Saturday, March 10, 2012

The Facts Regarding the Walker Defense Fund

So how much innuendo and speculation can we squeeze out of the fact that Governor Walker has established a legal defense fund? Should the heavy breathing begin?

In reporting on the creation of the fund, Dan Bice cites a summary of the statute authorizing the creation of such a fund which suggests that it can only be created when an official is under investigation. He then quotes two lawyers who say the same thing,

But, once again, it's not so simple. With all due respect, Dan should have cited the law itself. Here is what it says:

Any candidate or public official who is being investigated for, charged with or convicted of a criminal violation of this chapter or ch. 12, or whose agent is so investigated, charged or convicted, may establish a defense fund for expenditures supporting or defending the candidate or agent, or any dependent of the candidate or agent, while that person is being investigated for, or while the person is charged with or convicted of a criminal violation of this chapter or ch. 12. (emphasis supplied)
In other words, one can set up a defense fund under sec. 11.64 when one's agent is under investigation. Thus, it is entirely plausible that the fund was set up because people who worked for Walker are under investigation and that he has been forced to incur legal fees because of that. It may well be that he is not "under investigation."

This is, I think, what former Judge William Jennaro (who is also quoted in the Bice column) is driving at when he says that the formation of a defense fund does not necessarily mean that Walker is being investigated.

But there's more.

It is not clear that Governor Walker would have any way to know whether he is "under investigation." The Wisconsin Supreme Court has held that persons summoned to provide information in a John Doe do not have to be informed of the nature of the proceeding or whether or not they are a target investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910 (1977).

In fact, a free wheeling and long running investigation that goes where ever the spirit moves it (and this one seems to fit that bill) may not even have a clearly defined list of "targets."
Of course, it is possible that the Governor is being personally "investigated." In fact, "being investigated" is an amorphous concept. I would expect that, if a prosecutor is investigating the conduct of someone who worked for me and thinks he or she has found evidence of wrongdoing, that prosecutor might try to find out if I knew about it or directed to happen. I suppose that constitutes being "investigated."

But, of course, it doesn't imply that I am guilty or even that there is probable cause to suspect that I am guilty. That I may do what any lawyer would advise me to do (particularly in a partisan context) and engage counsel to make sure that I am treated fairly and my rights are respected doesn't imply guilt either.


Brew City Brawler said...

Seriously, your ongoing denunciation of innuendo and speculation around the John Doe investigation never fails to amuse when one recalls your role as a nonstop innuendo spreader around Gov Doyle in the "beyond thin" Georgia Thompson case. Surely you would have called for an observation of the "facts" if Doyle had created such a fund - that is when you werent likening him to Nixon or a mafia boss or continuing to speculate he put pressure on Thompson, including after her conviction was overturned. Please keep it up.

Rick Esenberg said...

I don't think that's a fair characterization of what I wrote back then but we've been around and around on that.

I take it that you have no criticism of what I actually have to say about the John Doe. Because if you had, you would have said so.

Brew City Brawler said...

Fair point! Your discussion here of the law in question and the concept of being "under investigation," along with a caution against leaping to judgments (echoing Jennaro, cited in Bice's story), strikes me as not unreasonable (though I'm no lawyer).

Anonymous said...

The question then, with this fuller statement of the law (thanks!), whether Rindfleisch, Wink, Russell, et al., were "agents" of Walker as a public official or as a candidate.

If the latter, that line is perilous.

Anonymous said...

An agent is someone who is authorized to act on behalf of and under the control of the principal.

Therefore, seems to me that if a Walker agent is under investigation then Walker, as the person who controls the agent, is likely under investigation, too.

Terry Ott said...

Original post:
"....when he says that the formation of a defense fund does not necessarily mean that Bice is being investigated."

Did you mean to say Walker, rather than Bice?

Display Name said...

"People who worked for Walker"? I thought the whole problem was that they weren't working for Walker. Or us, for that matter, but we were paying them.

Display Name said...

Say, Professor, are you planning to finish this discussion next time?

It would seem reasonable to provide us with a definition of "agent" in this context, and to apply it to the list of associates known or suspected to be involved in this Walkergate.

If no one fits the definition of "agent", wouldn't it be plausible to assume Walker needs to defend himself?

Anonymous said...

Foust, that is a good question. I went to the statute, to the usual preceding part with definitions, seeking the statute's definition of "agent." I didn't find it on the list there, in that statute. (Perhaps it is defined elsewhere in statutes, but that is not usual practice and could complicate legal discussion as to relevance to this statute.)

Display Name said...

If the GAB oversees that section of the statutes, we (or a good reporter) could also ask whether there's paperwork involved with the creation of a defense fund.

If you can't set up a defense fund unless you or an agent is being investigated, you'd think there would need to be a paper trail explaining who was under investigation.

Anonymous said...

" is entirely plausible..." and "It may well be that he is not 'under investigation'...and the rest of the included 'could be' language used here appears to amount to a lot of hopeful thinking that The Executive is not being targeted.

But if that were the case, it would seem plausible and it could be there wouldn't be such a delay to meet with the DA office for the most "freewheeling" investigation since Ken Starr found out about infidelity in the White House.

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