Wednesday, May 30, 2012

A little more on the John Doe

I will be on Wisconsin Public Radio tomorrow morning at 7:30 discussing the John Doe probe and the Governor's legal fund.

The latest talking point for the Democrats is suggestions by some Democratic lawyers that the Governor is free to talk about the John Doe probe. I have been very careful about what I have written on this. I have a different take than what some of these lawyers have been reported to say. (Although, their actual comments might have been different and, in any event, fully exploring these matters in a few paragraphs is tough.)

Part of the problem here is that no one who has actually seen the secrecy order is free to talk about what it says. We can make reasonable assumptions about what it says, but we don't really know. Those who are subject to it do. Their comments may be entitled to a bit more weight than ours.

But here are some plausible assumptions.

First, it is not the case that one has the right to "protect one's reputation" that somehow trumps a secrecy order. That's simply not true. I have never heard of a secrecy order that has a "reputation" or "recall election" exception.

Second, it is not true that the only way that the Governor could be subject to a secrecy order is if he testified. He also could be subject to the order if documents were subpoenaed from him. He could also be subject to such an order by consent if he was provided with information generated in the course of the proceeding on the condition of confidentiality. I wouldn't think that one would normally do that but , then again, such proceedings do not normally involve a sitting governor.

Of course, If the Governor has been asked to testify or been served with a subpoena for documents, the order would almost certainly prohibit him from disclosing even that.

Third, it is not the case that the Governor cannot believe that he is not a target unless he has been granted immunity. "Target" is not a word that the pertinent statutes use. In common parlance, it suggests that a prosecutor believes that you have done something wrong and is going after you.
A prosecutor does not have to tell someone that he is a "target." If he does decide to tell someone he is not a target, he does not have to (and probably will not) do so in a way that operates as a legal guarantee. This is why people hire counsel and  form legal defense funds when prosecutors start to look at their campaigns, 

But a prosecutor can informally tell someone that he is not a target and a person might reasonably believe it to be so - even if he cannot legally rely on it. That individual may well be confident that there is no basis on which to believe he might have done something wrong, even if his conduct is being investigated. He may, for that reason, be confident he could is not a "target" in the every day sense of the word.

Fourth, it is true that the Governor can discuss matters of which he is aware - or documents that he might possess - independently of the John Doe as long as he does not do so in way that divulges information subject to the secrecy order. The last qualification is important. It may materially limit what someone can and cannot say in such a way that the better (and fairer) course of conduct is to say nothing at all. It is not easy to fight with one hand tied behind your back.

For example, a person who has been served with a subpoena for documents can't disclose what he was asked for. A person who has testified cannot reveal questions and answers. Someone who is being blamed for the conduct of another person who may himself be in legal jeopardy cannot very well ask that person to explain what really happened.

Fifth, the Governor may very well, as he has said, been asked by the DA not to discuss such matters. I cannot assume that the DA "would not do that" because there is a recall election. He might very well believe that public discussion would jeopardize his investigation - no matter who the investigation involves.

Sixth, as I have pointed out, it is not clear to me that the Governor would even have certain of the documents he is being asked to produce.

Finally, "explaining" why you have a legal defense fund may involve waiving the attorney-client privilege. For supposedly "progressive" people to suggest that guilt ought to be inferred because someone has hired a lawyer is astonishing.

I understand the frustration of partisan Democrats, As is so often the case in politics, we have a tendency to believe the worst of people we disagree with. There are reasons that a John Doe investigation is secret. One is to facilitate the investigation. Another is to protect the reputation of innocent people who might be subjected to scrutiny or asked to provide information This investigation has significant implications for the lives and reputations, if not of the Governor (there is so far no evidence that he has done - or even been accused of - anything wrong), certainly of other people who deserve to have their legal rights protected.

If other people are ultimately accused of something, it can be dealt with at that time. To interfere with the process because you don't like collective bargaining reform, want higher taxes or wish that the state gave more aid to school districts last year is just wrong.

12 comments:

Anonymous said...

If there's no evidence he's done anything wrong, as you claim, why the need for a criminal defense fund? If I were the subject of spurious allegations I knew to be false, I wouldn't waste resources retaining a money hungry defense attorney.

Ergo, we shall assume he bears some culpability and prosecutors ought to put forward their findings prior to June 5.

Anonymous said...

And how will people feel if they learn they have voted for a crook?

Mr. Esenberg, it would behoove the state if you put your legal knowledge towards finding a solution that protects Walker's rights as a person while giving voters the truth about what he did or did not do.

Alright Already said...

According to your column, which was helpful, the Judge overseeing today's version of the John Doe hunt in the JSOnline is at least misleading, if not being far too clever: "Walker's silence. Nettesheim declined to comment specifically on whether Walker was constrained under the John Doe law from discussing what he knows about issues under investigation or from releasing specific emails. Nettesheim noted that his secrecy order extends to all parties, including the judge. Violators can be held in contempt of court. Nettesheim would be the enforcer if violations occur.
The judge made clear, though, that no individual would be subject to the secrecy order unless he physically appeared in front of the judge while in court on the John Doe proceeding and personally received the secrecy order from the judge. Further, he said that an individual who had not appeared as a witness would be free to discuss or distribute documents even if those documents were evidence."If a non-witness, an independent third party, has documents in his possession, he or she entitled to do what they want with them," he said.
Basic question: it seems the Doe law was not designed to support an open ended investigation, such as the one Chisholm is doing. Also can not Chishold charge anyone he wants with anything, without the Judge's go-ahead?

Anonymous said...

Perhaps there will be a post in response to these
musings...

illusorytenant.blogspot.com/2012/05/scott-walkers-famous-emails.html

illusorytenant.blogspot.com/2012/05/what-law-is-scott-walker-talking-about.html

John Foust said...

Inferred guilt? Heck no, that's why I've always called it a several-hundred-thousand-dollar "cooperation fund." All those campaign workers working under his nose and direction while supposedly working for the County? I mean, follow the logic. Who could jump to the conclusion that Walker knew about what he'd told them to do?

Anonymous said...

"It is true that the Governor can discuss matters of which he is aware - or documents that he might possess - independently of the John Doe as long as he does not do so in way that divulges information subject to the secrecy order."

That is all the lawyers you are talking about are saying, so what is your problem.

Anonymous said...

All of what you are saying pre-supposes that Walker is telling the truth when he says he's under the secrecy order. Why would anyone believe that? First he's a politician. Politicians lie, they have too to get elected. This particular one lies more than most and that's his biggest problem.

As Alright Already said above the judge was quoted as saying the only way a secrecy order applies is if the person appeared before him PHYSICALLY. Not his lawyer, not a supeona, but himself.

And I'll agree, even an innocent man needs a lawyer. But does any innocent man need $160,000 worth of lawyer? I think not. 13 people close to him have been granted immunity. Some have been charged and some convicted. Anyone who doesn't think he's the target is either blind or duped. It is much more than a "distraction".

Anonymous said...

In criminal law jargon, there is a difference between being a "subject" and being a "target." Walker has denied being a "target," but he hasn't denied being a "subject." But nobody appears to have asked him that.

I'm just guessin' just like the rest of the folks here, but, based on what has been publicly reported, I don't have any doubt that Walker is a "subject." And pretty soon he's going to be more than that.

Anonymous said...

Richard Nixon said, "I'm not a crook." Scott Walker says he's got integrity; he's always had integrity. Yeah. Right. We believe you, Scott. Just like we believed Nixon.

Anonymous said...

"As Alright Already said above the judge was quoted as saying the only way a secrecy order applies is if the person appeared before him PHYSICALLY. Not his lawyer, not a supeona, but himself."

And perhaps he DID, indeed, appear before the judge.

"And I'll agree, even an innocent man needs a lawyer. But does any innocent man need $160,000 worth of lawyer?"
Wow...you are really speculating with that statement.

Anonymous said...

Since the John Doe schtick isn't working, look over there -- it's Scott Walker's love child!

Anonymous said...

lawyers are not cheap.