Monday, June 02, 2014

All Doe all the time, part II

My take on the various legal problems presented by reported negotiations to "settle" charges that might be brought as a result of the latest (and apparently late) John Doe investigation can be found here. Shorter version: It's not clear that the prosecutors and GAB can do anything but give up.
One of my colleagues raises an interesting question. Can the prosecutors even seek to overturn Judge Peterson's decision quashing the search warrants and subpoenas that were served in the course of the now-halted probe?
The lead prosecutor asked for clarification on that. Here is what Judge Randa said in an order issued Friday afternoon:

The injunction bars any attempt by Schmitz (or any other defendant) to obtain compliance with any order, subpoena, or other process issued in furtherance of the investigation, but it does not extend to legal proceedings, including these federal court proceedings, that do not seek to enforce such compliance. (Emphasis added.)
Doesn't this suggest that it does apply to legal proceedings that do seek to enforce compliance? Wouldn't seeking to overturn Judge Peterson's order quashing subpoenas and "other process" be exactly that? Ordinarily I'd be reluctant to read it that way, except that's the way it reads. The reasonng, I suppose, is that forcing someone to litigate state law issues presented by an unconstitutional litigation itself comprises constitutional harm.
Cross posted at Purple Wisconsin.


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