skeptical that the Walker campaign was entertaining making significant concessions to prosecutors. Any talks would likely stem from prosecutors seeking a way to save face after the difficult rulings by Randa and Peterson, he said.

I certainly hope Esenberg is right about that.

Federal district judge halts the John Doe investigation into conservative groups and the Scott Walker recall campaign.

Here's the Milwaukee Journal Sentinel News report:

In his 26-page decision [PDF], U.S. District Judge Rudolph Randa in Milwaukee told prosecutors to immediately stop the long-running, five-county probe into possible illegal coordination between Walker's campaign, the Wisconsin Club for Growth and a host of others during the 2011 and 2012 recall elections.

"The (Wisconsin Club for Growth and its treasurer) have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted. Instead, it should be recognized as promoting political speech, an activity that is 'ingrained in our culture,'" Randa wrote, quoting from a recent U.S. Supreme Court decision.

"Circumvent" is a funny word there. The assumption should be that we are free except to the extent that the government has validly restricted us. A bigger question is whether the campaign finance statutory law that we do have is valid, given free speech rights.

"You have a prosecutor — whether intentionally or unintentionally — reveal information that is covered by the gag order. There's nothing you can say about this as a target to put things in context."

Says David Rivkin, a lawyer for Eric O'Keefe, of the Wisconsin Club for Growth, whom prosecutors seem to have revealed as one of the targets of the John Doe investigation (which circles around Governor Scott Walker).

... Rivkin said he couldn't be sure if prosecutors intentionally leaked the names with their filing. But Rivkin called the disclosure "unfortunate."

"This underscores what a chilling effect a comprehensive gag order causes," said Rivkin, a partner with the Baker Hostetler law firm in Washington, D.C....

Others involved in the case said they were inclined to believe the initials were inadvertently included in the filings. "It looks really sloppy to me," said one source familiar with the investigation. "But maybe there's some rhyme or reason that isn't readily apparent."

Maybe there's some rhyme or reason... That's the attitude — an incredibly lame attitude — you take when you want to presume that government is behaving properly. Ironically, this sector of government — the John Doe investigation — is all about supervising the propriety of another part of government — some things relating to Scott Walker.

We're talking about the burdens on free speech, so the presumptions should favor the citizen. The apparent motive to chill conservative political speech in Wisconsin is itself chilling — whether that's the real motive or not.