Zombie Prosecutors

This operation needs to be “shut down”.
WSJ Aug. 18, 2015 7:02 p.m.

Wisconsin’s prosecutors are starting to remind us of a zombie apocalypse because their rogue investigations never stay dead. That’s the news in a recent court filing in the state’s John Doe investigation that shows prosecutors haven’t accepted the Wisconsin Supreme Court’s July verdict shutting down their pursuit of conservatives.

Special Prosecutor Francis Schmitz has filed a motion for reconsideration and stay of decisions and orders with the state court. That motion is sealed but we’ve seen a copy. Mr. Schmitz asks the court for a “stay of the mandates directing the termination of the John Doe proceedings and/or the destruction of evidence obtained by subpoenas and search warrants” pending a possible appeal to the U.S. Supreme Court.

The Wisconsin court decided a matter of state law, so an appeal to the U.S. High Court is unlikely to succeed. More troubling is that the Milwaukee Democratic prosecutors office and Mr. Schmitz are pushing to keep indefinitely the information seized in their illegal investigation which included donor names, bank records and personal communications of people who were never charged with a crime.

Why is this a worry? Consider how prosecutors treated similar documents culled from the first John Doe investigation into Scott Walker’s tenure as Milwaukee county executive before he became Governor. In a civil-rights lawsuit filed by former Walker aide Cynthia Archer, John Doe investigators Robert Stelter and David Budde made public facts, names and information that should have been protected by the secrecy order.

Under the John Doe statute, “the record of the proceeding and the testimony taken shall not be open to inspection by anyone except the district attorney unless it is used by the prosecution at the preliminary hearing or the trial of the accused and then only to the extent that it is so used.”

In July Milwaukee Democratic prosecutor John Chisholm petitioned former John Doe judge Neal Nettesheim for permission to release that information publicly, even though the investigation is closed and Mr. Nettesheim had no authority to reopen the proceeding. Prosecutors say they need the information to respond to the lawsuit. But the John Doe secrecy provisions are supposed to protect targets, not the convenience of prosecutors.

The disclosures also went well beyond Ms. Archer, including the names of many people who were never charged and should have been protected by its secrecy order. The public filings also disclosed that Mr. Walker was a target of prosecutors in the first John Doe, which began as an investigation of funds stolen from a veterans fund and expanded to cover a range of issues while Mr. Walker was county executive. Mr. Walker was never charged.

Mr. Schmitz’s motion also asks the court for “an order directing that the John Doe investigation be allowed to continue insofar as it relates to a campaign committee’s coordination with third party groups who produced express advocacy in favor of the candidate.” This amounts to recasting justifications after the fact because prosecutors have pursued many conservative groups who they knew did no express advocacy.

So, having had their theory of illegal campaign coordination rejected by two courts, and having subjected innocent people to public scrutiny in violation of the law, Wisconsin’s prosecutors are eager to abuse the law again. These guys need another judicial slapdown—and legal sanctions.



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