Civil rights expert: John Doe law is ‘un-American,’ like something from ‘Nazi Germany’

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Hans von Spakovsky is one of the nation’s premier experts on political campaigns, elections and civil rights.

So when the former Federal Election Commission member describes something as “un-American,” he does so with a keen perspective and the kind of credentials that relatively few possess.

But that is precisely how von Spakovsky views Wisconsin’s John Doe law and, in particular, its recent use as a political tool to hound conservative organizations and Republican Gov. Scott Walker.

“I don’t use this term very often, but I think this law is one of the most un-American laws I have ever seen,” said von Spakosky, senior legal fellow in conservative Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

“It reminds me of the secret investigations that were conducted in the Soviet Union and Nazi Germany, and I don’t think that’s too harsh a thing to say about it,” he added.

Von Spakovsky speaks from experience in this regard, too. He said his father escaped from the Soviet Union, and his mother fled Nazi Germany.

Von Spakovsky, who previously served in the U.S. Justice Department as counsel to the assistant attorney general for civil rights as an expert in enforcement of the Voting Rights Act and the Help American Vote Act of 2002, has been following the Democrat-launched John Doe probe in Wisconsin with a growing sense of disgust.

As the secret probe’s details emerge, von Spakovsky said he sees the John Doe as nothing more than a legalized “Star Chamber.”

“These defendants and targets of this investigation are unable to defend themselves,” he said. “They can’t even speak publicly about it.

“Not only are prosecutors abusing fundamental due process, I am just astonished the Legislature in Wisconsin would allow this law to remain in place.”

Wisconsin’s unique John Doe law, in many ways older than the state, allows prosecutors to conduct often secret investigations to determine whether there is enough evidence to suggest a crime has been committed. The procedure is similar to a grand jury investigation, without the benefit of a jury of peers — administered instead by a judge with enormous powers of oversight and discretion.

The John Doe’s secrecy component is designed in part to keep targets, who may not be guilty of a crime, safe from public speculation and rumor. But speculation and rumor have colored the two politically charged John Doe probes initiated and conducted by the office of Milwaukee County District Attorney John Chisholm.

Those who violate the gag order risk jail time for contempt of court.

The latest Doe has sparked a civil rights lawsuit against Milwaukee County prosecutors and the probe’s special prosecutor.

Conservative activist Eric O’Keefe and his Wisconsin Club for Growth, among 29 conservative organizations targeted by Democrat Chisholm’s office, charge the investigation is nothing more than a partisan witch hunt bent on punishing Walker and his allies for conservatives’ political successes, such as public-sector collective-bargaining reform, despised by the left.

More so, the investigation, featuring what have been described as “paramilitary style predawn raids” on the homes and properties of conservatives, has deprived the targets of their fundamental constitutional rights, particularly abridging the First, Fourth and 14th amendments.

O’Keefe has asked a federal judge to shut down the probe.The prosecutors-turned-defendants countered that O’Keefe’s lawsuit should be tossed out of court, mainly, they claim, because the prosecution has immunity and that the federal government has historically been loath to interfere in a state investigation.

Judge Rudolph Randa of the U.S. District Court Eastern District of Wisconsin in Milwaukee earlier this month rejected the prosecutors’ motion to dismiss, pushing aside arguments that federal courts generally must abstain from taking up federal constitutional claims that involve or call into question ongoing state proceedings.

“It is an investigatory process, not an ongoing criminal prosecution case,” Randa wrote of the John Doe investigatory tool in his decision.

It is “not so much a procedure for the determination of probable cause as it is an inquest for the discovery of crime in which the judge has significant powers,” Randa wrote in the ruling.

Chisholm’s office launched the investigation in August 2012, targeting conservative organizations on suspicion of illegal campaign coordination with Walker’s campaign during Wisconsin’s partisan 2011 and 2012 partisan recall drives.

Retired appeals court Judge Gregory A. Peterson, who took over as presiding judge in the probe after the previous judge inexplicably recused herself in October, earlier this year quashed multiple subpoenas issued in the probe, saying they failed to show probable cause.

Due to the secretive nature of the investigation, the prosecutors have repeatedly declined comment.

Von Spakovsky said the John Doe law is wrong-headed in that it presents the idea that “you don’t question the government until you see where the investigation goes.”

“The government does not have the right to investigate individuals until they have probable cause a crime has been committed,” the civil rights expert said. “It’s pretty clear there is no such evidence in their investigation. They’re just trying to figure out whether they might have a case.

“That,” von Spakovsky said, “is not how investigations are done or should be done.”

Contact M.D. Kittle at mkittle@watchdog.org