Earlier this month, a federal appeals court slapped down
a prosecution against a Wisconsin state bureaucrat brought by U.S. Attorney for Milwaukee Steve Biskupic. The court took the extraordinary step of reversing the conviction and freeing the bureaucrat, named Georgia Thompson, due to the simple lack of a crime. That's led to a lot of questions
about whether the case, which implicated the state's Democratic governor in an election year, was brought due to political pressure.
Today, the court released
(pdf) its written opinion on the case. And it wasn't any more sparing than the verbal remarks
(e.g. that the evidence was "beyond thin") of the judges when they made the ruling.
The prosecution was based on a reading of the law by which "simple violations of administrative rules [by bureaucrats] would become crimes," the judges wrote. By that interpretation, "it is a federal crime for any official in state or local government to take account of political considerations when deciding how to spend public money" -- a "preposterous" idea, they wrote.
Ultimately, the prosecution drew on "the open-ended quality" of the law to charge that a crime had occurred. And the blame, the judges wrote, might very well lie with the open-ended quality of the statutes used to charge Thompson:
"This prosecution, which led to the conviction and imprisonment of a civil servant for conduct that, as far as this record shows, was designed to pursue the public interest as the employee understood it, may well induce Congress to take another look at the wisdom of enacting [such vague statutes]."
The laws, they wrote, make it "possible for prosecutors to believe, and public employees to deny, that a crime has occurred, and for both sides to act in good faith...."
In other words, the judges are saying that any reasonable person would have looked at this case and seen that nothing amiss had occurred -- but it was nevertheless legally possible
to bring a prosecution. For that, you could blame the law... but you could also question the prosecutor's judgment.
For his part, Biskupic has said
that he brought the case "in consultation with the then-Democratic State Attorney General, and the Democratic District Attorney for Dane County" and that the decision to charge Thompson was "based solely on the facts."
The House Judiciary Committee has invited
Biskupic to tell his story to Congress. Update
: TPM Reader LA writes:
You might want to note in the Thompson story that the opinion was written by Frank Easterbrook, a
law-and-economics-oriented Reagan appointee, and stone genius. When I saw the "preposterous" quote, I figured he had to have written the decision, and I am so glad to be right.