Prosecutorial Discretion in the John Doe Investigation

Over at the Shark and Shepherd Blog, Rick Esenberg has put up a post questioning whether the recently filed criminal complaint in the ongoing John Doe investigation of the County Executive’s Office during Scott Walker’s tenure justifies the time and expense spent thus far on the investigation. I posted several comments in response to Rick’s post, and it seems worthwhile to repeat those same points on the Marquette Law School Faculty Blog.

First of all, it is unlikely that the John Doe investigation will remain focused solely on the existence of campaign activity during employee working hours. According to press reports, the investigation is proceeding in the direction of investigating possible destruction of evidence and obstruction of justice. As I tell the students in my Corporate Criminal Liability class, a cover up will cause a defendant more trouble than the underlying crime.

I once represented a corporate client in a government contracting investigation, with dozens of individuals hauled before the grand jury. Eventually, there were multiple guilty pleas and criminal fines that amounted to tens of millions of dollars. However, the only two individuals who ended up doing jail time were two minor players in the scheme who had decided to shred documents after receiving a subpoena. The U.S. Attorney in that case refused to offer them any deal that did not include jail time as a component. In my experience, prosecutors take a very hard line on the destruction of evidence.

Therefore, it appears that one future focus of the John Doe investigation will be to investigate whether anyone took steps to try to hide the traces of the secret wifi network for emails that was apparently run out of the County Executive’s Office. In particular, the investigation will examine whether evidence relating to the wifi network and the emails sent over that network were destroyed after the initial subpoenas were served.

In regards to the felony charges in the criminal complaint, it does appear that in this instance felony charges are warranted for doing campaign work on taxpayer-funded time. In particular, the felony charges are warranted given the extensive amount of campaign activity reflected in the evidence collected thus far, and also given the allegation that the individual involved had received immunity previously for roughly the same offense. In other words, the charges in the complaint fit the seriousness of the facts.

What we see here is a classic situation in white collar crime. The response of some observers to the criminal complaint is to assert that, when it comes to illegal campaign activity, “everyone does it.” First of all, this is hardly a legal defense to the crime. Moreover, it is entirely beside the point to speculate whether some isolated instances might be identified where a democratic staffer has also transgressed the literal language of the statute involved. I freely concede that prosecuting every act that fits the technical definition of doing campaign work on the taxpayer dime would be absurd. Prosecutorial discretion is important in these types of cases, and this discretion is a crucial component of the process.

In general, one would expect a prosecutor to charge felonies where there are substantial violations of the law and where there is evidence of culpability. In contrast, one would expect that a prosecutor would not charge (or else would bring only misdemeanor charges) where the facts suggest relatively minor infractions of the statute.

Thus far, in regards to the illegal campaign activity being investigated, the D.A. has granted immunity to minor players in exchange for their cooperation, and has brought misdemeanor charges against one individual who mostly seems to have been misguided and acting on her own.

The only felony charges relating to illegal campaigning have been filed against someone who was involved in something similar as part of the Caucus Scandal investigation, and thus was most likely aware of the illegality of her conduct in 2010. The criminal complaint also alleges that she engaged in a substantial amount of prohibited campaigning during work hours and that she did so in concert with others. It seems that multiple persons may have violated the same underlying criminal provision, but that one individual currently faces much more serious charges.

Is this fair? For decades, academics have complained about the enormous power that such charging discretion places in the hands of prosecutors, and the potential for differential treatment based upon partisan allegiances. Fortunately, in the time that I have lived in Wisconsin, Milwaukee has been blessed with scrupulously fair prosecutors in Chisholm, McCann and, at the federal level, Steve Biskupic.

In any event, the role of prosecutorial discretion in the charging of white collar crimes is an integral and accepted part of our criminal justice system, and is likely to remain so for the foreseeable future despite its critics. This is because white collar crimes are often “malum prohibitum” crimes, meaning that the underlying conduct may not appear immoral to some members of the public and yet it is nonetheless a crime to engage in such conduct.

A prosecutor should exercise discretion when filing charges in such cases: A person who has knowledge of (or is recklessly indifferent to) the existence of a malum prohibitum offense, and who chooses to violate the law anyway, is morally culpable as a result of that choice and should be prosecuted. A person who is not on notice of the existence of the malum prohibitum offense is less morally culpable, and any charges that are brought for an unknowing violation should reflect this fact (although society at large has a countervailing interest in some minimal punishment in order to preserve the principle that “ignorance of the law is no defense”).

In general, a prosecutor’s charging decisions will reflect these principles. If they do not (i.e., the case of an “overzealous prosecutor”) then oftentimes judges in white collar cases will respond by attempting to construe the statutory language in a way that will not permit convictions where the underlying conduct is “innocent” from a moral point of view. Consider Justice Thomas’ opinion for the Supreme Court in Staples v. United States, or the Supreme Court’s Liparota v. United States decision.

Mr. Chisholm is proceeding cautiously and appropriately in this John Doe investigation because he knows that his decisions are being closely watched by the public. In his charging decisions thus far, he has been the complete opposite of “overzealous.” Perhaps that is why the only real criticism that he has received about this investigation to date is that that he is being very slow and very careful. At the end of the day, if that remains the only criticism of this investigation, the D.A.’s office will have done a very good job indeed.


This Post Has 2 Comments

  1. Nick Zales

    One funny thing about our society is this. When politicians and the elite commit crimes, many apologists come out of the woodwork and say, “why are you bothering with these trivial maters?” And yet when street people commit crimes, no one comes out and says “why are you bothering with these trivial crimes?” This is the hypocrisy of our legal system and the public sees right through it. It breeds disrespect for the law. One could only laugh when Oliver North used the “exclusionary rule” defense while conservatives were denouncing that very rule all over the country. Republicans are always for being tough on crime, except when they are the ones who get caught.

    In politics, it is often the theater of the absurd. Bill Clinton was impeached for lying about a sexual relationship with a woman who was not his wife. Pushing hard for impeachment was Newt Gingrich, who at the time was doing the same thing. Yet when Bush II launched an illegal war against an innocent country, engaged in political prosecutions and wide-spread violations of people’s 4th Amendment rights, and other atrocities such as rendition of innocent Americans, nobody did a damn thing. There wasn’t even a Congressional investigation. Then Obama swept it all under the rug. We are either a country of the rule of law or not. People can’t have it both ways and those who want it both ways are not interested in equal justice but justice for the few at the expense of the rest. Until that changes, our country will continue its downhill course to oblivion, revolution or anarchy.

  2. Rick Esenberg

    My posts on the John Doe investigation make a number of points pertaining to the relationshop between the current charges and the caucus scandal, the propriety of broadly worded statutes aimed at political offenses, the impact of selective (or, in any event) uneven enforcement, and the political uses and consequences of criminal charges in a case like this. I have also questioned – and the operative word is “questioned” – whether there is a statutory construction argument against charging a felony in the Rindfleish case. My comments and responses to Ed (I’m not sure we disagree on all that much except whether or not this warrants a felony charge) can be found here, here and here.

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