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 proctologicexaminations, is demonstrably not guilty.
So again, today we have a sense of deja vu. As the the media and partisan operatives (but I repeat myself) sift through 27,000 pages of emails from that "secret" probe, we find volumes of old news, office gossip, political chatter, and unproved allegations.
But no White Whale. Only some random guppies.
Nothing in the new batch of emails incriminates Walker in any way. But we already knew that: if there was evidence of criminal activity, prosecutors would have filed charges. Instead, they shut down that probe without charges against the governor.
Now they seem intent on trying to score points in the court of public opinion that they didn't dare try in a court of law. And Democrats have stripped even the thin of veneer of non-partisanship from the probe by going all-in to exploit it for partisan advantage.
This brings us to the latest investigation: John Doe II.
Lost amid the back and forth over the latest secret investigation of conservatives in Wisconsin is this inconvenient detail: there is no White Whale here either.
The John Doe II probe allegedly centers on charges that Scott Walker’s re-election campaign and dozens of conservative nonprofit groups known as 501(c)(4)s may have illegally coordinated their efforts during the 2012 recall campaign.
But in quashing numerous subpoenas, Judge Gregory A. Peterson, the judge presiding over the Doe, has ruled that the prosecutors had not shown "probable cause that the moving parties committed any violations of the campaign finance laws." What the targets were accused of doing, the judge said, was in fact, protected free speech.
The order is all the more remarkable because it bluntly rejects the prosecutor's theory of illegal coordination between the groups and the Walker campaign. Wisconsin's campaign finance statutes ban coordination between independent groups and candidates for a "political purpose." But a political purpose "requires express advocacy," the judge wrote, and express advocacy means directly advocating the election or defeat of a candidate.
"There is no evidence of express advocacy" and therefore "the subpoenas fail to show probable cause that a crime was committed," Judge Peterson wrote. Even "the State is not claiming that any of the independent organizations expressly advocated" for the election of Mr. Walker or his opponent, he added. Instead they did "issue advocacy," which focuses on specific political issues.
So after all the pre-dawn raids, the seizure of personal computers, kitchen sink demands for records and emails, the sweeping probe turns out to be an investigation without a crime.
This, of course, makes the Ahab-like obsession of the prosecutors all them more extraordinary, even as they defend their probe in federal and state courts. (It does not, however mean that the Doe prosecutors might not once again expand or shift the focus of their fishing expedition, as they have done so often in the past.)
Despite the fury from some on the political right, we see no evidence of prosecutorial bias. What we do see are prosecutors — Republican and Democrat alike — trying their best to navigate a politically charged case with a steady hand…
But we see no evidence so far to indicate that it hasn't been handled fairly. The investigation should move forward until it is clear where the evidence leads.
Even for a paper which has enthusiastically covered the probes and benefited from its leaks, this uncritical fawning was breathtaking. Especially notable was what the cheerleaders failed to mention, or even acknowledge:
There was no mention of the fact that only conservatives were targeted, even though the public record suggests that liberal and Democrat groups had engaged in similar activities.
There was no mention of the First Amendment issues raised by the targets.
And no mention of the ample evidence of prosecutorial abuse, including the jailing of two innocent businessmen by the Doe prosecutors, even though these stories had to have been well-known to the paper’s editors:
Christopher Brekkenspent the better part of a day in jail for failing to comply with the investigation’s court-ordered subpoena — a subpoena that would have forced Brekken to violate state law.
As lawyers for the targets noted in their federal lawsuit last week:
Barron County Judge Timothy Doyle expressed his amazement at Landgraf’s behavior: "Obviously a lot of what happened here was politically motivated and not—the conduct described is nothing that we as Wisconsinites should be proud of, bottom line . . . . Mr. Landgraf was behaving badly, probably for political reasons."
Commercial real estate broker Andrew P. Jensen Jr. refused to cooperate with the John Doe investigation into Gov. Scott Walker's current and former aides.
That landed Jensen in the county jail for a night.
That story was broadcast on the JS’s own front page, despite the fact the probe was supposedly secret and Jensen had not – and would never be -- charged with a crime. As the lawyers in the federal civil rights suit recounted:
Over a year later, Jensen’s attorney, with the consent and approval of the John Doe Judge, issued a short statement that his client was not a target of the investigation, that he would not be charged, and that he had "fully cooperated, and ha[d] truthfully answered all of the investigators’ questions." Landgraf and Robles never explained their actions in light of the basis for jailing Jensen being proven false.
There was also no mention in the JS editorial of the pre- dawn raids that seized computers, phones, personal documents from targets and their family members.
No mention of the gag orders slapped on the "targets," threatening them with prison if they spoke about the probe or attempted to defend themselves in public.
This means that prosecutors essentially invented without evidence the possibility of criminal behavior to justify the subpoenas and their thuggish tactics. At least three targets had their homes raided at dawn, with police turning over belongings, seizing computers and files, and even barring phone calls.
The state’s largest newspaper finds nothing troubling in this. No civil rights abuses, no partisan bias, no violations of free speech rights. Instead, it is on record fully sanctioning the tactics and the targets.
This is worth filing away not merely as a legal matter, but also a case study in journalistic failure. When the dust settles on the john Doe, the journalistic "watchdogs" may find themselves as thoroughly discredited as the partisan Ahabs, who have so zealously pursued Scott Walker and his conservative allies.
At the end of Herman Melville’s epic, Moby Dick, it is worth recalling, it was Ahab and his crew who were destroyed, not the White Whale.