In the predawn hours of October 3, 2013, armed deputies raided the homes of R.J. Johnson, Deborah Jordahl, and several others in a paramilitary style blitz across Wisconsin. The detainees weren’t terrorists bent on mass murder or the overthrow of the government. The agents weren’t looking for contraband narcotics or illegal firearms. In fact, no one was quite sure what they wanted, but agents got it all; computers, phones, business records, files, and communications dating back years. Deputies told the raided subjects to keep quiet or there would be consequences, as a pedophile might tell his prey.
The targets represent only a fraction of political activists sucked into Milwaukee County District Attorney John Chisholm’s “John Doe”—a grand-jury-type mechanism Wisconsin prosecutors prefer for its secrecy. Chisholm accuses them of “illegal talking” by coordinating messaging, which is supposedly forbidden under Wisconsin’s prolix campaign finance code. The investigation, which Chisholm has expanded 18 times, has engulfed advocates, large and small, for years on end. His favorite tactic is bulk intimidation. Alongside raids and gag orders, he employs kitchen-sink subpoenas, many of which are eventually quashed at great legal expense. When he fails to get sufficient obeisance, he serves arrest warrants and sends people to jail on nonexistent charges. One judge reviewing a John Doe prosecutor’s actions stated, “The conduct described is nothing that we as Wisconsinites should be proud of, bottom line . . . . Mr. Landgraf was behaving badly, probably for political reasons.”
Chisholm’s victims have paid a steep price financially, personally, and emotionally for their activism. There is, of course, also a larger political effect. John Doe virtually shut down the entire conservative apparatus during Wisconsin’s recent political battles, including Gov. Scott Walker’s 2014 re-election. The mere investigatory process, as Chisholm well understands, diverts time and resources, dries up fundraising, and taints the targets with an “under investigation” label.
Chisholm’s John Doe represents the worst kind of legal thuggery, rife with personal enmity, conflicts of interests, and professional skullduggery. Unfortunately victims are left with little practical recourse. The laws, judicial doctrines, and disciplinary structures that shield Chisholm and his cohorts should be reformed to prevent this type of abuse from ever happening again.
Only Conservatives Faced Chisholm’s Intimidation
Chisholm’s jihad against Walker’s allies has been clouded from the start. His personal antipathy for Walker is publicly known. His wife is a union steward reportedly brought by to tears by Walker’s union-busting Act 10. Both Chisholm and his wife have apparently attended anti-Act 10 union rallies. And according to whistleblower Michael Lutz, Chisholm considered it his “personal duty” to stop Walker.
The atmosphere in the district attorney’s office also raises red flags. According to Lutz, the office was adorned with the pro-union “Blue Fist,” presumably from union-represented assistant DAs. It’s a popular décor. David Budde, Chisholm’s chief investigator, sported the Blue Fist and a Recall Walker sign in his yard. Beyond aesthetics, office employees supported Walker’s opponents by a 4:1 ratio. At least 43 and possibly 70 employees signed the recall Walker petition.
Chisholm’s lack of interest in the anti-Walker side’s blatant “illegal talking,” has further marred the investigation. The Committee to Recall Scott Walker—subject to the same laws as Walker’s campaign—kicked off its effort with an event billed as “[i]n coordination with We Are Wisconsin, United Wisconsin, and the [Democratic Party of Wisconsin] . . .” In a conference call set up with reporters, Lisa Graves, head of agitprop group Center for Media and Democracy, (CMD) was asked if the Left engaged in synchronized messaging. She affirmed this, but stated “[Walker’s allies are] advancing not just an ideological agenda but an agenda that helps advance the bottom line of their corporate interests. That’s quite a distinct difference from some of the funders in the Progressive universe.” No, it isn’t. Whatever interests underlie political motivation is completely irrelevant. Prosecutorial discretion guided by political interests hallmark the arbitrariness of a police state. According to the Milwaukee Journal Sentinel, prosecutors have never questioned liberal organizations about their political communications.
In fact CMD, as a tax-exempt 501(c)(3) “charity,” should not be engaging in partisan activities at all. The Internal Revenue Service states such organizations are “absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” To the extent CMD coordinated the Blue Fists to collectively punch Walker, they may have jeopardized their tax status.
Wisconsin Club for Growth (WCFG) Director Eric O’Keefe is fighting back against Chisholm’s worst abuses. O’Keefe requested Chisholm appoint a special prosecutor to investigate the district attorney’s own conduct. His letter outlined several plausible ways Chisolm abused his John Doe powers. The response was telling. While obviously denying all the charges, he repeatedly takes an “if O’Keefe has any evidence of wrongdoing let him prove it,” posture. Of course, this is exactly the opposite way Chisholm investigated O’Keefe and the others. Instead of narrowly focusing on the initial issue, he recklessly searched for dirt in every nook and cranny and worried about charges later. Chisholm could prove his investigation is not ethically challenged by relinquishing his office’s communications and records to a reviewing judge and having himself and his lawyers testify. But despite claiming John Doe’s mission as preserving the “transparency necessary for a healthy democracy,” he has no desire to subject himself or his staff to the kind of witch hunt he’s been continuously running.
Running with Shady Interpretations of Confusing Laws
Despite mounting evidence, Chisholm claims everything adds up. A judge oversees John Doe; it includes two Republican district attorneys, and has a putative special prosecutor in charge. But these factors do not mollify skeptics. Notably, the judge who oversaw John Doe mysteriously recused herself in November 2013, citing a previously undisclosed conflict of interest. The new judge immediately quashed several subpoenas and halted the investigation as erroneously theorized.
Chisholm accuses his quarry of violating sections of Wisconsin’s election code. No one can figure out the diffuse code, least of all the Government Accountability Board (GAB) responsible for overseeing it. One GAB judge deemed the regulations “unadministrable.” Another stated its mysteries are foreign even to practicing lawyers without First Amendment expertise. The GAB voluntarily halted its role in the investigation last July. Chisholm and his posse, however, trudge on. Chisholm posits—relying on a 16-year old intermediate court case—that coordination transforms issue advocacy speech into in-kind contributions subject to GAB oversight. Nobody’s buying it.
Last month a federal judge eviscerated much of Chisolm’s theory. The opinion narrowly defined “political committee” to include only groups engaging in “express advocacy”—directly calling for the election or defeat of clearly identified candidates. The new John Doe judge presumably (the opinion is sealed) recognized none of these groups engaged in direct advocacy and thus are not political committees under state law. The case currently resides with the Wisconsin Supreme Court.
If that court follows the lower court’s lead, as many expect, this John Doe will end and the targeted groups will resume speaking freely to Wisconsin’s citizens. But the story should not (and perhaps will not) end there. In addition to O’Keefe’s letter, he and WCFG sued Chisholm and others for violating their civil rights under federal § 1983. The Supreme Court is considering whether to take the case. Even if the victims convince the Court to take it, however, they have an uphill climb. A panoply of immunity defenses bar or limit prosecutor exposure, including absolute prosecutorial immunity and official qualified immunity.
Prosecutors Should Not Be Immune from Accountability
In 1927, the Supreme Court officially recognized the long-held state tradition of absolute prosecutorial immunity for common-law torts. In the 1976 case Imbler v. Pachtman, the Court specifically extended that protection to § 1983 claims. It articulated “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” The ruling dealt a particularly harsh blow as Congress designed § 1983, a product of the Reconstruction era, to provide constitutional remedies for state-power abuses. This absolute immunity applies, however, only with prosecutorial duties, post-indictment. Prosecutors receive less protection when performing other functions like probable-cause investigations.
In the investigatory phase, prosecutors, similar to other government actors, receive only qualified immunity. This grant protects public employees from constitutional torts provided they don’t violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Prosecutors also benefit from the “harmless error” rule. A defendant not only must prove prosecutorial misconduct, but “must also show that the misconduct substantially prejudiced the outcome of his or her trial”—a convenient escape hatch for wary judges. The consequences of all this immunity have been disastrous. A 2003 Center for Public Integrity study found over 2000 appellate cases since 1970 where prosecutorial misconduct led to dismissals, sentence reductions, or reversals.
O’Keefe and WCFG hope to convince the Court that Chisholm violated well-established constitutional protections against retaliation by government for political speech. But the Court is usually exceedingly deferential to prosecutors, including an egregious example from 2011. Although not an immunity case, the Court reversed a judgment holding a city responsible for prosecutors who intentionally hid evidence that would have exonerated a death-row inmate. A private investigator found the evidence less than a month before the man was to die. The Court reversed a $14 million-dollar judgment, leaving the exonerated man empty-handed and the prosecutors essentially off scot-free. And, of course, misconduct isn’t confined to county-level prosecutors. The Department of Justice’s Public Integrity Unit has developed a notorious reputation for questionable conduct.
Like anyone else, prosecutors do bad things if it’s in their self-interest and prospects for severe consequences are remote. Prosecutors’ dual role as advocate and minister of justice can engender perverse incentives and distort thinking. They frequently face difficult ethical choices and their duty to do justice can seemingly justify many actions they would find outrageous if done to them. As one researcher put it, “After a while [the prosecutor’s] choice may appear less as an ethical quandary and more as a justifiable action to help victims, to keep bad people off the street, and to ‘protect the reputation of the agency itself so that it can continue to do its important work.’” The Court has suggested the state bar system as an effective deterrent for unruly prosecutors, but in reality victims rarely find justice there.
As the Supreme Court has acknowledged, prosecutor protections are policy-based, thus reforming them present no constitutional difficulties. The problem is the way courts have interpreted § 1983’s history and scope. As one commentator put it, while forcefully arguing for the elimination of absolute immunity: “Nothing in the language of § 1983 suggests that Congress intended to extend official immunity defenses to defendants in civil rights actions, and the legislative history does not demonstrate that Congress intended to preserve immunities.” Judicial tribunals and disciplinary boards must take these cases seriously to curb at least the most heinous abuses. Courts myopically worry about unfounded litigation draining a prosecutor’s energies. This downplays the plight of private citizens sucked into the vortex of axe-grinding or unethical prosecutors.
Police States Behave This Way
Whitaker Chambers, the famous Soviet agent-turned-informer, who helped expose a Communist spy ring in Washington, once asked the daughter of another defector about her father’s rationale. “He heard screams,” she said, sheepishly. The woman, sympathetic to Communist rhetoric herself, was clearly perplexed by her father’s answer. Chambers wasn’t:
What Communist has not heard those screams? They come from husbands torn forever from their wives in midnight arrests. They come, muffled, from the execution cellars of the secret police, from the torture chambers . . . They come from those freight cars loaded with men, women, and children, the enemies of the Communist state, locked in, packed in, left on remote sidings to freeze to death at night in the Russian winter . . . They come from children whose parents are suddenly inexplicably taken away from them—parents they will never see again.
The Red Menace never quite spread to America as it did so much of the world in the twentieth century. But the United States didn’t completely escape its influence, either. The difference between totalitarianism and John Doe is a matter of degree, not kind, when a prosecutor—with merely the signature of a conflicted judge—can order predawn raids by armed apparatchiks demanding years of business records, communications, and other private files, and can further warn that any peep could land the victim in the slammer.
When the stated goal is to discover chicanery in a campaign-finance code so obtuse not even its administrators understand it, tragedy becomes farce. This isn’t the transparency of a democracy; it is arbitrary government—a police state. The Democrat sheriff of Milwaukee stated, “This will go down as one of the ugliest chapters in Wisconsin political history.” He is undoubtedly right. But a sad corollary to John Doe’s potential ignominious end is Chisholm will likely walk away unscathed, minus the well-earned reputation of a scoundrel. In a free society that values the rule of law, that punishment should not be enough.
