What happened in Wisconsin, cont’d

Last week I noted that by order dated December 6 a Wisconsin judge unsealed an 88-page report on the state Department of Justice’s (WisDoJ) investigation into a leak of sealed evidence from the politically motivated “John Doe” investigation of Gov. Scott Walker, his supporters, and various conservative groups related to his recall election campaign. The 88-page report is posted here. The investigation was triggered by the Guardian’s publication of leaked documents last year in the article “Because Scott Walker asked.”

The WisDoJ report lacks an executive summary. The pseudonymous Warren Henry summarized and commented on the report for the Federalist in “Bombshell report: Political persecution of Scott Walker swept up high-level GOP officials.” Matt Kittle also summarized and commented on the report for Wisconsin’s MacIver Institute in “DoJ report: Wisconsin’s infamous John Doe was more sinister than first reported.” Kittle updated the story here and here last week.

Now Milwaukee Journal Sentinel columnist Christian Schneider outlines the background and explains how the report advances the story in “Wisconsin, the surveillance state.” Appearing in the December 25 issue of the Weekly Standard that was just posted online Friday, the article is a useful addition to the previous columns on the WisDoJ report.

Schneider’s article cites the Wall Street Journal column (behind the Journal’s paywall) by Republican state senator and U.S. Senate candidate Leah Vukmir. Vukmir and her family were victims of the spying operation exposed in the report. Vukmir decries the crimes committed against them; she wants the perpetrators to see jail time.

The report itself does not provide encouragement on that front. Although it notes the violation of a number of Wisconsin criminal laws, it also notes the difficulty of pinpointing criminal responsibility. Senator Vukmir is unlikely to receive satisfaction from the Wisconsin authorities.

At page 87 the report itself recommends the initiation of professional disciplinary proceedings against Falk as well as contempt proceedings against Falk and eight others. That won’t do much for Vukmir et al.

Schneider focuses on former Government Accountability Board member Shane Falk in connection with the leak to the Guardian (the GAB is now defunct). I wonder if a section 1983 action for damages doesn’t lie against Falk, if not the other state officers named in the report. In a section 1983 action plaintiffs would have to prove the officers’ violation of plaintiffs’ constitutional right(s) under color of state law. In order to overcome the qualified immunity that protects state officers in a section 1983 action, however, plaintiffs would also have to prove that the state officers violated a clearly established constitutional right of which a reasonable officer would have known. That seems to me the easy part of this case. I trust that Senator Vukmir is seeking the advice of counsel on possible civil remedies that she may have under federal law.

The Wall Street Journal originally broke the story that underlies the stunning WisDoJ report in an October 2013 editorial and continued to break news on the story in reported editorials such as this one. Journal columnist Kim Strassel devoted a couple of chapters to the story in her book The Intimidation Game (published in paperback earlier this year). David French turned National Review’s spotlight on the events in the excellent cover story “Wisconsin’s shame: ‘I thought it was a home invasion.'”

Let me repeat the conclusion to my post on the report last week. The wrongdoing detailed in the WisDoJ report is of the deeply fascist variety that exceeds my poor powers of denunciation. Suffice it to say that it combines the instruments of tyranny — physical torture omitted — in the service of the suppression of conservatives. The story is shocking almost beyond belief. One might ask where the outrage is, but at this point we should probably ask if anyone is paying attention.

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