The myth of Wisconsin prosecutors persecuting conservatives by using the John Doe rules (actually designed to protect all citizens better than the grand jury process) has reached such a crescendo of misinformation that a common sense backlash was inevitable – and is now growing.
Shamefully, the establishment media hasn’t denounced these one-sided accounts about a handful of home search warrants issued by several judges -- two to four years ago! They’ve let the hacks elevate a false vision of Wisconsin as the new Spanish Inquisition of Scott Walker and his pals rather than bring it all back to earth as the normal process of investigation supervised and refined by judges. Now the media is stuck with the consequences of ignoring how it all developed.
Right-wing mouthpieces have made the myth pervasive under the old media radar. But few have asked – Why now? Why years later?
Only a few independent voices, such as noted journalist and former city hall insider James Rowen have pinpointed the purpose: “Polls and focus groups must be telling Walker that he needs more distance from both the Doe probes and economic issues that can also hurt him, so he's spinning the Doe probes as a distraction.”
There are also three specific legal events requiring his supporters to shoot down the Doe right now. One already stalled April 27, a week after the story blitz began. It failed so far in its purpose to influence the US Supreme Court. Rather than hear a “stop the Doe” petition from targets Eric O’Keefe and the Wisconsin Club for Growth that failed in a lower court, the US Supremes shoved the petition off, which many lawyers think speaks ill of its future.
But in a few weeks the state’s own justices – in a world of legal trouble of their own making -- have to rule on keeping or killing the same John Doe, which if it continues is dreaded for what it might uncover by the same money people that helped four conservative justices get elected. Several national court decisions encourage these justices to recuse themselves from the appearance of undue influence – including a powerful surprise decision April 29 limiting contributions to all state judges and drawing a clear line on how political judges can be.
Though the state justices may have tipped their hand by passing their own rules ignoring the influence of money and refusing to allow oral arguments in these cases, their vanity must confront who is looking over their shoulder. An anti-Doe decision is not the slam dunk the targets once anticipated. It would not only look venal, it would be venal if the evidence runs in favor of continued investigation. And while the public can’t see the sealed evidence, both US and state justices can, so there could be powerful repercussions to abandoning the entire Doe system.
So are Walker’s funding streams using these rhetorical fancies of home invasion as a warning shot about the sort of publicity they can raise up if the justices abandon their well heeled friends? Darn tooting.
Could this also be an outburst aimed at the Madison legislature, which is debating a right-wing proposal to make sure future Does cannot be used against politicians or entities like Club for Growth? Sure enough.
We all have understandable fear of excess government intrusion. While it is hard to portray the fat cats of society as the victims of civil rights abuse, that has been the hook to influence public opinion and the courts -- exaggerating a few commonplace incidents of local law enforcement acting under warrants issued by judges (apparently in some cases with expert FBI computer help, though the FBI follows the rules and won’t even speak about being there).
When you read inflated blogs about this from the McIver Institute, Right Wisconsin. Wisconsin Watchdog and other omnipresent bought-and-paid-for conservative sites masquerading as news sites, it sounds like all conservatives are sprinkled with holy water and only drug dealers and liberals should be subject to embarrassing home visits.
It’s certainly why Scott Walker is attacking Milwaukee DA John Chisholm and other prosecutors as politically motivated in convicting six of his colleagues and asking questions about Walker’s enormous financial networks – were they promised some pay for play in giving him an obscene amount of money? To a seasoned journalist, that seems like a fair question.
It’s worth tracking the history and timing behind this fiction. It started with an outlandishly biased story by David French in the conservative National Review deliberately released to social media weeks ahead of the May publication. It was so widely dispensed on Facebook, Twitter and similar sites that even liberal users started asking where it came from, how they got it and was it true.
The terror tactics would flunk Marquette’s freshman journalism class -- anonymous first name accounts about “frightened” citizens woken up by pounding on their doors. Wow! Three rousted citizens out of 4 million forced to give up computers and financial records. Only one gets more than a first name – Cindy Archer, a target of the first John Doe that sentenced six of her Walker colleagues in Milwaukee. Her computer and cell phone weren’t taken by law agents until 2011 in Madison, where she continued to work for Walker on stuff like Act 10.
Yet despite this plentiful time before warrants, a search she surely expected, she paints a horrifying portrait (even her dogs were scared) about what seems to law enforcement officials a routine procedure. (The normality of the search was reportedly observed by JS Madison reporter Patrick Marley but so far he hasn’t corrected the hyped rhetoric.)
A conservative deputy who has executed similar warrants broke into laughter.
“That knock on the door is hardly an RSVP to a birthday party,” he said. “It’s supposed to be a shock. And if you hear someone on the other side of the door you want to act before they can flush drugs down the toilet or delete files on the computer. So it is meant to be a surprise and sound belligerent. The whole thing is standard practice authorized by a judge. Every so-called victim protests their innocence, knowing without approval we can’t even talk about it.”
The National Review puffed writer French as a lawyer and veteran of the Iraq war (they couldn’t bring themselves to use the term journalist) but did not mention his reputation as a right-wing provocateur, the former senior counsel and contributor for ACLJ.
ACLJ stands for American Center for Law & Justice, a right-wing Christian activist group founded in 1990 by Pat Roberstson, notorious for tilted reporting and deliberately named to sound like the better known and fully reputable ACLU, which is devoted to defending the Bill of Rights and hence frequently described as left leaning.
Now I’m sure Hebrew is not the ACLJ’s favorite language but the John Doe fiction has provided a shiny new definition of “chutzpah,” the Hebrew word for brazen overstepping on the pretense of injury. The classic definition of “chutzpah” has been the child who kills his parents and pleads for mercy from the judge on the grounds that he is an orphan. I think the current Doe effrontery could now replace that.
The article went in advance to talk radio’s Charlie Sykes for a segment and then to Rush Limbaugh for a diatribe to his dittodunderheads, and from there to FOX News, and then down this familiar path to Bradley Foundation outlets to Walker’s campaign writers to the Journal Sentinel and TV stations, and then around again through the circle of social media where most people today get what they think is news.
And when indignant prosecutors struck back, out came the extremist blogger quislings, such as lawyer Rick Esenberg and regular JS columnist Christian Schneider, always so desperate to amuse (sounding intelligent would be better but outside his range).
I think Walker’s Iowa pickup of the John Doe myth – elevating these fables into presidential politics -- became the last straw for usually silent prosecutors and officers of the court. Because now they are speaking up to the press.
Chisholm and special prosecutor Francis Schmitz who has deep Republican credentials broke into and deeply changed an April 25 JS story that was intended to let Walker extend his Iowa deception into national politics.
(Check the original story headline in the link against the final changed headline. The newspaper knows that keeping interest in Walker the presidential candidate alive is central to its national influence on 16 other papers in the E.W. Scripps family. When Walker fades, so does the paper’s impact.)
Walker had every reason to expect the story would be friendly from JS Madison reporter Marley, who has weirdly fawned over Walker’s political gifts in a book and previous coverage but must know firsthand the falsities being pushed. His story quoted Walker extensively, including “you should look at (the raids) and be frightened to think that if the government can do that against people of one political persuasion, they can do it against anybody, and more often than not we need protection against the government itself.”
(Might be true if Walker was in the White House but not in this Doe case. Yet Marley picked up on the right-wing term “raids” throughout his story and dropped in phrases that downplayed the bipartisan nature of the second John Doe. Making Chisholm the bogeyman ought to be the Tea Party’s job, not his.)
But thanks to Schmitz, Marley got a better story in the unusual power and challenge of prosecutors calling Walker’s comments "inaccurate, offensive and defamatory." That did far more than disrupt Marley’s cut-and-paste echo chamber of Walker-speak.
Using the politest legal language, Schmitz not only called Walker’s bluff, he made it clear the governor was lying.
"I invite the governor to join me in seeking judicial approval to lawfully release information now under seal," Schmitz stated. "Such information, when lawfully released, will show that these recent allegations are patently false."
Noted Chisholm in the same JS story, "Stripped of niceties, Mr. Schmitz is saying the governor is deliberately not telling the truth. The truth is always a defense, so let's get the truth out in a legal manner, not through lies, distortions and misrepresentations." No wonder Walker immediately refused to support the release of documents.
Looking past the Doe distortions, this is another consequence of the ivory tower naiveté reflected in the Citizens United decision of 2010 and subsequent wrinkles from the US court system. The decision was intended to validate that being rich was no barrier to full rights under the First Amendment, but quickly became famous for equating money with free speech while still suggesting there should be rules for disclosure.
Justice Anthony Kennedy in that decision acknowledged there could be “elected officials in the pocket of so-called money interests.” He saw a protection in how “with the advent of the Internet, prompt disclosure of expenditures can provide . . . information needed to hold corporations and elected officials accountable.”
We now know this ruling propelled the rich to find even more avenues to combine and coordinate secret money and trick messaging for candidates. But Justice Kennedy also misunderstood the uses of the Internet, which can enhance the ways billionaires become kingmakers.
Money to deceive and pad your own coffers no longer involves money directly to candidates. Tons of cash and coordination can clog these new lanes of discourse that Kennedy envisioned as a defense against deception.
Backed by organized networking as well as huge funds, conservative trolls can shape or interfere with every discussion through simply dominating time and space. The average citizen cannot possibly command the resources and access to compete. Consider the cumulative effect when home computers, radio, print, TV and other outlets align around bad information.
That has happened with the John Doe allegations. If rules of procedure tie the hands of ethical officers of the court, the only counterattack must combine intense public awareness of being duped and full use of supervised investigative tools like the John Doe.