AP Treats Wisconsin's Abusive John Doe Probe As a Mere 'Partisan' Spat

Last week, Wisconsin's Attorney General issued a report recommending contempt charges against six former workers at the state's now-defunct Government Accountability Board and three employees in the Milwaukee County prosecutor's office for their involvement in or knowledge of illegal and criminal leaks of GAB documents relating to what has become known as the "John Doe" investigation of Wisconsin Governor Scott Walker.

The Associated Press's Scott Bauer, whose animosity towards Walker and Republicans has been obvious for at least seven years, has been busy downplaying the matter as just another "partisan" dispute while making false claims about the nature of the investigation and the Wisconsin Supreme Court ruling which halted it.

The documents related to the secret investigation targeting Walker, individuals and entities who supported him, and other Badger State Republicans. They were leaked to the UK Guardian in an unsuccessful Hail Mary attempt to get the U.S. Supreme Court to reconsider the Wisconsin court's decision.

In writeups published on December 7 and December 12, Bauer described a "John Doe" investigation  as follows:

A John Doe investigation is similar to a grand jury in that proceedings and evidence collected is expected to remain secret.

What a crock.

A grand jury reviews evidence submitted by a prosecutor and decides whether to indict. In a Wisconsin John Doe investigation, a prosecutor doesn't interact with ordinary citizens at all, but instead gets permissions from a judge or judges to gather evidence, up to and including executing search warrants. Unlike ordinary investigations, it is illegal for a John Doe probe's targets to communicate with anyone other than their own counsel about matters pertaining to the investigation.

Bauer's attempted grand jury analogy is a deliberate attempt to downplay the appalling tactics used in the now-found unconstitutional John Doe investigation of Walker and others.

In a separate item on December 9, Bauer treated nitpicking Badger State Democrats' disagreements over the exact accuracy of some of the damning claims in the AG's report as just another example of how deep the "partisan divide" is in the Badger State (bolds are mine throughout this post):

Partisan divide deepens over Walker investigation

The deep partisan divide over a secret investigation into Gov. Scott Walker’s recall reignited this week after the release of a Department of Justice investigative report that said those who seized personal emails from scores of Republicans and didn’t keep them secure should be held in contempt.

Angry conservatives fought the Walker probe for years, finally convincing the Wisconsin Supreme Court in 2015 to halt the investigation. Democrats accused the conservative-majority court of taking a partisan stand in the case that turned on whether Walker illegally coordinated with outside groups during the 2012 recall.

Bauer deliberately mischaracterized the case's history and conclusion in the second excerpted paragraph.

Anyone reading the related Wisconsin Supreme Court ruling would know that the Court didn't need to be "convinced" to halt the investigation, and that one doesn't need to be a conservative to be outraged by the investigation's existence and primary objective:

... According to the special prosecutor (Milwaukee County's district attorney, Democrat John Chisholm — Ed.), the purpose of the John Doe investigation is to root out allegedly illegal campaign coordination between certain issue advocacy groups and a candidate for elective office.

... we hold that the definition of "political purposes" in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment ... (and) "'is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'"

... this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law.

... we declare that coordinated issue advocacy of the kind alleged by the special prosecutor is not regulated under Wis. Stat. Ch. 11 (2011-12),[2] Wisconsin's campaign finance law.

... The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not ...

... the special prosecutor's legal theory is unsupported in either reason or law.

Special Prosecutor Chisholm contended that any advocacy of positions in sync with a political candidate's positions during an election cycle would constitute "express advocacy" supporting that candidate's election, and would therefore fall under the scope of Wisconsin's campaign finance law.

This absurd theory would therefore, as an example, treat any generic, education-only publication by a pro-life group in a church bulletin during an election cycle as having been made "for political purposes" designed to help elect any candidate in the area who happens to hold pro-life positions. Chisholm engaged in scorched-earth tactics (to be described later) in an attempt to find evidence of any relevant communications between Walker and issue advocacy groups which woud prove "illegal coordination" under this twisted definition of "political purposes."

I bolded the word "alleged" and the phrase "whether coordinated or not" in the fourth and fifth excerpted paragraphs above from the ruling because the AP's Bauer, on December 12, effectively treated the "coordination" as an established fact, when it wasn't, in the following sentence:

The Wisconsin Supreme Court in 2015 halted the investigation, determining that coordination between Walker and conservative outside groups during the 2011 and 2012 recall elections was legal.

The Court did not rule on whether such "illegal coordination" under Chilsolm's warped definition occurred. As seen in the substance of the ruling seen above, it didn't care whether such coordination occurred. At the time of the Court's ruling and to this date, no trial has ever been held, or ever will be held, which would or will establish that any specific evidence consistent with Chisholm's warped definition of "illegal coordination" was ever found. All we have are the Milwaukee County DA's allegations, and whatever supposed evidence of "illegal coordination" may exist in documents illegally and criminally leaked after the Court's ruling.

The most Bauer or anyone else can claim is that the Court determined that any coordination between Walker and conservative outside groups which might have occurred was legal. Therefore, the AP reporter's sentence excerpted above is false.

In July 2015, David French at National Review succinctly summarized the Wisconsin Supreme Court ruling:

Wisconsin Democrats did, in fact, launch a massive, multi-county “John Doe” investigation of the state’s conservatives, featuring extraordinarily broad subpoenas and coordinated “paramilitary” raids of private homes; the “crimes” that provided the investigation’s pretext were not crimes at all, but First Amendment-protected speech; and the legal theory underpinning the investigation was bunk ...

Bauer and the AP have for years consistently ignored or whitewashed Chisholm's breathtaking prosecutorial overreach.

Again at National Review, this time in October 2014, George Will described these the raids in more detail:

The early-morning paramilitary-style raids on citizens’ homes were conducted by law-enforcement officers, sometimes wearing bulletproof vests and lugging battering rams, pounding on doors and issuing threats. Spouses were separated as the police seized computers, including those of children still in pajamas. Clothes drawers, including the children’s, were ransacked, cell phones were confiscated, and the citizens were told it would be a crime to tell anyone of the raids.

Last week's Attorney General's report concluded that "a criminal case cannot be filed at this time against the person or persons responsible for the leak," even though the Wisconsin Department of Justice determined that the intentional leak of these documents was a criminal act. Here's why, as explained by University of Tennessee law professor and lead Instapundit blogger Glenn Reynolds at USA Today on Monday:

Criminal charges would be appropriate, except that, as the Attorney General’s report notes, record-keeping was — conveniently — poor enough that it’s hard to be sure exactly who did what.

Among other things, the Attorney General's report painstakingly details how former Government Accountability attorney Shane Falk and an assistant feverishly worked to retain evidence by copying or printing documents after the court had ordered that they be turned over.

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No objective person reading the Wisconsin Supreme Court's ruling or the vast collection of information and history found at WisconsinJohnDoe.com can possibly conclude that this has been what the AP's Bauer wants readers to believe has been an ordinary "partisan" dispute. As former Federal Elections Commission member Hans von Spakovsky said four years ago (link added by me): "The state of Wisconsin should be embarrassed, embarrassed that it is involved in an effort that makes the Alien and Sedition acts mild by comparison."

The Walker-John Doe investigation has indeed been "Wisconsin's Shame." It's also a shame — but sadly not a surprise — that the Associated Press and Scott Bauer refuse to recognize it.

Cross-posted at BizzyBlog.com.


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Campaigns & Elections Campaign Financing Crime Government Agencies Double Standards Conservatives & Republicans Liberals & Democrats Political Scandals Associated Press National Review Scott Walker David French Scott Bauer George Will