John Doe's Hunt For The White Whale (Scott Walker) Comes Up Empty...Again
Back in March 2013, after the first John Doe ended with a whimper, Rick Esenberg noted that the great hunt for the White Whale Scott Walker came up empty:
The end of the John Doe investigation into Governor Walker’s tenure as Milwaukee County Executive feels a bit anticlimactic. Most of us decided long ago that it was much ado about nothing and it turns out we were right. The Governor, having endured the mother of all legal proctologicexaminations, is demonstrably not guilty.
So again, today we have a sense of deja vu. As the the media and partisan operatives (but I repeat myself) sift through 27,000 pages of emails from that "secret" probe, we find volumes of old news, office gossip, political chatter, and unproved allegations.
Lost amid the back and forth over the latest secret investigation of conservatives in Wisconsin is this inconvenient detail: there is no White Whale here either.
The John Doe II probe allegedly centers on charges that Scott Walker’s re-election campaign and dozens of conservative nonprofit groups known as 501(c)(4)s may have illegally coordinated their efforts during the 2012 recall campaign.
But in quashing numerous subpoenas, Judge Gregory A. Peterson, the judge presiding over the Doe, has ruled that the prosecutors had not shown "probable cause that the moving parties committed any violations of the campaign finance laws." What the targets were accused of doing, the judge said, was in fact, protected free speech.
The order is all the more remarkable because it bluntly rejects the prosecutor's theory of illegal coordination between the groups and the Walker campaign. Wisconsin's campaign finance statutes ban coordination between independent groups and candidates for a "political purpose." But a political purpose "requires express advocacy," the judge wrote, and express advocacy means directly advocating the election or defeat of a candidate.
"There is no evidence of express advocacy" and therefore "the subpoenas fail to show probable cause that a crime was committed," Judge Peterson wrote. Even "the State is not claiming that any of the independent organizations expressly advocated" for the election of Mr. Walker or his opponent, he added. Instead they did "issue advocacy," which focuses on specific political issues.
So after all the pre-dawn raids, the seizure of personal computers, kitchen sink demands for records and emails, the sweeping probe turns out to be an investigation without a crime.
This, of course, makes the Ahab-like obsession of the prosecutors all them more extraordinary, even as they defend their probe in federal and state courts. (It does not, however mean that the Doe prosecutors might not once again expand or shift the focus of their fishing expedition, as they have done so often in the past.)