Monday, January 30, 2012

More John Doe

There has been an interesting comment thread following Friday afternoon's post on the Rindfleisch and Wink indictments.

I agree generally with Ed Fallone's comments on prosecutotial discretion but "generally" is the operative word. This is not garden variety white collar crime. They are offenses arising from political activity charged against the partisans of one side by a partisan of another. There is no way to avoid that but I think it suggests  few cautionary points.

First, it is not a good idea to give prosecutors broadly framed statutes that can be applied to common place behavior. Even if these laws are not intentionally abused, there is the potential for uneven application, disproportionate consequences and the use of criminal law as a political weapon - if not by the prosecutor, then by complainants and commentators.

This concern is not as salient as it might otherwise be here because, at least so far, the charges involve conduct - fundraising on government property - that is clearly prohibited. (There may be a legal question regarding the DA's ability to charge a felony for such conduct. But that's a separate post.)In this regard, it is interesting to note that no charges have been filed with respect to the conduct that supposedly prompted the investigation - comments posted to the Journal Sentinel website by Darlene Wink. The DA deserves credit for not charging that.

Second, even if there are not notice and vagueness problems, we still have concerns about disproportionate consequences and uneven application. Let's take the former first. As Ed points out, the offense here is malum prohibitum (wrong because prohibited) rather than malum in se (intrinsically wrong). (Someone might argue that it is malum in se to deprive taxpayers of a full day of work, but that is not an element of the offense that has been charged and it is unclear whether that happened.)

Ed is right that people get punished for crimes that are mala prohibitum, but we can't stop there. Offenses that are wrong only because prohibited generally are punished less severely than those that are wrong in and of themselves.

There are at least two reasons for that. The first is that the offender is less morally culpable. As Jay Heck points out, Rindfleisch and Wink may have been arrogant and stupid but they have not have not committed a horrendous crime. Don't believe me? Consider this.

Both women were absolutely free to raise funds for political candidates. Had both picked up their laptops and walked over to the Public Library or the coffee shop at the Hilton, they wouldn't be in trouble today. (They might also have to do so "outside established work hours" if they had established work hours. I'd be astonished, though, if we started to prosecute politicians and political appointees for leaving work to attend to fundraising.)

Of course, they didn't leave the building and now they have to pay a price for that. But the notion that the failure to do so should draw felony charges and prison time does not track for me. I felt the same way about Chvala, Burke, Foti and Jensen.

The other reason that we tend to treat crimes that are mala prohibitum differently is that the absence of intrinsic moral wrong tends to result in more frequent and widespread violations. We know that there will be more violations by people who are otherwise law abiding and this restrains prosecutorial and sentencing practices. We can't throw the book at everyone and this has a mitigating impact with respect to those people who do manage to get caught. It's not that we decide that breaking the law is OK, it's just that we know there are a lot of people who have done the same thing and have not been caught and that influences what consequences are fair.

My problem here may be more with the law than prosecutorial discretion. Fourteen years for sending some e-mails on fundraising from the office? Defend it if you want. I wish you luck.

This takes us to the problem of uneven application. The problem here is not necessarily with the DA. Local prosecutors address local problems and the Milwaukee County DA would not typically have jurisdiction to investigate the Dane County Executive or the Governor. (One might wonder if the same effort was - or should have been - expended on investigation of the Mayor's office  but I don't pretend to have the answer.)

If nothing else, decentralization of decision-making has resulted in a twenty months of turning the activities of a single politician's office inside out. At this point, that effort seems to have found relatively little but my larger point is that only one politician has been subjected to this withering scrutiny and, given the nature of political appointees, it is highly likely that, were the same exhaustive examination applied to the offices of other politicians, we'd find more or less the same thing.

Of course the fact that "others are doing it" is no excuse. That would be more reassuring if our public discourse maintained a scrupulous care about who and what has been charged and what has and has not been proven.

But we don't. Partisans are going to distort and misrepresent these charges. They are going to run ads that grab newspaper heads that are, at best, incomplete and, at worst, misleading. That's politics but it ought to be kept in account when we craft laws concerning political behavior and as we enforce them.


Ed Fallone said...


You make no mention of the fact that the person facing the felony charges was caught up in the Caucus Scandal several years ago, and therefore, it is alleged, knew full well that this conduct was illegal.

It makes no difference how innocuous the conduct at issue in a malum prohibitum offense, if the person committing the act does so with full knowledge of the act's illegality then that person is blameworthy both morally and legally. No one is entitled to ignore the law.

It is quite common for the same act to have very different legal consequences under the criminal law, depending upon the mental state of the offender (intentional, knowing, reckless, negligent). Here, the statute itself does not make such a distinction explicit, however the use of prosecutorial discretion achieves the same effect.

There is absolutely nothing unusual about the felony charges based upon these facts, except for your personal aversion to the category of political corruption offenses. All crimes falling within the category of political corruption are susceptible to either aggressive interpretations (ask John Edwards) or partisan gamesmanship. But the fact that a criminal investigation could be misued by an unethical prosecutor in a hypothetical case has never been a sufficient argument for leaving the underlying conduct unpunished.

George Mitchell said...

Sykes had interesting commentary this morning, highlighting the extensive use of deferred prosecution by John Chisholm for a variety of people who have offended, and sometimes re-offended. Many of these defendants belong to the class of people that make Milwaukee a less attractive place to live. Sykes also noted that no criminal charges were filed against Capper for his personal/political blogging on the taxpayer's dime; instead he got a 10-day slap on the wrist personnel action.

The Journal Sentinel's full-throated, over-the-top reporting of the John Doe activity to date prevents it from objectively exploring and describing such inconsistencies in the prosecutor's use of discretion.

Rick Esenberg said...


As a matter of policy, we often treat matters that are mala prohibitum less stringently. Ypu certainly can argue that the dregree of moral culpability is the same as long as one "knows' that one's conduct is prohibited, but that view is not universally shared.

I am not making any general claim about something as broad as "political corruption" cases. I am arguing that, as a metter of policy, there are certain things to be wary of in defining what is and is not political corruption and what ought to be done about it.

Whet I am missing in your analysis is an argument that consequences of this gravity are warranted for failure to walk across the street. I understand that the DA can charge it and the court could sentence the defendant to the prescribed maxiumum. I certainly don't think that nothing should happer to her should the charges be proven. I appreciate that she should have known better and may have done it before.

My argummant is normative not descriptive although, as I note in another post, maybe there is a legal question as to the applicability of sec. 947.12(3).

Mike Plaisted said...

Your attempt to characterize the alleged behavior as just a technical violation of the law rather than a blatant, intrinsically wrong violation -- I was never much for Latin pretensions -- is ridiculous.

The main -- and most shockingly culpable -- fact in this case is that the Walker campaign brought in and installed a completely separate IT infrastructure to conduct their campaign activities in the County Executive's suite. This attempt to cover-up their activities ahead of time shows how wrong they knew it was.

Keep trying, Rick. Your shotgun approach to providing legal briefs for your friends in the Walker campaign (if this argument doesn't work, try this...) is at least amusing.

The fact is that we already know Walker, at least, knew all this was going on. "We can't afford another story like this one", written not to his office staff, but to Tim Russell, the head of the in-courthouse political operation and then Director of Housing, tells you all you need to know about how deep he is. There is not another way to explain that comment, although I'm sure you'll try.

I can't wait. Starved for entertainment this evening -- maybe I'll make popcorn and await your reply.

Anonymous said...

George Mitchell--Sykes, as in "My evidence? Absolutely nothing?" Paid hit man for the GOP, although not like Capper is any different for the left. Regardless, Capper did not WRITE his blog on company time, he READ political blogs on company time. Big difference. Try to get your facts straight.

Now, you wrote two years ago "In the big scheme of things, whether or not Capper blogged on "county time is no big deal."

But your post insinuates otherwise. Could it be that his work has got you hot under the collar?

Ed Fallone said...


Your argument seems to reduce to "I would not have voted in favor of this type of law if I had been in the legislature."

But of course the legislature did pass such a law, and they made a different policy determination (and a different normative determination) than you would make.

And because it is their job to make that detmination, the courts should enforce the legislature's choice (and not yours).

But your persistence in searching for loopholes leads me to believe that you would make an excellent public defender.

george mitchell said...

anon 7:42

you are a selective reader of my views

i think there should be no limits on the "political" activities of people who work for politicians....the effort to draw a line between political and non political activity is silly

as for capper, my point, obvious to all but you, is that he got differential treatment from chisholm

George Mitchell said...

Is it not time for a review of allowing "anonymous" posts?

Or posts from taglines such as Dad29, etc.?

What is the purpose of not identifying oneself?

Phil said...

"First, it is not a good idea to give prosecutors broadly framed statutes that can be applied to common place behavior."

Please provide the commentary you certainly must have written during the massive Ken Starr overreach during the Clinton years, perhaps the most egregious example of prosecutorial misconduct in the history of the Republic. I can't wait to read it.

George Mitchell said...

To illustrate the absurdity of what is to come, consider that Bill Christofferson and Michele McGrorty will be doing ads accusing Scott Walker of being unethical.

Jay Bullock said...

Hats off, Rick; it takes some real balls to say that months and months of campaign work and upwards of 2500 emails to and from campaign staff and donors is merely "sending some e-mails on fundraising from the office."

I mean, come on.

Rick Esenberg said...


But, of course, that's what she is alleged to have done. She may have done quire a lot of it but if she had done it before or after established working hours from the coffee shop at the Hilton, she'd be fine.

It may be that she spent so much time on fundraising that the county taxpayers didn't get an honest day's work but, as I wrote, that is not what she is charged with. It's not an element of the offense and may or may not have occurred. We might think it is so but we don't reslly know. Over "months and months' as you say, I can receive or send over 2500 e-mails in a relatively small period of time on a daily basis.

Again, my point is not that its "OK" to do what Rindfleish did only that it's hardly it's hardly te theat to the repulic that some people want to turn it into.

George mitchell said...

No, it is indeed not a threat to the republic. Prior to the "caucus scandal" and the media's latter-day outage (shocked, shocked) the norm in most political offices was that political staffers did political stuff. No one was harmed. The public interest remained intact. We are now about ten years into a period of new-found, artificial uproar. Many of those who will try to use this to take down Scott walker once practiced what they now profess to abhor.

jeff Simpson said...

Mr. E:

Just curious, since you will go to any lengths to defend the right, what would you consider a "threat the republic"? Since knowingly hiring people who were past lawbreakers, who came in and were paid very well to perform a public service yet instead set up a secret email network and spent a majority of their time fundraising for politicians is no big deal, I am just curious as to what would actually constitute a big deal?

As for George Dr. Phil says "some people get it and some people dont get it and you dont even come close to getting it." The public interest was served? How does paying people taxpayer money to perform an important public service who instead fundrais for career politicians serve the public interest? How does that work for "We the People"? Does that make for more citizen involvement in government or does it make for a strong hold on government by a select few in the old boys club? Boy the tea party if they mean what they say would be pissed about this.

Yes the dems did do this(so did the repubs) and I do not know a single democrat who was not happy that Chuck Chvala spent time in jail. If there is a dem doing this now throw their ass in jail also. In the meantime it shows scott walker and his inner circles complete lack of respect and total disdain for the services that government actually provides and shows that all he cares about is power and controlling the purse strings!

Again with the lengths you go to advance an extremist agenda I still see you as being the opposite side to the Ward Churchill coin.

Mike Plaisted said...

Really, George and Rick? Democrats are known to have set up separate IT infrastructures in their offices and let their staff spend at least "half" their time on political fundraising for favored candidates? Do tell. Who are you talking about? How do you know?

Just because you guys have hung around and covered for pathetic Republicans committing potentially criminal acts doesn't mean everybody does it. Come up with some actual facts, or keep your self-serving smears to yourselves.

Jay Bullock said...

Is it end-of-republic serious? Of course not.

But if your standard for any crime committed by any government employee on government time is that it has to threaten the republic, then you invite chaos.

Rindfleisch (sigh, allegedly) spent from February to July--yea, even after Wink was disappeared and Russell told to knock it off--campaigning from her office two doors down from the candidate. Daily. Repeatedly. And, because she (cough, allegedly, though it's her own email account) wrote things like "I can't have my name on it or I would send it"), she knew what she was doing was wrong.

I don't know of any other way to read your paragraph ("Fourteen years for sending some e-mails on fundraising from the office? Defend it if you want. I wish you luck.") than as a crass attempt to minimize serious and repeated (alleged) violations of the law and the public trust.

This from an officer of the court.

Jeff Simpson said...

Im sorry I did not mean Ward Churchill I meant to say Kevin Barrett

George Mitchell said...


My evidence includes several administrations in Madison where I have personal knowledge and in some cases direct participation. While you leap to make partisan claims you are off-target. I worked for and in support of the three Dem govs (one "acting") who preceded Tommy Thompson. In addition to my knowledge of executive branch activity I had extensive exposure to legislative caucus activity (both parties). George Stanley was so surprised and offended by what I knew and did he said I was "lucky the statute of limitations had expired." Of course all the Capitol reporters including those who worked for Stanley were aware of how things worked.

Mike Plaisted said...


So easy to smear unknown people doing unknown things at unknown times. How convenient for you. What are you doing, waiting for your memoirs? That ought to be rich. Especially, if you ever really did work for Democrats, the moment you left for the Dark Side. But, the pay's better, right?

Nobody but Walker set up a separate infrastructure to facilitate their illegal behavior. Again, name names. Make it post-caucus, while your at it. And tell your friend, convicted criminal Scott Jensen, I said hi.

Anonymous said...

George Mitchell--you are a selective reader of my views

Actually, sir, I pointed out your hypocrisy. I can't help it if your own words come back to bite you in the tuckus.

"i think there should be no limits on the "political" activities of people who work for politicians....the effort to draw a line between political and non political activity is silly"

Easy for you to say given your past history of political involvement! You especially ought to know the history and nature of political parties who, without those rules in place, would stop at nothing to remain in power. At least with a delineating line, We The People can keep our officials somewhat honest.

"as for capper, my point, obvious to all but you, is that he got differential treatment from chisholm"

And your HARD CORE evidence is...

jeff simpson said...

So Mr. Mitchell, You knew of actual crimes happening all over our statehouse and said absolutely nothing and that makes you what exactly? You want to be taken seriously now as someone whose opinion we should listen too?

Brilliant lesson to teach the kids,...hey kids if you see your friends breaking the law who cares, they are your friends. Just make sure they know you know so you can blackmail them with it later......

George Mitchell said...

Mike, Anon, and Jeff,

You are ignorant about how business was conducted in state (and many local govts) government for decades. No one "knew crimes were being committed," including the many reporters for the Journal Sentinel and its predecessors.

Display Name said...

I don't buy the "everybody does it" argument, either. If that was the case, why didn't the Walkergate investigation spawn a dozen complaints from the WisGOP against Democrat offices in the same twenty months? Having a bright enforcable line between an elected official's duties and their next campaign's staff seems like a good idea that should find support among thinkers of any party. It should please the strangle-it-in-the-bathtub conservatives as well as clean-government progressives. After all, it's like being opposed to public financing of elections. What would go wrong with a strong "banned from the government ranch" punishment? Think it would cause more tit-for-tat?

George Mitchell said...

I have forgotten more about state govt and politics than several of the ankle-biters here will ever know.

The attempt to draw hard lines between the process of getting elected and governing is futile. The two are inextricably related. Witness the Obama Administration for the last several months. Think David Axelrod. Karl Rove. Etc.

What now exists in Madison is the artifice of separation. Legislators and their staff now walk outside the Capitol to use a private cell phone to discuss certain issues. This, supposedly, insures that no tax dollars are used for political purposes. The list of such procedures is endless. Please.

Let elected officials use their staff as they see fit and let the public know what they do. Don't criminalize politics. Let voters decide if they care whether Spencer Coggs had somebody pick up some paperwork for his wife.

The alternative to such transperancy and electoral consequences is the arbitrary and selective administration of the law that singled out Chvala and Jensen but left others untouched. Someone should read Tom Loftus' own words vis a vis the power of the Speaker to raise money.

It's probably too late for common sense to get in the way of naive media and do-gooder outrage. I would be content with a bill saying that state officials in Wisconsin can do what President Obama and his predecessors do/did.

Display Name said...

Let me see if this ankle-biter can Follow The Logic™ of the advice of the experienced but memory-impaired conservative on this issue: Public financing of campaigns is a horror and a threat to the First Amendment, as is any restriction on campaign spending, but public financing of incumbent campaigns should be encouraged and unlimited by law because we can trust politicians to be transparent about what they're doing.

George Mitchell said...


Doubt that you can follow, but others might.

Try this. Some/many elected officials introduce or support legislation backed by their campaign donors. Some/many elected officials hold meetings in their offices with campaign supporters. Are those meetings illegal? It certainly can be argued that a donor might be more likely to contribute again if he/she can get on the calendar for a meeting about a bill. Is that not, in effect, "fundraising"? It illustrates how difficult....nay, is to draw the line.

Public financing of campaigns is an old, bad, idea that is going nowhere. It has Ron Paul-levels of support among a small group of diehards.

George Mitchell said...

Someone else wondered if there ever, ever, was anything to parallel the existence of a "secret" email network. The horror.

Well, after Gov. Lucey became ambassador to Mexico (in large part based on speeches written on taxpayer time for Jimmy Carter), Marty Schreiber moved upstairs. Within a few weeks it became clear to Dem party leaders that his staff was not ready for rigors that would accompany the 1978 campaign. There was a wholesale housecleaning designed 100% to get people on board who would help Marty defeat Bob Kasten. Little did they know at the time about someone named Lee Dreyfus.

George Mitchell said...


I do plead guilty to a fading memory.

What 'til you get older.

Mike Plaisted said...

So, according to the Keeper of All Secrets, George Mitchell, what Walker and his political staff were doing in the Courthouse should just be legal. Boy, we sure got there fast. From "everybody does it" (they don't and nothing Mitchell darkly eludes to is even close to setting up a fulltime fundraiser 25 feet from your desk) to Esenberg whining that Rindfleish got charged with a felony (at what level, pray tell, does the abuse of the taxpayer rise to a felony for you? When a Democrat does it, no doubt) to, now, legalize it all, after the fact.

One thing that's missing in all this is any kind of denial that Walker was doing what he obviously was. We are already at the point of excusing and minimizing. They must know -- and Esenberg and Mitchell certainly would -- how bad it's going to get for Walker. Esneberg can stop complaining now about how recalls should only be for criminality. We are already there.

Display Name said...

Oh, I've already forgotten more than you ever knew about several subjects, too. That's what makes people different.

Go ahead, tell us why public financing of campaigns for incumbents is a good idea.

Do you think the donors should be able to hand them a check during the meeting? What about debating the amount on the check during that meeting. Are those clear lines?

George mitchell said...

Case closed

Anonymous said...

"I have forgotten more about state govt and politics than several of the ankle-biters here will ever know."

*Let elected officials use their staff as they see fit and let the public know what they do...Let voters decide”.

Exactly the arrogance displayed by Democrat or GOP operatives which frustrate and anger the electorate.

On one hand, you infer that the public is too dumb to comprehend the nuances of politics. On the other hand, the public has the smarts to decide whether those nuances constitute a violation of the public trust--and therefore removal from office come election time--when those nuances are “properly explained” to them. How convenient that illegal conduct would be considered, under your proposal, as “official business”, since our trusted public officials would ensure “transparency”.

We The People try to hold our elected politicians and judges to higher standards. The continued appearance of impropriety by both sides of the political aisle means more to citizens than you think. Sorry, pal, but We The People are well-read and well-versed with how government works, and what is and is not acceptable conduct for their elected officials.

Indeed, politicing and campaigning is joined at the hip, and SOME politicians MAY even cross the line. But the fact remains that certain activities have been properly deemed by elected officials, under the marching orders of their constituents, as illegal. Why? Look at history, George, and the machinations of political bosses and self-proclaimed bloviating bigwigs when such rules and laws were not in place. The “anything is fair game mentality” has been tried once before, and with miserable consequences. We The People demanded (and received) much needed reforms and refuse to go back to the “halycon days”.

Anonymous said...

“the law that singled out Chvala and Jensen but left others untouched.”**

Let’s get out the crying towel! Life is so unfair, George! You, sir, are naive to think that the public will further your Wild West mentality in politics.

Gnash your teeth and stammer your feet all you want, sir, but the laws currently in place guiding our politicians are there for a reason. At times, the law may be misinterpreted and investigations may be fishing expeditions, but that is for the legal system to figure it all out and for justice to ultimately prevail. We The People demand it!

Furthermore, You ASSUME that everyone is violating state political campaigning laws with this statement**. The actions taken by these two “gentlemen” apparently violated the law. They got caught. There was a trial and a conviction, and an appeal. Both broke the public trust, regardless if their actions appeared to be “small potatoes". Their CONCEIT clearly undermined their credibility, and their actions certainly appeared to break the public trust.

Jeff Simpson said...

Hey another ankle biter is back to continue nibbling!

You say:

Let elected officials use their staff as they see fit and let the public know what they do. Don't criminalize politics. Let voters decide if they care whether Spencer Coggs had somebody pick up some paperwork for his wife.

Sure let voters decide(interesting example by the way), because when Scott Walker has a taxpayer funded secret network and team of a minimum of 6 people fundraising for him all day, we know he is doing this to raise money to let all of the voters know that he is using taxpayer money to fund raise right? It should nit be a problem for an actual citizen to run a fair and even campaign when they are working full time trying to survive and someone like scott walker is spending his days (subsidized by the taxpayer) fundraising and campaigning correct?

Then you say:

Try this. Some/many elected officials introduce or support legislation backed by their campaign donors. Some/many elected officials hold meetings in their offices with campaign supporters. Are those meetings illegal? It certainly can be argued that a donor might be more likely to contribute again if he/she can get on the calendar for a meeting about a bill.

followed by:

Public financing of campaigns is an old, bad, idea that is going nowhere.

So tell me Mr. Mitchell, is this something you forgot or is this something you never learned?

If we had legitimate public financing for elections, no politician would be beholden to campaign donors and lobbyists so they would not need to kiss their ass. There would be no need for that line to be drawn and we could get to the point where actual citizens from WIsconsin could actually meet and talk with Wisconsin politicians....No wonder you think its a bad idea.

So the question is who the hell taught you the things that you remember.

By the way ankle biters is not very original, you should steel lee scott's infamous line:

"I am tired of being biten to death by guppies"

Jeff Simpson said...

By the way, as i stated before, now is the perfect time to make sure those lines are clear as can be. When someone commits an egregious crime and are not fully prosecuted due to a loophole, politicians from both sides sprint to the floor to close that loophole to let everyone know how tough on crime they are. Yet all we hear here are crickets!

Lets fix this problem(and despite what you and the good professor think it is a major problem) here and now.

* if you are convicted of a felony while in a government funded position you can no longer ever work in one again.

* if you commit a felony while in government you may never ever be a registered lobbyist

* You can not serve in a taxpayer funded position in government and also serve as a political fundraiser.

* Politicians are responsible for their fundraising team. Anyone convicted of these crimes(or given immunity) must return ALL of the money that was raised during the illegal activities! Maybe we could send it right into the publicly funded campaign fund!

feel free to add on thats just what i came up with while i was on hold on the phone....

PS; was being called a "do-gooder" supposed to be a compliment or a criticism?