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InsiderOnline Blog: April 2014

Eric O’Keefe Will Get His Day in Court

In Wisconsin, a Democratic prosecutor is making life difficult for dozens of conservative non-profits by using what is called a “John Doe” investigation to probe for evidence that the groups coordinated with the Scott Walker campaign during the 2012 recall elections. The investigators, despite using such tactics as paramilitary-style predawn raids on private properties, have produced no evidence of such wrongdoing since begining the probe a year and a half ago.

One conservative, Eric O’Keefe is fighting back with a federal lawsuit alleging the investigation is violating his First Amendment rights by attempting to intimidate him to refrain from speaking about politics. O’Keefe received good news this week when Judge Rudolph Randa denied a motion by the prosecutor, John Chisolm, to dismiss O’Keefe’s suit. M.D. Kittle reports that the judge had some strong words about Chisholm’s argument that the federal courts generally abstain from taking up constitutional claims that call into question state proceedings:

It is “not so much a procedure for the determination of probable cause as it is an inquest for the discovery of crime in which the judge has significant powers” Randa wrote in the ruling.

“It is an investigatory process, not an ongoing criminal prosecution or civil enforcement proceeding. Nor is it a proceeding—like a civil contempt order,” Randa wrote.

The John Doe may be a criminal investigation, but it is not “akin to a criminal prosecution,” the judge notes. Therefore, it doesn’t fit under the long-held rules that federal courts must not interfere with state prosecutions.

Besides, Randa said he would not abstain even if the investigation fit into one of the abstention categories, because the “John Doe proceeding does not offer O’Keefe the opportunity to adjudicate the federal constitutional issues that are raised in this lawsuit.”

“The underlying theory of this case is that O’Keefe, along with other conservative groups, are being targeted for their political activism, whereas the ‘coordination’ activities of those on the opposite side of the political spectrum are ignored,” the judge wrote.

O’Keefe’s complaint points to numerous examples of similar coordinating campaign activities among liberals that failed to trigger a lengthy, secret investigation by the Milwaukee County DA.

“The alleged bogus nature of the prosecutors’ theory of criminal liability as a matter of federal constitutional law is simply more evidence of the defendants’ bad faith,” Randa wrote. “Even if the need for injunctive relief somehow fell by the wayside, the merits of O’Keefe’s claims can and should still be adjudicated here in federal court.” [, April 8]

Posted on 04/11/14 08:45 PM by Alex Adrianson

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