What happened in Wisconsin's John Doe investigation — a forewarning to Robert Mueller?

I'm reading "Governmental accountability board? More like Wisconsin's Secret Police," by Glenn Reynolds, which ends:

It’s too early to say, as one account does, that the Wisconsin debacle prefigured the ongoing Robert Mueller investigation into Trump’s campaign, though there are certainly similarities between the attitudes of “The Resistance” in Washington and the Wisconsin establishment’s response to Walker. Writing in The Washington Post last week, Ed Rogers wrote that, though he’d supported Mueller in the past, Mueller needed to get a handle on the overwhelming partisan slant of his prosecutors or he’d be discredited.

It’s good advice. Mueller and his investigators should take care not to get wrapped up in partisan politics while conducting a criminal investigation. Because that seldom ends well.

"Please tell me when we can expect to read your denunciation of the speech police and this McCarthyite chapter in Wisconsin’s history."

David Blaska calls out the editors of the Milwaukee Journal Sentinel and the Wisconsin State Journal about their coverage of the Wisconsin DOJ's report on the John Doe Investigation.

Wisconsin Department of Justice finds that the John Doe investigation was "on a mission to bring down the Walker campaign and the Governor himself."

The Wisconsin State Journal covers the Wisconsin Department of Justice report on the leaking of records from the John Doe investigation into Gov. Scott Walker’s 2012 recall campaign.

In an 88-page report, Republican Attorney General Brad Schimel lays bare the actions of staff at the former Government Accountability Board as they dug into what is described as a previously unknown, secret “John Doe III” investigation into several GOP officials and staffers who were [absolved of the suspicion that they] campaign[ed] out of taxpayer-funded offices….

[T]he report criticizes the “breathtaking” sweep of the three John Doe investigations, which included 218 warrants and subpoenas. DOJ found the John Doe investigators obtained and categorized several private emails unrelated to campaigns, including 150 personal emails between Sen. Leah Vukmir and her daughter that included health information, and placed them in a folder labeled “Opposition Research” — a term that refers to political dirt collected on opponents....

Schimel concluded the GAB staff didn’t act in “a detached and professional manner” and that it was reasonable to infer “they were on a mission to bring down the Walker campaign and the Governor himself.” He pointed to a November 2013 email in which [former GAB lawyer Shane] Falk encouraged Schmitz, who was having doubts about the GAB’s legal theory, to “stay strong.”

“Remember, in brief, this was a bastardization of politics and our state is being run by corporations and billionaires,” Falk wrote. “This isn’t democracy to say the least, but due to how they do this dark money, the populace never gets to know. The cynic in me says the sheeple would still follow the propaganda even if they knew, but at least it would all be out there so that the influences on our politicians is clearly known.”

I wonder how the cynic in Shane Falk feels about us sheeple getting all of this out here where it can be clearly known.

"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.

Rick Hasen at Election Law Blog tries to read the cert. petition in the Wisconsin John Doe case, but finds it hard because of redactions (even in parts of the questions presented).

But he finds what he calls "two meaty issues":

First, it seems pretty clear to me that the Wisconsin Supreme Court mangled U.S. constitutional campaign finance law to let elected officials like Gov. Scott Walker coordinate with outside groups on an unlimited basis with groups taking unlimited campaign contributions from whatever source so long as the outside groups avoid express words of advocacy like vote for or vote against. The second issue is whether those Justices on the WI Supreme Court who benefitted from the outside spending by the very groups before the court should have recused themselves from hearing the case. The number of redactions involving the actions of controversial state Supreme Court Justice David Prosser are remarkable in and of themselves.

But Hasen doesn't think the Court is likely to take the case — especially in its current 4-4 condition.

"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."

"Gov. Scott Walker on Friday signed legislation that prohibits prosecutors from using secret John Doe investigations to review allegations of political corruption and misconduct of public officials."

"The bill, which passed the Senate and the Assembly along party lines this week, comes after two John Doe probes of Walker, his campaign and his aides. Walker was never charged."

ALSO: "The lead prosecutor in the halted John Doe probe into Gov. Scott Walker’s recall campaign had doubts about his legal theory in November 2013, a month after issuing nearly three dozen subpoenas and search warrants, according to documents filed Thursday in a related lawsuit...."

"The Journal Sentinel’s Daniel Bice has seized on the tape to assert that it 'contradicts' Archer’s claims..."

"... telling a 'different story' from the one she told National Review and the one she told in her lawsuit. In reality, however, the tape omits all of the most critical moments of the raid, and corroborates Archer’s account in many key respects. To the extent it exposes differences between what was recorded and Archer’s recollection, those differences actually offer slight encouragement to those who wish to see law-enforcement officials obey constitutional mandates...."

David French (in The National Review) has some perspective on that Daniel Bice piece we were talking about yesterday.

"Two defendants... Judge Neal Nettesheim, who oversaw the John Doe probe, to unseal the audio file and other documents from the supposedly secret proceeding for the first time."

Maybe the 6 a.m. raid on Cindy Archer's home was not as traumatic as she claims in her lawsuit.



According to Daniel Bice at The Milwaukee Journal Sentinel, the audio conflicts with the way Archer characterizes the experience:

That recording details tense but mannerly exchanges between Archer and Aaron Weiss, an investigator with the Milwaukee County District Attorney's Office, as he led a team of officers during an early morning raid on Archer's home as part of a now infamous John Doe probe.

“I'm sort of doing you a courtesy by letting you get a coffee and smoke a cigarette just because I imagine being woken up at six in the morning by a bunch of people in black suits is not the way you want to wake up in the day,” Weiss said at one point.

I'm sort of doing you a courtesy by letting you get a coffee....

Michael Lutz — a conspicuous critic of the John Doe investigation — dies by apparently self-inflicted gunshot wound.

The Milwaukee Journal Sentinel reports.

Here's my post from last October about Lutz:

I'm not surprised that [John Doe prosecutor John] Chisholm declines to answer [Stuart] Taylor's long list of questions, even though Chisholm did speak up in response to Taylor's original attack and seemingly went to some trouble in an effort to to impugn Michael Lutz. Lutz was Taylor's unnamed source for the article that depicted the prosecutor and his office as highly politicized and openly antagonistic to Governor Scott Walker.

The questions standing alone go a long way toward rehabilitating Lutz after the attack on his credibility and they also work to restate and emphasize Lutz's original charges against Chisholm. Taylor observes that Chisholm has generally denied that he had a political agenda, but that he doesn't seem to have denied the specific allegations that Lutz had made. This corresponds to what I wrote when I saw Chisholm's response:

Reading [Taylor's original attack and Chisholm's response], I'm thinking that Taylor raised suspicions that Chisholm and his lawyers and the Milwaukee Journal Sentinel have not adequately refuted. I want to see a specific statement from Chisholm that goes into the details, something more than expressions of outrage and denials that could be based on Chisholm's belief that he compartmentalized his prosecutorial decisionmaking and his personal political beliefs and husbandly tenderness.

Were there blue fist signs in the office and other expressions of support for unions and antagonism to Walker? What was the extent of participation in the protests? Did Chisholm speak openly about his wife's feelings in the context of the case? Taylor's article created a strong motivation to respond on that level, and neither Chisholm nor his lawyer provided that response.

So I'm pleased to see Taylor taking this approach — with far more detailed questions —and I'll reprint Taylor's questions below:

1. In a September 12 article by Dan Bice, the Milwaukee Journal Sentinel said that Mr. Leib “said Thursday that Lutz had left a message threatening to kill Chisholm and his family in the past year. He did not provide audio of the voice mail.” Was this an accurate and complete report of what Mr. Leib said to Mr. Bice, and of what Mr. Chisholm told Mr. Leib?

2. Mr. Lutz has said in response that while he may have used harsh or even inflammatory words, he never said anything that he intended or that Mr. Chisholm interpreted to be a threat to harm anyone. Does Mr. Chisholm challenge this statement by Mr. Lutz?

3. If Mr. Chisholm does challenge it, how does he explain his failure either to prosecute Mr. Lutz or to report him to appropriate authorities for making a death threat, which would have been a crime?

4. And what, if any, steps did Mr. Chisholm take to protect himself and his family from Mr. Lutz? Armed guards? Moving his family to a safe location? Having Mr. Lutz tailed? Anything at all?

5. Mr. Lutz has explained the alleged death threat roughly as follows: He feared on the basis of one or more phone conversations that his best friend and former police partner, Jon Osowski (also the brother of Mr. Chisholm’s wife) was in trouble, and perhaps suicidal, so that he (Mr. Lutz) requested help in urgent phone calls to the Chisholms, expressing increasing and agitated concern, and possibly saying something that might be twisted out of context as threatening. Finally, Mr. Lutz has said, says, Mr. or Mrs. Chisholm or both went out into the night to help Mr. Osowski. Does Mr. Chisholm deny the accuracy of this account?

6. Mr. Lutz has also said that Mr. Chisholm has played the recording for him and that the two of them “laughed about” the episode the next day. Does Mr. Chisholm deny this?

7. In light of the evidence that is now available, will Mr. Chisholm or Mr. Leib or both retract and apologize for accusing Mr. Lutz of making a death threat?

8. If not, will you repeat that you believe that Mr. Lutz made a genuine death threat, and thereby show that you are not concerned about possible liability for libeling Mr. Lutz?

That ends the set of questions about the "death threat," so the numbering goes back to 1:

1. As far as I know, neither Mr. Chisholm nor anyone else has ever suggested a motive for Mr. Lutz to lie about Mr. Chisholm. Do you maintain that he had a motive to lie and, if so, what was it?

2. Mr. Lutz has said that his motive for making allegations of bias against Mr. Chisholm was and is that “I don’t like what he has done in regard to political speech that he disagrees with.” I am not aware that anyone has challenged the truthfulness of this statement. Do you challenge it?

3. Mr. Lutz has said that at least before this September, he had been friends with John and Colleen Chisholm for more than a decade. Do you deny that?

4. He has added that has visited the Chisholms’ home several times and gone to dinners, after-work functions, and other outings with one or both of them over the years. Do you deny that?

5. He has also added that he gave $200 in August for a Chisholm campaign fundraiser. Do you deny that?

6. When Mr. Lutz went into private practice, Mr. Chisholm wrote a memo (of which I have a copy) to him dated July 27, 2011, saying that his service “has been exemplary,” that his “dedication and hard work … have proved to be invaluable,” and that “I am extremely grateful for the service you provided.” Do you deny that?

7. In a previous letter of recommendation (of which I have a copy), in November 2007, Mr. Chisholm wrote that Mr. Lutz had been “one of the best investigators in the Milwaukee police department” and had “removed some of the most dangerous offenders from the streets of Milwaukee” while combining “a remarkable memory with unceasing hard work and courage.” Do you deny that?

8. Mr. Lutz has said that in late 2010 or early 2011, he heard Mr. Chisholm and others in the DA’s office express anger at the newly elected Scott Walker, who Mr. Chisholm said had backed away from an agreement to support statewide stepped pay raises for DA’s and their assistants. Do you deny that?

9. Mr. Lutz has added that Mr. Chisholm complained that Mr. Walker had “lied to my face” about stepped raises. Do you deny saying anything like that?

10. Mr. Lutz said the following in a May 20, 2012 email to an unidentified person, a copy of which he gave me, while saying that it accurately described a conversation he had with Mr. Chisholm in or about March 2011: When “I was a Special Prosecutor in the DA’s office and [Wisconsin Supreme Court] Justice [David] Prosser approached me to do a [pre-election] video spot about how the decision authored by him about the guy who shot me was a very important ruling for Police officers in general, DA Chisholm … stated that he couldn’t allow me to do it and he wants to stay as far away from these Republicans as he can.” Do you deny saying anything like that?

11. In the same email, Mr. Lutz added that Mr. Chisholm “went on to say how he knows that Act 10 would eventually end up in the [Wisconsin] Supreme Court and didn’t want Prosser to decide on the case.” Do you deny saying anything like that?

12. Also in the same email, Mr. Lutz added that roughly eight months after this conversation, Mr. Chisholm’s “liberal block of DA’s, 80% of them, are actively campaigning, emailing, and even verbally bashing Walker at charging conferences.” Do you deny that?

13. Mr. Lutz has said that Mr. Chisholm told him that his wife, Colleen, a teacher’s union shop steward, had been repeatedly moved to tears by Gov. Walker’s policies regarding public employee unions. Do you deny saying anything like that?

14. Mr. Lutz has said that Mr. Chisholm told him that his wife “frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved.” Do you deny saying anything like that?

15. Mr. Lutz has said that Mr. Chisholm told him that he felt that it was his “personal duty” to stop Gov. Walker from curbing public employee unions. Do you deny that?

16. Mr. Lutz has said that Mr. Chisholm told him that his wife had joined public demonstrations by one or more unions against Walker’s policies in 2011. Do you deny saying anything like that?

17. Mr. Lutz has said that Mr. Chisholm made most or all of the statements numbered 10 through 16 above while the two of them (and perhaps one or more others) were speaking in Mr. Chisholm’s personal office in or about March 2011. Do you deny that?

18. Mr. Lutz has said that in the first half of 2011 (roughly), many of Mr. Chisholm’s subordinates were very strongly opposed to Walker and his union-curbing policies. Do you deny that?

19. Mr. Lutz has said that a number of subordinates of Mr. Chisholm joined public protests in 2011 against Walker’s policies. Do you deny that?

20. Mr. Lutz has said that some Chisholm subordinates hung images of blue fists on their office walls in 2011. Do you deny that?

21. I believe that Gov. Walker’s Act 10 and perhaps related legislation or policies caused cuts in take-home pay for Mr. Chisholm and his subordinates, as for other unionized public employees, in part by requiring them to pay for previously free or inexpensive health insurance, pensions, and perhaps other benefits. Do you deny that?

22. The cuts in take-home pay for Mr. Chisholm and/or some of his subordinates were roughly 10 percent or more. Do you deny that?

23. One or more of Mr. Chisholm’s subordinates will be entitled under current law to a pension in excess of $1 million each. Do you deny that?

24. Mr. Lutz told me that Mr. Chisholm told him that as a result of Act 10, Colleen Chisholm’s union local disbanded and that she was very upset about this and the effect it would have on members and former members. Do you deny that?

25. The impact of Mr. Walker’s polices on the Chisholms’ finances also included whatever pay Mrs. Chisholm had previously received from her union. Do you deny that?

26. I have reason to believe that Mrs. Chisholm had been receiving more than $20,000 a year in gross compensation from the union. Do you deny that?

27. I have been told that after I published some of Mr. Lutz’s allegations without identifying him, the DA’s office developed a list of people who might be my source. Do you deny that?

28. I have also been told that there were as many as 10 or 12 people on that list. Do you deny that?

29. I have also been told that Mr. Lutz was not on that initial list. Do you deny that?

"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.

"It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution."

"Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution."

I wanted to highlight that passage from the Wisconsin Supreme Court's decision ending the John Doe investigation. There is much more from the opinion in my earlier post.

My paraphrase: Thanks to the brave few who fight for their rights. They benefit everyone, including those of us who'd cave to the forces of overbearing government. The court appreciates the opportunity to say what rights are, so that the timid as well as the brave can experience freedom.

ADDED: My paraphrase is skewed toward issues character — timidity and bravery. But Justice Gableman wrote "the will and the means." It's not just: Thank God these people were brave enough to fight. It's also: Thank God these people were rich enough to fight. The rights established by litigation by those with the means to fight are enshrined in doctrine that protects the rest of us. The critic will (of course) say that the rights the courts manage to find are the rights that are useful to the wealthy.

"The Wisconsin Supreme Court is expected on Thursday to make public a decision on whether a criminal investigation into coordination between conservative groups and Gov. Scott Walker’s 2012 campaign may continue." UPDATE: Court ends the investgation.

The NYT reports.

The investigation, which has been stalled by court decisions for more than a year, began in 2012 after Mr. Walker survived a recall election brought by voters who opposed limits he made to collective bargaining rights and union power when he became governor in 2011. At its root, the investigation looked at whether Mr. Walker’s advisers directed interactions with at least a dozen outside conservative groups, including the Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce, and Citizens for a Strong America, and whether that violated disclosure rules and donation limits....

The State Supreme Court had been asked to look at three legal suits tied to the case, including efforts to end the inquiry by those under investigation as well as a push by the special prosecutor to renew it....

ADDED: This paragraph seems miswritten:

The state’s highest court is widely seen as being split between a larger conservative bloc and liberal one as well as having an increasingly polarized, antagonistic climate between the blocs. Shirley S. Abrahamson, the longtime, liberal-leaning chief justice, filed a federal lawsuit this spring after voters approved a Republican-led constitutional amendment changing the way the chief was picked — in essence, assuring that a member of the conservative bloc, Patience Roggensack, would be picked to replace her.

The constitutional amendment didn't assure that Patience Roggensack would be chosen. The NYT doesn't mention what the constitutional change was. We went from designating the most senior justice as chief to choosing the chief by a vote of the justices. That meant the so-called conservatives controlled the outcome if they voted as a bloc, but a majority of justices, making their individual choices, could have decided to vote for Abrahamson, perhaps out of concern for the seeming disrespect of taking her position away in the middle of her term or because she was experienced and doing a fine job. We Wisconsinites who voted to amend the constitution did not feel assured of the outcome, especially that Roggensack, specially, would be chosen.

UPDATE: "Wisconsin Supreme Court ends John Doe probe into Scott Walker's campaign."

The ruling means the likely end of the investigation, which has been stalled for 18 months after a lower court judge determined no laws were violated even if Walker's campaign and the groups had worked together as prosecutors believe.

It could also prompt the escalation of other litigation over the probe....

Writing for the majority, Justice Michael Gableman found a key section of Wisconsin's campaign finance law is "unconstitutionally overbroad and vague" and that the activities prosecutors had investigated were not illegal.

"To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law," Gableman wrote. "Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge (Gregory) Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must 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. All unnamed movants are relieved of any duty to cooperate further with the investigation."

AND: Here's the full text of the opinion.

MORE: The court — citing freedom of speech rights in the U.S. and Wisconsin constitutions — rejects the interpretation of the Wisconsin statute that was the basis of the special prosecutor's :

In Two Unnamed Petitioners, we hold that the definition of that the definition of "political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution because its language "'is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'"  State v. Janssen, 219 Wis. 2d 362, 374, 580 N.W.2d 260 (1998) (quoting Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533 (1987)).  However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, "political purposes" is limited to express advocacy and its functional equivalent as those terms are defined in Buckley v. Valeo, 424 U.S. 1 (1976), and Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (WRTL II).  With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants.  The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is "beyond the reach of [Ch. 11]."  Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 815 (7th Cir. 2014) (Barland II).  Accordingly, we invalidate the special prosecutor's theory of the case, and we grant the relief requested by the Unnamed Movants.

AND: "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."

MORE: "The special prosecutor alleges that the Unnamed Movants engaged in illegally coordinated issue advocacy.  However, the basis for his theory has evolved over the course of the various legal challenges to his investigation, and he appears unable to decide just how the Unnamed Movants have broken the law."

Today, the special prosecutor alleges two theories of illegal coordination: (1) that the coordination between the Unnamed Movants is so extensive that the supposedly independent groups became subcommittees for the candidate's campaign under Wis. Stat. § 11.10(4); and (2) that the coordinated issue advocacy amounts to an in-kind contribution under Wis. Admin. Code § GAB 1.20.  The special prosecutor's theories, if adopted as law, would require an individual to surrender his political rights to the government and retain campaign finance attorneys before discussing salient political issues.  See Citizens United, 558 U.S. at 324.  We find no support for the special prosecutor's theories in Wis. Stat. Ch. 11.  Chapter 11's definition of "political purposes," which underlies Wisconsin's campaign finance law, is both overbroad and vague and thus unconstitutionally chills speech because people "'of common intelligence must necessarily guess at [the law's] meaning and differ as to its application.'"  Id. (quoting Connally, 269 U.S. at 391)....

The special prosecutor argues that coordinated issue advocacy is prohibited under this provision because the statute itself only requires cooperation between a candidate's committee and another committee and that the statute does not require that such cooperation be limited to express advocacy.

The first flaw in the special prosecutor's theory is that it is left to the whim of each regulatory bureaucrat and/or prosecutor to subjectively determine how much coordination is "too much."  Indeed, the special prosecutor, because he relies on vague and overbroad statutes, will be the only one to know how much coordination is "too much."  This cannot be; such an interpretation of § 11.10(4) is unconstitutionally overbroad and vague under the First Amendment. 

There's a second flaw that the court finds "more obvious":

Wisconsin Stat. § 11.10(4) refers to a "committee" that coordinates with a candidate's committee and in order to be a "committee," an entity must "make[] or accept[] contributions or make[] disbursements."   In order to come within the purview of regulated acts both "contributions" and "disbursements" must be "made for political purposes."  Wis. Stat. §§ 11.01(6)(a)1; 11.01(7)(a)1.  Applying the necessary limiting construction to the phrase "for political purposes," we conclude that in order to meet the statutory definition of "committee," a committee must engage in express advocacy and its functional equivalent.  This conclusion is fatal to the special prosecutor's subcommittee theory because he does not allege that the Unnamed Movants engaged in express advocacy.  Put simply, because the Unnamed Movants did not engage in express advocacy, they could not be considered a "committee" subject to Chapter 11's regulation. 

AND: From the conclusion:

It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.   In other words, the special prosecutor was the instigator of a "perfect storm" of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them.  It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.  Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. 

"Wisconsin’s Friend at the IRS/Emails show a common cause in restricting political speech."

A Wall Street Journal editorial (Google some text to get your own link if that doesn't work for you). Excerpt:

Former IRS tax-exempt director Lois Lerner ran the [IRS]’s policy on conservative groups. Kevin Kennedy runs the Wisconsin Government Accountability Board (GAB) that helped prosecutors with their secret John Doe investigation of conservative groups after the 2011 and 2012 recall elections of Governor Scott Walker and state senators.

Emails we’ve seen show that between 2011 and 2013 the two were in contact on multiple occasions, sharing articles on topics including greater donor disclosure and Wisconsin’s recall elections. The emails indicate the two were also personal friends who met for dinner and kept in professional touch. “Are you available for the 25th?” Ms. Lerner wrote in January 2012. “If so, perhaps we could work two nights in a row.”...

Sources tell us that in 2012 and 2013 John Doe investigators asked the IRS to look into a conservative group that was among the primary targets of the Wisconsin Doe investigation. The IRS doesn’t appear to have followed up, but the request shows Wisconsin prosecutors saw their pursuit of independent groups as part of a common agenda with national Democrats....

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.

"If prosecuting politically unpopular speech becomes the 'new normal,' you can bet this tactic will be embraced by both parties."

"Left-wing individuals and groups are at least as guilty of coordinating their expenditures and efforts with Democrats as conservatives are with Republicans," writes Larry Kaufmann at Isthmus.

If the Supreme Court does not unambiguously repudiate the basis for the current John Doe probe, the GOP is empowered to launch similar investigations into left-leaning organizations in 2016 and beyond. The next group at the business end of a John Doe battering ram could be One Wisconsin Now rather than the Club for Growth.

You would think every commentary on John Doe would recognize this danger, but you would be wrong...

"Scott Walker's crisis of faith/The Wisconsin governor is racing to reassure Christian conservatives that he’s one of them."

Headline at Politico. Not much going on in the article in my view. I find this bloggable because 1. Politico is choosing this theme for its coverage (and not, say, the new John Doe documents that just came out) and 2. the absence of material is significant.

Walker tends not to talk about the social conservative issues — probably because 1. such issues are divisive and 2. he appears to be a very solidly religious man — and the social conservatives are having a meeting with him — where he'll probably explain those 2 things.

IN THE COMMENTS: I repeat my point that "Walker doesn't talk the SC issues. He is a conservative man. He comes across as sincerely religious, based on his whole life story and his behavior." I add: "That's his approach, and it's different from the approach of those who use the issues. I think it's an excellent and winning combination." And MaBee says: "Which is exactly why Politico wants to push him out of using it." Yes. And... how do we feel about a candidate winning that way? I guess it depends on whether in the end he does anything about these privately held values.

"The Destruction of the Wisconsin Supreme Court," by Lincoln Caplan.

In The New Yorker. I thought you should know.

When addressing a case like the John Doe inquiry, with the election of a controversial governor and now an undeclared Presidential candidate at its core, the Wisconsin Supreme Court should be seen as above the fray, beyond price, and wholly independent. Instead, contrary to the ideal that John Roberts described in [Williams-Yulee v. Florida Bar], all of the Wisconsin justices look a lot like politicians, in particular the conservatives, who came to the bench with the support of powerful and aggressive political groups. Those justices’ integrity is compromised, as plainly as if they had personally solicited every dollar that helped elect them — and that helped drag the standing of their court so low.

All judges look like politicians, especially the conservatives. And all New Yorker writers who write about judges look like politicians, especially when they write about conservatives.

ADDED: Amusingly, The New Yorker points me to a March 5, 2012 article titled: "The Storm/Did a governor’s anti-union crusade backfire?" The answer, it turned out, was: no.

"Ronald Rotunda, distinguished professor of jurisprudence at Chapman University in California, called Chisholm’s statements outrageous."

"There is no justification for a prosecutor to do this," Rotunda said. "If you were to write a recipe to chill your political opponents, this would be it. The only different between (Russian President Vladimir) Putin and this guy (Chisholm) is Putin charges his enemies with tax fraud and sends them to Siberia."