http://www.nationalreview.com/article/417155/wisconsins-shame-i-thought-it-was-home-invasion-david-french
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Wisconsin’s Shame: ‘I Thought It Was a Home Invasion’
‘They came with a battering ram.”
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da.milwaukee
@da.wi.gov
Milwaukee County District Attorney
District Attorney: John T. Chisholm
Contact Info: Phone: (414) 278-4646 Fax: (414) 223-1955
Address: Safety Building 821 W. State Street, Room 405
City: Milwaukee
State: WI
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Most Americans have never heard of these raids, or of the lengthy
criminal investigations of Wisconsin conservatives. For good reason.
Bound by comprehensive secrecy orders, conservatives were left to suffer
in silence as leaks ruined their reputations, as neighbors, looking
through windows and dismayed at the massive police presence, the lights
shining down on targets’ homes, wondered, no doubt, What on earth did
that family do?
This was the on-the-ground reality of the so-called John Doe
investigations, expansive and secret criminal proceedings that directly
targeted Wisconsin residents because of their relationship to Scott
Walker, their support for Act 10, and their advocacy of conservative
reform.
Largely hidden from the public eye, this traumatic process, however, is
now heading toward a legal climax, with two key rulings expected in the
late spring or early summer. The first ruling, from the Wisconsin
supreme court, could halt the investigations for good, in part by
declaring that the “misconduct” being investigated isn’t misconduct at
all but the simple exercise of First Amendment rights.
The second ruling, from the United States Supreme Court, could grant
review on a federal lawsuit brought by Wisconsin political activist Eric
O’Keefe and the Wisconsin Club for Growth, the first conservatives to
challenge the investigations head-on. If the Court grants review, it
could not only halt the investigations but also begin the process of
holding accountable those public officials who have so abused their
powers.
But no matter the outcome of these court hearings, the damage has been
done. In the words of Mr. O’Keefe, “The process is the punishment.”
It all began innocently enough. In 2009, officials from the office of
the Milwaukee County executive contacted the office of the Milwaukee
district attorney, headed by John Chisholm, to investigate the
disappearance of $11,242.24 from the Milwaukee chapter of the Order of
the Purple Heart. The matter was routine, with witnesses willing and
able to testify against the principal suspect, a man named Kevin
Kavanaugh.
What followed, however, was anything but routine. Chisholm failed to act
promptly on the report, and when he did act, he refused to conduct a
conventional criminal investigation but instead petitioned, in May 2010,
to open a “John Doe” investigation, a proceeding under Wisconsin law
that permits Wisconsin officials to conduct extensive investigations
while keeping the target’s identity secret (hence the designation “John
Doe”).
John Doe investigations alter typical criminal procedure in two
important ways: First, they remove grand juries from the investigative
process, replacing the ordinary citizens of a grand jury with a
supervising judge. Second, they can include strict secrecy requirements
not just on the prosecution but also on the targets of the
investigation. In practice, this means that, while the prosecution
cannot make public comments about the investigation, it can take public
actions indicating criminal suspicion (such as raiding businesses and
homes in full view of the community) while preventing the targets of the
raids from defending against or even discussing the prosecution’s
claims.
Why would Chisholm seek such broad powers to investigate a year-old
embezzlement claim with a known suspect? Because the Milwaukee County
executive, Scott Walker, had by that time become the leading Republican
candidate for governor. District Attorney Chisholm was a Democrat, a
very partisan Democrat.
Almost immediately after opening the John Doe investigation, Chisholm
used his expansive powers to embarrass Walker, raiding his
county-executive offices within a week. As Mr. O’Keefe and the Wisconsin
Club for Growth explained in court filings, the investigation then
dramatically expanded:
Over the next few months, [Chisholm’s] investigation of
all-things-Walker expanded to include everything from alleged
campaign-finance violations to sexual misconduct to alleged public
contracting bid-rigging to alleged misuse of county time and property.
Between May 5, 2010, and May 3, 2012, the Milwaukee Defendants filed at
least eighteen petitions to formally “[e]nlarge” the scope of the John
Doe investigation, and each was granted. . . . That amounts to a new
formal inquiry every five and a half weeks, on average, for two years.
This expansion coincided with one of the more remarkable state-level
political controversies in modern American history – the protest (and
passage) of Act 10, followed by the attempted recall of a number of
Wisconsin legislators and, ultimately, Governor Walker.
Political observers will no doubt remember the events in Madison — the
state capitol overrun by chanting protesters, Democratic lawmakers
fleeing the state to prevent votes on the legislation, and tens of
millions of dollars of outside money flowing into the state as Wisconsin
became, fundamentally, a proxy fight pitting the union-led Left against
the Tea Party–led economic Right.
At the same time that the public protests were raging, so were private —
but important — protests in the Chisholm home and workplace. As a
former prosecutor told journalist Stuart Taylor, Chisholm’s wife was a
teachers’-union shop steward who was distraught over Act 10’s union
reforms. He said Chisholm “felt it was his personal duty” to stop them.
Meanwhile, according to this whistleblower, the district attorney’s
offices were festooned with the “blue fist” poster of the labor-union
movement, indicating that Chisholm’s employees were very much invested
in the political fight.
In the end, the John Doe proceeding failed in its ultimate aims. It
secured convictions for embezzlement (related to the original 2009
complaint), a conviction for sexual misconduct, and a few convictions
for minor campaign violations, but Governor Walker was untouched, his
reforms were implemented, and he survived his recall election.
But with another election looming — this time Walker’s campaign for
reelection — Chisholm wasn’t finished. He launched yet another John Doe
investigation, “supervised” by Judge Barbara Kluka. Kluka proved to be
capable of superhuman efficiency — approving “every petition, subpoena,
and search warrant in the case” in a total of one day’s work.
If the first series of John Doe investigations was “everything Walker,”
the second series was “everything conservative,” as Chisholm had
launched an investigation of not only Walker (again) but the Wisconsin
Club for Growth and dozens of other conservative organizations, this
time fishing for evidence of allegedly illegal “coordination” between
conservative groups and the Walker campaign.
In the second John Doe, Chisholm had no real evidence of wrongdoing.
Yes, conservative groups were active in issue advocacy, but issue
advocacy was protected by the First Amendment and did not violate
relevant campaign laws. Nonetheless, Chisholm persuaded prosecutors in
four other counties to launch their own John Does, with Judge Kluka
overseeing all of them.
Empowered by a rubber-stamp judge, partisan investigators ran amok. They
subpoenaed and obtained (without the conservative targets’ knowledge)
massive amounts of electronic data, including virtually all the targets’
personal e-mails and other electronic messages from outside e-mail
vendors and communications companies.
The investigations exploded into the open with a coordinated series of
raids on October 3, 2013. These were home invasions, including those
described above. Chisholm’s office refused to comment on the raid
tactics (or any other aspect of the John Doe investigations), but
witness accounts regarding the two John Doe investigations are
remarkably similar: early-morning intrusions, police rushing through the
house, and stern commands to remain silent and tell no one about what
had occurred.
At the same time, the Wisconsin Club for Growth and other conservative
organizations received broad subpoenas requiring them to turn over
virtually all business records, including “donor information,
correspondence with their associates, and all financial information.”
The subpoenas also contained dire warnings about disclosure of their
existence, threatening contempt of court if the targets spoke publicly.
For select conservative families across five counties, this was the
terrifying moment — the moment they felt at the mercy of a truly
malevolent state.
Speaking both on and off the record, targets reflected on how many
layers of Wisconsin government failed their fundamental constitutional
duties — the prosecutors who launched the rogue investigations, the
judge who gave the abuse judicial sanction, investigators who chose to
taunt and intimidate during the raids, and those police who ultimately
approved and executed aggressive search tactics on law-abiding, peaceful
citizens.
For some of the families, the trauma of the raids, combined with the
stress and anxiety of lengthy criminal investigations, has led to
serious emotional repercussions. “Devastating” is how Anne describes the
impact on her family. “Life-changing,” she says. “All in terrible
ways.”
O’Keefe, who has been in contact with multiple targeted families, says,
“Every family I know of that endured a home raid has been shaken to its
core, and the fate of marriages and families still hangs in the balance
in some cases.”
Anne also describes a new fear of the police: “I used to support the
police, to believe they were here to protect us. Now, when I see an
officer, I’ll cross the street. I’m afraid of them. I know what they’re
capable of.”
Cindy says, “I lock my doors and I close my shades. I don’t answer the
door unless I am expecting someone. My heart races when I see a police
car sitting in front of my house or following me in the car. The raid
was so public. I’ve been harassed. My house has been vandalized. [She
did not identify suspects.] I no longer feel safe, and I don’t think I
ever will.”
Rachel talks about the effect on her children. “I tried to create a home
where the kids always feel safe. Now they know they’re not. They know
men with guns can come in their house, and there’s nothing we can do.”
Every knock on the door brings anxiety. Every call to the house is
screened. In the back of her mind is a single, unsettling thought: These
people will never stop.
Victims of trauma — and every person I spoke with described the armed
raids as traumatic — often need to talk, to share their experiences and
seek solace in the company of a loving family and supportive friends.
The investigators denied them that privilege, and it compounded their
pain and fear.
The investigation not only damaged families, it also shut down their
free speech. In many cases, the investigations halted conservative
groups in their tracks. O’Keefe and the Wisconsin Club for Growth
described the effect in court filings:
O’Keefe’s associates began cancelling meetings with him and
declining to take his calls, reasonably fearful that merely associating
with him could make them targets of the investigation. O’Keefe was
forced to abandon fundraising for the Club because he could no longer
guarantee to donors that their identities would remain confidential,
could not (due to the Secrecy Order) explain to potential donors the
nature of the investigation, could not assuage donors’ fears that they
might become targets themselves, and could not assure donors that their
money would go to fund advocacy rather than legal expenses. The Club was
also paralyzed. Its officials could not associate with its key
supporters, and its funds were depleted. It could not engage in issue
advocacy for fear of criminal sanction.
These raids and subpoenas were often based not on traditional notions of
probable cause but on mere suspicion, untethered to the law or
evidence, and potentially violating the Fourth Amendment’s prohibition
against “unreasonable searches and seizures.” The very existence of
First Amendment–protected expression was deemed to be evidence of
illegality. The prosecution simply assumed that the conservatives were
incapable of operating within the bounds of the law.
Even worse, many of the investigators’ legal theories, even if proven by
the evidence, would not have supported criminal prosecutions. In other
words, they were investigating “crimes” that weren’t crimes at all.
If the prosecutors had applied the same legal standards to the Democrats
in their own offices, they would have been forced to turn the raids on
themselves. If the prosecutors and investigators had been raided, how
many of their computers and smartphones would have contained
incriminating information indicating use of government resources for
partisan purposes?
With the investigations now bursting out into the open, some
conservatives began to fight back. O’Keefe and the Wisconsin Club for
Growth moved to quash the John Doe subpoenas aimed at them. In a
surprise move, Judge Kluka, who had presided over the Doe investigations
for more than a year, recused herself from the case. (A political
journal, the Wisconsin Reporter, attempted to speak to Judge Kluka about
her recusal, but she refused to offer comment.)
The new judge in the case, Gregory Peterson, promptly sided with O’Keefe
and blocked multiple subpoenas, holding (in a sealed opinion obtained
by the Wall Street Journal, which has done invaluable work covering the
John Doe investigations) that they “do not show probable cause that the
moving parties committed any violations of the campaign finance laws.”
The judge noted that “the State is not claiming that any of the
independent organizations expressly advocated” Walker’s election.
O’Keefe and the Wisconsin Club for Growth followed up Judge Peterson’s
ruling by filing a federal lawsuit against Chisholm and a number of
additional defendants, alleging multiple constitutional violations,
including a claim that the investigation constituted unlawful
retaliation against the plaintiffs for the exercise of their First
Amendment rights. United States District Court judge Rudolph Randa
promptly granted the plaintiffs’ motion for a preliminary injunction,
declaring that “the Defendants 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.”
From that point forward, the case proceeded on parallel state and
federal tracks. At the federal level, the Seventh Circuit Court of
Appeals reversed Judge Randa’s order. Declining to consider the case on
the merits, the appeals court found the lawsuit barred by the federal
Anti-Injunction Act, which prohibits federal courts from issuing
injunctions against some state-court proceedings. O’Keefe and the
Wisconsin Club for Growth have petitioned the Supreme Court for a writ
of certiorari and expect a ruling in a matter of weeks.
At the same time, the John Doe prosecutors took their case to the
Wisconsin Court of Appeals to attempt to restart the Doe proceedings.
The case was ultimately consolidated before the state supreme court,
with a ruling also expected in a matter of weeks.
And so, almost five years after their secret beginning, the John Doe
proceedings are nearly dead — on “life support,” according to one
Wisconsin pundit — but incalculable damage has been done, to families,
to activist organizations, to the First Amendment, and to the rule of
law itself.
In international law, the Western world has become familiar with a
concept called “lawfare,” a process whereby rogue regimes or
organizations abuse legal doctrines and processes to accomplish through
sheer harassment and attrition what can’t be accomplished through
legitimate diplomatic means. The Palestinian Authority and its defenders
have become adept at lawfare, putting Israel under increasing pressure
before the U.N. and other international bodies.
The John Doe investigations are a form of domestic lawfare, and our
constitutional system is ill equipped to handle it. Federal courts
rarely intervene in state judicial proceedings, state officials rarely
lose their array of official immunities for the consequences of their
misconduct, and violations of First Amendment freedoms rarely result in
meaningful monetary damages for the victims.
As Scott Walker runs for president, the national media will finally join
the Wall Street Journal in covering John Doe. Given the mainstream
media’s typical bias and bad faith, they are likely to bring a fresh
round of pain to the targets of the investigation; the cloud of
suspicion will descend once again; even potential favorable court
rulings by either the state supreme court or the U.S. Supreme Court will
be blamed on “conservative justices” taking care of their own.
Conservatives have looked at Wisconsin as a success story, where Walker
took everything the Left threw at him and emerged victorious in three
general elections. He broke the power of the teachers’ unions and
absorbed millions upon millions of dollars of negative ads. The Left
kept chanting, “This is what democracy looks like,” and in Wisconsin,
democracy looked like Scott Walker winning again and again.
Yet in a deeper way, Wisconsin is anything but a success. There were
casualties left on the battlefield — innocent citizens victimized by a
lawless government mob, public officials who brought the full power of
their office down onto the innocent.
Governors come and go. Statutes are passed and repealed. Laws and
elections are important, to be sure, but the rule of law is more
important still. And in Wisconsin, the rule of law hangs in the balance —
along with the liberty of citizens.
As I finished an interview with one victim still living in fear, still
shattered by the experience of nearly losing everything simply because
she supported the wrong candidate at the wrong time, I asked whether she
had any final thoughts. “Just one,” she replied. “I’m hoping for
accountability, that someone will be held responsible so that they’ll
never do this again.” She paused for a moment and then, with voice
trembling, said: “No one should ever endure what my family endured.”
– David French is an attorney, a writer, and a veteran of the Iraq War.
This article first appeared in the May 4, 2015, issue of NR.
More on this affair..
http://wisconsindailyindependent.com/scott-walker-made-my-wife-cry-sunday-comic/
Tony's AWESOME memes
http://presumptivephilospher.blogspot.com/2015/04/tonys-awesome-memes.html
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