With this post, I said that there was one more point to be made (for now) about the John Doe proceeding. Suggestions have been made that the mere presence of things like cell phones and laptops were glaring evidence of wrongdoing.
Not so easy.
My consistent view has been that an absolute prohibition on politics in a government office by political appointees is unworkable and that criminalization of such a activities raises profound due process concerns as the Supreme Court's split decisions in the Caucus cases (Crooks and Roggensack, JJ. shared my concern) demonstrate.
There are some things - but not as much as you'd suppose - that the law clearly prohibits, i.e., fundraising from government offices. I have some questions about charging this as a felony but it's just not permitted.
After that, there are two categories of potentially "political" activity. One category, explored here, would be activities where politics and policy are inextricably intertwined. I would think that such activity is part of the activity of a government agency and should be conducted with government facilities. No should be accused of wrongdoing but any documents created ought to be subject to the open records law.
I can imagine that some public officials might think that this activity is "too political" to be conducted on government computers but I think that is wrong. I would object to the use of personal phones and computers for this category of activities not because it is intrinsically wrong, but because it risks - and might be improperly intended - to place any documents created outside the scope of the open records law.
This does not mean that personal phones or laptops are wrong. It does raise questions about their use.
The second category would be activities that are clearly and completely political. It may be that such activity should never take place during traditional work hours using government computers. But, at least in my view, that is a personnel and not a criminal issue.
And, for certain appointees, it may not even be much of a personnel issue. Any public official who is running for re-election is likely to have key appointees working on that campaign. These people generally work long hours and it may well be that they must attend to political matters during normal business hours. Conducting that business on nongovernmental computers might be seen as a reasonable accommodation of their dual roles. So someone in Mayor Barrett's office who must take a call or send an e-mail on political business and who does it on a nongovernmental cell phone or lap top is not doing anything wrong.
With this category of activity, the question becomes how much time is being spent on political as opposed to governmental business. If someone is never doing the taxpayer's work but just working on politics, we have a problem.
But, even here, we have a certain schizophrenia. We allow - indeed we have a tradition of permitting - public officals to spend much of their time - while they are presumably working full time for the taxpayers - to run for office. Does anyone really think that, during campaign season, Sens. Clinton, Edwards, Kerry, McCain or Govs. Perry or Palin spent much time on official business?
There are reasons to treat elected officials different than staffers. It would be troublesome, on a number of grounds, to treat elected officials in a way that made it difficult for them to run for re-election or another office. There is, in any event, a remedy at the polls.
There is not the same concern with respect to staffers and not the same remedy. But maybe we don't to slice the loaf too thinly. In the end, we may find that a strict separation of policy and politics doesn't work at all levels.
How does this apply to Scott Walker and the John Doe?
Well, I don't know since there is not a hint that Scott Walker has done anything that could conceivably be the basis for an allegation of wrongdoing. If there ever is, we'll see. I'm just setting forth some general ideas now.