The end of the John Doe investigation into Governor Walker’s tenure as Milwaukee County Executive feels a bit anticlimactic. Most of us decided long ago that it was much ado about nothing and it turns out we were right. The Governor, having endured the mother of all legal proctologic examinations, is demonstrably not guilty.
Our friends on the left – they so wanted to see the Governor in an orange jump suit - created a fantasy they called "Walkergate." Today, that dream shattered against reality. Governor and Mrs. Walker won’t be taking any Nixonian helicopter rides from the Capitol lawn.
But some serious questions remain. We should give Democratic District Attorney John Chisolm credit for not bringing trumped up charges. We ought to acknowledge that an investigation into the affairs of a Governor who, for members of his party, became the most hated man in America was politically fraught.
Nevertheless, this was a troubling episode. One of the reasons that Doe investigations are confidential is to protect the reputation of persons – like the Governor – who did nothing wrong. This investigation was riddled with leaks, allowing it to become a political football. Milwaukee Mayor Tom Barrett and those who supported his challenge of Walker in the recall election, decided that the presumption of innocence and respect for legal processes were not as important as political gain. They made the Doe an integral part of the campaign. I certainly don’t claim that the District Attorney’s office wanted that, but the failure to keep a lid on the "secret" proceeding certainly enabled it.
So did the extraordinary length of the process. Even under the best of circumstances, the Doe was susceptible to abuse by partisans. In light of that, if the thing were to be done, well it were done quickly. It wasn’t.
The investigation apparently was prompted by an inconsequential story about a Walker aide posting comments to a newspaper website. No criminal charges arose from that incident, but the probe appears to have become a free floating and exhaustive investigation by a member of one political party into a leading figure of the opposing political party. While an inquiry into the then-County Executive Walker’s office during a relatively small period of time is hardly an undertaking on a par with the Manhattan Project, the probe lasted through four election cycles. We lawyers may be the only profession in the world that thinks the word "speed" ought to be modified by the adjective "deliberate." I understand that the wheels of justice grinding slowly, but one still can’t help but wonder what took so long.
I have steadfastly refused to question the motivation behind the probe and I won’t start now. But concerns about it evenhandedness were, fairly or not, occasionally exacerbated by the way in which it was conducted. For example, at the sentencing hearing of Kelly Rindfleisch, a Walker aide who admitted to illegal fundraising on behalf of another candidate, the District Attorney’s office decided to "dump’ a large number of documents regarding political activity by Walker’s political appointees. If this material – garnered during the "secret" investigation and largely unrelated to the sentencing hearing – did not establish a violation of the law (and it didn’t), why was it being made public?
Reasonable persons might wonder if the purpose wasn’t either to make a political point (Walker is bad) or to anticipate public criticism of the Doe as a Brobdingnagian effort that brought forth Lilliputian results. Neither would be appropriate. Prosecutors wield enormous powers that can disrupt and destroy lives. They should not be deployed for politics or public relations.
I am not about to call for a pogrom against the District Attorney’s office or even against those outsiders who irresponsibly abused the Doe. The former may have done the best they could and nothing can be expected of the latter. But, at the very least, some self-reflection is in order. An investigation into nothing took forever to produce very little. In the process, political partisans misused it in a failed attempt to bring down a Governor.
That’s nothing to be proud of. We should all hope that it doesn’t happen again.
Rick Esenberg, a RightWisconsin contributor, is the founder and current President and General Counsel of theWisconsin Institute for Law & Liberty