John Doe must go to SCOTUS

Last week featured another John Doe decision in the Wisconsin Supreme Court, and the action screams “Cover up!” even louder than before. This time, 4 of the Supreme Court’s 7 justices removed federal prosecutor Francis Schmitz from the case, and said that any appeal to the U.S. Supreme Court would have to be taken up by the district attorneys in the five counties where evidence had been gathered, instead of being consolidated under Schmitz’s control.

In a lengthy write-up on last week’s absurdity decision, the Madison-based Center on Media and Democracy’s PR Watch noted that the 4 justices ruling in the majority reversed course on parts of their earlier decision in July to halt the John Doe investigation into questionable GOP campaign finance maneuvers, and it makes their decision all the more sketchy.

Wednesday's decision was "extraordinary," said Janine Geske, respected former Wisconsin Supreme Court justice who now teaches at Marquette Law School. "To somehow remove the lawyer representing one of the parties after the opinion [has been issued] is extraordinary," she told the Center for Media and Democracy.

"It puts the case in a very odd situation, removing counsel so he cannot file an appeal," Geske said, with no clarity for how other prosecutors might be able to intervene.

The Court's July opinion upheld a lower court decision holding that Schmitz had been lawfully appointed as Special Prosecutor in 2013. Justice Prosser, writing separately in concurrence, had taken the position that Schmitz'[s] appointment was improper.

Yet after Schmitz asked the Court to reconsider its decision on grounds it had overlooked coordination of express advocacy, the majority instead revised its ruling to rescind his authority, and to block him from continuing to be involved in the case.

Translation: “You are asking too many pointed questions, Mr. Schmitz, so get off of our this case!”

And why would the 4 justices take such a drastic step? PR Watch says one should simply follow the money.

…the Court's four-justice majority was elected to the bench with at least $10 million in spending from precisely the same groups accused of coordinating with Walker, and precisely the same groups that were under investigation in the John Doe--namely, Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce.

This is why I have called those 4 justices (Roggensack, Prosser, Gableman and Ziegler) the “WMC 4”, and they will be identified as such for the rest of this post.

Now let’s take a step back and look into why this case exists in the first place. Because it is alleged to be a wide-ranging money-laundering scheme between right-wing Wisconsin oligarch groups in order to support Wisconsin GOP politicians, most notably Gov Scott Walker. The Beloit Daily News wrote an excellent editorial over the weekend that put these issues into plain English, and explained why they felt SCOTUS must be the ones to decide this issue.

The legal fig leaf is mostly a distinction without a difference known as “issue advocacy” and “express advocacy.” Here’s how that works. Candidates cannot coordinate with or raise money for outside groups engaging in “express advocacy,” meaning groups whose advertising says “vote for Candidate X” or “Vote out Incumbent Y.” The “issue advocacy” groups dodge the legal trip-wire by running ads that may praise a candidate for election or, more often, absolutely trash the chosen candidate’s opponent while never coming right out and saying “vote for” or “vote against.”
A normal human being sees right through that silly distinction. It’s a sham, a total sham, concocted by the political class. The intent is obvious. Partisan ideologues want to appear to be playing by the rules while, in reality, they are doing no such thing.

The John Doe investigation into Gov. Scott Walker’s role with outside political groups during Wisconsin’s tense recall period had the potential to place at-risk this political sham that is practiced from Atlantic to Pacific. And that explains why a complicated legal argument in Wisconsin suddenly attracted top national attorneys lavishly financed to mount challenges across several fronts, in order to stop the investigation in its tracks. The strategy was not just to defend those who might be subjects of the investigation. It was to prevent any possibility of an adverse court ruling that could have called into question — and revealed to the public — the influence of big secret money in the modern political system.

The strategy worked, mostly by placing the arguments in front of the Wisconsin Supreme Court. Several of the justices owed their seats, in considerable measure, to millions of dollars spent to support their campaigns by the very groups before the bench asking them to kill the case. Despite the Doe prosecutor’s request for those justices to step aside and recuse themselves, they refused and ordered the investigation halted.

Along that same vein, Supreme Court Justice Shirley Abrahamson also chided the WMC 4 for a decision that “seems invented to justify the pre-ordained desired result.” Abrahamson was the lone dissenter in the John Doe decisions of last week (of the 2 other non-WMC 4 justices, Patrick Crooks died while this decision was being deliberated, and Ann Walsh Bradley recused herself as her son was connected to some of the people in the case), and her writing is well worth the read. In addition to Justice Abrahamson claiming that the WMC 4 basically locked her out of any discussions on the case and went ahead with the decision without taking into account the possible consequences of what might result, Abrahamson also mentions that passing the prosecution down to the individual counties throws burdens onto governments that are already strapped for funds for everyday services.

16 The instant order raises more issues that will need to be resolved, again piecemeal, and again affording the four justices the opportunity to shift direction.

17 Second, the instant order may well give five busy district attorneys too little time to convene and discuss the instant order with each other and with the Special Prosecutor, weigh the relevant considerations, and prepare and file a motion to intervene. As I noted previously, even if one or more of the district attorneys were to intervene for limited purposes, the learning curve to assume responsibility for challenging past orders and opinions of this court and for representing the prosecution's and the State's interests in future legal proceedings would be steep.

18 Moreover, intervention may impose significant expenses on a district attorney's office, an office funded by the State and county. The instant order does not appear to give the district attorneys sufficient time to determine what resources, funding, and staff are available to undertake intervention.

Like most things done by WisGOP’s power structure, I refuse to believe that the WMC 4 are merely being sloppy in their reasoning, but instead are being malicious. They want to make it tougher for this investigation into their money-laundering scheme to continue, and so the onus onto the five county prosecutors to make a quick decision that might strain other resources. It also opens up the door for the right-wing squawk brigade to ask “Why are they continuing to spend all this money on this case?,” in keeping with the abuser mentality that has defined WisGOP and their oligarch puppetmasters whenever they are confronted with blowback from their scummy actions.

But that also explains another reason why the county prosecutors must take this case to SCOTUS. In addition to making the Court answer the question “Is this type of coordination and lack of disclosure what you wanted to allow under Citizens United?,” (hint: the answer is no) and getting a real answer on the books for it also shows that the righties can’t be allowed to buy and bully their way out of this case. Take a note of what Francis Schmitz said after he was removed from being the special prosecutor in the John Doe case by the WMC 4.

Schmitz said while he was disappointed by [December 3’s] court decision, he continues to believe the investigation was justified and Wisconsin voters "have a right to know the identity of large donors, corporate and individual, which coordinate with campaign committees."

"The miscalculation I made in this investigation was underestimating the power and influence special interest groups have in Wisconsin politics," Schmitz said in an emailed statement. "My career in the military and as a federal prosecutor fighting violent criminals and terrorists did not fully prepare me for the tactics employed by these special interest groups. When sued in federal court for violating their 'civil rights,' I, along [with] other members of the investigative team, were vindicated by the U.S. Court of Appeals for the Seventh Circuit. I intend to continue to pursue what I believe is the right course for those citizens of Wisconsin who do not have the financial resources to influence elections."

Having the county prosecutors refuse to go forward on the John Doe case would mean any other rich and/or well-connected lawbreaker could get off the hook simply by stalling, lying, and finding the right courts to make up reasons to acquit him/her. This would mean the rule of law had broken down, and that oligarchy has trumped a democracy where we are allegedly supposed to be treated equally.

In particular, Dane County DA Ismael Ozanne and Milwaukee County DA John Chisholm can’t wimp out. In Ozanne’s case, it’s because many of these possible violations likely happened in Madison, with direct connections to the Capitol lawmakers, and the people deserve to know what happened in the People’s House on the Square. It also would be an awful harbinger of Ozanne’s fitness and desire to prosecute this corrupt administration in other cases, including the slush fund at the Wisconsin Economic Development Corporation (WEDC). In Chisholm’s case, to back down here would brand him for life as someone that can’t handle the biggest cases (that’s already in question for not charging Cindy Archer and other members of Walker’s inner circle in MIlwaukee, despite clear cause and evidence to do so). It would also end any chance he would ever have as continuing as Milwaukee County DA, because Chisholm could never have the support of the sizable amount of people who demand charges be brought against this outlaw crew, nor will the right-wing Bubble Worlders ever respect him no matter what he decides to do.

Since whiny righties will call Chisholm and Ozanne “biased liberals” regardless of whether John Doe is appealed to SCOTUS, they need to stop worrying about the heat they’d take from that crew, call their bluff, and take John Doe to D.C. After all, what do they have to lose? And there is everything to gain by taking this case all the way, not the least of which is the restoration of justice for ALL (and against all) in the State of Wisconsin.

Oh, and a well-timed leak of how the money train worked and who set it up might not be a bad move either. If Eric O’Keefe can make up stuff about the case, the least you can do is fight back and give the public the facts and the documents.