A Basic Primer On The Scott Walker Case For Ignorant Reporters
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A Basic Primer On The Scott Walker Case For Ignorant Reporters

I’m going to tell you a true story, and then tell you how the news media is covering it.

This is a true story: in 2012, Democratic district attorneys in Wisconsin launched a secret probe known as a John Doe investigation with the goal of proving that conservative groups illegally coordinated activities during Gov. Scott Walker’s recall election. They issued more than 100 subpoenas, demanded the private information of conservatives and conservative groups, and actually conducted secret raids. And under state law, individuals who were targeted or witness to the investigation were forbidden from making knowledge of it public.

Fortunately, judges saw right through this partisan abuse of power. Early this year, a state judge, ruling in a secret proceeding, quashed the subpoenas and all but ended the investigation. According to the judge, “the subpoenas do not show probable cause that the moving parties committed any violations of the campaign finance laws.” This started the unraveling of the John Doe investigation that had many conservatives fearing they would be targeted for subpoenas and raids next.

In February, a conservative activist and group filed a federal civil rights lawsuit against the partisan district attorneys who had pursued the John Doe probe. In short order, a federal district court judge held that the plaintiffs “are likely to succeed on their claim that the defendants‘ investigation violates their rights under the First Amendment, such that the investigation was commenced and conducted ―without a reasonable expectation of obtaining a valid conviction.” In other words, at this early stage of the civil rights litigation, it looks to the judge as if the Democratic district attorneys abused their power and chilled conservatives’ free speech rights. Accordingly, the federal judge ordered that the John Doe probe must cease, all the seized property be returned, and all copies of materials be destroyed.

After a short trip to a federal appeals court, the federal judge reissued his order that the John Doe probe cease. Most recently, that appeals court has ordered some of the previously secret probe documents disclosed to the public, including an unsuccessful defense that the John Doe investigators made to one of their secret subpoenas. In their attempt to get a subpoena, which was rejected by a judge for lacking probable cause, the partisan investigators claimed that Walker was involved in the so-called conservative conspiracy.

And that is where the litigation stands as of today. Having launched a secret probe that has now been shut down by both the state and federal courts, the Democratic district attorneys find themselves the subject of an ongoing civil rights lawsuit for infringing the First Amendment rights of conservatives. But that is not how the media have reported the case.

Upon the unsealing of some of the probe documents by the federal appeals court, the media worked itself into a frenzy claiming that Walker was part of a criminal conspiracy. The media claim was based entirely on the subpoena document that was denied by the state judge as failing utterly to demonstrate probable cause to believe a crime occurred. In short: the judge, looking at all the evidence, found no reason to believe that a crime had occurred. That has not stopped the media from falsely implying otherwise.

This is largely accomplished by playing with verb tense. For example, the Milwaukee Journal-Sentinel kicked off this infuriating libel with a piece that claimed, “John Doe prosecutors allege Scott Walker at center of ‘criminal scheme.’” The more accurate word, of course, would have been “alleged,” past-tense with the addition of the words “in denied subpoena request” or perhaps “in failed partisan investigation” or even “in politically-motivated secret investigation rejected by the state and federal courts.”

The New York Times, trumpeting the story on today’s front page, also uses the present tense to give the wrong impression. The piece begins “Prosecutors in Wisconsin assert that Gov. Scott Walker was part of an elaborate effort to illegally coordinate fund-raising and spending.” Again, the true story is that this took place last year and was ended by the courts. You’d have to read all the way down to the tenth paragraph to learn that the subpoenas weren’t granted because there was no probable cause to believe that a crime had occurred. Oddly, the Times piece muses on the electoral consequences for Walker in the third paragraph.

The media obsession with Walker is no coincidence. Liberals are still stinging from their failure to recall him in 2012 after he successfully curtailed union abuses. And they sense that he could be a formidable contender for the White House in 2016. That the John Doe probe simultaneously harms him, suggests widespread wrongdoing by conservatives, and raises the campaign finance bugaboo makes this story the almost-perfect storm. The inconvenient fact that the investigation was cooked up for partisan purposes, has now ceased, and has impelled a federal civil rights lawsuit will go unmentioned in the papers.

Gabriel Malor is an attorney and writer in Washington, D.C. Follow him on Twitter.
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