[EL] my thoughts on the John Doe case
Rick Hasen
rhasen at law.uci.edu
Thu Jul 16 09:12:10 PDT 2015
I'm saying that I want a full picture of both what happened and how that
compares to ordinary police tactics in similar white collar investigations.
On 7/16/15 9:06 AM, Lycan, Eric wrote:
>
> Are you saying that you approve of the tactics? I understood that you
> simply do not believe they occurred that way, but if you are saying
> now that they would be justified that is another thing entirely. I
> can tell you for certain that within the campaign finance context,
> investigations of potential illegal activity do not constitute armed
> incursions and seizure of family photos. Outside the campaign finance
> context, the manner of service of a search warrant is dictated by the
> risk to law enforcement. I think the concurrence does an adequate job
> in its discussion of this. What may be appropriate in apprehending
> violent criminals or searching drug dens in not necessary or
> appropriate in this context. While many on the political left may view
> all conservatives as gun-toting militia members, it is unfortunate
> that we cannot even agree that such tactics in this context
> (acknowledging your skepticism – IF they occurred) are completely out
> of line.
>
> And yes, if one is going to engage in civil disobedience to such a gag
> order, one would naturally gravitate toward sympathetic media.
> Whether one is suspicious of the objectiveness of the Wall Street
> Journal editorial page, it should not surprise that someone whose home
> had been raided would choose them as the vehicle through which to
> violate the gag order. None of which reduces the irony of dismissing
> the concerns of government abuse in a secret John Doe investigation on
> the basis that there is no transparency.
>
> I ask again: Does anyone on the reformer side regret the actions of
> the John Doe investigators, or blame those actions at least in part
> for the ruling that coordination is prohibited only in relation to
> express advocacy?
>
> Dinsmore
>
> *D. Eric Lycan
> *Partner
>
> Dinsmore & Shohl LLP • Legal Counsel
> Lexington Financial Center
> 250 West Main Street, Suite 1400
> Lexington, KY 40507
> *T*(859) 425-1047 • *F*(859) 425-1099
> *E*eric.lycan at dinsmore.com <mailto:eric.lycan at dinsmore.com> •
> dinsmore.com <http://www.dinsmore.com>
>
> /@KY_campaignlaw///
>
> *From:*Rick Hasen [mailto:rhasen at law.uci.edu]
> *Sent:* Thursday, July 16, 2015 11:51 AM
> *To:* Lycan, Eric; law-election at UCI.edu
> *Subject:* Re: [EL] my thoughts on the John Doe case
>
> So they were under a gag order and could tell no one except the
> National Review, FOX News, and the WSJ editorial page?
>
> And as far as police investigations go, and raids looking for illegal
> activity---what do you think these ordinarily look like outside the
> campaign finance context?
>
> Rick
>
> On 7/16/15 8:38 AM, Lycan, Eric wrote:
>
> I find it ironic that you question the harassment of the subpoena
> targets and the stories of the pre-dawn paramilitary raids, and
> dismiss them as a “conservative meme”, on the bases that they
> shared their stories only with conservative media outlets and that
> “without full transparency the stories cannot be fully
> investigated.” These are persons who had suffered exactly that
> kind of terrifying harassment, had been threatened with
> imprisonment if they told anyone, yet it is somehow suspicious
> that they told their stories only to media sources unlikely to out
> them to the prosecution? The call for transparency in
> investigating these stories is particularly ironic given the
> complete lack of transparency of the investigation itself and of
> the motives of the prosecutors and investigators.
>
> I would really like to see someone on the reformist side argue for
> their interpretation of the coordination issue without also
> defending the conduct of the John Doe investigation and the abuses
> in the search warrants and service thereof. As the axiom goes,
> bad cases make bad law. When the government oversteps like it did
> in this case it validates the concerns of those who oppose the
> regulation of political speech. Does anyone on the reformer side
> regret the actions of the John Doe investigators, or blame those
> actions at least in part for the ruling that coordination is
> prohibited only in relation to express advocacy?
>
> Dinsmore
>
> *D. Eric Lycan
> *Partner
>
> Dinsmore & Shohl LLP • Legal Counsel
> Lexington Financial Center
> 250 West Main Street, Suite 1400
> Lexington, KY 40507
> *T*(859) 425-1047 • *F*(859) 425-1099
> *E*eric.lycan at dinsmore.com <mailto:eric.lycan at dinsmore.com> •
> dinsmore.com <http://www.dinsmore.com>
>
> /@KY_campaignlaw/
>
> *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] *On Behalf
> Of *Rick Hasen
> *Sent:* Thursday, July 16, 2015 11:17 AM
> *To:* law-election at UCI.edu <mailto:law-election at UCI.edu>
> *Subject:* [EL] my thoughts on the John Doe case
>
>
> Analysis of Wisconsin John Doe Ruling: Bad News for Campaign
> Finance Laws <http://electionlawblog.org/?p=74355>
>
> Posted onJuly 16, 2015 7:36 am
> <http://electionlawblog.org/?p=74355>by*Rick Hasen*
> <http://electionlawblog.org/?author=3>
>
> Today’s lengthy and contentious 4-2 ruling
> <http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=144526> dividing
> the Court on partisan/ideological lines, from the Wisconsin
> Supreme Court ending the so-called “John Doe” probe, is
> significant for three reasons: (1) it removes a cloud from the
> Scott Walker presidential campaign; (2) it guts, perhaps for
> years, the effectiveness of the state of Wisconsin’s campaign
> finance laws, and (3) it reenforces conservative beliefs that they
> are the victims of frightening harassment, a belief which is
> likely to lead conservative judges to strike more campaign laws.
> The case also raises significant questions about judicial recusal
> which go unanswered, and provide one of two potential bases to
> seek U.S. Supreme Court review in this case. Still, high court
> review seems unlikely.
>
> I will not spend any time on the effects of the case on the Scott
> Walker candidacy, as this is an obvious benefit.
>
> Nor will I review the background of this convoluted set of cases.
> For more, seemy earlier Slate piece
> <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/06/the_scott_walker_case_in_wisconsin_could_shred_the_remaining_limits_on_influencing.html?wpsrc>,
> as well as early coverage of today’s ruling in theNY Times
> <http://www.nytimes.com/2015/07/17/us/wisconsin-court-to-rule-on-inquiry-involving-scott-walkers-2012-campaign.html?hp&action=click&pgtype=Homepage&module=first-column-region®ion=top-news&WT.nav=top-news>,Milwaukee
> Journal-Sentinel,
> <http://www.jsonline.com/news/statepolitics/wisconsin-supreme-court-ends-john-doe-probe-into-scott-walkers-campaign-b99535414z1-315784501.html>andWisconsin
> State Journal
> <http://host.madison.com/wsj/news/local/govt-and-politics/supreme-court-ends-john-doe-probe-that-threatened-scott-walker/article_50f22c3b-27c9-5906-92e8-ded75ed50954.html>.
> So let me focus on the remaining two points, and the potential for
> Court review.
>
> *Gutting of campaign finance. *The conservatives on the Court have
> held that Wisconsin’s existing campaign finance laws violate the
> First Amendment to the extent they limit coordination between a
> candidate and /any group/, even a 501c4 group not disclosing its
> donors, on campaigns to support that candidate. The only thing the
> nominally outside group has to do is to avoid words of express
> advocacy or their functional equivalent. Avoiding express
> advocacy while vigorously supporting a candidate, as we know from
> the federal period before McCain-Feingold, is child’s play. That
> is, a candidate can now direct unlimited contributions to a
> nominally outside group and tell that group what ads to run, when,
> and how. If you think it is a problem for someone to be able to
> give millions of dollars directly to a candidate to support that
> candidate’s campaign, then this should be very troubling to you.
> It was a theory of coordination strongly rejected by the 7th
> Circuit in the federal version of the John Doe case. And there’s
> no prospect that the Wisconsin legislature, dominated by
> Republicans and already weakening campaign finance law, will fix
> this. This applies only to Wisconsin elections (and not federal
> elections in Wisconsin) but is very, very bad news. (More analysis
> inmy earlier /Slate/piece.)
> <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/06/the_scott_walker_case_in_wisconsin_could_shred_the_remaining_limits_on_influencing.html?wpsrc>
>
> *Conservative harassment.*For months, conservatives have been
> sending me stories for ELB purporting to show the horrors of the
> investigation (late night raids, etc.) However, these stories
> were never fully verified. As the Milwaukee-Journal
> Sentineleditorialized
> <http://www.jsonline.com/news/opinion/open-john-doe-investigation-of-gov-scott-walker-to-the-public-b99491741z1-302162641.html> about
> the selling of this story: “A breathless articlein the
> conservative National Review
> <http://www.nationalreview.com/article/417155/wisconsins-shame-i-thought-it-was-home-invasion-david-french>.
> An equally breathless reportby Megyn Kelly on Fox News
> <http://www.foxnews.com/transcript/2015/04/24/scott-walker-supporters-claim-police-raided-homes-over-politics/>.Tart
> comments from Gov. Scott
> Walker<https://www.youtube.com/watch?v=cuuGYGWoaC0>on the campaign
> trail in Iowa…. onservatives targeted by the John Doe
> investigation for more than a year have declined to discuss their
> concerns with the Journal Sentinel or other independent news
> outlets that will seek out all sides to a story. They have told
> their stories only to partisan outlets that share their political
> agenda, such as Fox News, the National Review andThe Wall Street
> Journal’s editorial page
> <http://www.wsj.com/articles/another-john-doe-disclosure-1402265159>(not
> its news staff).” Now the conservatives on the Supreme Court have
> validated this version of events, and without full transparency
> the stories cannot be fully investigated. One Justice even went so
> far as to reach the issue of the constitutionality of the
> nighttime raids even though the issue was not before the Court. (I
> would love that Justice to ride along with police in the poorer
> parts of Milwaukee at night and perhaps gain some appreciation of
> what others face from law enforcement every day.) In the meantime,
> they fit into a conservative meme of persecution for conservative
> ideas. Expect this to lead to calls for even more laws to be
> struck down out of fear of persecution, fearswhich generally do
> not stand up to scrutiny
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1948313>.
>
> *Recusal?*We know that one of the prosecutors in the case asked at
> least one of the Justices who decided the case to recuse because
> the Justice may have been supported by some of the campaign
> spending in the case. As the dissenting Justice Abrahamson notes,
> the majority did not even respond to the issue. It seems to me
> that this at least deserves a response as to why recusal is not
> warranted.
>
> *U.S. Supreme Court review?*The dissent notes that under the U.S.
> Supreme Court’s /Caperton /decision/, /the failure to recuse in
> this case could be a due process violation. At least
> theoretically, that’s an issue which could go to the U.S. Supreme
> Court. The Court could also potentially consider the First
> Amendment holding about coordinated issue advocacy. My guess is
> that the Court will decline review in this case, and frankly,
> given this Supreme Court on campaign finance issues, I’d be very
> afraid of having this issue before this Supreme Court. I mean I
> think Justice Kennedy would consider coordinated issue advocacy to
> be regulable, but I don’t know that I’d be the entire country’s
> campaign finance system on it.
>
> In all, this is anunsurprising partisan holding
> <http://electionlawblog.org/?p=74299>on a partisan court about a
> campaign finance investigation with partisan implications. (True,
> Justice Crooks who dissented campaigned as a conservative, but
> started as a Democrat. So I guess there’s that to argue this is
> not fully a partisan decision.) The Wisconsin Supreme Court has
> been among the most bitterly divided along partisan lines. I doubt
> that after this they will move on. This will just further entrench
> things. A bad day for campaign finance, and a worse day for
> Wisconsin.
>
> [/This post has been updated and edited./]
>
> Share
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74355&title=Analysis%20of%20Wisconsin%20John%20Doe%20Ruling%3A%20Bad%20News%20for%20Campaign%20Finance%20Laws&description=>
>
> Posted incampaign finance
> <http://electionlawblog.org/?cat=10>,chicanery
> <http://electionlawblog.org/?cat=12>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> 949.824.0495 - fax
>
> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
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> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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