The John Doe investigation into Governor Walker’s campaign finances came to a close earlier this week. Here are Five Things You Should Know:
After five years, the John Doe investigation is over: On Monday the U.S. Supreme Court began its new term. One of the first orders for business is for the justices to meet behind closed doors and decide which cases they’ll hear. They did not choose a final appeal in the Wisconsin John Doe case, where prosecutors had argued that a state Supreme Court ruling to shut down the investigation should be overturned because two justices, Michael Gableman and David Prosser, received campaign contributions from the Wisconsin Club for Growth, one of the litigants in the case. State law gives judges broad discretion for which cases they recuse themselves from.
The U.S. Supreme Court’s non-decision is the end of the line for the case. The U.S. Seventh Circuit Court of Appeals had also declined to reopen the case, ruling the case belonged in state not federal court. With the U.S. Supreme Court turning the last appeal aside, that’s the final word on the matter.
To understand John Doe, it’s important to know the difference between ‘Issue Advocacy’ and ‘Direct Advocacy’: Suppose a political group — the Club for Tasty Cupcakes — runs an ad that says “We support everyone having cupcakes for dessert. Call Candidate Smith and tell him you agree.” That’s an issue ad. Wisconsin election law says the cupcake club can coordinate with a candidate’s campaign on an issue they are advocating. The Wisconsin Club for Growth ran issue ads advocating for various pro-business issues that Governor Walker supported during the general and recall elections. Prosecutors in the John Doe investigation conceded the point in several of their legal briefs. They argued that some of the ads blurred the lines between issue and direct advocacy, and that Governor Walker’s campaign was secretive about its ties with the group.
An ad that says “The Club for Tasty Cupcakes urges you to vote for Candidate Smith on Election Day” is direct advocacy. That kind of advertising is legal, but the cupcake club would not be allowed to coordinate the message or timing of their add with the Smith campaign. The Wisconsin Club for Growth did not run direct advocacy ads supporting Scott Walker.
The John Doe case had a big impact on Wisconsin’s political landscape: The aftermath of the John Doe investigation is broad and deep in Wisconsin politics and policy. The GOP-controlled legislature changed Wisconsin’s John Doe law. It can no longer be used to prosecute political crimes. The Government Accountability Board, which cooperated with the John Doe case, was disbanded by the legislature. It’s since been replaced by a board of political appointees that oversees elections in the state and a separate appointed board that oversees ethics.
And although the John Doe investigation was ultimately resolved in his favor, the revelations and leaks surrounding the case have impacted Scott Walker’s job approval rating, currently at 43-percent. Walker’s numbers have also drifted lower from his unsuccessful presidential campaign that kept him out-of-state for extended periods of time. But running for higher office also kept the John Doe investigation in the news cycle and but an ongoing spotlight on developments, leaks, and court rulings in the case.
This was a ‘leaky’ investigation: John Doe cases are supposed to be filed under seal. Litigants and witnesses are not allowed speak publicly on the case. If the state’s John Doe law was followed perfectly, we wouldn’t have even known that an investigation was underway. Obviously that wasn’t the case.
When Cindy Archer’s home was searched in a secret pre-dawn raid on September 14, 2011 a Milwaukee Journal Sentinel reporter was tipped off and was present at the scene. News of another raid at the Wisconsin Club for Growths Office where computers and records were seized, also conducted under a sealed warrant, was leaked to reporters. The names of the Club for Growth’s donor list was also leaked, so were the names of prosecutors and investigators involved in the case. A final leak — the revalation that Governor Walker solicited donations on behalf of the Club for Growth before the recall effort and the names of those donors that Walker contacted — was leaked just two weeks before the U.S. Supreme Court ultimately turned aside the final appeal.
There’s no question there were multiple sources for these leaks. At one point the Wall Street Journal had clearly cultivated a source that was close to the investigation. They published a series of editorials against the John Doe investigation that contained new revelations from the case. Those leaks appear to be distinct and separate from leaks that were reported by the Journal Sentinel.
Many states don’t have John Doe laws: John Doe laws cover legal proceedings where a lack of secrecy could compromise an investigation. That’s why lawyers, prosecutors, witnesses and investigation targets are not allowed to speak publicly.
There is no federal John Doe law. For federal prosecutions a judge, not Congress, decides if an additional level of secrecy is needed. And if so, court orders specific to the case are issued. The notable exceptions are some terrorism investigations where publicity might compromise national security. Warrants in those matters are overseen by a secret panel of federal judges, created by Congress under the National Espionage Act and the USA Patriot Act.
In states that don’t have John Doe laws, prosecutors and defense lawyers would argue in open court whether secrecy or gag orders are necessary for a specific case. The judges have broad discretion about what the litigants can and can’t say. In most states those decisions are made from the bench, not covered in a blanket John Doe law passed by the legislature.
Grand Jury proceedings are confidential in all state and federal cases, although leaks are common. Any indictments handed up by a Grand Jury are under seal until a prosecutor presents them in court and they are unsealed by a judge.
Chris Conley10.6.16
