Thursday, May 8, 2014

HIGH-PRICED LAWYERS FOR RIGHT HAD RANDA BUT WERE THEY JUST SNOOKERED INTO EXPANDING JOHN DOE PROBE?

By Dominique Paul Noth

Did Judge Randa fall into a honey trap
 set by US appeals panel?
It’s virtually impossible for laymen to follow the checkers game of ins and outs of the John Doe probe. Many lawyers have that same problem, and so obviously do journalists who fall back on preconceptions while much of what they do is flat guesswork. 

But one likely interpretation has been endorsed off the record by a number of legal experts familiar with the case, not discussed in the media but a hot discussion in legal circles.

It could very well be that the high-priced lawyers for the Wisconsin  Club for Growth were just sucked in to major tactical error  by the US 7th District Court of Appeals, which encouraged an oops ruling reversal  by US District Judge Rudolph T. Randa that  now allows  a broader investigation to proceed.

The entire episode may inadvertently reveal that the Club for Growth and other conservative groups’ longer goal was delay in exposing any wrongdoing rather than preventing the prosecutors from revealing wrongdoing. Because if there is anything illegal under our campaign finance laws about excessive coordination, it will come out sooner or later in any fair collection of evidence.  

But now the various decisions do allow what was probably the main political purpose of these hired guns. The results will not be unveiled in time to confirm in court anything ugly about Gov. Scott Walker before his November attempt at re-election.

This partial victory of delay may come at an enormous price.  Particularly if the public perceives that Randa tried to quash a pursuit of corruption in campaign financing based on his right-wing leanings. 

To oversimplify the sequence of events, the various rulings of Randa, whose decisions have strayed further to the right over the last decade, may have actually opened a broader geographic door previously denied the states’ district attorneys who brought the second John Doe probe. Previous, they were limited by the rules to only investigate campaign finance abuse within specific counties applying to specific residents.

Now, depending on court results, they could be open to something the lawyers who brought Randa into the case wanted to prevent – a sweeping nationwide probe of coordination with Walker’s campaign of third party money from states and residents far away. 

Most of the money raised by the groups involved for Walker came from outside Wisconsin and up to now outside the reach of state prosecutors.

Originally, the DAs,  both Republicans and Democrats, had sought to involve the state attorney general, a prominent GOP  figure, only to see him tacitly concede they had the right to investigate and yet stall for six months to join them.  J.D. Van Hollen has also decided not to run for re-election on the GOP ticket, and read into that what you will.

But the John Doe did receive broad legal permission to proceed, including a thumbs up from the Government Accountability Board, which by statute is limited in its ability to conduct criminal probes and is also beholden to Walker and the GOP dominated legislature for its board of retired judges’ terms in office. So from the start there was an effort to remove the John Doe from partisan tinge, including the appointment of a special prosecutor with noted conservative credentials.

The Wisconsin Club for Growth and other conservative groups that had raised money nationwide for Walker’s election campaigns – and this is not hyperbole but fact – went ballistic. It accused the prosecutors of invading their free speech rights by investigating their behavior, bringing up specters of Al Capone seeking to block any investigation into his tax evasion for fear it would reveal tax evasion.

A series of state court cases and appeals ensued – based on the standard cry of free speech rights and injury to political activity, always a winning soundbite and helped by past cases of prosecutorial excess  in a nation that hates criminals getting away with anything but also hates police authority. The Club’s lawyers, hoping for quick resolution by a sympathetic pet on the federal bench, Randa, asked him to halt the investigation.

Former state justice Janine Geske was among
the legal experts disturbed by sudden breadth
of  Randa's ruling.
He did that and much more in a sweeping decision May 6.  Refusing to rule on whether the prosecutors’ case was frivolous in other state court cases, he ruled they should cease and desist the John Doe and destroy the collected evidence. Both Democratic and Republican attorneys contacted expressed shock at the unprecedented broadness of a decision by a judge who once prided himself on more narrow if quite conservative rulings. 

They noted the judge created a classic Catch 22 for the prosecutors. If they didn’t destroy evidence as he ordered, they were in contempt in his court.  If they did destroy evidence, they were in contempt of state judges in ongoing cases.  Certainly his decision brought immediate national stories about Randa’s clear bias given his staffing and contacts.

The federal appeals court immediately recognized this Catch 22 and May 7 granted the emergency staying of Randa’s order. But being logical and helpful, they also drew Randa a road map on one glaring mistake, how he had to first declare the original complaint frivolous, which in his zeal (his decision now a clear error contains almost a cut-and-paste of the Club for Growth’s interpretation of the events, which is hardly the full story or even an accurate version, as a simple search of newspaper records would reveal) he had neglected to do and therefore failed in any legal way to justify his overreach.

May 8 he fell into this carefully laid trap by the federal appeals panel, two of whom were appointed by GOP presidents and quite likely reflect the majority conservative view of the full 15 member court of appeals.  He offhandedly agreed he had no right to order destruction of evidence and declared the original complaint frivolous, opening the door to broad investigation of whether it was frivolous.

Though lawyers for Club for Growth immediately crowed that this second Randa decision was extremely embarrassing for the prosecution and “a very good day for us and a very bad day for them,” the DAs involved laid low, perhaps chuckling.   In fact they may be delighted to have their reasons for the probe put under a more public spotlight.

What Randa has  unintentionally done is allow various groups of judges, state and federal, to hear testimony and information about why the pursuit is not frivolous and why prosecutors are allowed to gather evidence under previously granted legitimate court authority – something no judge has the right to throw into the river.

I’m simply an observer, not a lawyer, but it could be the expensive team assembled by Club for Growth has now misfired twice. First, by letting the case into federal court, where any approval allows the investigators to spread out into jurisdictions denied them as state prosecutors.  And second in allowing many judges in court sessions to hear the reasons why their right to search is inviolate and whether the evidence for the search is frivolous or not. Which, of course, also allows the public and journalists to get deeper clues into the reasons for the investigation free of the partisan reporting and taints that have surrounded the John Doe from the start.

It may also provide a dose of reality for partisans on both sides.  If there is a smoking gun in the violation of campaign finance laws, it will not be demonstrated in court before the November election. Voters will have to look at Walker’s actual strange track record in office to make a determination and not expect a last-minute rescue revelation in the courts.  On the other side, the right cannot crow before the election that the courts have determined he has done nothing wrong.  That decision is far far away.

The struggle now is to let an investigation proceed, so that Wisconsin doesn’t duplicate New Jersey, being blinded by partisan attitudes and political necessities and only belatedly waking up, after election, to face some horrible truths about how far politicians will stray to raise money, gain power and behave in and before achieving office.

About the author: Noth has been  a professional journalist since the 1960s, first as national, international and local news copy editor at The Milwaukee Journal, then as editor for its famous entertainment Green Sheet, then for almost two decades the paper’s film and drama critic. He also created its Friday Weekend section and ran  Sunday TV Screen magazine and Lively Arts as he  became the newspaper’s  arts editor and then its senior feature editor. In the 1990s he was tapped by the publishers of the combining Milwaukee Journal Sentinel for special projects and as first online news producer before voluntarily departing in the mid-1990s to run online news seminars and write on public affairs and Internet and consumer news.


From 2002 to 2013 he ran as editor the Milwaukee Labor Press, the Midwest’s largest home-delivered labor newspaper, and helped create its still operative milwaukeelabor.org portal.  In that role he won top awards yearly until the paper stopped publishing in 2013. His investigative pieces and extensive commentaries are now published by several news outlets as well as his culture and politics outlets known as Dom's Domain.  He also reviews theater for thirdcoastdaily.


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