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.