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Policy: Law

Here's what is actually going on with Scott Walker in Wisconsin

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Beltway Confidential,Opinion,Philip Klein,Wisconsin,2014 Elections,2016 Elections,Campaigns,Scott Walker,Law

As the headlines connecting him to a "criminal scheme" tell it, Wisconsin Gov. Scott Walker is in hot water, dealing a blow to his 2014 re-election chances and any future presidential ambitions.

But when one looks past the sensationalistic reporting on the issue, it’s clear the reality is quite different.

Before getting into the details of the latest news, it’s worth reviewing some background for those who are coming to the matter late.

At the center of the story is what’s known as a "John Doe" investigation, which, under Wisconsin law, allows prosecutors to conduct a probe in secret without naming their targets or publicly disclosing what the investigation is about.

In May 2010, during Walker's first election for governor, Milwaukee County District Attorney John Chisholm, a Democrat, launched a probe under the John Doe law. Though former aides of Walker when he was Milwaukee County executive were charged, the probe closed in March 2013 - after nearly three years - without any charges filed against Walker.

Separately, in August 2012, Chisholm's office launched a second John Doe probe looking at possible campaign coordination violations by Walker and conservative groups during the 2011 and 2012 recall elections, appointing a special prosecutor.

Prosecutors cast a wide net, sending out subpoenas to dozens of conservative groups. On Oct. 3, 2013, early in the morning, "armed officers raided the homes" of officials from the Wisconsin Club for Growth and other targets throughout the state, according to a court ruling this May. "Sheriff deputy vehicles used bright floodlights to illuminate the targets' homes," the ruling explained. "Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys."

Eric O'Keefe, the director of the Wisconsin Club for Growth, sued prosecutors on First Amendment grounds and two judges have sided with him and rejected prosecutors' legal claims. As of now, no charges have been filed against Walker, and the probe has been halted, pending further appeal by prosecutors.

What happened on Thursday is that a court unsealed hundreds of pages of documents related to the lawsuit, including a document in which prosecutors outlined their thus-far-failed legal argument. Reporters plucked two words from the documents -- "criminal scheme" -- and plastered them on headlines.

In what has been advertised as a "smoking gun," prosecutors highlighted an email from Walker to Karl Rove highlighting the work of political consultant and adviser to the Wisconsin Club for Growth, R.J. Johnson.

In the email, Walker wrote, "Bottom-line: R.J. helps keep in place a team that is wildly successful in Wisconsin. We are running 9 recall elections and it will be like running 9 Congressional markets in every market in the state (and Twin Cities.)"

What's important to keep in mind about this email is that it's from May 4, 2011 - nearly a year before enough signatures were certified to set an election to recall Walker. So in the email, Walker is actually referring to legislative races, not his own recall election.

Prosecutors argued that there was illegal coordination, rejecting a distinction drawn between ads from outside groups with regard to specific issues — say, in support of or opposition to a particular bill — and those explicitly endorsing a candidate. "The fact that a third party runs 'issue ads' versus 'express advocacy ads' is not a defense to illegal 'coordination' between a candidate's authorized committee and third party organizations."

On Jan. 10, 2014, Judge Gregory Peterson, having considered the arguments, nonetheless quashed the subpoenas and rejected the legal theory offered by the prosecutors.

"I conclude the subpoenas do not show probable cause that the moving parties committed any violations of the campaign finance laws," Peterson wrote.

Peterson explained that, "Before there is coordination there must be political purposes; without political purposes, coordination is not a crime."

He went on to note that based on current law, "the only clearly defined political purpose is one that requires express advocacy. The State is not claiming that any of the independent organizations expressly advocated. Therefore, the subpoenas fail to show probable cause that a crime was committed."

As for Friends of Scott Walker, the judge noted that it is a campaign committee rather than an independent organization. He wrote that, "the statutes do not regulate coordinated fundraising…. Only coordination of expenditures may be regulated and the State does not argue coordination of expenditures occurred. Therefore, the subpoena issued to FOSW fails to show probable cause.”

U.S. District Court Judge Rudolph Randa, nominated by President George H.W. Bush, also sided with Wisconsin Club for Growth in a decision halting the probe, agreeing "'political purposes' under Wisconsin law means express advocacy."

Being a subject of the John Doe probe has had a crippling effect on the organization’s ability to operate and raise money, because ethically, it would have to disclose the fact that it is under investigation to donors, but couldn’t disclose details given the secrecy of the John Doe probe. Randa wrote that the prosecutors "legal theory cannot pass constitutional muster." He noted that, "The plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect."

As of now, the case is halted, pending an appeal. But what’s ironic is that after years of fighting to keep their investigation secret, prosecutors have lately been supporting the unsealing of documents.

Referring to this reversal in a separate order issued Thursday, Randa wrote that, prosecutors "appear to seek refuge in the Court of Public Opinion, having lost in this Court on the law."

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