Monday, February 06, 2012

The Penultimate Word (for now)

Lots of comments in response to Friday afternoon's post asking two well known political bloggers who are swooning and speculating over the John Doe proceeding if they had ever engaged in political activity while employed by the government.

I have yet to hear from my old Backstory colleague Jim Rowen but Bill Christofferson says he never did campaign work on government time. I take him at this word.

But he subtly shifted the question. I used the word "political activity" intentionally. In a prior post, I asked about a series of things that an elected official or staffer might do on state time using state resources. The point was to make obvious that there are all sorts of things that are heavily political and inextricably bound up with campaigns that these people almost certainly do from their government offices. Bill does not - and I suspect could not - deny engaging in some of them. He would have been a poor staffer if he could.

As I posted, the point is not that we can't specify a subset of these activities that we can call "campaign work" and prohibit it. It is only 1) that there are going to be many cases where the line between work that is "political" but not "campaign" will be hard to draw and 2) that drawing this line will not accomplish nearly as much as we think it will in removing "politics" from government offices or reducing the advantages to incumbents of having publicly paid staff.

These observations have two implications.

The first is that the law needs to be quite specific in setting forth what is and is not permitted. Failure to do so not only raises around due process, fairness and notice concerns, it also maximizes the discretion of partisan prosecutors who, even if they are pure of heart and say their prayers at night, are subject to partisan pressures and confirmation bias. In the cases of Rindfleisch and Wink, the allegations do involve a specific statutory prohibition (although one that seems to call for misdemeanor and not felony charges). Charging other types of activities may be more problematic. If you don't believe me, consider the fact that the participating justices in Chvala split evenly on whether the statute being used in the Rindfleisch case could be applied to the "campaign activity" at issue there.

Second, the relatively limited advantages to be gained ought to affect what is charged and at what level. It ought to inform how we discuss these matters. The heavy breathing, references to "dirty work," etc., don't match what we know. For example, the comments here seem to presume that there are allegations of people who did nothing but - or little more than - campaign work on county time. But that is not an element of the crimes that Rindfleisch and Wink are charged with.

What we have seen so far from the John Doe is small ball. Yes, yes, yes, that may change although one does wonder what, if not politics, causes it to dribble out. But, at least so far, every time we are promised more, it doesn't really come.

Finally, considering what really goes on may help us understand cell phones and laptops. More to come.


Phil said...

As Supreme Court Justice Potter Stewart once opined,

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it..."

I may not know what illegal political work is, but I know it when I see it. And constructing a clandestine wireless network to facilitate such work certainly demonstrates a consciousness of guilt, don't you think?

Jeff Simpson said...

Seeing as you are so incredibly desperate to do anything in your power to clear these people of any wrongdoing it seems very curious to me.

Are you that much of an ideologue that you are willing to compromise our democracy to make sure that your side is perpetually in power? the ends justifies the means defense? Are these personal friends that you do not want to see in trouble? Is there a monetary reward for you? It seems to me that there is something missing in your perpetually defending and minimizing their egregious acts

Display Name said...

Muttmutt, don't give them too many ideas. I can't think of a reason why the WisGOP couldn't come up with a new bill to retroactively clarify this situation and absolve whichever sins they were feeling guilty about.

Anonymous said...

"Finally"? This is your final word?

Not if it's your penultimate piece on this; look up the definition, and you'll see that your paranthetical "for now" comes closer. It seems that you meant ultimate? Then, use the word, rather than adding on syllables and only screwing up with the wrong word.

Your attempts to redefine "public record" as requiring online posting and access were bad enough -- especially for a (part-time) law "professor" -- but now you're trying to redefine words, too. Stop, please, and stick to what you know.

Rick Esenberg said...

Anon 6:32

I chose the word "penultimate" intentionally because this isn't the final post I have planned. Please read again. In the English language, when some one writes "more to come," it usually means there is more to come.

I did not say that responding to an open records request means putting them online. I did say that it requires producing them in those formats in which they are kept which,in this case, would have resulted in others putting them on line and rendering moot the GAB's intial refusal not to do so. The day after I wrote the post, the GAB, in response to an open records request, released and posted the record citing the same records and same case that I cited.


I wouldn't know Rindfleisch and Wink if they walked into the room. Never met them. I get no money from any partisan organization and, more fundamentally, absolutely nothing for writing this blog.


Stewart's remarks are not exactly a highlight of American jurisprudence. Someone else's subjective response is not a very good basis for the imposition of criminal liability. If you can't see that, you are blinkered by partisan fervor.

Phil said...

Really, Rick? That's all you've got here? The best you can come up with is "Stewart's remarks are not exactly a highlight of American jurisprudence"?

Shorter Rick: Justice Stewart doesn't agree with me so it's time to break out the ad hominem.

One would think that with all the money flowing into the Republican Party to save poor Scooter, the GOP could buy themselves a better law professor... But I guess it's a tight market and Rick's all that's left on the shelf.

Display Name said...

I get no money from any partisan organization...

They're all wink-wink non-partisan organizations, right?

Rick Esenberg said...

Some folks don't want to agree with something just because I said it. If I told the esteemed Mr. Mutt that whether or not he had committed a crime or not was going to turn on whether some judge decided that his conduct fit into an amoprhous and ill defined concept because the judge will "know it when he sees it," he would - or at least should - worry about a fundamental lack of notice and fairness.

jeff simpson said...


Then help me explain why you are so adamant that these people did nothing wrong? There is a saying even if its legal does not make it right...yet what these people did was not right and not legal yet you are going to extraordinairy lengths to help them out. Now you tell me your doing this for free? seriously? is there not someone who could actually use the help of a free lawyer in Wisconsin you could better place your volunteer time?

Anonymous said...

Jeff Simpson is simply an idiot.

Rick Esenberg said...

Well subtlety is not his thing, that's not for sure.

Anonymous said...

Rick, I thought you were above the name-calling fray.
Why the tacit approval regarding anony's 12:08 a.m. remark about Mr. Simpson--not that he is innocent, either.

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