Phil Walczak, Mayor Barrett's Deputy Campaign Manager, is sending around an e-mail claiming that the Governor can only set up a legal defense fund under the following circumstances:
- Scott Walker is being charged with a crime
- Scott Walker thinks he is being charged with a crime
- Scott Walker is paying for the defense of crimes
- Scott Walker has been convicted
- All of the above
You can certainly set up a legal defense fund if you are charged with or convicted with a criminal violation of chapters 11 and 12 (which deal with campagn finance and certain related activity).
But sec. 11.64(1) of the statutes also authorizes the creation of such a fund whenever a candidate or public official or his or her agent "is being investigated for" a potential criminal violation of chapters 11 or 12 of the statutes. You don't have to be a lawyer to understand that being "investigted for" is not the same as "being charged with" or even thinking that you are "being charged with" a crime. Even Mr. Walczak, however he may be gripped with partisan fervor and panic at his guy's lousy poll numbers, should be able to understand that.
To establish a legal defense fund, there need not be an actual violation of the law. There need not be a charge. It is not even necessary to show that you are a "target" in the sense that the prosecutor suspects that you may be guilty or is trying to prove that you are. (As I explained in my last post, you do not necessarily know these things. A prosecutor doesn't have to tell you and is not bound by whatever he or she does tell you.) It is only necessary that your conduct is being investigated for potential criminal violations of the pertinent laws.
Nor is it even necessary for Scott Walker to be the one who is being investigated. If the agent of a candidate or a public official is being investigated, he or she can establish a fund. This is obviously not the same as "paying for the defense of crimes."
The petition calls on the Governor to produce e-mails from what it calls an "illegal e-mail network" in his office. This is a loaded question. First, it assumes that the network was "illegal." I don't know that and neither does Mr. Walczak. There is nothing intrinsically illegal about public employees using private e-mail. It really depends what it was used for. The DA has alleged that two county employees illegally used it to raise money for a candidate other than Scott Walker from their county offices. He has alleged nothing else. Second, Walczak assumes, without evidence, that Walker knew about so-called secret e-mails and that he is in possession of them. I suspect that he does not have them and, in all likelihood, never did. Third, it assumes that releasing such information would not violate a secrecy order issued in the course of the John Doe proceeding. Again, neither I nor Mr. Walczak know that. I haven't seen the secrecy order and I don't know what, if anything, the Governor has and how it relates to the John Doe.
I understand that the Democrats are disappointed that, after a proctological examination that has taken almost two years, no one has accused Governor Walker of anything illegal. But wanting something to be so does not make it so.