Monday, January 23, 2012

On the John Doe: Curb Your Enthusiasm

A couple of things to keep in mind regarding Dan Bice's story concerning coming charges against people who worked for Scott Walker.

First, these "sources" are probably breaking the law by talking to Bice. John Doe proceediings operate under orders of nondisclosure directed ti witnesses and lawyers. In other words, anyone in a position to know these things is under a duty not to disclose them. While you can imagine more benign explanations, Bice's sources are either speculating or violating their legal obligations. Whether or not the former are wrong or the latter lack credibility, only time will tell.

In the meantime, if John Chisolm is not beside himself, he should be. If these "sources" truly know what they clain to know, it is highly likely that they are in his office.

Second, assuming that the charges here are a variation on the "caucus scandal' cases invovling Republicans like Scott Jensen and Steve Foti or Democrat Chuck Chvala and Brian Burke, the legal validity of those charges is uncertain. In other words, it is not clear that doing political work from government offices is a crime.

Indeed, in the Chvala and Jensen cases, the Wisconsin Supreme Court split 2-2 on whether the prosecutions could go forward. The political activities in question were clearly contrary to the legislature's rules (although not its bipartisan conduct), but the Justices split on whether it could be criminally prosecuted.  Justices Wilcox, Prosser and Butler did not participate. Justices Crooks and Roggensack apparently would have found that the prosecutions were unconstitutional for due process, fair notice and vagueness concerns. Chief Justice Abrahamsons and Justice Bradley would have allowed them to go forward.Because the court of appeals had held for the state, the decision below remained standing and both prosecutions went forward.

Of course, we don't know what will be charged (or if it will be charged) but, even when we do, we may not know whether it's really a crime.


Tom said...

I wonder... would a judge have the ability to just say screw it and lift the secrecy order? I imagine it must be incredibly frustrating being bound by a secrecy order (and a sense of duty) and unable to respond to the other side's public comments.

Anonymous said...

Isn't it a pretty fair guess that we know what JProsser would rule about campaign activity in a government office, given that as Speaker he ran the Caucus before Jensen and was there for Jensen when this originally went to trial Of course, that was 12 years ago--huh, when Walker was in the Assembly--but back then Walker presumably didn't know what was going on around him either, even though Prosser did. Don't get me wrong, it was unbalanced to prosecute Jensen when both parties did the same thing--it just came down to the unhappy and spurned employee in the GOP caucus telling her tale of woe and Dee Hall digging in where the other caucus groups stonewalled and shredded better apparently.

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Daniel Bice said...

Rick, you've created an either-or regarding the the sources for my columns on the John Doe: either my sources are breaking the law or they're just people speculating about whatever. I will repeat that I know of no one who has broken the law in talking to me about the case. And yet the information I keep getting is spot on. I write Monday that two Walker aides from his executive office will be charged soon for doing campaign work on county time. On Wednesday, I write that one of the two individuals will be charged with working on a non-Walker (Brett Davis) campaign. On Thursday, Wink and Rindfleisch are charged, just as I said they would be.

So which is it? My sources don't appear to "lack credibility." And I say they didn't break the law. There are other possibilities, of course. I could be lying. I could have been extremely, extremely lucky with my 20-plus columns on this John Doe -- as well as my original reporting on the secret dealings in the federal grand jury investigations of five aldermen, the John Doe probe of then-Supervisor Toni Clark, the John Doe of railroad executive William Gardner, the John Doe into the recall elections and the John Doe of then-Ald. Michael McGee. (Man, I should quit this journalism gig and take up gambling.) Or, finally, your analysis might be flawed. Any thoughts on which it might be?

Rick Esenberg said...


I'm not faulting you as a reporter for publishing what you can find out. Nor do I think you are "lying" if you say that you don't think they have broken the law.

As I posted, I can imagine (at least legally) benign explanations for the leaks that we've seen and maybe it turns out that one of those scenarios is what happened. But given that the sources are unidentified, you can hardly fault me for wondering how the hell it is that anyone with knowledge thinks its OK to talk to a reporter. As a general matter, participants in a John Doe proceeding are subject to a secrecy order and ought not to be talking to the press. Even if the order has been lifted or your sources somehow evaded the order, leaks like this are unprofessional and, depending on the source, potentially unethical.

But, being a First Amendment guy, I don't blame a reporter for writing about what he's told. The paper isn't subject to secrecy orders. If you detected some criticism of you in my post, you are confusing me with someone else.

While I may have some differences with the headlines (which are going to be cribbed by partisans) and emphasis of some of the reportage (e.g., what seems to me like insertion of the word "Walker" as often as possible in describing conduct that Walker was not involved in), that's every day life. I don't even like everything that I've written on this blog when I reread it.

What I think is more serious, however, is the rampant speculation and salivation over a criminal investigation by partisan bloggers. It escalates political nastiness and is unfair to people whose identity itself has often been unfairly leaked and to others who have been accused of nothing and may never be.

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