[EL] Civic Courage, Indeed

[Josh Orton]

Those statements go together perfectly - the second one represents my
opinion about the self-interested motives for the leak, given that those
motives don't require any actual knowledge of the precise criminal conduct
suspected by the prosecutor. I assume you're not trying to suggest that the
parties subpoenaed actually do believe they broke the law.

"Most obviously, how do you know that the impression of a "witch hunt" is
"false," and how do you know that the leak was a "CYA move"?"

Because of all the known reasons to illegally leak a subpoena to a biased
editorial board with no known reporting standards so they can publish a
no-byline piece of beneficial yet completely unconfirmed speculation, "CYA
move" is at the very top of the list. Although at this point I imagine Eric
O'Keefe might also justify this as a from of civil disobedience.


On Wed, Nov 20, 2013 at 12:00 AM, Smith, Brad <BSmith at law.capital.edu>wrote:

>  It seems to me that these two statements cannot go together:
>
>  "1. No one knows anything. The subpoenas did not allege specific
> wrongdoing. The only thing we know is that the currently known subpoenas
> target a bunch of conservative groups who played in the recall election and
> were willing to disclose that they received a subpoena. Anyone who pretends
> to know where this is going or what it's investigating is lying for their
> own benefit."
>
>  and
>
>  "the WSJ leak was a CYA move done to squeeze the prosecutor and sway
> state politics by pushing the false impression of a witch hunt."
>
>  Most obviously, how do you know that the impression of a "witch hunt" is
> "false," and how do you know that the leak was a "CYA move"?
>
>  *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault*
>
> *   Professor of Law*
>
> *Capital University Law School*
>
> *303 E. Broad St.*
>
> *Columbus, OH 43215*
>
> *614.236.6317 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
>   ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] on behalf of Josh Orton [
> orton at progressivesunited.org]
> *Sent:* Tuesday, November 19, 2013 11:27 PM
> *To:* Trevor Potter
> *Cc:* law-election at uci.edu
>
> *Subject:* Re: [EL] Civic Courage, Indeed
>
>   As a Wisconsin resident, I offer a few points about this investigation:
>
>  1. No one knows anything. The subpoenas did not allege specific
> wrongdoing. The only thing we know is that the currently known subpoenas
> target a bunch of conservative groups who played in the recall election and
> were willing to disclose that they received a subpoena. Anyone who pretends
> to know where this is going or what it's investigating is lying for their
> own benefit.
>
>  2. The way this became public is dirty. One of the recipients of a
> subpoena improperly leaked it to the Wall Street Journal's editorial board
> (!), seeking favorable, ideological pre-spin in the form of baseless
> speculation about the purpose of the investigation, and a likewise baseless
> assertion about the prosecutor's motive. They got it, as the WSJ editorial
> likened the investigation to the IRS deal, and all but concluded that this
> is a free speech witch hunt. Then, given that the WSJ ed-board was the only
> entity with any information, other mainstream reporters had to report the
> editorial, which provided the false imprimatur of the WSJ's legit news side
> "as the Wall Street Journal reported...."
>
>  The reporters I've talked to cannot think of another instance where
> court documents were leaked to an ideologically biased ed board. And some
> were concerned, because no one knows the reporting standards of the WSJ ed
> board (are there any?).
>
>  3. Those leaking the subpoenas know that a prosecutor is restrained from
> talking about the substance or genesis of the investigation, leaving a
> vacuum which the head of the WI Club for Growth happily filled.
>
>  So the WSJ leak was a CYA move done to squeeze the prosecutor and sway
> state politics by pushing the false impression of a witch hunt. That the
> investigation is also used as an argument against coordination laws is just
> a freebie.
>
>
> On Tue, Nov 19, 2013 at 10:28 PM, Trevor Potter <tpotter at capdale.com>wrote:
>
>> I quite agree with you that "independent " expenditures have the same
>> potential to corrupt as contributions... something that some of the
>> Justices appeared to appreciate in the McKutcheon argument...
>>
>> Sent from my iPhone
>>
>> On Nov 19, 2013, at 7:36 PM, "Steve Hoersting" <hoersting at gmail.com
>> <mailto:hoersting at gmail.com>> wrote:
>>
>> Trevor,
>>
>> You have heard, I am sure, that some campaign-finance watchers think the
>> Court should reconsider the contribution/expenditure distinction? Yes? I
>> thought so.
>>
>> With that background in mind, I am saying the following and little more:
>> The facts on the ground in Wisconsin -- and they're only sounding worse as
>> we read more -- show that now is as good a time as any for the Court to
>> reconsider the distinction. The question is with the Court in McCutcheon.
>> The Court should take it up. The dawn raids in Wisconsin (and Ken Gross's
>> recent citing of a criminal coordination prosecution out of DOJ; a new
>> development) only go to show why reconsideration is timely.
>>
>> Best regards,
>>
>> Steve
>>
>>
>>  On Tue, Nov 19, 2013 at 12:08 PM, Trevor Potter <tpotter at capdale.com
>> <mailto:tpotter at capdale.com>> wrote:
>> I have the sense that Steve is suggesting that the Supreme Court
>> presented a poisoned chalice in Citizens United when it stated that because
>> independent expenditures are independent of candidates and political
>> parties, they  cannot corrupt , and therefore cannot be limited by the
>> government (unless they are by sources we do not like in US elections, such
>> as some foreigners) . The poisoning comes from the fact that the Court
>> conditions this finding on the lack of coordination—going back to Buckley,
>> the Court has variously referred to such expenditures as “wholly”,
>> totally”, and “completely” independent of candidates and political parties.
>> But as 2012 made clear, that is not how many such “independent expenditure”
>> groups have actually operated in federal elections: they have been created
>> by persons close to the candidates to be benefited, including previous
>> employees and even family members; persons involved in the campaign have
>> also been involved in the “independent expenditures” (as vendors and
>> fundraisers);  the candidates have thanked donors for contributing to these
>> efforts; and the candidates have met with the principal funders of these
>> groups.
>>
>> It seems Steve ( and the Wall street Journal) believes that Wisconsin is
>> investigating whether the “independent expenditures” in the Walker recall
>> election were actually coordinated with the candidate or his agents (and
>> therefore should have been restricted by state limits  enacted to prevent
>> corruption). What is at play here is the suggestion that unlimited
>>  independent expenditures should not be conditioned on actual independence,
>> because that might undermine the ability to engage in such
>> expenditures…even though the Supreme Court in Citizens United only allowed
>> such expenditures (and the Circuit Court  in Speech Now only allowed the
>> collection of unlimited funds for such expenditures) because it found as a
>> matter of legal reasoning that the independence of such expenditures
>> ensured they could not corrupt (a debatable proposition of its
>> own)…bootstrapping, anyone?
>>
>> Trevor Potter
>>
>>  From: law-election-bounces at department-lists.uci.edu<mailto:
>> law-election-bounces at department-lists.uci.edu> [mailto:
>> law-election-bounces at department-lists.uci.edu<mailto:
>> law-election-bounces at department-lists.uci.edu>] On Behalf Of Mark Schmitt
>> Sent: Tuesday, November 19, 2013 11:32 AM
>>
>>  To: law-election at uci.edu<mailto:law-election at uci.edu>
>> Subject: Re: [EL] Civic Courage, Indeed
>>
>> Sorry, Steve, I have absolutely no idea what you're talking about. Maybe
>> it will become clear later.
>>
>> Mark Schmitt
>>  202/246-2350<tel:202%2F246-2350>
>> gchat or Skype: schmitt.mark
>> twitter: mschmitt9
>>
>>  On Mon, Nov 18, 2013 at 12:10 PM, Steve Hoersting <
>> shoersting at campaignfreedom.org<mailto:shoersting at campaignfreedom.org>>
>> wrote:
>> Hello, Mark,
>>
>> There is every reason to believe the special prosecutor is probing 1)
>> reporting violations for independent speech, or 2) coordination violations
>> for political speech.
>>
>> If it is the pursuit of 1), this case presents good reasons for us each
>> to reconsider the rationale, costs and benefits of the so-called
>> "informational interest."
>>
>> If it is 2), it is a good time seriously to take-up the
>> expenditure/contribution distinction, that is, the (independent)
>> expenditure / (in-kind) contribution distinction. Criminal prosecution of
>> coordination will swallow Citizens United, and there is every reason the
>> Court should take up that question, now before them, in McCutcheon --
>> there's an op-ed to be written there if anyone wants it. And don't think
>> the overarching effect of criminal prosecution of independent speech hasn't
>> crossed anyone's mind, perhaps even minds in Wisconsin.
>>
>> Odds are the prosecutor is probing speech crimes. If so, these facts are
>> a good time to reconsider the interests furthered by speech restrictions:
>> the informational interest certainly, and the quid-pro-quo interest
>> short-of-bribery, if we are serious about free speech, a representative
>> republic and popular sovereignty. (Why do I suspect I am merely begging
>> other questions?)
>>
>> Here's what will be *oh so special* about this matter should events go
>> fully in the direction they are headed: And I suspect many on the left will
>> hoot with joy should it happen. I can envision, as I sit here, a new
>> Democratic governor of Wisconsin, sometime in January 2015, saying into a
>> microphone: "Hey, if the people want civil society and education vouchers,
>> they'd better start winnin' some elections..." Perhaps even the special
>> prosecutor will be on the stage.
>>
>> Do we really want to live in a world of rigged games?
>>
>> Some look at the Wisconsin scandal and gleefully see Republican v.
>> Democrat, "finally the endgame!", and for all the marbles. They ought to
>> look a little closer. Visible in the Wisconsin tactics is something that
>> transcends party, whether we want to acknowledge it or not: a future
>> Enlightenment v. a future Dark Ages.
>>
>> I'll let you, Mark, and the left in on a little secret. How this turns
>> out isn't really up to the right anymore. Look at the playing field and the
>> balance of power. The left has got to ask itself, what are its limits, and,
>> if it finds any, to start slowing the train, little by little.
>>
>> All the best,
>>
>> Steve
>>
>>
>>
>>  On Mon, Nov 18, 2013 at 10:33 AM, Mark Schmitt <schmitt.mark at gmail.com
>> <mailto:schmitt.mark at gmail.com>> wrote:
>> OK, I'll bite. What does disclosure have to do with this story? It
>> appears that a Wisconsin prosecutor has reason to think that some Wisconsin
>> law was broken, and has subpoenaed a lot of information. That's what
>> prosecutors do -- they subpoena information that otherwise would be
>> private. And defense attorneys contest subpoenas, and hearings and
>> sometimes trials or settlements ensue.
>> Did these groups violate Wisconsin law? I don't know, and I don't think
>> you know or the unnamed Wall Street Journal writer knows. There's no doubt
>> that there's plenty of prosecutorial excess -- e.g., the Ted Stevens case
>> -- but that's a very different issue than disclosure.
>>
>>  On Sun, Nov 17, 2013 at 10:29 AM, Steve Hoersting <hoersting at gmail.com
>> <mailto:hoersting at gmail.com>> wrote:
>>
>> http://online.wsj.com/news/articles/SB10001424052702304799404579155953286552832
>>
>> Can we yet stop calling it the "informational interest" in disclosure,
>> and start calling it the "retributional interest," as is rightly deserved?
>>
>> And if ever there were reason to reconsider Buckley's in-kind
>> contribution / independent expenditure line, this is it.
>>
>> Welcome to your brave new world, members of the left. May it never come
>> back on you. (Though, if you've been reading the papers lately, and closely
>> enough, you know it already has).
>>
>> --
>> Stephen M. Hoersting
>>
>> _______________________________________________
>> Law-election mailing list
>>  Law-election at department-lists.uci.edu<mailto:
>> Law-election at department-lists.uci.edu>
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>> _______________________________________________
>> Law-election mailing list
>>  Law-election at department-lists.uci.edu<mailto:
>> Law-election at department-lists.uci.edu>
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>>
>> --
>> Steve Hoersting
>> CENTER for COMPETITIVE POLITICS
>> 124 S. West Street
>> Suite 201
>> Alexandria, Va. 22314
>>  (703) 894-6800<tel:%28703%29%20894-6800>
>>
>>
>> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
>>
>> To ensure compliance with requirements imposed by the IRS, we inform you
>> that, unless specifically indicated otherwise, any tax advice contained in
>> this communication (including any attachments) was not intended or written
>> to be used, and cannot be used, for the purpose of (i) avoiding tax-related
>> penalties under the Internal Revenue Code, or (ii) promoting, marketing, or
>> recommending to another party any tax-related matter addressed herein.
>>
>> This message is for the use of the intended recipient only. It is from a
>> law firm and may contain information that is privileged and confidential.
>> If you are not the intended recipient any disclosure, copying, future
>> distribution, or use of this communication is prohibited. If you have
>> received this communication in error, please advise us by return e-mail, or
>> if you have received this communication by fax advise us by telephone and
>> delete/destroy the document.
>>
>> --
>>
>> _______________________________________________
>> Law-election mailing list
>>  Law-election at department-lists.uci.edu<mailto:
>> Law-election at department-lists.uci.edu>
>>  http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>>
>> --
>> Stephen M. Hoersting
>>
>> <- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ->
>> To ensure compliance with requirements imposed by the IRS,
>> we inform you that, unless specifically indicated otherwise,
>> any tax advice contained in this communication (including any
>> attachments) was not intended or written to be used, and
>> cannot be used, for the purpose of (i) avoiding tax-related
>> penalties under the Internal Revenue Code, or (ii)  promoting,
>> marketing, or recommending to another party any tax-related
>> matter addressed herein.
>>
>> This message is for the use of the intended recipient only.  It is
>> from a law firm and may contain information that is privileged and
>> confidential.  If you are not the intended recipient any disclosure,
>> copying, future distribution, or use of this communication is
>> prohibited.  If you have received this communication in error, please
>> advise us by return e-mail, or if you have received this communication
>> by fax advise us by telephone and delete/destroy the document.
>> <-->
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20131120/309137be/attachment.html>