In May, a federal judge halted Milwaukee prosecutors' long-running investigation of nearly everything and everyone in the vicinity of Gov. Scott Walker, R-Wis., and the following month released previously sealed documents related to their activities.
The Democratic prosecutors being sued over this fiasco still have no plans to bring charges against anyone, but they have appealed the ruling, attempting to justify their behavior and stop the federal courts from limiting their power to harass political opponents.
The Wisconsin Club for Growth, one of 29 center-right advocacy groups targeted in the investigation, argued in a new brief filed Tuesday that the lower court got it right: Investigators probably acted in bad faith and infringed conservative advocacy groups' First Amendment rights “without a reasonable expectation of obtaining a valid conviction.”
The investigations of Walker allies have their roots in 2009, when then-Milwaukee County Executive Walker's office went to the Milwaukee District Attorney with evidence that an aide had stolen from a local veterans' charity.
But no good deed goes unpunished. Democratic prosecutors saw this as a foot in the door – an opportunity to get into Walker's circle as he was about to become governor, and start fishing around for infractions. Though former aides of Walker were charged, the initial probe closed in March 2013 without any charges filed against Walker.
Before that investigation had closed, prosecutors in August 2012 opened a second, sweeping investigation against dozens of unrelated conservative groups that had supported Walker's policies. The rules governing this type of "John Doe" probe allow prosecutors to work in secret without naming their targets or publicly disclosing what the investigation is about.
By late 2013, the investigation had shut down conservative advocacy in the state. Wisconsin Club for Growth Director Eric O'Keefe was subpoenaed and sworn to silence, which immediately destroyed his group's effectiveness. “O'Keefe was forced to abandon fundraising for the Club,” the new brief states, “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.”
Prosecutors argue that they were not acting from malice, but targeting a perceived “criminal scheme” with Walker at its center. Yet the “scheme” they targeted was missing something — illegal activity to justify harassment of its targets. Their strongest piece of evidence was that the club and other targeted groups had discussed campaign messaging with Walker. But the discussion in that case was in connection with the state Senate recall elections of 2011, in which Walker was not a candidate.
Prosecutors should investigate apparent official wrongdoing. They should not use flimsy pretexts to target officials and activists they dislike. The Walker investigation is a scandal, combining the worst elements of the IRS suppression of conservative groups with the recent political indictment of Texas Gov. Rick Perry for the crime of threatening to veto — and then vetoing — a spending bill.
Democrats instigated all three of these actions, but it isn't right when Republicans do it, either. If the courts don't send a strong message against such abuses of authority, Americans risk having their leaders and policy ideas chosen through judicial persecutions rather than at the ballot box.