Friday, January 27, 2012

John Doe skirts the edges

A couple of things about the charges emerging from the John Doe yesterday.

First, it is harder to make the type of legal objections (due process, fair notice, vagueness) to allegations grounded in fundraising activity. The statutory prohibition of fundraising is clear and the line between fundraising as political work and other activities such as developing policy or engaging in certain forms of outreach and advocacy. The one thing that Wink and Rindfleisch should have been clear on is not raising political money on government time.

Second, as with the caucus scandal, I continue to dislike dealing with this type as a criminal matter. I understand the theory - you don't want to give incumbents the advantage of having people campaign on taxpayer time. But it seems to me that to ask political appointees to stop being political is like expecting a dog to give up a bone. Of all the advantages that incumbents have, a few political appointees doing political work from the office would seem to be pretty far down the list. Even if criminal charges are appropriate, charging these things as felonies and exposing people to a potential of fourteen years in prison strikes me as overkill.

More fundamentally, it leads to the threat of partisan use of the prosecutorial process. If you spend eighteen months scouring through the activities of any elected official with substantial appointed staff, you are probably going to find a few Winks and Rindfleischs. Who gets tagged with scandal is largely a function of whose opponents are willing to invest (public) resources to find one.

What would you find if you subjected the offices of Tom Barrett, Jim Doyle or Kathleen Falk to this kind of scrutiny?

Third, the timing (and, to a lesser degree, the composition) of the the complaints have a partisan tinge. There could be an explanation for the fact that the DA spend eighteen months to produce what really are two relatively simple complaints, but the timing - on the eve of a recall election - prompts one to raise the question. What took so long? Why now?

I also find it odd that the complaint goes to substantial length to suggest that the candidate that Rindfleisch raised money for - Brett Davis and not Scott Walker - was "preferred" by certain people in Walker's campaign. Why does that matter? The implication that some will draw is that she was doing this "for" Walker. While I may be overly sensitive, it is, strictly speaking, unnecessary to support the charges - if she was obtaining a dishonest advantage for Davis it doesn't matter who else supported Davis -  and one would ordinarily not place extraneous matter in a criminal complaint.

If an implication was intended (or if others draw it), was it fair? If the DA could link Walker to this activity, he would have charged him. If, as apparently is the case, he cannot, then perhaps he should stick to knitting. This would have been particularly prudent given the outsized resources devoted to a John Doe that has thus far produced very little, the foregoing questions about timing and the extraordinary leakiness of the entire operation. Why appear to be partisan when you don't need to?

Fourth, as suggested by the last point, there is still nothing that implicates the Governor in anything. Walker's only appearance in this complaint is to tell his people to cut out anything that might look like political activity. To be sure, partisans are going to use that to suggest that he "just didn't want to get caught" or that he "knew" what was going on, but here's the bottom line. After eighteen months and God knows how many tax dollars, we have precisely no wrongdoing by Governor Walker - only two people who worked for him.

Fifth, as scandals go, this is small ball. If Wink and Rindfleisch raised money on county time in county facilities, they acted foolishly but there are a lot of fools in the politics. It is not clear from a perusal of the complaint, for example, whether they spend more time fundraising than a lefty blogger spent "weblogging" or reading blogs or doing whatever it was he was doing instead of his job.

Sixth, the allegations regarding a "secret e-mail" system are interesting although a bit of a misnomer. Apparently certain people were using laptops for political work and the accessing the internet through means other than the county's ISP provider to communicate with each other. According to the complaint, some of these communications were related to county business.
I wonder how many public officials use this or other tactics in an attempt to engage in communications that won't be subject to open records requests. How many of these officials do these things in an attempt to comply with the law, i.e., to keep political and government business separate?I also wonder how many even stop to think about whether there are other reasons not to do it?

Finally, while I don't think it's necessarily illegal to create such a system, I also don't think that the records created on it - if they relate to official business - are immune from open records requests.


Ed Fallone said...

According to press reports, the investigation is proceeding in the direction of destruction of evidence and obstruction of justice. As I tell my Corporate Criminal Liability students, the coverup will cause a defendant more trouble than the crime.

I once had a corporate client in a major government contracting investigation, with dozens of individuals hauled before the grand jury, and the only two people who ended up doing jail time were two minor paper pushers who decided to shred documents after receiving a subpoena.

So the next shoe to drop is whether steps were taken to try to hide the traces of the secret email server, and were any of these steps taken after the initial subpoenas were served?

I do believe that felony charges are warranted for doing campaign work on taxpayer-funded time, especially given the extensive evidence collected thus far and the fact that the individual involved had received immunity previously for roughly the same offense. The conduct alleged in the criminal complaint is much more serious than doctors writing ficticious sick notes, for example.

Phil said...

Small logical fallacy: "What would you find if you subjected the offices of Tom Barrett, Jim Doyle or Kathleen Falk to this kind of scrutiny? "

What makes you think they're not? Absence of evidence is not evidence.

Rick Esenberg said...


It might be more serious although I wouldn't support dealing with fake sick notes through felony - or any - criminal charges.

My position on felony charges being overkill for things like this is consistent. I didn't think that people - including the Democrats - should have gone to jail behind the caucus scandal either.

The cover up can be worse than the crime. In fact, sometimes, as apparently in your experience, it turns out to be the only crime.

Ed Hammer said...

The issue is not the legality or the charging decision. It seems to be about the arrogance of some politicians on both sides. It's about hiring decisions for public employment that appear to be about furthering a campaign, not providing public service. Let the campaign pick up the costs of running for governor, not the taxpayer.

Anonymous said...

With any luck, Scooter's indictment will come a couple weeks before the recall election. It's a stretch to think all these dirtbags that worked for him provided any plausible deniability.

Daniel Bice said...

The investigation has gone on for 20 months.

george mitchell said...

As with contributions to political campaigns, there is a straightforward solution.

Let the staff of politicians do whatever they want. Have full disclosure of same.

If the public is sufficiently repulsed that Darlene Wink did some emails that support her guy, then let them defeat Walker and elect Lena Taylor, or David Riemer.

The efforts to draw an artificial line between the political and non political activities of politicians are absurd. Tom Loftus was every bit as aggressive as Scott Jensen in raising $. Fine. Who care?

The Journal Sentinel and its predecessors were fully aware of activities they now describe in 9/11 typeface. They want us to be shocked, shocked that people who work for politicians do political things.

Think Karl Rove. David Axelrod. Etc. Etc.

George Mitchell said...

I see Dan Bice has weighed in. Dan and the Journal Sentinel have invested so much in the validity of the JD probe that they can't grasp how limp the results are. A couple Walker staffers did political work on county time. No evidence Walker knew or approved. A story? yes. World War II type? Clearly not. And then there is the breathless story about some bid rigging on county property leases...that was real definitive, right? No readers scratching their heads wondering what all that was about.

Finally, Dan misses the obvious fact. If a DA has 20 months and an open checkbook is it not clear that the "results" so far are a pale cup of tea?

Anonymous said...

Has anyone ever challenged the wholly unAmerican, unEnglish, unholy fraud of the "John Doe Investigation?" Has anyone ever challenged the system under 42 USC sec. 1983? Wisconsin has the most poisonous political system I've ever had the experience of living under. (I grew up on the East Coast and have lived around the Midwest for over 30 years.) Thuggery, and the endless effort to imprison people who disagree with you, is the Wisconsin Way. "Progressive," my ass. More like East Germany.

Ed Fallone said...

What we see here is a classic situation in white collar crime. Prosecuting every act that fits the technical definition of the offense would be absurd. Prosecutorial discretion is important in these types of cases, and this discretion is a crucial component of the process.

In this investigation, the D.A. has granted immunity to minor players in exchange for their cooperation. Misdemeanor charges have been brought against someone who mostly seems to have been misguided and acting on her own.

The only felony charges relating to illegal campaigning have been filed against an individual who had been caught doing something similar in the Caucus Scandal investigation, and thus was arguably aware of the illegality of her conduct, and who is alleged to have engaged in a substantial amount of prohibited campaigning in concert with others.

It is entirely beside the point to speculate whether some isolated instances might be identified where a democratic staffer has also transgressed the literal language of the statute.

The point is that one would expect the prosecutor to charge substantial violations of the law in any circumstance where there is evidence of culpability, and one would expect the prosecutor not to charge (or else bring only misdemeanor charges) in any circumstance where there appear to be relatively minor infractions.

For decades, academics have complained about the enormous power that such discretion places in the hands of prosecutors, and the potential for differential treatment based upon partisan allegiances. Fortunately,in the time that I have lived in Wisconsin, Milwaukee has been blessed with scrupulously fair prosecutors in Chisholm, McCann and, at the federal level, Steve Biskupic.

In any event, the role of prosecutorial discretion in the charging of white collar crimes is an integral and accepted part of our criminal justice system, and is likely to remain so for the foreseeable future despite its critics.

Ed Fallone said...

Oh, and in the case I referenced in my earlier comment there were multiple guilty pleas and criminal fines in the tens of millions of dollars. It is just that the U.S. Attorney refused to offer any deal on the obstruction of justice charges that did not include jail time. In my experience, prosecutors take a very hard line on the destruction of evidence.

Tom said...

What do I take away from this?

Government employees don't have enough work to do, and are therefore either overpaid or there are too many of them, if they can spend "half" their time working on political activities.

Daniel Bice said...

No need to say, "God knows how many tax dollars" have been spent on this John Doe. A quick google search turns up this column from October: I hope to update the numbers when the investigation is complete.

Anonymous said...

"Why appear to be partisan when you don't need to?"

Perhaps the good dear professor will take his own advice the next time by calling out similar "sour grape witch hunts" (which is the implication made by the Shark) conducted by a GOP-leaning DA or a GOP dominated legislature.

"Finally, Dan misses the obvious fact. If a DA has 20 months and an open checkbook is it not clear that the "results" so far are a pale cup of tea?"

George, justice has no price tag. We do not know where this investigation will ultimately lead. It may turn out to be nothing, or something. Moreover, such inquiries take time, especially if key figures aren't talking or may be stonewalling investigators.

"Let the staff of politicians do whatever they want. Have full disclosure of same."

Now that's absurd! The general public does not want another "Wild West" akin to the Gilded Age machinations of yesterday. The laws currently on the books regarding" political activities on company time" have proven to be effective tools in combating
the Chvalas and Jensens of the world. The public is NOT shocked by the tactics used by the hatchetmen of politicians, but by their brazenness and veracity in employing them.

Ed Fallone said...

My take away is that some crimes are "mala prohibitum" crimes, meaning that the underlying conduct my not appear immoral to some but that it is nonetheless prohibited.

A person who has knowledge of (or is recklessly indifferent to) the existence of a mala prohibitum offense, and who chooses to violate the law anyway, is moraly culpable and should be prosecuted.

A person who is not on notice of the existence of the mala prohibitum offense is less morally culpable and any charges that are brought should reflect that fact (although society at large has a countervailing interest in some punishment in order to preserve the principle that "ignorance of the law is no defense").

A prosecutor's charging decisions should reflect these principles. If they do not (i.e., the case of the "overzealous prosecutor") then oftentimes judges will try to construe the statutory language in a way that avoids convictions where the underlying conduct is "innocent" from a moral point of view. Consider Justice Thomas' opinion for the Supreme Court in United States v. Staples, or the Liparota decision.

Chisholm is proceeding cautiously and appropriately because he knows that he will be criticized no matter what by both sides on the partisan divide. He has been the complete opposite of "overzealous" thus far. So apparently the basis of the criticism of his office will be that he is too slow and careful.

Display Name said...

Such apologies!

You forgot to explain how Walker and his chief of staff never noticed that so many of their direct subordinates in the same office space had brought their own laptops, cellular modems, and mobile WiFi hotspots to the office, along with months of chatting on personal cell phones, and furious typing on the laptops sending thousand upon thousand of emails, all in the midst of several campaigns - including his own!

Exactly how did Scott Walker and Brett Davis think their campaigns were being conducted? Cheerful elves who came out at night to arrange the Palin appearances? How much looking-the-other-way needs to happen for this to progress to "medium ball"? Who was supervising Wink and Rindfleisch? Who was working closely with Russell?

Apart from political adversaries eager to stab each other in the neck with any improvised weapon, can you also explain why the public shouldn't be concerned about this method of spending tax dollars on political appointees?

Poor Capper. He got the third degree because he was caught reading too many blogs on County time. I think you're arguing that if he was smart, he should've been openly running someone's campaign during the work day. Oh, wait. Capper wasn't a Republican and he wasn't in a position of greater power that would've allowed him to abuse County time and employees in that way.

As for open records requests, Walker charges $77.80 an hour, apparently, even to County Supervisors. In 2010, Supervisor John Weishan was charged $2,723.34 for 35 hours of searching the browsing history of the computers in Walker's office from January through May, to see if they had surfed any of a particular set of Walker-related web sites, including the Facebook pages,,,,, scottforgov.blogspot, WisPolitics, etc. The only results returned were twelve hits to WisPolitics.

Yes, records are records no matter where they reside. If someone is asked to surrender records and does not reveal them, there's the trouble. The criminal complaint does detail a moment where open records requests were not fulfilled correctly because of the separate email system (which I would guess was web-mail set up by Russell.) Were the records not surrendered because the record custodians did not want to reveal the existence of the system?

Rick Esenberg said...


I am going to address some of those issues in a longer post, but your comment does suggest a public service announcement.

While the devil is often in the details, if people are being charged exorbitant fees in responses to public records requests, please contact the Wisconsin Institute for Law & Liberty. I can't comment on the particulars of a case I don't know anything about (and I know of comparable charges by Democrats), but this is an area that we are interested in.

Rick Esenberg said...

And as for "poor Capper," he was not charged criminally for doing whatever it was he was doing instead of his work.

And I didn't think he should have been. In fact, I didn't think he should have been even if he was writing about politics rather than reading politics or reading about what he would write about later.

But I do think it is unbecoming of him to cheer for other people to be criminally charged.

Display Name said...

PSA? You mean an advert for WILL, your new legal office, right? Is that the place that Foley kept calling the "Rick's kulturkampf boutique"?

I think you need to fine-tune your marketing efforts. It's not the right-wing requests that were discouraged with delays and fees. CRG's open records requests were fulfilled within hours without cost.

Oh, there were plenty of people ready to write Glenn-Beckian "I'm not saying it's true that Obama had sex with an intern, I'm just asking the question" headlines like "Indicted for blogging?", as well as off-the-rails commenters who brought up the Hatch Act, and professors who wouldn't step up to tell them they didn't know what they were talking about.

Dad29 said...

@Bice: Your item does not include time & material for the DA's office. There's at least one Ass't DA and (presumably) a couple of support staffers (and investigators) here, too.

Another $200K is not an unreasonable guesstimate.

@ Rick E.: I disagree that 'staffers' should be allowed to do political work on the public payroll. The public payroll is for the benefit of the public at large, not the half which are either (R) or (D). If there's political work to be done, it's either done off-hours or done in a separate office, paid for by campaign dollars.

We spend WAAAAYYYYYYYYY too much money on Governments around here, and politicking on taxpayer's dime is a bridge too far for me.

Rick Esenberg said...


I'm not commenting on the merits of yur examples. But we don't think that open records requests whould be stymied by unjustified charges whether its done by Democrats or Republicans.

Jeff Simpson said...

Unbelievable all the way around. What is the point of having laws when the law "makers" have no problem breaking them?

How about instead of carrying water for the republicans or trying to diminish their crimes we call for strengthening of the laws.

Felony charges being overkill for this? No one should have went to jail for the Caucus scandal? Are you serious? this is the very basis of our democracy(which in my mind is the absolute best system in the world) that we elected people who "Serve" the public. Instead we have elected people who are serving themselves with their priority being to remain in power. and thats ok?

I would say that everyone involved in the Caucus scandal should still be in prison(Hell i would like to see Chvala and scooter be cell mates) These people are entrusted with the most important thing they can be - our GOVERNMENT.

How about instead of apologizing for them we call for laws that make government even more transparent? 1 million signatures in the recall petitions will be online in a mere couple weeks(bill to taxpayers) while as Foust points out it takes months and many personal dollars to get ORR requests fulfilled. Why not have the same process? You file an ORR and within 2 weeks the documents requested are online?

These people with the caucus scandal are still involved in government! seriously? who thought that was a good idea? were they hired back in because they know they have no ethics and will do as told or because they are experts at breaking the law? How about we toughen those standards and punishments...No one with a felony can work for or do business in the state capitol? any plea agreements like the staffers got would also have that contingency on it! Why not mandatory prison time for any politician caught breaking any law? How about a loss of pension when they get convicted of a felony. How about anytime a politician breaks the law its a felony. Why dont we start holding them to a higher standard? Shredding documents destroying evidence or not responding thoroughly to orr's then your not fit for public service either.

If I had a nickel for every time I heard the right whine about Vos having a beer dumped on his head I would be rich enough to hire my own lobbyist yet no one cares about this. Let's look at things in perspective. While i do not condone the beer dumping incident, Vos is a douchbag and survived the "incident" much better than trust in our elected officials will survive "walkergate"

I get that you care only about keeping your "guys" in power and i would understand that from the right wing echo chamber but a university professor should be held to a higher standard, even if by yourself.

Rick Esenberg said...

I don't think they should raise money on the public dollar. I just don't think that what happened here necessarily merits a felony charge.

As to the broader category of "political" work, the line between that and goverment work is not always clear.
I prefer criminal sanctions to apply to clearly defined behavior.

Mr. Simpson, you have a lot of outrage but not much analysis. I thought it was wrong to throw people in jail behind the caucus scandal because of notice and vagueness concerns but also because literally everyone on both sides was doing it. When something has become a commonly accepted practice and no one has ever been criminally charged for it, I don't know that it serves justice to pick out a few and ruin them.

Rindfleisch does not have that defense and I'm not saying that what she did was "ok" but I am saying that four felonies is a bit much. What she did in no sense undermines our "democracy" or "government." That is presumably why we think it is malum prohibitum.

Display Name said...

That's mighty Libertarian of you, Professor. Do you trot out that justification when it comes to gay marriage, prostitution, or drug use?

Is there a term of art for the state using a few high-profile prosecutions in an attempt to deter the rest of the smaller cases where "everyone is doing it"?

Anonymous said...

Rindfleisch definitely deserved felony charges -- which any true conservative would support, because we support the escalation of punishment for repeated criminal behavior. Further, we know that she knew that she was repeating her criminal behavior. Why? She received immunity from prosecution for doing campaign work on the public's dime ten years ago, too -- and to receive immunity, she would have had to admit to wrongdoing.

We know what she knew, and we know when she knew it. A conservative can wink at Wink, et al., but not at a Rindfleisch. Not twice, Rick.

Rick Esenberg said...


Gay marriage is not analogous. Prosecution for homosexual conduct would be and I wouldn't support that. I'm not a big supporters of laws prohibiting prostitution although there is a problem of exploitation to worry about. I'm not a big fan of the war on Drugs. Drugs seem to be winning.

jeff simpson said...

I am not a lawyer but I know enough to say the "everyone is doing it defense" is flat out ridiculous. Can we not apply that to drunk driving and a host of other crimes also? How can you say that a fully functioning team of political hacks and fundraisers all being paid a handsome salary by the taxpayers whose sole purpose is to keep getting scott walker elected and make sure his coffers are full does not undermine our democracy?

I dont have outrage i hae disgust for these people and this process. I dont have alot of legal analysis because I am not a lawyer. What i am saying is that in instances like this why is there not a call to strengthen the laws instead of to dismiss the seriousness of the charges. When someone gets caught with their 5th dui, politicians run to work and make the laws tougher. Why is there not such outrage now?

The fact that you continually defend them no matter how egregious their claims are really undermines your credibility. At this point I do not see a difference between yourself and ward churchill

Rick Esenberg said...

Mr. Simpson

Perhaps because you are not a lawyer you read more into my post than is there. "Everyone does it" is not a defense, it's something that can and does need to be taken into account in decidoing what to prohibit and what the consequences should be for a violation.

I am not arguing that she face no consequences only that four felony counts and the threat of 14 years seems a bit much. You don't have to do legal anslysis to address that. Just ask yourself what consequence should attach to the fact that she didn't walk accross the street with her laptop when she came in at 7:30 am and do her fundraising work then.

It is also relevant in assessing the political significance of he offense that only Walker's administration seems to be the only oen subjected to this kind of scrutiny, it would be unfair to conclude that people who work for Walker are somehow uniquely "corrupt."

Nor do I think that tazpayers should pay for people who do nothing but political work but that's not what we have here. In fact, it would not be a defense for Rundfleisch to prove that she worked fifty hours each week on official business.

jeff simpson said...

Mr. E,

I am nit saying they are uniquely corrupt, I am saying they are corrupt and were caught. It seems to me the reason we place penalties upon breaking the law is to deter future people from doing the same. In my mind this is a crime against 236 years of democracy and 4 felonies and 14 years in prison seem light to me. What I am saying is make the punishment so severe that this never happens again.

Lets reform the system so you can't be a full time employee and a full time fundraiser...pick one or the other. Lets also attach provisions here that when you get caught you can never work for the government again. Lets get outraged enough on both sides to stop it here.

Its unacceptable to dole out minor punishments then have this same conversation 4 years from now.