Crime and politics

I have a column up on the unbearable lightness of the John Doe here.

Yesterday afternoon I returned to Milwaukee and as soon as I hit the ground noted e-mails about a Journal Sentinel story saying that prosecutors had alleged that Scott Walker was at the center of a criminal scheme.

What happened?

Nothing. All we had was the release of old documents including a brief in which prosecutors tried to defend their investigation. They were not, strictly speaking, alleging anything but saying that they had reason to believe that conduct had occurred that might be a crime and that justified an unprecedented raid on a host of conservative groups.

But maybe that's just semantics. The larger problem is that two judges have said that the "criminal scheme" that the prosecutors think may have occurred is no crime at all. A very recent decision of the Seventh Circuit - while not directly addressing the question - seems to me to suggest that they were right. As George Mitchell says, to announce the prosecutors' plan to get Scott Walker has now been "unsealed" and alleges a criminal scheme is a bit like announcing that we have unsealed Dom Capers great plan to contain Colin Kaepernick - after Kaepernick has run right through that plan three times.

It is,of course, possible that Judges Randa and Peterson will turn out to be wrong and that my reading of the Seventh Circuit's recent decision won't go as far as I think it may, but - for right now - it doesn't seem all that likely that any prosecutors will ever actually be alleging any criminal scheme.

This is incredibly complex stuff resting on concepts like "express" and "issue advocacy," "political purpose" and "coordination" that have a technical purpose and, at least at various points in time, an indefinite meaning. We can debate what those ought to mean. But the real abuse here may have been to take a real difference of opinion here about where the lines are regarding the financing of political speech and criminalizing it.

I get that knowing violations of the campaign finance laws are crimes but, when we are talking about constitutionally protected activity, very clear restrictions are absolutely essential. For example, the e-mail from Scott Walker to Karl Rove could not have reflected coordination between candidate Walker and the independent groups. It was written in 2011 and referred to Senate recalls, not any race in which Walker was a candiate. The argument that Walker wanted these candidates to win so that what helped them could be considered a contribution to him is truly unprecedented.

How you feel about that should not turn on whether you like Scott Walker or not. What the Democrats - and this was started by Democrats - tried to do to Walker could just as easily be done by a Republican DA to a Democratic elected official. Politics ain't bean bag, to be sure, but it also shouldn't be waged by armed people in windbreakers.

Cross posted at Purple Wisconsin