Excuses of the Doomed

The screeching voices of the radio right have been mostly silent about the alleged criminality in Scott Walker's County Executive office.  Apparently, the defensive talking points have yet to be developed and the well-paid Republican mouthpieces on the radio just don't know what to do about it, as the dirty water circles down the drain of his soon-to-be short-lived governorship.

So they squawk about a few recall petitions that seem a bit off as if it proves massive fraud and partake in a few of their other usual and tired diversions.  They don't seem to have any problem going after an African-American Milwaukee County supervisor allegedly accepting a small bribe in a simple sting operation and pretending that's the End of Times.  But, when it comes to skilled prosecutors closing in on their favorite puppet-governor for putting active political fundraisers on the county payroll and in his office suite -- complete with a separate wireless router and other hardware to try to hide their activities -- well...crickets...

Into the vacuum steps Bradley Foundation beneficiary and blogger Rick Esenberg.  Swinging his supposed academic credentials like they mean something to anyone (which is always and only, sadly, the Journal Sentinel), the once "visiting", now "adjunct" (read: part time) Marquette law professor has taken it upon himself to publish several think pieces on his blog lately, presenting an extremely amateur, scattershot legal defense of the charged Walker political operatives and generally ruminating about the supposedly dubious need for criminalizing of political behavior in government buildings in the first place. 

It goes without saying that, in a game of What If A Democrat Did It, Esenberg and the other members of the scripted right-wing megaphone universe would be exposed as hypocritical frauds. A Democrat caught doing the same thing would already be in jail, at Esenberg's insistence.  But, if it's one thing the well-funded right-wing Walker apologists are, it's shameless.

Esenberg first dipped his toe in the water of "analysis" of the criminal complaint against Kelly Rindfleisch on January 27th, looking down his elitist nose at this whole notion of criminalizing any behavior that is can ever be attributed to a Republican.  "I continue to dislike dealing with this type as a criminal matter," he snoots, even after admitting, yeah, well, fundraising, that's like a bright line.  And, charged as four felonies, I mean, that's just too much for him.

After flirting with "what's the big deal" about this Big Deal, he moves on, without any proof whatsoever, to attack District Attorney John Chisholm for daring to bring the charges.  "It [the law] leads to the threat of partisan use of the prosecutorial process...the timing - on the eve of a recall election..." he says of Chisholm, who is and always has been totally beyond reproach. Then, after that unfounded hit-and-run, he lurches into imaginary "they all do it" fantasy. "What would you find if you subjected the offices of Tom Barrett, Jim Doyle or Kathleen Falk to this kind of scrutiny?" Well, probably, you'd be pretty bored.  And you certainly wouldn't find their staffers blatantly fundraising for favored candidates 25 feet from the boss's desk.

At this point, if I'm Esenberg, I realize I'm writing circular nonsense and I either hit delete and start over or at least quit while I'm behind. But, no.  "There is still nothing that implicates the Governor in anything," he writes hopefully.  Wrong.  As we have discussed, the one e-mail in what is truly a fascinating complaint attributed to Walker, written to the head of his Courthouse operation while he was supposedly (heh) Director of Housing (if you asked Tim Russell a housing question, what are the chances he'd be able to answer it? Not much.), telling him to cool it (and, according to the complaint, many things cooled the same day) is all you need to know about who was in charge and who wanted things done exactly the way they were doing it -- until discovered, that is.

The first post ends with a whimper, not a bang, with rote speculation about the widespread use of the kind of separate campaign IT infrastructure that Russell installed in Walker's office suite in the Courthouse. "I wonder how many public officials use this or other tactics in an attempt to engage in communications that won't be subject to open records requests," he wonders.  Well, how about "none"?  This comment is interesting -- how does he know the secret infrastructure was "an attempt to engage in communications that won't be subject to open records"?  Remember, Esenberg is a proud member of the Republican legal brain trust that brought us Act 10 and so many other wonderful products of the Walker regime, including various defenses to the Brave Wisconsin 14 leaving the state.  Perhaps he was consulted ahead of time about how they could get away with fundraising on the taxpayer dime and gave them lousy advice.  Again.

In his second kick at the same cat in the next post, Esenberg elaborates on the "sure they did it, but who cares" meme.  He first declares that whatever Rindfleisch and Wink (and Russell and probably Walker) did are technical violations of the law rather than "a threat to the republic".  "The offense here is malum prohibitum (wrong because prohibited) rather than malum in se (intrinsically wrong)," he declares.  Sez who?  Besides throwing around Latin phrases (the last refuge of the legal writer trying to impress -- I haven't used Latin since I was an altar boy in second grade [pre-Vatican II] and certainly never in court, lest the laughter from judges and DAs drown out my argument), setting up a separate IT infrastructure to escape the discovery of your illegal fundraising while on the County dime -- especially if on of you were granted immunity in the caucus scandal and another (Walker) was one of Scooter Jensen's closest associates in the legislature at the time -- is certainly boldly, proudly and intrinsically malum in eff-ing se.  Besides, the distinction is legally irrelevant -- except when you get to sentencing.  Let Walker make that case when he gets there.

Almost as amusing and pathetic as Esenberg's excuse-making is the appearance of "school" "choice" whore George Mitchell in the comments section.  Besides arguing that we should legalize all forms of politicking and fundraising in public offices (whatever happened to the supposed conservative protection of the public dollar?). Mitchell laughably alludes to dark secrets he knows from a time long ago when some people foolishly let him in the room, smearing various Democrats without providing any detail.  "[Journal Sentinel Managing Editor] George Stanley was so surprised and offended by what I knew and did he said I was 'lucky the statute of limitations had expired,'" he claims.  While I wouldn't be surprised if Stanley said such a thing -- he and his paper have been buying too much of Mitchell's "school" "choice" bullshit for years, I don't know why he wouldn't fall for this load too -- the necessary discussion of the political ramifications of official acts is a far cry from spending hours and days in the County Executive suite sending (literally) thousands of e-mails arranging the grand and minute details of fundraisers (drafting invitations, even) for Walker's favored lieutenant governor candidate. The funniest line of all is Esenberg writing "George's views can't be easily dismissed."  Hilarious.

Although he gets paid well to be an apologist for anything the Republicans do or get caught doing, I don't envy the heavy task Esenberg has taken upon himself.  This is a tough one for the Walkerites to crawl out of, and they know it.  Luckily for Walker, Esenberg isn't really offering him legal advice -- he's just helping the Republicans soften up the public for the very real possibility of a Walker indictment by putting a legal gloss on a sow's ear.  It's a partisan prosecution, it shouldn't be criminal, everybody does it -- whatever works, the facts be damned.  

Walker himself isn't fooling around.  He's got a real criminal defense lawyer now -- Mike Steinle was in my Trial Ad class in law school and is one of the best in town.  Walker is going to need all the real help he can get.