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A Monster of Our Own Making
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. – James Madison, Federalist 51
In an article in National Review David French details how Wisconsin failed the challenge of that second great difficulty. The short version is that overzealous, partisan prosecutors politicized law enforcement and weaponized politics to harass supporters of Governor Scott Walker’s reforms in the Badger State.
Cindy Archer, one of the lead architects of Wisconsin’s Act 10 — also called the “Wisconsin Budget Repair Bill,” it limited public-employee benefits and altered collective-bargaining rules for public-employee unions — was jolted awake by yelling, loud pounding at the door, and her dogs’ frantic barking. The entire house — the windows and walls — was shaking.
Naked and afraid, she opened her home and begged the officers not to kill her frantic dogs as she clothed herself. The officers left with only a cell phone and a laptop, but they left Ms. Archer a warning: do not speak of this; do not even retain counsel.
Hers was not the only home invaded/raided as part of what is known as a “John Doe” investigations:
For dozens of conservatives, the years since Scott Walker’s first election as governor of Wisconsin transformed the state — known for pro-football championships, good cheese, and a population with a reputation for being unfailingly polite — into a place where conservatives have faced early-morning raids, multi-year secretive criminal investigations, slanderous and selective leaks to sympathetic media, and intrusive electronic snooping.
After the reforms passed and the protests at the capitol died down, so did the investigation. But Walker’s reelection bid brought a second round of secret investigations, aimed at hurting the governor and his supporters. As French tells it:
If the first series of John Doe investigations was “everything Walker,” the second series was “everything conservative,” as Chisholm had launched an investigation of not only Walker (again) but the Wisconsin Club for Growth and dozens of other conservative organizations, this time fishing for evidence of allegedly illegal “coordination” between conservative groups and the Walker campaign.
In the second John Doe, [Milwaukee County District Attorney John] Chisholm had no real evidence of wrongdoing. Yes, conservative groups were active in issue advocacy, but issue advocacy was protected by the First Amendment and did not violate relevant campaign laws. Nonetheless, Chisholm persuaded prosecutors in four other counties to launch their own John Does, with Judge Kluka overseeing all of them.
James Madison instructed us that one aim of the Constitution was to oblige government to control itself. The First Congress approved — and the states ratified — our Bill of Rights, further limiting the federal government from tyrannizing the people through making them insecure in their own homes, performing unreasonable searches and seizures, or trying them for infamous crimes secretly and without a grand jury. Incorporation of the Fourteenth Amendment places these controls on state and local governments as well. But, in the early morning hours in Wisconsin these controls failed:
Speaking both on and off the record, targets reflected on how many layers of Wisconsin government failed their fundamental constitutional duties — the prosecutors who launched the rogue investigations, the judge who gave the abuse judicial sanction, investigators who chose to taunt and intimidate during the raids, and those police who ultimately approved and executed aggressive search tactics on law-abiding, peaceful citizens.
In many discussions here at Ricochet we battle over police actions and authority. Those who recoil from the use of force by law enforcement officers warn that the powers expressed in those actions — while sometimes absolutely necessary in dealing with criminals — are inherently dangerous, prone to abuse, and carry a temptation impossible to resist. Those who stand up for law enforcement decry our slippery slope arguments and remind us of the necessity of a vigorous enforcement of the law to preserve order and maintain civil society. In Wisconsin, we stand at the bottom of the slope gazing toward what seemed to some as sure footing at the top and wondering how we might get back up.
The matter is now winding its way through the courts, both state and federal, and may — probably should — reach the Supreme Court for resolution. The raids have stopped, and the “John Doe” investigations are nearly dead, but the damage has been done. Law-abiding families were terrorized by their own government protectors, lives and reputations were irreparably harmed, free speech was stifled, and the law was transformed from a shield into a sword.
Conservatives have looked at Wisconsin as a success story, where Walker took everything the Left threw at him and emerged victorious in three general elections. He broke the power of the teachers’ unions and absorbed millions upon millions of dollars of negative ads. The Left kept chanting, “This is what democracy looks like,” and in Wisconsin, democracy looked like Scott Walker winning again and again.
Yet in a deeper way, Wisconsin is anything but a success. There were casualties left on the battlefield — innocent citizens victimized by a lawless government mob, public officials who brought the full power of their office down onto the innocent.
Governors come and go. Statutes are passed and repealed. Laws and elections are important, to be sure, but the rule of law is more important still. And in Wisconsin, the rule of law hangs in the balance — along with the liberty of citizens.
Maybe Hobbes was right that the only choice other than an all-powerful state is a war of all against all. That is, indeed, a very scary world to contemplate. But a war between each individual, naked and alone, against Leviathan is little better. Though we may not have intended to create such a beast, we have done so nonetheless. Against our best efforts to control it, the thing is loose. It hunts us, and it haunts us.
In Wisconsin today, we are Frankenstein—and this is our monster.
Published in Law
Maybe Walker needs to stay in WI and clean up the mess and clean out the corruption before taking on the presidency. Unless he thinks he can do it by executive order.
These were local prosecutors running amok. As champions of local control, we’re usually not big fans of state authorities putting puppet strings on city or county officials any more than we’re fans of the feds doing it to the states.
We are lost. Only blood will bring us home.
This is why I am so reluctant to let him go to Washington, even as I recognize that he’s the sort of person we need there.
By the way, I’m pleased to see this explode nationwide. We’ve known about this abuse for a long time, so when I read French’s piece, I kept thinking it might contain new information. It really didn’t; it’s just that it’s finally getting the sort of national exposure it deserves.
Yes, but those local prosecutors were running amok with the help of our chief justice and her hand-picked goons.
What practical steps could Walker have taken on this other than maybe sending in the attorney general? One of the really sticky bits in all this is the secrecy. Anyone who knowingly divulged the matter publicly could have been charged for it. I certainly put that sort of investigative power in the Warehouse 13 category — something no one should be allowed to use. I’m sure it’s great that Fat Tony can’t tell Knuckles his pad got raided, but it’s not like Fat Tony is that much of an upstanding citizen in the first place.
My point is simply that the corruption at the local level is enabled and empowered at the state level. And here in Wisconsin there is corruption at all levels. It’s a freakin’ joke that our “Government Accountability Board” is completely corrupt and not being held accountable for it.
I wish this was the case. So far, though, I’ve only heard conservative media covering it. The lib-progs are quiet as church mice.
One of the scarier bits in all this was how these people were publicly terrorized with no recourse. Very few prosecutions came of the whole mess where the people could strike back in court.
As far as the public awareness, it was all extremely one sided. Even the NR article, which made somewhat of a splash in conservative circles, isn’t elevating this in the public conscience.
This was exactly the tyranny we fear with armed, thuggish agents of the state exacting their terror over individual citizens to control behavior and political outcomes. And the cops involved were either “all in” on the mission or, as one was quoted as saying, “Some days I hate my job,” acting the their self interest of maintaining employment. We don’t grant this sort of power to government intentionally because it will be abused to exactly these ends, and those forced to enact it will hate their jobs but perform anyway.
I’ve often thought we have much more to fear from the politicization of the police. Wisconsin proves it. Our military isn’t trained to see us as the enemy.
Every day brings more proof of this.
https://www.youtube.com/watch?v=Thjvx51RlFY
Even apart from that, because Walker was the ultimate target it would be harder for him to address it.
The ball is in the legislature’s court to clean up the outrage that is the John Doe law and the messy campaign finance laws. There’s been some noise about that but probably nothing happens until the state supreme court finally shuts the investigation down for good.
The Founders had an odd notion that something called a free press would be a check on such obvious abuses. Something must’ve happened to it.
And speaking of public corruption, now that the Republicans own Boardwalk and Park Place, those IRS investigations will finally have some teeth, right? My reckless speculation is that that 30,000 email burst last November included plenty of examples of Republican law makers seeking special attention toward some opponent or other. I invite the Congressional majorities to prove me wrong with vigorous execution of this vile usurpation of Americans’ speech rights.
Government isn’t dead, it just smells that way.
I think this situation and the recent transgressions of the Austin TX prosecutor show the toothlessness of the State Bar in disciplining rogue lawyers. Just as the Justice Department has a public integrity division to crack down on corrupt local officials maybe the Supreme Court should have some way of disciplining or disbarring rogue prosecutors that misuse the law this egregiously.
The Supreme Court is just one more partisan actor that is already serving by its own whim as the highest legislature in our tricameral Congress. The Senate used to be more interesting as a check when the state governments selected the representatives. The Obama Regime bugging of a large percentage (all?) of the major newspapers and network news organizations went down without much more than a murmur. W would have been impeached for that, but Republicans are afraid of upsetting their deep pocket donors with avoidable scandals that would only serve to restore rule of law. And, of course, who is going to impeach the first black POTUS on something as petty as suborning the republic?
Rush put it in plain English on his show (paraphrasing and adding own comments) – this is every innocent person’s fear – the State coming after you in Kafka-esque fashion, not knowing what the charges are, not being allowed to speak publically about what happened, and worst – not even being allowed to contact a lawyer for a defense . . . This violates everything we thought that Miranda allowed us to do.
One other point Rush made – Miranda says we have the right to remain silent, but what happened in Wisconsin is the State requiring you to remin silent.
I agree with one commenter. If Scott Walker doesn’t tackle this head-on, he may not be fit to take on the Washington D.C. establishment . . .
OTOH, if Walker can make the Wisconsin legislature repeal this horrid law, and right the wrongs that have been done (put this out-of-control prosecutor and the corrupt judge allowing this out of commission), then he could be a shoo-in for the White House . . .
Walker probably won’t publicly lead a charge on this because it would look too much like him trying to get personal revenge. That’s not just a matter of his political interests — if you want it to be understood a first-amendment issue, you don’t want it to be a “Walker gets back at Chisholm” story.
It’ll be very interesting to see what happens after the Court rules — this is very much a developing story.
I’m wondering what power the police / prosecutor has over these people to hold these people silent. They have already violated their rights. They have not found anything to charge them with. The people being “investigated” ought to know they have done no wrong. The prosecution cannot bring any of these charges to court about the John Doe investigations without blowing the secrecy of the whole process. I see that they are absolutely relying on the victims suspension of being terrorized into not disclosing any of this. These prosecutors and whoever is directing the police (police chief? judge? prosecutor?) absolutely knew this was wrong. Their only protection is that of intimidating their victims illegally into silence, and therefore of their rights of being protected equally before the law.
Secrecy has one other vile aspect: it enables the vile deeds to go on without the individuals being investigated to see what is happening for what it is — part of a strategy of intimidation. Keeping all such people in the dark is the key to the perpetrators being able to continue their efforts against the unsuspecting. They won’t be able to get away with this forever. Now that this heinous behavior is being reported and talked about, people will resist.
Consider that in all the examples given, yes, people’s homes were disheveled. But no one was killed or had to go to a hospital (citizen or policeman). How much more difficult would it be for them to cover up something like this if medical personnel (doctors or coroners, God forbid) would have become involved? To get away with this kind of intimidation tactics, they have to rely on secrecy, operational security, the element of surprise, and a frightened populace. I’m just saying for argument’s sake, suppose the populace isn’t so frightened?
Okay, I get it. A cover story gets made oh-so-believable like when the police shoot a black man resisting arrest. I’m just saying, it makes it a lot messier for them.
These secret investigations are legal in Wisconsin. A case can be made for their legitimate use in disrupting criminal enterprise, but their misuse in these instances is a very strong argument that, useful or not, they should not be allowed. The prosecutors who did this should be disbarred. The judge who was supposed to be the check on excess in these things should be impeached and disbarred. If the justice department wants to investigate civil rights violations they should start here.
The dogs that should be barking are not barking. They have become more beholden to their notions of advancing the progressive agenda than to providing a check on the abuse of power.
Some of the affected people tried to make the case that they were being hounded because of their exercising their free speech rights under the Constitution. That would likely be a hard connection to make, I think. This is more clearly a violation of the Fourth Amendment protections against unreasonable search and seizure.
They specifically took the steps of covering themselves by involving a judge. Much of the case will revolve around whether the judge had justification. If the judge indeed was acting as little more than a rubber stamp for these investigations then I agree they ought to and should be impeached and disbarred.
The federal track on this is up for certiorari before the Supreme Court. In this piece on PJ the author thinks it has a shot to be considered. Considering all the implications I hope they take it up.
Would be interested in getting Jack Dunphy‘s take on all this.
One of my ideas in writing this up was to do so from the perspective of a young officer who finds himself having to perform a part in this drama against his principles. Some officers in this are reported to have behaved reprehensively, but others seemed to have participated only because it’s their job.
#8. Church mice are louder…..
Judges are elected – either directly or nominated by other elected officials. And now you say the liberal news media is neglecting this story.
You’re fooling yourselves if you think this sort of partisan aggression isn’t what many voters wanted.
That would be the scariest thought of all in this. Are the citizens of Wisconsin getting their democracy good and hard?
Does this not seem like an extension of the politics we see from the likes of Obama, Reid, and Pelosi all the time? It’s a national problem, not a local issue.
Literally half of American voters elect representatives with a regular habit of lying, demonizing, and honoring laws only when those laws favor their ambitions.
Yes. These are the “law as sword, not shield” people. Wisconsin just made it easier to act on their ends justify the means ideas. This is exactly what the founders feared. To continue the quote from Federalist 51, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” The Constitution and the Bill of Rights act as the auxiliary precautions, but when they are subverted by the multitude of laws we are left just as vulnerable as we would be if they never existed.