This is an opinion column by David Craig, former Wisconsin State Senator and Legal Director for the Foundation for Government Accountability
Last November, voters clearly rejected the Biden administration’s weaponization of the U.S. Department of Justice (DOJ) to abuse the rights of its political enemies. Both Congress and new Attorney General Pam Bondi are digging into the depths to which DOJ went to strip citizens of their rights.
Unfortunately, the Wisconsin Department of Justice (WisDOJ) is engaging in its own swampy behavior in utilizing a privately financed, third-party prosecutor to prosecute Wisconsinites—paid for by out-of-state liberal interests.
Fortunately, Wisconsinites are suing the WisDOJ over its actions, but more can be done to drain this Madison swamp.
Last year it became public that WisDOJ, led by Attorney General Josh Kaul, had accepted the services of a free attorney funded by the New York University School of Law State Energy and Environmental Impact Center (the Center). Funding for the Center has been tied to liberal former Mayor of New York, Michael Bloomberg. The so-called Special Assistant Attorney General (SAAG), under the terms of WisDOJ’s agreement with the Center, is to work on “matters relating to clean energy, climate change, and environmental matters of regional and national importance.”
Significantly, the sweetheart access afforded in the agreement also prevents the agency from setting beginning and end dates for the SAAG’s term of service; it permits, with WisDOJ’s approval, the agency sharing copies of the SAAG’s work with the Center; and WisDOJ must go through the peculiar step of attempting to resolve performance or other issues with the Center before the termination of the SAAG’s services.
So, what’s the harm in all of this?
Under this arrangement, the sword of government now hangs above the heads of certain Wisconsinites who are now under greater scrutiny from the WisDOJ. And the hand holding the sword is not an elected official, but private organizations with private interest outside the public good.
Wisconsin’s Constitution, like most state constitutions, includes an appropriations clause requiring funds from the treasury only to be dispersed upon appropriation by the legislature. Such provisions help the legislature check executive authority since, if there is no prohibition on private financing of an executive initiative, there is little need for a legislative branch at all.
Such a principle still applies where an initiative is “free,” as appropriations not made by the legislature also make the policy statement that such a policy is not worthy of advancing—which is another important check on executive power.
Think about how the private “Zuckerbucks” funds influenced public election officials and administration. The same principle applies here, but the public officials at WisDOJ can fine you or throw you in jail.
Similarly, the legislature never funded this type of WisDOJ position, so it clearly did not intend for Wisconsin government to have one. And while the SAAG’s salary may not have been financed by the state, the bureaucratic and administrative apparatus necessary to support that position also was not authorized to focus solely on that area of law enforcement. This was a policy decision that should have been left to the legislature.
In addition to lack of legislative authorization, the allowance of a private party to wield the prosecutorial power has long been recognized by our nation’s courts as a threat to due process rights. This is due primarily to the fact that private prosecutors may be prejudicial in what should be the administration of justice. This is obviously because a private prosecutor has different ambitions or motives than those of the state. Mixing such ambitions with a lack of accountability—as this arrangement does—turns an agency that should be dedicated to equal justice under law into an ideological lawfare machine.
Private prosecutors like that contracted by WisDOJ also cloud the public’s access to public records. Under the Wisconsin Open Records Law, public authorities are required to provide records to the public. Pertinent here is the fact that the Wisconsin Supreme Court has held that independent contractors hired by government authorities are not an “authority” subject to the records law, making it much more difficult for the public to see what is happening at WisDOJ. Ironically, the Wisconsin Office of Open Government is housed in the very same agency that this arrangement has unfolded. So much for transparent government.
So, what can be done about all of this?
Under Wisconsin law, the attorney general is obligated, upon request of either house of the legislature, to “submit a report upon any matters pertaining to the duties of his or her office.” The legislature should make this request and get to the bottom of how extensively any third-party attorney has been utilized in the prosecution of cases of Wisconsinites.
Further, the legislature can determine through such a request the extent of any common interest agreements that have been entered into involving third-party attorneys and whether those agreements are multi-state in nature.
Finally, the legislature can request any documents approved for disclosure by the SAAG to the Center. This type of legislative review would help uncover if and to what extent Wisconsin’s top law enforcement agency has been coopted by left-wing organizations and whether there has been a private weaponization of the Attorney General’s Office.
Once the public has answers to these questions only one question remains: How long will we allow WisDOJ’s “unlawful” lawman to wield the sword of Wisconsin’s most powerful law enforcement agency?
David Craig previously represented Wisconsin’s 83rd Assembly District and 28th Senate District. He now works as the Legal Director for the Foundation for Government Accountability.
