The Supreme Court of the United States declined to hear an appeal of a case stemming from a partisan “John Doe” investigation aimed at Governor Scott Walker (R), led by Milwaukee County District Attorney John Chisholm.
Kelly Rindfleisch, a former aide to Walker during his service as Milwaukee County Executive, was caught up in Chisholm’s dragnet in 2010, when investigators obtained a secret warrant to search tens of thousands of private and work e-mails for evidence of wrongdoing.
Rindfleisch was convicted of felony misconduct in office, as Chisholm’s search for wrongdoing discovered she had responded to a political e-mail using her government e-mail address. Prosecutors threatened Rindfleisch with a jail sentence if she refused to help Chisholm find evidence of wrongdoing by Walker.
Since 2012, Chisholm has been pursuing evidence of alleged coordination between Walker and outside political organizations, including raiding citizens’ homes at night and seizing private records and property. In 2014, legal journalist Stuart Taylor published evidence that Chisholm’s investigations were inspired by his wife’s personal dislike of Walker.
‘Not Even Criminal Conduct’
Since her conviction, Rindfleisch has been serving her sentence under house arrest, fitted with a monitoring bracelet confirming her confinement
Hans von Spakovsky, senior legal fellow for the Heritage Foundation, says Rindfleisch is collateral damage in Chisholm’s political war against Walker.
“I think John Chisolm should be disbarred for what he has done,” von Spakovsky said. “It seems very clear that this was a political prosecution. The courts have made clear that the supposed activity the prosecutor was looking for was not even criminal conduct, but political speech and political activity protected by the First Amendment.”
Overcharged, Overly Broad
Von Spakovsky says prosecutors’ fishing expedition through Rindfleisch’s emails was unconstitutional and unwarranted.
“I think this was an unconstitutional, general warrant. I think the search was unlawful,” he said. “And in any event, the violation she was charged with, using her government computer for a political communication, should only make her subject to losing her job and potentially paying a civil fine—this is not, and should not be, a criminal violation.
“Making political activity criminal is a violation of basic American concepts of justice,” von Spakovsky said.
Hanni Fakhoury, senior staff attorney with the Electronic Frontier Foundation, a non-profit digital rights organization, says Rindfleisch’s rights were trampled by prosecutors.
“When precedent is set that allows the government to conduct expansive searches, there is always a risk they will abuse that power for political or some other inappropriate purpose,” he said. “That’s why it’s important for courts to think critically about these issues and preserve the important constitutional right against unreasonable search and seizure.
“There are real concerns about the breadth of electronic searches, and widespread disagreement about what that means,” Fakhoury said.
Fakhoury says privacy laws need to be updated to protect citizens’ privacy rights.
“In 2010, the U.S. Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that people do have an expectation of privacy in the contents of their emails stored with online service providers, like Google or Yahoo, and that law enforcement needs a warrant to access this information,” he said.
“With respect to email specifically, the federal statute that permits law enforcement access to this sort of communications data hasn’t been updated since it was enacted in 1986, and the provisions allowing access without a warrant have been criticized, leading to a legislative effort to reform the law,” Fakhoury said. “Hopefully the public, courts and legislatures will recognize the increasingly digitized world we live in calls for robust legal protections.”
Jessica Cross ([email protected]) writes from Cayce, South Carolina.
Patricia L. Bellia and Susan Freiwald, University of Chicago Legal Forum, “Fourth Amendment Protection For Stored E-Mail”: https://www.heartland.org/policy-documents/fourth-amendment-protection-stored-e-mail/