Better in their words…

I have to hand it to them for creativity. And I might need to assail the court if it doesn’t use some common sense.
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Updated March 16, 2015 4:47 p.m. ET

If you’re a special prosecutor who keeps losing on the law, try rigging the judges. That’s the gambit in Wisconsin, where special prosecutor Francis Schmitz has filed a motion prodding judges to recuse themselves.

The case is Mr. Schmitz’s appeal of his failing secret investigation of conservative groups under Wisconsin’s John Doe law. In January 2014 Judge Gregory Peterson quashed subpoenas to groups like the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce because they “do not show probable cause” of “any violations of the campaign finance laws.”

The state Supreme Court is hearing the appeal of that decision and two related cases brought by targets of the investigations, and Mr. Schmitz wants at least one and as many as four state Supreme Court justices to bow out. The reason? Their campaigns benefitted from independent expenditures by some of the groups Mr. Schmitz is harassing.

Mr. Schmitz’s motion shouldn’t fly under Wisconsin’s code of judicial conduct, which says a recusal cannot “be based solely on the sponsorship of an independent expenditure or issue advocacy communication” by someone involved in the proceeding. To evade that standard, Mr. Schmitz cites the U.S. Supreme Court’s 2009 Caperton v. Massey Coal decision that required a West Virginia justice to recuse himself from a case in which one of the parties had spent $3 million supporting his re-election.

Alas for Mr. Schmitz, the situations are materially different. In Caperton, Justice Anthony Kennedy’s opinion for a 5-4 majority judged recusal to be necessary because the expenditures were made when the case involving Massey Coal was already pending and were thought to have been made to insure the justice would sit on the case. The expenditures in Wisconsin were made long before the John Doe-related challenges were filed. Until late 2013 none of the conservative groups knew they were targets of the secret probe.

Caperton was also based on the notion that the $3 million expenditure created a risk of bias that violated a citizen’s Fourteenth Amendment’s right of due process. That doesn’t apply in Wisconsin because the supposedly injured party would be government prosecutors acting in their official capacity.

There’s also a double standard at work here. Liberals didn’t ask Wisconsin Justice Shirley Abrahamson to recuse herself from hearing legal challenges to Governor Scott Walker’s union reforms, despite her union backing. In her 2009 re-election, Ms. Abrahamson received direct contributions from unions including AFSCME Wisconsin Special Account, Wisconsin State AFL-CIO, State Employee PAC, and dozens more. Ms. Abrahamson voted to overturn Mr. Walker’s reforms in two cases.

Mr. Schmitz’s motion is under seal, but the news leaked to the Milwaukee Journal Sentinel, and his cause has been picked up by allies at the New York Times and Brennan Center for Justice. This also fits the John Doe habit of selective leaks that assist prosecutors and smear their targets. We’ve reviewed a copy of the motion and can report it contains little that isn’t already on the public record about the campaign expenditures. The Wisconsin judges should reject Mr. Schmitz’s dubious legal pleading and hear the appeal.

Correction: An earlier version of this editorial misstated the constitutional amendment at issue in the Caperton case.

http://www.wsj.com/articles/the-lefts-recusal-gambit-1426459570