Patterico's Pontifications


Wisconsin Supreme Court: Prosecutor Punished Speech With Paramilitary-Style Home Invasions

Filed under: General — Patterico @ 7:57 am

There’s a reason I have called the John Doe raids state-sponsored SWATtings.

The Wisconsin Supreme Court has ended the partisan investigation of Republicans for exercising their First Amendment rights. Fascistic aspects of the investigations included targeting political opponents, telling them they must be silent about the investigations, and search warrant service — with battering rams but without probable cause — to investigate political speech.

Let me present two quotes from today’s decision (courtesy of Gabriel Malor) that demonstrates just how meritless the investigations were:

The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor’s theories, rather than “assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth, 354 U.S. at 484, instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished. In short, the special prosecutor completely ignores the command that, when seeking to regulate issue advocacy groups, such regulation must be done with “narrow specificity.” Barland II, 751 F.3d at 811 (quotations omitted).


Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

The nightmare is over, but the precedent for Putin-like “investigations” of political opponents has been set.

63 Responses to “Wisconsin Supreme Court: Prosecutor Punished Speech With Paramilitary-Style Home Invasions”

  1. Senator Ted Stevens could not be reached for comment.

    Mike K (90dfdc)

  2. i feel like we already knew this was unconstitutional

    happyfeet (a037ad)

  3. I am impressed with the Wisconsin Supreme Court but unless there are severe penalties for the individuals involved — likely as a result of civil lawsuits — then I agree this will happen again. The big question is whether the courts will shield the prosecutors via immunity. I fear they will.

    DRJ (1dff03)

  4. The nightmare is over?


    It is NOT over until the special prosecutor is stripped of office, power, and, ideally, thrown in prison. Ditto each and every lawyer in the prosecutor’s office who followed and assisted with his blatantly illegal orders.

    The only way this stops is to make a searing and unforgettable example of this two-bit fascist. His reputation and career must be destroyed.

    I know it sounds like vengeance. It is not. It is justice, pure and simple. It is about making an example of this guy that can be taught in law schools across the country. “See, besides it being wrong, and illegal, this is what will personally happen to you if you engage in this type of behavior. You will be ruined. You family will be ruined. Everyone who follows you will be ruined.” The cost for this type of behavior must be made unimaginably high so that it never ever happens again. It is not a party issue. Every person in this country has an interest in this case, and an interest in seeing justice done. What the prosecutor engaged in is a threat to the very fabric of our democracy, it is the alarm tone for the death of the republic. Time to send in the fire brigade.

    Eramus (8c487b)

  5. I think they will not. They make the point that the special prosecutors conduct was utterly unlawful; and I think he will lose his immunity fort he egregiousness of his abrogation of his public duty. He belongs in jail, what he did is a crime against the people as well as the individuals targeted.

    SarahW (6f3980)

  6. One more thing, the NAME of the prosecutor is John Chisholm. Let us always call him by his full name. I hate that the court designates him “special prosecutor” in their ruling. He is deserving of no such title.

    Eramus (8c487b)

  7. thank you Mr. Eramus i thought it was weird that name was neither here nor in the linked Hot Air post

    happyfeet (a037ad)

  8. i feel like we already knew this was unconstitutional

    If “we” already knew it was unconstitutional, how did the prosecutors perpetrators get a judge to approve the investigations?

    egd (1ad898)

  9. One thing that isn’t clear is whether or not the State Supreme Court ruled that John Chisholm still had Qualified Immunity. I would think that the ruling would have addressed this.

    David M (402a09)

  10. Prosecutors generally have absolute immunity from private lawsuits for anything they do pursuant to process. So do defense attorneys, BTW. Criminal prosecution and bar discipline are different matters, and those are addressed specifically in statutes and rules of professional conduct.

    nk (dbc370)

  11. If “we” already knew it was unconstitutional, how did the prosecutors perpetrators get a judge to approve the investigations?

    i bet they used trickery

    happyfeet (a037ad)

  12. how is it over? the Court did not even recommend censure.

    and while the Sen. Stevens case did have gross prosecutional misconduct , it has nothing else to make this a common cause. Sen Hutchison (and hope soon Gov Perry) , especially Michael Morton,
    and Jonathan Fleming would make good comparisons.

    seeRpea (5a0c4b)

  13. Thoughts on prosecutorial immunity after Connick.

    DRJ (1dff03)

  14. I dunno Erasamus, the impression I got from the opinion was that they considered Chisholm a ‘special’ prosecutor. How many times did the ruling repeat “[t]o be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law”? If they didn’t think the prosecutor was ‘special’ then once would have been enough, but I saw the exact same line repeated 3 times. When dealing with ‘special’ people it is a good policy to repeat things often, no matter how clear they are.

    max (4fdf98)

  15. There has to be a HUGE downside for this behavior. Without swift punishment, this will become more commonplace. Witness: IRS and Lois Learner.

    Roman (0bfd6d)

  16. When does the disbarment process begin?

    Steven Den Beste (99cfa1)

  17. The disbarment process begins when someone, a resident of Wisconsin probably, files a complaint, and a simple Google gives you:

    “Grievances may be filed by telephone, mail, or e-mail.

    To file by telephone: Call (608) 267-7274 or (877) 315-6941 (toll free), and choose option 1 to file your grievance.

    To submit a written grievance: Grievances can be sent in the form of a letter, or by completing the grievance form below. The grievance form can be printed and completed by hand, or type in the form using Adobe Acrobat and then print it. When typing in the form be sure to print it out before exiting or your work will be lost. Sign and date the form, then mail it to: Office of Lawyer Regulation, 110 East Main St., Suite 315, Madison, WI 53703-3383

    To e-mail a grievance: A completed form can be e-mailed by saving the form, or by printing and scanning the form. E-mail the form and any additional documents to ”

    Fred Z (5db617)

  18. Pretty clear language there: the prosecutor should be prosecuted.

    Patricia (5fc097)

  19. I think #15 is an excellent point, especially if more concrete proof comes forth
    that the 2 bums LL and JC were in cahoots.

    seeRpea (5a0c4b)

  20. After Connick, the State Bar process may be the only remedy here. Let’s hope the Wisconsin State Bar organization isn’t too liberal.

    DRJ (1dff03)

  21. There are plenty of remedies here, to begin with:

    1) His name should be on the front page of every newspaper “John Chisholm – Fascist Prosecutor”
    2) Immediate sacking of him AND all his staff that perpetrated this fraud.
    3) Public naming and disbarment for every lawyer that participated in this fraud.
    4) Forced retirement of the idiot judge that rubber stamped the John Doe warrant.
    5) Criminal investigations of Chisholm and his staff. Title 8 of Wisconsin law, Offenses against Public Administration. Chapter 39 – abuse of office. “Misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.”

    Eramus (8c487b)

  22. There is Wisconsin Criminal Code Section 946.12, and in particular sub-Sections 946.12(2) and 946.12(3).

    nk (dbc370)

  23. #15 and #19,

    Wall Street Journal has reported links between Lerner and the John Doe investigation. Since the WSJ is behind a paywall, here’s a link to a HotAir article.

    JoeH (2a89bd)

  24. 11. …i bet they used trickery

    happyfeet (a037ad) — 7/16/2015 @ 8:56 am

    Oh, yeah. I bet they needed to be real tricky to pull this off.

    We shouldn’t forget the judge’s name in all this. Her name is Barbara Kluka, and the plaintiffs who brought the federal appeal provided records to support the contention in their brief that she was merely a rubber stamp. She couldn’t have possibly reviewed the hundreds of pages of affidavits, evidence, and other legal documents the prosecutor put in front of her to support his request for scores of search warrants and subpoenas in a single day. And she approved every petition, subpoena, and search warrant John Chisholm put in front of her.

    As Ken White at Popehat observed about the Reason subpoena and gag order, it a common practice that judges just rubber stamp whatever prosecutors put in front of them. They pretend to review the documents, and the prosecutor can make public statements about how they can’t be going rogue as everything they did was under the microscope of judicial review.

    That’s how John Chisholm defended his actions. He and his investigation had to be above board or else the judge “supervising” his actions would never approve of them. But she was providing no such oversight. And this Wisconsin ruling rips that fig leaf away.

    Steve57 (4c9797)

  25. Liberal logic:

    In dissent, Justice Shirley Abrahamson wrote that the ruling had loosened campaign finance rules and that “the majority opinion’s theme is ‘Anything Goes.'”

    Somehow I think prosecutors authorizing midnight SWAT raids into the homes of political activists and issue advocates, and their donors, to investigate and chill perfectly legal participation in the political process falls under a worse category of “anything goes” than the one this judge pretends to worry about.

    “The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment,” she wrote. “In doing so, the majority opinion delivers a significant blow to Wisconsin’s campaign finance law and to its paramount objectives of ‘stimulating vigorous campaigns on a fair and equal basis’ and providing for ‘a better informed electorate.'”

    Yes, nothing stimulates vigorous campaigns and on a fair and equal basis and provides for a better informed electorate than empowering partisan prosecutors to defund and silence their political opponents.

    Steve57 (4c9797)

  26. This is the wanton pickle who sued her own state in federal court because it changed, by constitutional amendment, the way Wisconsin Supreme Court Chief Justices are selected, Steve.

    nk (dbc370)

  27. that’s the one, she also alleged she was choked by another Justice

    narciso (ee1f88)

  28. I just saw that in addition to being 81 years old and originally from New York, she has also been married for 54 years to the same man, so I’ll take back the “wanton pickle” remark. The poor old lady cannot possibly be in full command of her mental faculties.

    nk (dbc370)

  29. He’s going to have a hard time hiding behind privilege on this.

    Kevin M (25bbee)

  30. Ted Cruz could win this election or at least be assured of a supreme court nomination or VP slot by using his oratory skills to highlight this and applaud Scott Walker, This man, and his supporters faced prison, faced financial ruin to do the right thing for the people of wisonsin.

    Its time he and the other presidential candidates gang defends each other for the right reasons

    EPWJ (acb2d0)

  31. Agreed with Eramus (8c487b) — 7/16/2015 @ 8:28 am

    “It is NOT over until the special prosecutor is stripped of office, {…} It is justice, pure and simple. It is about making an example of this guy that can be taught in law schools across the country. {…} The cost for this type of behavior must be made unimaginably high so that it never ever happens again. It is not a party issue. Every person in this country has an interest in this case, and an interest in seeing justice done. What the prosecutor engaged in is a threat to the very fabric of our democracy {…} ”
    = = = = = =

    AMEN, x 100 !

    A_Nonny_Mouse (3e7fd1)

  32. Comment #9:

    One thing that isn’t clear is whether or not the State Supreme Court ruled that John Chisholm still had Qualified Immunity.

    That issue wasn’t before the Court, and courts generally avoid rulings on issues that aren’t directly before them. The issue won’t be properly decided until at least the first motion to dismiss in a section 1983 suit against the prosecutors.

    Alex (f15f55)

  33. I’m assuming that the plaintiffs will file complaints with the attorney regulatory agency, as well they should–this is just unconscionable and I’m glad that the Wisconsin Supreme Court called it what it was. Now that they’ve found the behavior by Chisholm was unconstitutional, the
    civil suits should be filed immediately.

    Unless there are serious consequences for this, I don’t see how it will deter others in
    the future.

    Rochf (f3fbb0)

  34. I don’t see a link anywhere to the opinion.

    I would think in a case like this, the Court would refer the matter to the State Bar Disciplinary Committee (or whatever they call it there).

    Bored Lawyer (d869b1)

  35. Bored Lawyer, Cornell law professor William Jacobson has it posted at his blog, Legal Insurrection.

    Steve57 (be89dd)

  36. I can’t do links as I’m commenting from my phone. Just search for the blog.

    Steve57 (be89dd)

  37. I think this is a link to the opinion. As I read it, the Court terminated the John Doe investigations on the basis that the prosecutor’s theories had no basis in law, but it would not take further action because that would circumvent pending appellate review.

    Is it possible the Wisconsin John Doe statutes facilitate prosecutorial/political abuse? It reads that way to me.

    DRJ (1dff03)

  38. FromSteve57’s would be link at:
    Andrew Grossman, who filed an amicus brief in the Supreme Court case and who has served as counsel to Eric O’Keefe and the Wisconsin Club for Growth (two of the targets of the investigation) in various federal civil rights litigation against the prosecutors, provided me with the following statement:
    Today’s decision puts an end to one of the worst abuses of power ever seen in Wisconsin law enforcement. The next step will be holding those responsible accountable for their actions. The Court’s recognition that the John Doe was a politically motivated “dragnet” of Gov. Walker’s allies provides strong support for Cindy Archer’s civil rights action against the Milwaukee prosecutors and lawsuits by potentially any of the other John Doe targets.

    reading excerpts from it there, it is as severe as wording as one can get without using cusswords, even giving credit for the victims for fighting it and bringing it to light.

    MD in Philly (f9371b)

  39. Can the local bar, the criminal defense part anyway, afford to get crossways with the procecutor’s office? Or will they send a “better luck next time” sympathy card? You would think a bunch of professionals would not want clowns like this associated with them and their work. Wouldn’t you? Right? Is there some process by which, if not criminally punished, Chisholm and company could be put out of the law business altogether?

    Richard Aubrey (f6d8de)

  40. Nifong.

    nk (dbc370)

  41. You had no problem when the government used these tactics against anti-war protestors or muslims in this country let alone the war on drugs. Sow the wind reap the whirlwind. We will now use these tactics against you that you have used against us.

    payback (44aca1)

  42. The targets of the John Doe investigation can file a civil rights lawsuit called a 1983 claim because it is based on federal statute 42 U.S.C. Section 1983. But if Wisconsin has absolute prosecutorial immunity, it will be very difficult to succeed.

    The John Doe targets may try to distinguish prosecutors acting to try a case vs prosecutors investigating a case. Wisconsin is in the 7th Circuit and there is 7th Circuit authority that prosecutorial investigations are only entitled to qualified immunity. However, I don’t think it’s a Wisconsin case or based on Wisconsin law, so it may not apply.

    DRJ (1dff03)

  43. payback, you are lying. (#41)

    Yes, the war on drugs is destructive to all our civil rights, but there is no war on muslims in this country, and the idea that anti-war protesters have been abused by the government is false, unless you are going back to the Wilson administration.

    Steve Malynn (6b1ce5)

  44. payback,

    You can’t use them in Wisconsin.

    DRJ (1dff03)

  45. Speaking of Muslims
    This story does not mention it, but Facebook popped up a link saying a Twitter account laid claim to this in the name of ISIS.

    kishnevi (91d5c6)

  46. Richard Aubrey,

    The John Doe targets should be able to file a complaint/grievance against the prosecutors with the Wisconsin Bar — the organization that licenses attorneys in Wisconsin. A finding of wrongdoing typically can lead to sanctions, including suspension or disbarment. That’s what ultimately happened to the North Carolina prosecutor Nifong after the Duke case, as nk suggested with this “Nifong” comment.

    DRJ (1dff03)

  47. Excuse me ,payback, but exactly who is this “you” and “us” to which you refer? Since we’re on a conservaative blog you can’t possibly mean anyone here. First off these are leftist tactics not conservative. Secondly e conservatives happen to be the ones constantly fighting to follow the Constitution, not abuse it. So you best get your ire pointed in the right direction. Plus, as conservatives you don’t want to threaten us. We carry and we’re not Pajama Boy.

    Rev. Barack Hussein Hoagie (f4eb27)

  48. I hate to hear that, kishnevi. That these young men died is bad enough but to think ISIS can inspire people to kill Americans, and then do it, is disheartening.

    DRJ (1dff03)

  49. Muhammad Youssef Abdulazeez:

    A gunman unleashed a barrage of gunfire at two military facilities Thursday in Tennessee, killing at least four Marines and wounding a soldier and a police officer, officials told CBS News.

    The shooter also was killed. Two law enforcement sources told CBS News that the shooting suspect was identified as Muhammad Youssef Abdulazeez.

    Even if he’s a lone gunman, if he was inspired by ISIS then there could be dozens (or more) like him.

    DRJ (1dff03)

  50. Want to reconsider who is using “tactics” on whom, payback?

    Four Marines were killed today in Chattanooga, Tennessee.
    The Marines were shot in a gun free zone.

    There’s that stupid leftist phrase again “gun free zone”.. Obviously some moslem didn’t get the DNC memo. I suggest for every person killed in a gun free zone ten liberals get the gillotine.

    Rev. Barack Hussein Hoagie (f4eb27)

  51. Perry is a douchnozzle

    JD (b60092)

  52. So if more of our troops are armed when outside the wire–or inside it–what will change is maybe one or two dead troops and one dead terr. Not four to one, or ten to one. Thing is, they can only shoot back. So the terr gets the first rounds off. Anyway, it will be fewer dead troops and without a police chase the possibility of further casualties is reduced.
    But the other point is…the attack. For the terrs, the attack is the primary issue, the number of dead is secondary. More is better, of course, but the primary issue is the attack.

    Richard Aubrey (f6d8de)

  53. What I found most troubling about this whole mess was not the SWATtings or the gag orders, bad as they were. After all, in the course of a legitimate criminal investigation such things are sometimes appropriate. Given the sort of people Patterico usually prosecutes, it wouldn’t surprise me if he did something like that when he saw a need to seize evidence or something. And in the normal course of events it’s to be expected that sometimes the targets of criminal investigations turn out to be innocent; when that happens I hope Patterico gives them a nice apology, and maybe a bottle of wine or some babysitting vouchers, but assuming there really was good reason to believe they were in possession of vital evidence there would be no misconduct. In this case, of course, it was all politically motivated, and there wasn’t any good reason to use such tactics, but unfortunately we’re used to political fishing expeditions and abuse of prosecutorial power and discretion.

    No, what troubled me most about this mess is that the behavior Chisholm suspected, and was vigorously looking for evidence of, is not against the law. As the court put it in this decision, “the special prosecutor has employed theories of law that do not exist”. That, to me, is the most shocking and troubling part of this story. It’s like investigating someone on suspicion of doing 70 in a 75 zone, or of going through a green light. Whether he did it or not, those are perfectly legal things to do.

    Milhouse (a04cc3)

  54. Milhouse,

    The judges had to define what the law meant because it was overly broad.

    ¶41 We turn first to Two Unnamed Petitioners, the original action filed with the Wisconsin Supreme Court. This case requires us to interpret Wisconsin’s campaign finance law, Wis. Stat. Ch. 11. By its very nature, this task involves fundamental questions regarding the scope of the government’s ability to regulate political speech. To resolve this case, we must engage in statutory interpretation of the phrase “political purposes,” which includes all activities “done for the purpose of influencing [an] election.” Wis. Stat. § 11.01(16). We conclude, consistent with the First Amendment of the United States Constitution and Article I, Section 3 of the Wisconsin Constitution, that the plain language of “political purposes” in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague if it is not given a limiting construction and applied to only express advocacy and its functional equivalent. This conclusion invalidates the special prosecutor’s theory of the case and ends the John Doe investigation. Therefore, we agree with the Unnamed Movants and grant their requested relief.

    Tanny O'Haley (c674c7)

  55. They had to say the law does not apply to issue advocacy, but that the law is limited to express advocacy.

    ¶69 The limiting construction that we apply makes clear that the special prosecutor’s theories are unsupportable in law given that the theories rely on overbroad and vague statutes. By limiting the definition of “political purposes” to express advocacy and its functional equivalent, political speech continues to be protected as a fundamental First Amendment right.

    Tanny O'Haley (c674c7)

  56. Milhouse
    ” but assuming there really was good reason to believe they were in possession of vital evidence there would be no misconduct. ”
    Does this count a “good faith” mistake? Should have been the other guy named Smith or something?

    Richard Aubrey (f6d8de)

  57. The Court made it absolutely clear that nobody with a law license would consider that he was acting in good faith.

    But Milhouse has a good point. A prosecutor is like a vicious Doberman guarding a junkyard. You can’t muzzle him or chain him because then he won’t be able to do what you need him for. The best you can do is build a strong fence that he can’t jump over or dig under to protect innocent passersby. And keep a stout club handy for when you and your customers go into the junkyard on legitimate business.

    nk (dbc370)

  58. I happened to be in Madison, WI yesterday and listened to the Wisconsin Public Radio report on this decision. They reported on how the prosecutor was investigating “illegal” coordination between the Walker campaign and political supporters and the WI Supreme Court didn’t allow oral argument which disappointed the prosecutors because they didn’t have the right to be heard. They are, thus, considering an appeal to the U.S. Supreme Court.
    Yes, Wisconsin Public radio is bizarro world. Just so you know. Wisconsin news outlets are not even close to reporting on this scandal.

    Trialdog (ed8c13)

  59. Thanks for the info, Trialdog.
    I guess talk radio and blogs are our “Radio Free America”.

    MD in Philly (f9371b)

  60. AM620, in Milwaukee does a good job. They’ve been all over this, and the Walker recalls. From 9-4 EST, they’re a talk show on politics and current events, many specific to WI, or Milwaukee. But some are of wider interest–John Doe–and sometimes they talk about national in international issues. Call it conservative or realistic.

    Richard Aubrey (f6d8de)

  61. I used to get the Brewers games on it too.

    nk (dbc370)

  62. Does this count a “good faith” mistake? Should have been the other guy named Smith or something?

    In this case, no. Chisholm did not act in good faith. But such things do happen with prosecutors and police who are acting in the best of faith. If Patterico has never found himself in such a situation, chances are one day he will, not through any fault of his but because he is not psychic, and sometimes all the available evidence points to the wrong conclusion. But I’m confident that Patterico would never go after someone on suspicion of not having broken any known law, no matter how much evidence he thought he had that the person had not broken the law! And that’s what Chisholm did.

    Milhouse (a04cc3)

  63. Taney, it was always obvious that there was no law against advocates for some policy coordinating their efforts with someone who agrees with them on that matter, just because that person happens to be a candidate for office. Issue advocacy has never been considered political activity; even 501-C3 organizations, which are strictly forbidden from engaging in politics, are allowed and expected to advocate public policies they care about, and this is not considered a “donation” to those candidates who happen to agree with them.

    Milhouse (a04cc3)

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