Sunday, February 22, 2015


By Dominique Paul Noth
When Boeher and Bibi pull a political boner.

Why isn’t House Speaker John Boehner being slapped with a felony charge for violating the Logan Act? I’m guessing President Obama and his White House counsels don’t want to make a federal case out of a federal case.  That would be overkill and become a political football. It’s better to swat away a gnat with public relations than waste court time. 

Unfortunately such control doesn’t exist on the other side.  Obama grasps the use of federal power and prosecutorial discretion better than Boehner and the herd he wrangles, given how they keeps taking cheap legal shots and crowing for short-term points. They don’t mind  wasting court time and money in Texas with action against the Dreamers or even in Wisconsin with the John Doe lawsuits the Wisconsin Supreme Court is reluctantly forced to take up.

I know it’s a bit surreal of me --  and unlike what most pundits do --  to see the behavioral connection in three stories normally reported as quite separate. At least in Boehner’s case, he  should be grateful that a more rounded response stems from the White House because there is no question that his GOP is leading  an exaggerated assault on prosecutorial discretion, inflating every  balancing act as an attack on the Constitution. 

The Texas and Wisconsin situations share a bad tactic in our democracy to over-react  to the orthodoxy, not the abuse, of  legal procedure.   Opponents of government keep  treating as untrustworthy any new executive action because they don’t like its purveyor not its purpose.   Or they demand that cherry-picked judges decide policy questions we normally elect representatives to deal with  Or overplay our understandable suspicions about the law.  

GOP abusing our fear of justice

All of us have run afoul of regulations, police or prosecutors at one time or another, which is why prosecutors are hardly loved and their rights seldom strike  the public as a vital issue.  But it can be.  It should be. It’s hard enough to find prosecutors who put personal ambition aside to serve with principle. Much less can we afford to demean  the good ones we have in an imperfect system  In contrast there are political hacks who wear the white hat of the good guys  and always sound aggressively heroic in sound-bites as they rush past nuance to inflame our mistrusting side and sell us a narrow bill of goods in a complex world. 

Americans are already cynical enough without that behavior.  We all have seen how money  and influence can turn justice  inside out.  With legal shenanigans,  broken pipelines can destroy rivers and oceans with moral impunity, exploding fuel cars and nitrates can destroy towns without fear of future restraints  and courts can be slowed to act when workers are killed on the job or rock throwers are shot on the street. So our worries have genuine roots in a media world that dotes on the  negative.

All that makes us aware of  the misfires of justice  that stem from zeal, entrenched attitudes  and  ideological absolutism. You know the Simon says:  Be tough on all crime, any kid who sneaks a joint is a JD, lock the urban rowdies up, always defend the police. There are way  too many occasions where prosecutorial discretion comes across as protecting the status quo.

But there are more balanced  interpretations.  A  fine American Life radio series about Milwaukee policing  analyzed the many  facets of police  behavior, realities that protesters should think about, yet it doesn’t deny the tendency of law enforcement buddies – including prosecutors and judges -- to protect their own when force is used.
A  powerful new statement from the head of the FBI warns that dealing with society’s worst elements has encouraged racial stereotypes, judicial shortcuts and automatic defense within law enforcement that screams for correction.   These are important reminders.

In practice, prosecutorial discretion can work for the little guy and can actually reassure communities. One answer to too much government intrusion in our daily lives is selective law and order  rather than blindly wielding the hammer.  Discretion means thinking about justice, selecting among our myriad of statutes to focus on the most effective application, from who goes to prison to who goes to treatment, from who is deported to who is productively given a temporary pass.  

For every case of an overzealous prosecutor picking on a pet target – many point to those ATF storefront stings, a well-meant but  notoriously ineffective misstep started in the Bush administration that the GOP keeps trying to wrap around Eric Holder’s neck   -- there are dozens of ethical prosecutors using their belief in the law to combat genuine corruption. 

Yet in this atmosphere many people don’t even know what the Logan Act is, what is in Obama’s immigration directive and why the John Doe investigative tool in on the books.   And it’s hard to learn amid  the noise. How often it is the well-positioned political insider and media maven  who holler the loudest when property, gun deals,  reputation  or funding manipulations are under threat!

Search for corruption at heart of John Doe

Few understand that it was not party politics but  an impulse to protect the public that was  the motor of the John Doe probes in Wisconsin, though a politician popular enough to win a narrow majority in off-year elections was clearly being circled and though the leading prosecutor was elected as a Democrat. 
The hysteria born of  that  has actually resulted in a temporary and maybe long-lasting blockade on the John Doe investigative procedure. It has led to media pretenses that John Doe is dead when the  actions it pursues remain illegal.   This entire episode embarrasses  justice, adds to the embarrassment of  Wisconsin’s highest court and in the long run  will be more damaging to the Republicans who generally agree with  the reasoning behind the law. Just don’t point the weapon at me, these insiders are saying --  and they have the clout to be the loudest voice.

Bruce Murphy in Urban Milwaukee  provides  an astute rundown on how crippling the John Doe has been turning our state’s high court into an even bigger  laughingstock.  The more the public learns about this case, the more it wonders: What the heck are the big money guys hiding  to so violently resist being investigated? 

John Does are simply Wisconsin’s substitute since territorial times  for the troubled grand jury system that leaks like a sieve in other states. They are designed to protect the innocent from frivolous prosecution by collecting information in secret before a judge via subpoenas and testimony to see if something criminal has taken place. It has hooked more Democratic fish than Republican if you look back.  

John Doe I launched through Milwaukee DA John Chisholm uncovered and convicted six folks attached to that secret email router near Scott Walker’s county exec desk and those campaign meetings on taxpayer time when Walker first ran for governor. (It’s typical of John Does to start out looking at one thing, finding another and then hoping the smaller charges will bring in more information.) But none of those convicted have yet rolled over on a governor who has well funded legal deniability and the clout of his sophisticated  machinery.

John Doe II brought in more DAs and a specific “follow the money” probe into Eric O’Keefe of Wisconsin Club for Growth and allies, using an existing state statute about illegal campaign coordination to examine whether the line was crossed between giving money and telling the Walker campaign how to use it.   (No wonder the GOP legislature is now toying with overturning the John Doe process.)  O’Keefe worked for both Walker and the Club and has stirred up more court filings, paperwork and defensive invective than the BP oil spill in the gulf,  to the chagrin of many on the right. O’Keefe to their dismay actually  revealed himself and others as targets and argues that despite his ties to the billionaire Koch operations and his ability to control elections  he is the injured party whose Americanism have been violated for just being scrutinized.

It’s hard to think of anything else he could have done to make people more suspicious.

But then he did. He found one judge to try to block the probe and destroy the evidence, forcing a quick reversal by Judge Rudolph Randa’s superiors.  

But O’Keefe has more than friendly judges and expensive lawyers on his side. The status of campaign finance laws is in transition so no one wants to get ahead of the US Supreme Court. But while there is judicial sympathy for lifting all limits on independent contributions in campaigns, there is simultaneous judicial unhappiness --  even on the right --  about illegal coordination and acknowledgement that undue financial influence exists. 

O’Keefe’s pocketbook,  sheer intensity and media echo-chamber have falsely elevated  the give and take about proper subpoenas into violent rather than routine issues of procedure.  Even if specific subpoenas against O’Keefe and partners are quashed, new forms of subpoenas can be issued, and John Doe is simply one of many tools of prosecution, though the one that most provided privacy – something conservatives once appreciated.   

Ironically, this case has now opened the door to even broader inquiry by more government agencies and more media  into funding coordination by Walker with O’Keefe and other so-called issue advocates  Nor is the conservative leaning Wisconsin Supreme Court happy to be forced to take this on. They ducked for years.   Political necessities – they know who helped elect them -- might knock back the John Doe in rulings but that will punch them into public disgrace and national attacks if they refuse to recuse as has been requested.  

Remember -- those conservative US Supremes in 2009 Caperton v. Massey held that a West Virginia Supreme Court justice should have removed himself from a decision involving a major campaign contributor. That ruling is not an exact  legal parallel but it sure hovers close.  SCOTUS never set a financial cap on what precisely constitutes undue influence but  the four conservative justices who  make up the state majority -- David Prosser, Annette Ziegler, Michael Gableman, and Patience Roggensack – have collected the bulk of independent contributions in their most recent elections from O’Keefe’s Club for Growth, its surrogates and such allies and frequent ideological court  partners as Wisconsin Manufacturers and Commerce.

Some $7.7 million or $10 million in eight years depending on who’s counting  is too big to ignore.

Attack in Texas is not about immigrants  

Hanen and Randa, two cases of judge shopping.

Something similarly ridiculous attacking prosecutorial discretion is going on in a lower Texas court with Obama’s executive order – a temporary injunction halting Deferred Action for Childhood Arrivals until a federal  appeals court weighs in, likely to uphold the legality of an effort to keep productive children born in the US free for a while of legal difficulties along with their parents who may lack papers.

Obama hardly overstepped his authority. He asked agents of law enforcement, prosecutors and judges to separate productive families whose children were born here from being placed under the same deportation speed as others he wanted agents to  focus on – proven criminals, frequent border jumpers and security risks.  

He simply focused resources, noting he would rather have Congress act,  and still left the larger decisions about granting citizenship to Congress.

The reaction on the far right demonstrates – perhaps a comfort to Walker -- that you can drip with academic degrees and intellectual reputation and still be idiotic in analysis and false interpretations if your opposition to the president is extreme enough.  Sen. Ted Cruz and the Texas attorney general both proclaimed a victory for the Constitution, though the temporary delay deliberately dodges the constitutional question and torturously used an unproven  financial fear to  halt DACA. The White House awaits with considerable confidence quick action from an appeals court because, unmentioned by Brownsville-based District Judge Andrew Hanen, was a formidable SCOTUS ruling in 2012 that setting immigration policy is “the prerogative of the federal government, not the states.” 

As legal experts on both sides note, the states that attacked the presidential directive may not even have legal  standing 
while 12 other states in an amicus brief  eloquently favored Obama’s directive as substantially benefiting the public interest and well “within the President’s broad authority to enforce immigration law." 

The GOP may not like the way Obama did this as a goad to get them to take up comprehensive reform. But this is already shaping up as an ugly  case of judge shopping that plays on fear of the president and on letting law enforcement exercise discretion. It’s becoming a standard tactic allowed in a free country  when parties that have little rationale but big ideological objections seek out a  sympathetic court that shares their platform.  Hanen was so sought out because of  his history of anti-Obama immigration rulings
It’s an echo of how the Wisconsin right-wing maneuvered to get Randa --  until the 7th District Court of Appeals reversed him.   

Something even tougher than the Randa slapdown may happen to Hanen when the 5th  District Court of Appeals  in Louisiana – balanced with appointees from Carter to Reagan to both Bushes to Clinton and Obama – investigates his bootstrapping

Obama pulled back on Logan Act faster than Reagan

In the Boehner case, the most obvious difference is maturity. There’s a strong case that Boehner broke patriotic history and a law that has been on the books since the early 1800s and specifically makes illegal the transparent purpose of his  invitation to Israeli Prime Minister Benjamin Netanyahu to lobby Congress against US foreign policy on Iran. Under its long-standing no-mucking protocols   the White House couldn’t meet with Bibi so close to his own campaign for re-election in Israel. But despite having a valid  legal argument I’m sure the White House doesn’t want to lend  credence to the political toxicity of  turning to the courts at every whim and further abuse common-sense by reacting to every Boehner  in-your-face insult.     

So there is no vindictive pursuit of Boehner under the Logan Act as there was by President Ronald Reagan against his House Speaker for trying to negotiate a cease-fire in Nicaragua. 

The Logan Act specifies that  “Any citizen of the United States who . . .  without authority   directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to  . . .  defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years.”

Leaders of both parties (Jimmy Carter, Nancy Pelosi, John McCain)  have tempted the Logan gun. But the case  that came closest was Reagan so furious in 1987 at House Speaker Jim Wright’s efforts to work with Nicaragua’s Contras and the Sandinista government (while Reagan was secretly carrying out his Iran Contra arms for hostages deal) that he started procedures to stifle Wright with the Logan Act.   

Boehner defiantly detailed to the press how he kept the White House out of the loop by shushing the Israeli ambassador. He also knew that Bibi wanted to lobby Congress to oppose the US led coalition of nations trying to make a deal with Iran. (Obama is prepared to let the deal fail but he wants the chance without backstabbing to see if Iran will exchange peaceful nuclear energy for lifting of sanctions.) 

Cynically Bibi and Boehner figured Congress would go along rather than risk appearing to criticize close ally Israel. A surprising number of strong supporters of Israel seem uncowed and say they will boycott the address. Angry others  are still working to delay it.  Meanwhile Bibi  opponents are gaining ground in Israeli polling. So the whole scheme is backfiring.  Just as (more than likely) will the immigration stall and even  the  John Doe overkill. 

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 an editor for its famous entertainment Green Sheet, also  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 senior feature editor. 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 the Milwaukee Labor Press as editor. It served as the Midwest’s largest home-delivered labor newspaper, with archives at  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 and movies at domsdomain.