Federalism v. individual rights: A conversation with Eric O’Keefe

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — He’s one of the staunchest supporters of federalism in the United States.

But political activist Eric O’Keefe knows well — and from painful experience — there are times when states overstep their rights, treading on the constitutional rights of the individual.

O’Keefe and many of his fellow limited-government conservatives find themselves the targets of a once-secret John Doe investigation launched by Milwaukee County District Attorney John Chisholm, a Democrat.

The conservatives, including O’Keefe’s Wisconsin Club for Growth, say the long and meandering probe into 29 conservative groups — two investigations over four years punctuated by predawn, paramilitary-style raids on the homes of some activists one year ago — is nothing more than a partisan witch-hunt.

A growing body of evidence suggests they’re right.

In February, O’Keefe and the club sued Chisholm and his fellow prosecutors on charges the state agents violated conservatives’ First Amendment rights under the U.S. Constitution. A U.S. District Court judge agreed the lawsuit had merit, and he issued a preliminary injunction shutting down the John Doe.

But a three-member panel of the U.S. Court of Appeals for the 7th Circuit overturned the lower court’s decision. Without commenting on the merits of the case, the appellate judges asserted the legal controversies surrounding Chisholm’s investigation belong in a state, not federal, court.

O’Keefe and the club have asked the full appellate court to rehear the case, arguing the panel missed the mark on the central constitutional issue: That state prosecutors may indeed be immune from lawsuits — until they trample the civil rights of individuals.

O’Keefe discusses the line between federalism and individual freedom in this exclusive Q&A with Wisconsin Reporter.

Wisconsin Reporter: You have long been a defender of states’ rights. But your allegations in the civil rights lawsuit are that the abuses by the prosecutors have been so egregious as to demand federal relief.

O’Keefe: My colleagues and I have suffered extreme abuses of core political rights. In pursuit of justice I have gone to the court of public opinion, to state courts, and to federal courts. I support human liberty, and I oppose governments when they are trampling rights, and support governments when they are vindicating rights.

WR: Do you see your case in the same light as others who have been victims of state abuses of power, such as those in the civil rights movement, where the federal government stepped in and provided relief?

O: They are very different. However, when basic rights are violated, we must go where we can to find relief. What they have in common is captured by this line from the great American political leader Frederick Douglass: “Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them.”

WR: Why do you think it is so difficult for the left and much of the mainstream media to see the potential of civil rights abuses perpetrated by these prosecutors against you and your fellow conservatives?

O: The Milwaukee Journal-Sentinel supports crushing civil liberties of anyone who does not share its views. The editors are not confused about what has occurred. They support allowing the government to grab all emails and cell phone records of conservatives, using secret warrants and subpoenas against them, and preventing them from speaking publicly about these abuses. They celebrate the release of private citizens’ confidential records to embarrass anyone they do not like. They have called for a resumption of the “investigation” despite rulings by two judges who have reviewed the entire record and found there is no probable cause for any government action. Those who support civil rights only for their allies do not actually support civil rights at all.

WR: The 7th Circuit opinion last month argued that the state legal system has provided remedy for controversies that have arisen in the John Doe investigation. You disagree. Why?

O: We seek immediate remedy for abuses of our constitutional rights. And we seek protection from other prosecutorial attacks that may already be under way. State courts have failed to provide timely relief, and have only been asked to halt the current probe. We have asked the federal courts for permanent protection from current and prospective abuses.

WR: If the appeals court panel’s decision stands, what do you think that might mean for these kinds of questions of abuse in the future?

O: There will be more abuses, in Wisconsin and elsewhere, until prosecutors and regulators are held accountable for abuses, rather than rewarded with enhanced budgets and power.

WR: If the 7th Circuit does not take up your case, what next?

O: We will confer with our legal team and consider all options. The details of any 7th Circuit action will be considered, as well as any other developments.

Read Wisconsin Reporter’s investigative series into the John Doe investigation, “Wisconsin’s Secret War,” at Watchdog.org