Wisconsin prosecutors Francis Schmitz and Bruce Landgraf have wrongly attempted to strip First Amendment rights from my Cato-associated friend Eric O’Keefe. The prosecutors have bitten off more then they can chew and may now have to publicly exonerate Mr. O’Keefe. Here the Wall Street Journal provides a complete update. The Wall Street Journal’s Review & Outlook explains the situation here.
Wisconsin prosecutors investigating allies of Governor Scott Walker must have hoped their targets would assume resistance is futile. It’s not turning out that way. On Wednesday one target demanded that prosecutors call off their secret John Doe investigation or prepare for a civil-rights lawsuit.
Washington lawyer David Rivkin disclosed in a press release that he has written to prosecutors charging that John Doe investigations, which have grand-jury powers and use gag orders to silence targets, violate the free speech rights of his client Eric O’Keefe, who runs the Wisconsin Club for Growth. The letter asks Milwaukee District Attorney John Chisholm and other prosecutors, presumably including special prosecutor Francis Schmitz and Assistant District Attorney Bruce Landgraf, to cease and desist.
The prosecutors’ case “is unsupportable as a matter of law and crystal clear evidence of bad faith,” Mr. Rivkin writes. “I am confident that any federal court that reviews the facts will see your investigation for what it is, put a stop to it, and hold you publicly accountable.” The letter asks that prosecutors shut down the Doe, publicly exonerate Mr. O’Keefe and lift the gag order.
The letter was sent under seal, but Mr. O’Keefe could presumably file what’s called a federal 1983 civil-rights lawsuit charging that prosecutors are violating his First Amendment right to free speech and the 14th Amendment right to due process. That legal fight would not be under seal, and prosecutors could be held personally liable.
Prosecutors would be wise to take the Rivkin-O’Keefe warning and move on—especially after John Doe judge Gregory A. Peterson on Friday quashed the subpoenas to several groups including Wisconsin Club for Growth as lacking probable cause that the targets violated campaign-finance laws. On the other hand, they may be so motivated by partisan animus that they can’t think straight.