Targets of due-process abuse are seeking vindication in court

We wish we could stop writing about Wisconsin’s abusive prosecutors, but conservatives in the state are still fighting to have their rights vindicated in court.

Readers are familiar with the secret John Doe probe by Democratic prosecutors that targeted conservative groups, using kitchen-sink subpoenas and raiding their homes in pursuit of an illegal theory of campaign-finance coordination. The investigation was shut down by the Wisconsin Supreme Court. But before those outrages, prosecutors did a test run on a Scott Walker aide named Cindy Archer as part of an investigation into Mr. Walker’s associates that began around the time of his first run for Governor. Ms. Archer was never charged, but her career and reputation were damaged.

Ms. Archer has been fighting the politicized harassment in a federal civil-rights action. Her complaint notes that prosecutors violated her First and Fourth Amendment rights when they searched her home without a warrant that narrowly specified what they were looking for. In May federal Judge Lynn Adelman rejected the claim on grounds that prosecutors are immune from lawsuits concerning their official duty.

But prosecutors are not eligible for immunity when a well-established constitutional right has been violated. No government has carte blanche to retaliate against citizens based on their speech. To get around that hurdle, Judge Adelman offered a tortured interpretation of the Supreme Court’s 2006 decision in Garcetti v. Ceballos to claim civil servants have no First Amendment rights when they are speaking about policy. Ms. Archer has appealed to the Seventh Circuit Court of Appeals.

Ms. Archer’s case is revealing for its display of procedural shortcuts and abusive prosecutorial tactics. In particular prosecutors submitted a 115-page warrant and affidavit for approval by the John Doe judge on the morning of Sept. 13, 2011, incorporating a record that included tens of thousands of documents. Curiously, the warrant was approved hours later even though time sheets submitted by the judge show he didn’t work on the Doe case at all that day or the days immediately following. Ms. Archer’s lawsuit notes that on the day the warrant was signed, the judge was 30 miles away working on another matter. Ms. Archer’s home was nonetheless raided on Sept. 14 and Ms. Archer made the subject of invidious speculation on the evening news.

Meanwhile, the Madison-based MacIver Institute has filed a class-action lawsuit against Milwaukee District Attorney John Chisholm and others in his office and at the Wisconsin Government Accountability Board (GAB) for an illegal seizure of its records during the John Doe fishing expedition. The lawsuit claims that the Milwaukee District Attorney’s office and the GAB, which regulates campaign finance in the state, improperly gathered every document and email it wanted from the Institute without going through the proper legal process. MacIver specifically challenges what it calls the “secret and unlawful” manner in which prosecutors violated the federal Stored Communications Act, which protects the privacy of digital communications like email.

hese are serious claims that deserve their day in court. Prosecutors can’t short-cut due process merely because their targets are political activists.