October 21, 2021 at 11:35 a.m.
Two political parties, two unconstitutional investigations
Two political parties, two unconstitutional investigations
It's because leaders in both political parties ignore those constitutions when it is politically convenient, and there are no consequences for doing so.
In Wisconsin last year, Democratic Gov. Tony Evers decided he would turn himself into a Supreme Legislator and took off on a lawmaking crusade, the long-term damage of which is still unknown, both to public health and to our democratic institutions.
This year, Assembly Republicans have responded tit-for-tat, having decided to launch an investigation into the 2020 elections, thereby turning itself into a law enforcement agency. So move on over district attorneys and Department of Justice agents, there's a new sheriff in town, and his name rhymes with moss.
Assembly speaker Robin Vos, that is. The investigation that he hired former Supreme Court justice Michael Gableman to run is taking fire from the left and the right, and for good reason, not least because Gableman has become a clown, admitting he is clueless about election law, issuing subpoenas and then walking them back, and wanting to conduct interviews behind closed doors in his private office instead in front of a legislative committee.
All this has infuriated the chairwoman of the Assembly Committee on Campaigns and Elections, Republican Rep. Janel Brandtjen, who didn't like the idea that Vos and Gableman were offering officials immunity from prosecution, or that Gableman was not reporting to her committee, where a legitimate legislative probe should be posited.
But - and people should sit down for this one - attorney general Josh Kaul had a more compelling complaint, namely, that the investigation itself isn't legitimate, whether it's in the committee or not. For once, he's right.
As Kaul's office has pointed out, the constitutional separation of powers prohibits the Legislature from conducting law enforcement investigations, which is just what the Legislature is doing. Issuing subpoenas and conducting investigations must further a legislative task, such as lawmaking, to determine the policy behind such law, and to set the limits of such law.
In other words, the Legislature has the authority to make laws, not enforce them, and the charade to make this a justifiable legislative endeavor is nothing more than lipstick on a pig.
Sure, Republicans argue that the investigation can show if current laws need to be fixed, but the arguments are so hollow that you can peer all the way to the bottom of their political gamesmanship.
For one thing, if they are not concerned about law enforcement, then why was Brandtjen so upset about subpoenaed officials getting immunity from prosecution?
For another, the investigation's authorizing resolution was written so broadly - "to investigate the administration of elections in Wisconsin" - as to allow the investigators to reach deep into the activities of local government officials, not to mention of the citizenry, to look for almost anything. As the Department of Justice stated, "such '[b]roadly drafted and loosely worded' resolutions give investigators an impermissible amount of discretion, inviting actions that are either not in accordance with the authorizing committee's intention, or not even sufficiently related to lawful exercises of the legislative power."
It invites witch hunts for partisan purposes, to say it another way, and that kind of McCarthyism cannot be allowed.
Then, too, there was Rep. Joe Sanfelippo, the vice-chairman of the elections committee, on public television, explaining that the very purpose of the probe was not to craft new laws but to make sure the ones already on the books were enforced: "We have to provide equal protection under the law, and the way to do that for elections is to make sure that in all of our jurisdictions, which we have over 1800 of them in the state, we want to make sure that the election laws on the books are being evenly adhered to throughout the entire state and that's what our focus is on."
Actually, your focus should not be there. Adherence to the law - aka enforcement - is the executive branch's gig, with conflicts settled, and prosecutions carried out, in court when necessary.
Yeah, yeah, they argue, but all this can lead to tweaks in the law to make sure that enforcement is possible. But yeah, yeah, we argue back, if that's what your intention is, then why did Republicans pass their package of election reform bills without waiting on the results of the investigation?
They knew Evers would veto the package, so why not wait and get the bills right? Or did the investigation never have anything to do with legislating?
Don't get us wrong. We believe there were indeed massive violations of election law and impermissible election conduct that might well have swayed the results of the election. We believe any lawbreakers should be prosecuted. We believe those election law bills are needed, and just, if they could be enacted.
But we believe it's not the Legislature's job to prosecute lawbreakers. We believe the Legislature - indeed most of us - knows what the problems are and how to fix them. The investigation seems to be a sideshow disconnected from any real legislative purpose and whose political purpose could very well undo the constitutional doctrine of separation of powers and erode the privacy and due process rights of citizens.
The exact same thing is being carried out in Washington, in this instance by Democrats, with the January 6 congressional committee investigating the capitol riot of that day. The committee is undertaking an unconstitutional law enforcement investigation with no legislative connection, and the dangers to liberty that it poses are exponentially greater than what is happening in Wisconsin.
As a backdrop, we don't think very many people know - because the national media doesn't cover it - how those charged in the January 6 riot are being treated. Bear in mind when you read this that these are American citizens, none of whom have been charged with sedition or treason or with conspiracy to overthrow the government.
Even so, at the behest of Democrats, some have been placed on no-fly lists despite any conviction for any crime. As independent journalist Glenn Greenwald has reported, dozens have been denied bail and others put in solitary confinement, again, without being convicted of anything.
"Many are being held in unusually harsh and bizarrely cruel conditions, causing a federal judge on Wednesday to hold 'the warden of the D.C. jail and director of the D.C. Department of Corrections in contempt of court,' and then calling on the Justice Department 'to investigate whether the jail is violating the civil rights of dozens of detained Jan. 6 defendants,'" Greenwald wrote.
A few rioters have been convicted. One rioter was sentenced to three months in jail for one count of "parading, demonstrating or picketing in a Capitol building." That's harsh, given that that is what most of the rioters were doing: parading, demonstrating, and picketing.
The McCarthyism of this witch hunt is palpable. As Greenwald reported, the Select 1/6 Committee has served 11 subpoenas on citizens, some based based on nothing more than the fact that their names appeared on permit paperwork to hold a protest on January 6 opposing certification of the 2020 election.
Think about that. For exercising their constitutional right of free speech - not only that, but going through the proper channels and paperwork to do so legally - Democrats in Congress are going to interrogate people who are charged with no crime about their private beliefs and associations and political activities.
This is not democratic America. This is Joe McCarthy's America.
Now the January 6 committee is set to take us all on a joyride to the Gulag, but in the end it suffers the same constraints as the Wisconsin Assembly does - it has no legal authority to do so. As both statute and case law make clear, any congressional investigation must be connected to potential legislation or to agency oversight, both lacking in this instance, though the committee members make the same superficial arguments that are made in Wisconsin - ah, they need to review the preparedness of the capitol police, which Congress oversees, or, as chairman Bennie Thompson wrote, they need to examine how various individuals and entities coordinated their activities leading up to the January 6 events to "evaluate lessons learned and to recommend to the House and its relevant committees corrective laws, policies, procedures rules, or regulations."
But the only corrective laws they could pass would apply to the policing activities at the capitol that day, not to the otherwise legal and private activities of citizens prior to January 6. And any illegal activity prior to that day would already be illegal and, as in Wisconsin, not in Congress's jurisdiction.
Ultimately, as they grin through their lipstick, someone mistakenly and absent-mindedly blurts out the truth about what is going on.
Wouldn't you know it would be that neocon Democrat in Republican clothing, the vice-chairwoman of the commission, Rep. Liz Cheney? Here's how she put it in her opening remarks at the convening meeting: "We cannot leave the violence of January 6 - and its causes - uninvestigated. The American people deserve the full and open testimony of every person with knowledge of the planning and preparation for January 6th. We must know what happened here at the Capitol. We must also know what happened every minute of that day in the White House - every phone call, every conversation, every meeting leading up to, during, and after the attack. ... If those responsible are not held accountable, and if Congress does not act responsibly, this will remain a cancer on our Constitutional Republic, undermining the peaceful transfer of power at the heart of our democratic system."
So it's about finding out who did the dirty deeds, who their allies are, and holding them accountable. Not one word about oversight or potential legislation (all the bad things they say happened, such as sedition, violence, etc., are already illegal). Not one word about making sure the capitol is safe and the police are prepared.
No, it's all about conducting a law enforcement investigation and prosecuting those who broke the law - all well and good, if due process and fairness are preserved, but none of which is the jurisdiction of Congress.
And so the real purpose, as in Wisconsin, is to conduct a witch hunt. It's about widening the net and broadening the list of political enemies.
In writing about the investigation, Elizabeth Goitein of the liberal Brennan Center for Justice, warned that Americans must guard against potential congressional abuses of power.
"Key constitutional safeguards that protect Americans' privacy against intrusions by the executive branch - such as the requirement to obtain a warrant - are notably absent when it comes to congressional investigations," Goitein wrote. "Nor do the statutory privacy protections Congress has enacted adequately fill the gap. If we acknowledge that Congress, just like the executive branch, is capable of abusing its powers and infringing on the rights of Americans, it follows that Americans need a better way of enforcing those rights than the law currently provides."
Don't count on the current Congress to pass any such reforms. They're too busy investigating our politics, necessary to root out soccer mom domestic terrorists and capitol trespassing selfie takers.
Be vigilant instead, and resist.
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