Promethean Government Unbound: The John Doe Raid

Kim Holmes Distinguished Fellow, Heritage Foundation
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An excerpt from chapter five of Kim Holmes’ latest bookThe Closing of the Liberal Mind: How Groupthink and Intolerance Define The Left:

All sorts of laws prohibit government employees from using their positions for partisan purposes, but the actions of Lerner and others show they do not work. They use their shadowy power to single out political enemies for special scrutiny, while giving a pass to organizations friendly to the administration they favor politically.

As bad as the federal government can be in abusing its power, state and local governments can be worse. Consider the case of the Democrat district attorney of Milwaukee County, Wisconsin, John Chisholm. Chafing at the victories of Republican Governor Scott Walker in negotiations with government employee unions, Chisolm teamed up with the state’s Government Accountability Board to launch a “John Doe” investigation into alleged unlawful coordination between Walker’s campaign and private conservative groups. “John Doe” refers to a highly unusual Wisconsin law that permits officials to conduct extensive investigations — fishing expeditions, really — in absolute secrecy, even keeping the target of the inquiry undisclosed. Such investigations dispense with the ordinary procedure of presenting evidence to a grand jury, which essentially means that no hard evidence is necessary to start an investigation.

In his zeal to nail Walker, Chisholm got a sympathetic judge to order early morning paramilitary-style raids on citizens’ homes. One of the targets was Cindy Archer, the lead architect of a grassroots campaign to limit costly public employee benefits.11 One morning she woke to her dogs barking and a loud pounding at her door. She looked outside and saw policemen with guns, body armor, and a battering ram. Not taking time to get dressed, she opened the door while begging the police not to shoot her dogs. Armed agents rushed past her and into the bathroom where her partner was taking a shower. When she objected to the search, one of the policemen became furious. “He towered over me with his finger in my face,” she said, “and yelled like a drill sergeant that I either do it his way or he would handcuff me.” After they were done with their search, which Cindy said left “her dead mother’s belongings strewn across the basement in a most disrespectful way,” they left carrying only a cell phone and a laptop.

Cindy was not alone. In another raid, a woman reported that, “People came pouring in. For a second I thought it was a home invasion. It was terrifying. They were yelling and running, into every room in the house. One of them was in my face, yelling at me over and over and over again.”12 After it was over a policeman warned her not to call a lawyer. John Doe investigations are secret, she was told. No one was to be told about the raid — not even her mother, father, or closest friends. Even though neighbors witnessed what happened, the victims of the raids were still bound by the secrecy “code” not to discuss them.

The Wisconsin raids did not stand up in a court of law. In July 2015, the Wisconsin Supreme Court ruled against the prosecutor for trampling citizens’ rights. “It is utterly clear,” wrote the justices in the majority opinion, “that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing,” and who have a “fundamental right … to engage in lawful political activity … free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution.”

How could such abuse happen? First a badly framed law that casually and quietly dismisses checks on prosecutorial abuse is passed. In the Wisconsin case, the requirements for a grand jury, the legal need for hard evidence, and the public’s right to know about due process were dropped. The problem is compounded by setting up so-called accountability boards, which heavily implies that certain politically charged views are worthy of state oversight. Add to the mix a prosecutor willing to abuse his power in a political vendetta, and voilà: the near-perfect case of prosecutorial misbehavior enabled and encouraged by a legal system corrupted by illiberal attitudes about politics and the rule of law.

A conclusion is inescapable: organizations and institutions like the IRS and the Milwaukee district attorney’s office are misused because they can be, and because the people in charge think they can get away with it. There is little scrutiny, no transparency, and weak due process. It is just the secret workings of officials in power abusing the rights of citizens they are supposed to serve.