Frederica Freyberg:

But first, a roller coaster week of John Doe probes and court decisions. The week began with a federal judge stopping the John Doe probe into allegations of illegal coordination between conservative groups and candidates in the recall elections. Judge Rudolph Randa ordered prosecutors to halt the investigation and return any evidence gathered in the probe, saying the investigation violates the groups’ free speech rights in an election year. On Wednesday a federal appeals court stayed the ruling that halted the investigation. Then on Thursday Judge Randa called the appeal frivolous and reinstated the injunction. An attorney for the prosecutor said in a statement the ruling could be, “the death of campaign finance law as we know it.” Here to make sense of the John Doe probe and its legal challenges is Janine Geske, a former state Supreme Court justice now teaching at Marquette University Law School in Milwaukee. Justice, thanks very much for being here.

Janine Geske:

You’re welcome.

Frederica Freyberg:

Well so, we basically all have whiplash from these dueling decisions this week. What is your learned opinion of who might prevail in this?

Janine Geske:

That’s anyone’s guess at this point. Really these were preliminary rulings in this case that was taken to the federal court, and what Judge Randa did initially was enter what we call a preliminary injunction. That is, to indicate that he believed there was a strong likelihood that those that were filing the lawsuit would be successful, and he stayed everything. He went much further and he ordered the prosecutor to destroy all the documents they’d collected, which was surprising. That’s what went to the 7th circuit. The 7th circuit said, no, you can’t order the destruction of documents at this preliminary stage. And you didn’t have jurisdiction, Judge Randa, even to decide that because there’s another appeal pending and you didn’t find that appeal frivolous. So that’s what came back to Judge Randa. He’s now found that frivolous. I suspect the next move will probably be the prosecutors going back to the 7th circuit and asking them to lift, again, lift the stay so that they can proceed. But these are complicated issues because of the US Supreme Court’s decisions on free speech and financial contributions to campaigns. And so I suspect this case is going to be around for a long time with disputes at different levels, both in the federal court and state courts.

Frederica Freyberg:

Well, in terms of Judge Randa’s original ruling about destroying the evidence and returning the evidence, when you saw that, what was your reaction?

Janine Geske:

I was pretty shocked. You know, Judge Randa’s a very– He’s conservative politically, but he’s also a conservative judge and he really follows the rule. That’s my experience with him. I’ve known him well over 20 years. And I was surprised because at a preliminary level when you’re entering an injunction basically what you’re doing is stopping everything so that the litigation can go forward and there’s no harm to anyone. And so it seemed way out there, in my view, to destroy the documents the prosecutors had. The 7th circuit did, which is what I would have expected, which is the prosecutor can’t do anything while it is pending. They’re not supposed to be using the documents, they're not supposed to be deposing people or proceeding, and not to do anything with those documents or share them with anybody. But the destruction was pretty surprising.

Frederica Freyberg:

Now, the 7th circuit then also said to Judge Randa, well, you needed to first do this other thing and declare this frivolous. You didn’t do that. So he immediately goes back and does it. Why didn’t he do it right out of the gate?

Janine Geske:

Well, you know, I don’t know. It was interesting because I went– I read that. And that’s about a six-page opinion. And he did indicate he thought it might be frivolous, this other appeal. But he didn’t do it. And yet when he ultimately did it, he did it with such strong language. I don’t know why he didn’t do it initially. And it will be interesting because the 7th circuit could potentially simply say that first appeal is not frivolous and therefore you have no authority. And they’d be back where they were in the first place. So, you know, the 7th circuit can take different tacks on this. So it will be interesting to see which ones they choose.

Frederica Freyberg:

Now, given that Judge Randa cited in his ruling or decision or whatever the parlance is here in the legal world, he cited both Citizens United and McCutcheon. Does that strike you that he’s on pretty solid ground then?

Janine Geske:

Well, what strikes me is they’re serious issues. The problem is really the US Supreme Court has really broken open those finance laws, those election finance laws and said, you know, all these things are free speech. And so now we have a case where there’s a question of whether there was too much coordination between the private interest group and the Walker campaign. And, you know, the judge says, this is all protected. It’s hard to tell, you know, if the judge is saying, any law that does that is unconstitutional and therefore a prosecutor can’t do anything, or the facts don’t bear on that. The problem with that second argument is that’s what the prosecutor’s trying to find out, is if in fact there was a violation of a law that somehow is underneath the constitutional protections. There’s a lot to argue about. Those cases are clearly important in this. I don’t know that they’re ultimately going to control, though.

Frederica Freyberg:

Okay. Because as the prosecutor’s statement, lawyer’s statement said, he thought that this kind of spelled the death of campaign finance laws as we know them. Is that a stretch, in your mind?

Janine Geske:

Well, I think from the prosecutor’s standpoint is what they’re saying is, look, if we can’t proceed here, that means that these groups that are issue-oriented can fully be in coordination with the campaign, contrary to the federal law, and therefore the public won’t know where the money’s coming from or what group is even controlling it. And so, in part, they have an argument to that effect. Whether the US Supreme Court would ultimately say, you can’t control any of that because it’s protected speech, I guess we don’t know. And we may not find out until this case gets to that level.

Frederica Freyberg:

Okay. Justice Janine Geske, thanks very much.

Janine Geske:

You’re welcome.