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    Wisconsin ‘John Doe’ prosecutorial abuses will go unpunished, but they should be remembered

    Wisconsin ‘John Doe’ prosecutorial abuses will go unpunished, but they should be remembered

    “Prosecutors today are not just above the law, they are the law. … We cannot have a free society when prosecutors across the land can destroy people with impunity.”

    The Wisconsin “John Doe” investigations into Scott Walker will likely fade from memories, particularly now that Walker is out of office.

    That should not be the case. The John Doe investigations were some of the worst political abuses of prosecutorial powers ever to take place, and need to be remembered.

    If you want the short version, listen to my September 2015 interview on The Todd Herman Show:

    For more details, see our dozens of posts, including the October 2017 post, The rotting corpse of Wisconsin’s John Doe investigation still stinks:

    You may recall the two John Doe investigations of Scott Walker, his supporters and almost the entire Wisconsin conservative movement. It was a nasty, vicious investigation which saw military-style raids in the middle of the night.

    There was John Doe No. 1, investigating Scott Walker’s time as Milwaukee County Executive. They never came up with any wrongdoing by him.

    Then there was John Doe No. 2, regarding Walker’s alleged unlawful collusion with conservative groups during the recall election. It is John Doe No. 2 that has generated litigation over several years. In the end, every court that ruled on the issue found that the entire prosecution legal theory was legally unfounded — that even if these conservative groups did what they were alleged to have done, it was constitutionally protected speech and not illegal.

    Lives were ruined over an attempt to punish constitutionally protected speech by conservatives.

    (note: Michael Lutz in this interview from late April 2015 committed suicide in late July).

    The targets ultimately were vindicated in court, with the Wisconsin Supreme Court ruling the investigation was an unlawful infringement of free speech and free association rights, Wisconsin Supreme Court stops John Doe investigation against conservatives. Here is the key passage from the Court ruling (emphasis added):

    ¶133 Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

    The U.S. Supreme Court refused to hear the John Doe prosecutors attempt to overturn the Wisconsin Supreme Court.

    In October 2015, Walker signed legislative reforms to the law meant to avoid the type of politicized witch hunts that took place under the direction of Milwaukee County Prosecutor John Chisholm, Scott Walker signs law emasculating “John Doe”.

    There was an investigation of the abuses, which resulted a Wisconsin AG Report: Govt election officials were “on a mission to bring down the Walker campaign and the Governor himself”.

    The question remained whether anyone would be held personally accountable. Unsurprisingly, the answer appears to be “No”.

    Matt Kittle’s original reporting on the John Doe investigations was extensive and decisive.

    Earlier this month, Kittle reported on what may be the end of the John Doe story, No One Held Accountable: Schimel’s Probe Into John Doe Quietly Concludes:

    The state Department of Justice’s expanded investigation into the bureaucrats behind Wisconsin’s unconstitutional “John Doe II” probe has quietly ended more than a year after a bombshell report suggested a controversial state agency had been weaponized “by partisans in furtherance of political goals.” 

    Whatever evidence DOJ investigators have uncovered is now sealed in a Brown County Court. Outgoing Attorney General Brad Schimel, it appears, will have no further bombshell reports to issue. 

    “The DOJ investigation is closed, and all materials gathered or related to the investigation are now being filed with the John Doe Judge. It will be his decision on whether to take further action,” said Johnny Koremenos, spokesman for the Republican attorney general, whose term ends today. 

    Under the John Doe secrecy order, the public doesn’t get to view the case documents. 

    Neither does Schimel’s successor, Democrat Josh Kaul, a critic of Schimel’s investigation into the John Doe investigation and at least a tacit endorser of the original political probe into dozens of conservative organizations. That’s good news for conservatives concerned about what the liberal Kaul might do once he takes over the DOJ. 

    But it appears the prosecutors and the government bureaucrats that made life hell for innocent citizens for so long will never be held accountable for their conduct, sources tell MacIver News Service. 

    “It’s all over,” a source with knowledge of the case said. “Basically this (the status of the case) is no longer in a state of people being held accountable, people being punished.” …

    With the quiet submission of the DOJ’s findings to the closed-door John Doe court, the full story may never be known. 

    At the very least, the court is moving to finalize the disposition of the millions of documents and other materials seized in one of the darkest chapters in Wisconsin’s history. 

    “The court is making sure that the materials are returned or destroyed so that no one can go back to try to re-victimize the people who are doing their best to try to put all of this behind them,” the source familiar with the case told MacIver News. An order of final disposition is expected to be issued later this year. 

    Eric O’Keefe, one of the victims of the abuse who fought back in court, wrote recently:

    What I’ve learned from years of studying and engaging in this John Doe fight is that America’s criminal justice system is broken. Wisconsin’s former John Doe law was not the main problem. The immense power of prosecutors, the judicially created immunity for prosecutors, are big parts of the problem. Another problem has been the accumulation of laws, which allow prosecutors ever more ways to investigate and overcharge anyone.

    I have learned that we live in a nation ruled by men, not by laws.

    My political work going forward will involve highlighting the destruction of lives that has become routine in our system, and pointing to some directions for reform.

    Prosecutors today are not just above the law, they are the law. They decide who to destroy and who to spare. They view themselves as superior to legislators, voters, governors and presidents. We cannot have a free society when prosecutors across the land can destroy people with impunity. We can revive government by the people, or we can endure tyranny by prosecutors.

    “John Doe” will eventually be forgotten.

    The political abuse of prosecutorial powers must be remembered.


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    casualobserver | January 31, 2019 at 11:28 am

    It’s getting harder and harder to maintain a net positive view of the legal profession and especially is intersection with politics. A cynic would say that as long as you have political power and a law degree, there is almost no limit to how far outside of the law you can operate. And by “have political power”, one might say you only need to be connected to it.

    PersonofInterests | February 1, 2019 at 8:03 am

    “Prosecutors today are not just above the law, they are the law. … We cannot have a free society when prosecutors across the land can destroy people with impunity.”

    And Special Counsels, Deputy Attorney Generals, and all the others who use coercion to squeeze out baseless plea deals and admissions of guild because the legal costs and defaming that result from having to defend prosecutorial misconduct and wrong doing is actually punishment without any justice. Legal costs have become a weapon for abuse.

    Also, the loser in a lawsuit ought to pay the legal and court costs of the winner; that ought to make those who bring frivolous lawsuits and those practicing Prosecutorial Misconduct think twice.

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