The Facts Regarding the Walker Defense Fund

So how much innuendo and speculation can we squeeze out of the fact that Governor Walker has established a legal defense fund? Should the heavy breathing begin?

In reporting on the creation of the fund, Dan Bice cites a summary of the statute authorizing the creation of such a fund which suggests that it can only be created when an official is under investigation. He then quotes two lawyers who say the same thing,

But, once again, it's not so simple. With all due respect, Dan should have cited the law itself. Here is what it says:

Any candidate or public official who is being investigated for, charged with or convicted of a criminal violation of this chapter or ch. 12, or whose agent is so investigated, charged or convicted, may establish a defense fund for expenditures supporting or defending the candidate or agent, or any dependent of the candidate or agent, while that person is being investigated for, or while the person is charged with or convicted of a criminal violation of this chapter or ch. 12. (emphasis supplied)

In other words, one can set up a defense fund under sec. 11.64 when one's agent is under investigation. Thus, it is entirely plausible that the fund was set up because people who worked for Walker are under investigation and that he has been forced to incur legal fees because of that. It may well be that he is not "under investigation."

This is, I think, what former Judge William Jennaro (who is also quoted in the Bice column) is driving at when he says that the formation of a defense fund does not necessarily mean that Walker is being investigated.

But there's more.

It is not clear that Governor Walker would have any way to know whether he is "under investigation." The Wisconsin Supreme Court has held that persons summoned to provide information in a John Doe do not have to be informed of the nature of the proceeding or whether or not they are a target investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910 (1977).


In fact, a free wheeling and long running investigation that goes where ever the spirit moves it (and this one seems to fit that bill) may not even have a clearly defined list of "targets."
 
Of course, it is possible that the Governor is being personally "investigated." In fact, "being investigated" is an amorphous concept. I would expect that, if a prosecutor is investigating the conduct of someone who worked for me and thinks he or she has found evidence of wrongdoing, that prosecutor might try to find out if I knew about it or directed to happen. I suppose that constitutes being "investigated."

But, of course, it doesn't imply that I am guilty or even that there is probable cause to suspect that I am guilty. That I may do what any lawyer would advise me to do (particularly in a partisan context) and engage counsel to make sure that I am treated fairly and my rights are respected doesn't imply guilt either.