Civility in politics means more than debating with a level of politeness approved by Miss Manners. Words delivered with a smile can mask a darker and uncivil intent, such as the way a renegade Democratic prosecutor in Wisconsin has hijacked the legal system to try to turn public opinion against Scott Walker, who’s up for re-election in November.
Mr. Walker is an unashamed reformer who was elected, and survived a recall attempt because he was willing to stand up to public-sector unions that were on their way to bankrupting the state. Milwaukee County prosecutors themselves belong to those unions, and they want the platinum-plated pensions returned to safety. They hatched a scheme to smear Mr. Walker’s good name by opening a “John Doe” investigation into 30 conservative groups, alleging without evidence that they might have been coordinating with the Walker campaign, which is forbidden by law.
David Robles, an assistant district attorney, ordered the groups to hand over every note, record or receipt in the office covering several years. A gag order threatened them with imprisonment if they told anyone what the Democratic prosecutors were doing.
A prosecutor is charged in the law to be a nonpartisan public servant, administering the law without fear or favor. That’s not what’s going on in Milwaukee County, where many in the district attorney’s office signed the petition to recall Mr. Walker.
Eric O’Keefe, head of Wisconsin Club for Growth, became the sham investigation’s primary target. He wasn’t about to let the Democrats get away with it, so while the case was being heard in state court, he filed a lawsuit in federal court against the prosecutors who violated his First Amendment rights. He easily won an injunction putting an immediate halt to the investigation. U.S. District Judge Rudolph T. Randa was so outraged by the abuse that he ordered the district attorney to destroy all the files he obtained from the conservative groups.
But not so fast, said Judge Frank H. Easterbrook of the U.S. Court of Appeals for the 7th Circuit in Chicago. Writing Wednesday for a three-judge panel that reviewed the case, Judge Easterbrook observed that the Anti-Injunction Act doesn’t allow the federal bench to intervene. He cited the federalist principle that state courts should be left free “to conduct their own litigation, without supervision by federal judges, let alone threats by federal judges to hold state judges in contempt.”
Since a state judge had previously found that the district attorney’s investigation was baseless, the federal appellate judges saw no compelling reason to allow federal involvement. Judge Easterbrook and his colleagues aren’t entitled to consider the political impact of letting this case drag on in state court. Democrats know they won’t win, they’re just trying to associate the names of conservatives, especially Mr. Walker’s, with the words “corruption investigation.”
The tawdry tactic has an impact. In the latest Real Clear Politics polling average, Mr. Walker is in a statistical dead heat with his Democratic opponent. The tightness of the race can be blamed almost entirely on “scandal” headlines over accounts of the phony investigation.
It’s too bad that District Attorney John Chisholm and his deputy, Mr. Robles, can’t get what’s coming to them — for now — over this most uncivil case of prosecutorial harassment.