In 2010, Wisconsin convened a “John Doe” investigation into the misuse of funds in the Milwaukee county executive’s office. In the state, a judge can allow prosecutors to carry out a John Doe investigation, requiring secrecy from everyone involved. Stuart Taylor explains: “This ‘gag order' provision, almost unique in American law, effectively disables targets or witnesses from publicly defending themselves or responding to damaging leaks.”
In 2012, this somehow spawned a second John Doe probe of Wisconsin conservative groups, who were accused of illegally coordinating with Gov. Scott Walker’s campaign, as he tried to hold his office during the recall election.
The Wisconsin Supreme Court has finally ended that investigation, which has been stalled for many long months as its targets sued their way through the courts. The ruling mostly relied on technical legal questions: Was the campaign finance statute upon which prosecutors relied unconstitutionally vague? (Yes.) Did Judge Gregory Peterson, the second judge to supervise this investigation, step outside of his remit when he quashed subpoenas and effectively ended the investigation? (No.) Did the judges and prosecutor act wrongly when they accepted their jobs running this investigation? (Also, no.)
But the summation is brutal. It seems clear that the Wisconsin Supreme Court would like to make a broader ruling targeting the behavior of the prosecutors, and the court’s decision fires a few well-placed shots in that direction:
“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.”
I found myself nodding along at every word. This investigation never should have taken place. This would be true if conservatives are correct that the investigation’s amoeboid spread and pattern of selective leaks indicate a politically motivated prosecutor doing his best to take down a controversial Republican governor.
It would still be true if we are looking at merely one more instance where a special prosecutor roamed out of control, dizzy with a superheroic mandate to hunt down all malefactors wherever they might be found. Either way, the fundamental problem is the same: Government power gone wildly beyond the limits of common sense.
I am not quite libertarian enough to think that there is no place for secret investigations in our legal system. Is the FBI investigating a terrorist cell that is likely to steal softly and silently away into the night if they are notified that their banker is onto them? Will publishing the warrants in open court reveal intelligence “sources and methods” that will degrade our ability to keep track of terrorists?
OK, there is probably a case for some sort of secrecy. Are you investigating a cartel that might start shooting witnesses at any moment? I grant you the need for discretion. Do you need a 48-hour gag order so that the very dangerous people you are targeting will not be able to destroy all the evidence of their wrongdoing? Fair enough.
But what possible reason can there be for be for slapping gag orders on people who are accused of . . . possibly coordinating their issue ads too closely with a governor’s office? And doing so after you have already broken down the doors of their homes with battering rams to collect every scrap of paper or electronics in sight? You can almost hear the prosecutors’ logic: “These suspects’ dangerous allies must not be allowed to find out about the case, lest they smite our great citizenry with white papers and YouTube videos and strongly worded billboards!”
If prosecutors truly thought the investigation needed to be secret, they would have kept it secret – not allowed news of it to leak out, conveniently in time for Democrats to use it in their campaign materials. This is one of the dangers of making investigations like this secret: Individuals who know of the case have the power to hurt the targets by leaking, but the targets have no ability to publicly defend themselves. That gives prosecutors a perverse power, even when they have weak evidence and a weak case, to elicit guilty pleas from innocent suspects or otherwise do them harm.
But that’s far from the only problem. As I’ve written before, when it comes to criminal justice investigations, the process itself is a punishment. That’s why the process needs to be carefully scrutinized. Judicial supervision is not sufficient, except possibly in some of those moments I mentioned above. In almost every case, the public also has to have eyes on the whole thing.
Otherwise, investigations all too easily degenerate into”general warrants,” the legal instrument allowing officials to search anywhere, for anything – and quite properly forbidden by the Fourth Amendment because no one wants to be at the mercy of the unchecked whims of government investigators.
The real problem, in other words, is not the investigation, but the law. And the judge who permitted this use of the law. I come very close to thinking special prosecutors and similar roles should simply be abandoned, given how frequently those appointed seem to get distracted from the crimes they were asked to investigate. (Remember the Clintons?
How exactly did an investigation into Whitewater lead to Bill Clinton lying under oath about his sexual relations with White House interns?) But if we do not abandon the whole “special prosecutor” approach, we should be clear when they are appointed: Secrecy is an option only when it’s clear lives are at stake.
There are worse things than campaign finance violations. One of them is living in a nation where law-abiding citizens don’t know if they’re safe from ambitious prosecutors – especially prosecutors who can silence their targets at will.
Bloomberg View columnist Megan McArdle writes on economics, business and public policy. She lives in Washington.