No.

16-2417

In the United States Court of Appeals

for the Seventh Circuit
CYNTHIA ARCHER,
Plaintiff-Appellant,
V.

JOHN CHISHOLM, DAVID ROBLES, BRUCE LANDGRAF,

ROBERT STELTER, DAVID BUDDE, AND AARON WEISS,
Defendants-Appellees.
On Appeal from the U.S. District Court
For the Eastern District of Wisconsin
Case No. 2:15-cv-00922-LA
The Honorable Lynn Adelman
BRIEF OF ERWIN CHEMERINSKY,
GLENN HARLAN REYNOLDS, AND ILYA SOMIN
AS AMICI CURIAE IN SUPPORT
OF APPELLANT, URGING REVERSAL

KENNETH CHESEBRO
1600 Massachusetts Ave.
No. 801
Cambridge, MA 02138
(617) 661-4423
Counsel for Amici Curiae
August 9, 2016

Rule 26.1 Disclosure Statement

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Circuit
Rule 26.1, the undersigned counsel of record for amici curiae Erwin Chemerinsky,
Glenn Harlan Reynolds, and Ilya Somin hereby certifies that he is their only
attorney, that no other attorney or law firm has appeared for amici or is expected to
appear, and that amici have no parent or affiliate corporation.
Date: August 9, 2016
/s/ Kenneth Chesebro
KENNETH CHESEBRO
1600 Massachusetts Ave.
No. 801
Cambridge, MA 02138
(617) 661-4423

kenchesebro@msn.com

Table of Contents
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Introduction and Interest of Amici Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I.

Retaliatory-Investigation Claims Are a Vital Means of Remedying

and Preventing Abuses by Public Law-Enforcement Officials Who May
be Tempted to Target Political Opponents Based on Partisan Animus . . . . . . . 2
A.

Partisan Animus Has Mushroomed in Recent Decades and Is

Now More Powerful Than Racial Animus in Influencing
Americans to Make Discretionary Decisions That Disadvantage
Others, Based on Emotion Rather Than on Objective Analysis . . . . . . . . . 2

B.

Law-Enforcement Officials Today Have Opportunities

to Exercise Partisan Animus Against Political Opponents,
by Harassing Them With Investigations, on a Scale
Inconceivable During the Founding Era . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Enormous Resources Available for Law-Enforcement Investigations

11

2. Access to Documents Contained in Vast Digital Databases . . . . . . . . 12

3. A Cornucopia of Broadly Worded, Often Vague,
Statutes and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
II.

The Danger That Public Law-Enforcement Officials May

Be Tempted to Target Political Opponents Based on
Partisan Animus Is Illustrated by Archers Allegations . . . . . . . . . . . . . . . . . 17

III. Given the Allegations in Archers Complaint, There is No Basis

for Finding Qualified Immunity at the Motion-to-Dismiss Stage . . . . . . . . . . 24
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
APPENDIX: Institutional Affiliations of Amici Curiae . . . . . . . . . . . . . . . . . . . . . 26
Certificate of Compliance With Fed. R. App. P. 32(a) . . . . . . . . . . . . . . . . . . . . . . . 27
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

-ii-

Table of Authorities
Cases:

Page:

Abel v. United States, 362 U.S. 217 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Boyd v. United States, 116 U.S. 616 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Crawford-El v. Britton, 523 U.S. 574 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765) . . . . . . . . . . . . . . . . . . . . . . 12
Giebel v. Sylvester, 244 F.3d 1182 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Hartman v. Moore, 547 U.S. 250 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 25
Rakovich v. Wade, 850 F.2d 1180 (7th Cir. 1988) (en banc) . . . . . . . . . . . . . . . . . . . 25
State ex rel. Two Unnamed Petitioners v. Peterson,

866 N.W.2d 165 (Wis. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20, 22, 23

United States v. Bloom, 149 F.3d 649 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 25
Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . 24

U.S. Constitution, Statutes, and Rules:

U.S. CONST., art. I, 9, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. CONST., art. I, 9, cl. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. CONST., art. III, 3, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. CONST., amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 17, 23, 24, 25
U.S. CONST., amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
U.S. CONST., amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. CONST., amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. CONST., amend. VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Act of April 30, 1789, 1 Stat. 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Fed. R. App. P. 29(c)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Books:
SUSAN DUNN, JEFFERSONS SECOND REVOLUTION: THE ELECTION CRISIS
OF 1800 AND THE TRIUMPH OF REPUBLICANISM (2004) . . . . . . . . . . . . . . . . . 9, 10
STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM (1993) . . . . . . . . 8, 10
GENE HEALY, GO DIRECTLY TO JAIL: THE CRIMINALIZATION
OF ALMOST EVERYTHING (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
HARRY V. JAFFA, A NEW BIRTH OF FREEDOM: ABRAHAM LINCOLN
AND THE COMING OF THE CIVIL WAR (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
BUCKNER F. MELTON, JR., AARON BURR: CONSPIRACY TO TREASON (2002) . . . . . . . . 11
WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS
OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992) . . . . . . 10
PAUL ROSENZWEIG, The History of Criminal Law, in ONE NATION UNDER ARREST:
HOW CRAZY LAWS, ROGUE PROSECUTORS, AND ACTIVIST JUDGES THREATEN
YOUR LIBERTY (2010) (Paul Rosenzweig & Brian W. Walsh, eds.) . . . . . . . . . . 14
JAMES ROGER SHARP, THE DEADLOCKED ELECTION OF 1800: JEFFERSON,
BURR, AND THE UNION IN THE BALANCE (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-iii-

Cases (continued):

Page:

HARVEY SILVERGLATE, THREE FELONIES A DAY:

HOW THE FEDS TARGET THE INNOCENT (2011) . . . . . . . . . . . . . . . . . . . . . . . . . 16
JEFFREY A. SMITH, WAR & PRESS FREEDOM: THE
PROBLEM OF PREROGATIVE POWER (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10
ILYA SOMIN, DEMOCRACY AND POLITICAL IGNORANCE: WHY
SMALLER GOVERNMENT IS SMARTER (2d ed. 2016) . . . . . . . . . . . . . . . . . . . . . . . . 3
DAVID O. STEWART, AMERICAN EMPEROR: AARON BURRS
CHALLENGE TO JEFFERSONS AMERICA (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CASS R. SUNSTEIN, REPUBLIC.COM 2.0 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Articles:
Patricia L. Bellia & Susan Freiwald, Fourth Amendment
Protection for Stored E-mail, 2008 U. CHI. L. FORUM 121 . . . . . . . . . . . . . . . . 14
John C. Coffee, Jr., Does Unlawful Mean Criminal?:

Reflections on the Disappearing Tort/Crime Distinction

in American Law, 71 B.U. L. REV. 193 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Donald A. Dripps, Dearest Property: Digital Evidence and the History
of Private Papers as Special Objects of Search and Seizure,

103 J. CRIM. L. & CRIMINOLOGY 49 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Nicole Friess, When Rummaging Goes Digital: Fourth Amendment Particularity
and Stored E-Mail Surveillance, 90 NEB. L. REV. 971 (2012) . . . . . . . . . . . . . . 14
Adrian Furnham, Factors Relating to the Allocation of Medical Resources,
11 J. SOC. BEHAV. & PERSONALITY 615 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Shanto Iyengar & Kyu S. Hahn, Red Media, Blue Media: Evidence
of Ideological Slectivity in Media Use, 59 J. OF COMM. 19 (2009) . . . . . . . . . . . . 3
Shanto Iyengar, Gaurav Sood & Yphtach Lelkes, Affect, Not Ideology:
A Social Identity Perspective on Polarization, 76 PUB. OPIN Q. 405 (2012) . 3, 4
Shanto Iyengar & Sean J. Westwood, Fear and Loathing Across Party Lines:
New Evidence on Group Polarization, 59 AM. J. POL. SCI. 690 (2015) . . . . 3-6, 19
Robert H. Jackson, The Federal Prosecutor (address at Conference
of United States Attorneys, Washington, D.C., April 1, 1940), . . . . . . . . . . . . 16
Lilliana Mason, I Disrespectfully Agree: The Differential Effects of Partisan
Sorting on Social and Issue Polarization, 59 AM. J. POL. SCI. 128 (2015) 3, 4, 20
Geoffrey D. Munro, Terell P. Lasane & Scott P. Leary, Political

Partisan Prejudice: Selective Distortion and Weighting of

Evaluative Categories in College Admissions Applications,

40 J. APPLIED SOC. PSYCH. 2434 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Glenn Harlan Reynolds, Ham Sandwich Nation: Due Process When
Everything Is a Crime, 113 COLUM. L. REV. SIDEBAR 102 (2013) . . . . . . . . 15, 17
Eric Schnapper, Unreasonable Searches and Seizures of Papers,
71 VA. L. REV. 869(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Natalie Jomini Stroud, Polarization and Partisan Selective Exposure,
60 J. OF COMM. 556 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-iv-

Articles (continued):

Page:

William J. Stuntz, The Pathological Politics of Criminal Law,

100 MICH. L. REV. 505 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
William J. Stuntz, The Substantive Origins of Criminal Procedure,
105 YALE L.J. 393 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cass R. Sunstein, Partyism, 2015 U. CHI. LEG. F. 1 . . . . . . . . . . . . . . . . . . . . 3, 4, 5, 6

Miscellaneous:
About DOJ, http://www.justice.gov/about . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
John S. Baker, Jr., Revisiting the Explosive Growth of Federal Crimes,

(Heritage Found., Washington, D.C.), June 16, 2008 . . . . . . . . . . . . . . . . . . . . 14

BUREAU OF LABOR STATISTICS, U.S. DEPT OF LABOR,
OCCUPATIONAL EMPLOYMENT AND WAGES MAY 2015 . . . . . . . . . . . . . . . . . . . . 11
Gary Fields & John R. Emshwiller, As Criminal Laws Proliferate,
More Are Ensnared, WALL ST. J. (July 24, 2011) . . . . . . . . . . . . . . . . . . . . . . . 12
Gary Fields & John R. Emshwiller, Many Failed Efforts to Count Nation's
Federal Criminal Laws, WALL ST. J. (July 23, 2011) . . . . . . . . . . . . . . . . . . . . . 14
Ezra Klein & Alvin Chang, Political Identity is Fair Game for Hatred:
How Republicans and Democrats Discriminate, VOX (Dec. 7, 2015) . . . . . . . . . 3
Paul Larkin, Supplying the Information Required by Law: Directing

the Federal Government to Identify All Federal Criminal Laws

(Heritage Found., Washington, D.C.), Feb. 10, 2014 . . . . . . . . . . . . . . . . . . . . 14

Ilya Somin, The Disturbing Growth of Partisan Bias,
WASHINGTON POST (Dec. 9, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Jonathan Strong, USDA Fines Missouri Family $90k for Selling
a Few Rabbits Without a License, DAILY CALLER (May 24, 2011) . . . . . . . . . . 12
Matt Vespa, How Many Federal Laws Are There Again?,
TOWNHALL, June 6, 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Wendy Wang, The Rise of Intermarriage, PEW RESEARCH CENTER:
SOCIAL & DEMOGRAPHIC TRENDS (Feb. 16, 2012) . . . . . . . . . . . . . . . . . . . . . . . . 5

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Introduction and
Interest of Amici Curiae
Amici curiae are law professors with a strong interest in the matters of freedom
of speech and association involved in this case (addressed in Archer Br. at 22-41).
There is a vital need for citizens to have an effective remedy against government
officials who investigate them principally because of their partisan affiliation and
political speech core activities protected by the First Amendment which would be
gravely endangered if this Court were to abandon its existing precedent and affirm
the district courts dismissal of Archers challenge to what she has competently
alleged was a retaliatory partisan witch-hunt.1
Our primary interest lies with ensuring that this Court is aware of the
overwhelming danger in todays America that highly partisan government lawenforcement officials, looking to a myriad of sweeping (and often vague) statutes and
rules, will be tempted to abuse their vast discretionary authority by subjecting their
political opponents to burdensome investigations which would not have been
launched but for partisan animus. Part I-A of this brief summarizes the social-science
and polling data demonstrating that partisan animus has mushroomed in recent
decades, to the point that it has eclipsed racial animus in shaping behavior.
Of course, extreme partisan animus is hardly unique to our current era. Recall,
for example, the existential struggle between the Federalists and Jeffersonian
The institutional affiliations of amici are listed in the Appendix. Pursuant to Fed. R.
App. P. 29(c)(5), amici state that this brief has been prepared wholly by amici and their
counsel; that no party, nor counsel for any party, has authored this brief in whole or in part;
and that no person or entity other than amici and their counsel made a monetary
contribution to the preparation or submission of this brief.
1

Republicans early in our nations history. However, as Part I-B explains, the danger
to free speech and association posed by official abuse of government power is vastly
greater now than ever before, due to: (1) the creation of a vast law-enforcement
apparatus; (2) investigators ability to use digital technology to compile vast
databases documenting individuals words and deeds; and (3) the proliferation of
sweeping and often vague statutes and rules that regulate nearly every aspect of life.
That danger is well illustrated by the allegations made by Archer in this case, as
Part II summarizes. We then conclude in Part III by explaining why, given Archers
allegations, there is no basis for finding qualified immunity at the motion-to-dismiss
stage. In particular we explain why the clearly established law of this Circuit
supporting Archers retaliatory-investigation claim is unaffected by dictum in

Hartman v. Moore, 547 U.S. 250, 262 n.9 (2006), which does not qualify as precedentaltering considered dictum.

Argument
I.

Retaliatory-Investigation Claims Are a Vital Means of Remedying

and Preventing Abuses by Public Law-Enforcement Officials Who May
be Tempted to Target Political Opponents Based on Partisan Animus
A.

Partisan Animus Has Mushroomed in Recent Decades and Is

Now More Powerful Than Racial Animus in Influencing
Americans to Make Discretionary Decisions That Disadvantage
Others, Based on Emotion Rather Than on Objective Analysis

As should come as no surprise to even a casual observer of current politics,

overwhelming social-science and polling data support the conclusion that the
proclivity of Americans to speak and act against others based on partisan animus

-2-

what Professor Sunstein has termed partyism, a phenomenon akin to racism and
sexism is real and on the rise, and has serious adverse consequences for
governance, politics, and daily life. Cass R. Sunstein, Partyism, 2015 U. CHI. LEG. F.
1, 2.2 The central idea is that merely by identifying with a political party, a person
becomes hostile to the opposing party and willing to believe that its members have a
host of bad characteristics. Id.
One factor contributing to the sharp rise in partisan animus in recent years has
been Americans increasing ability to select media outlets congruent with their
preexisting partisan inclinations, and avoid media outlets that would expose them to
competing views thus further bolstering their partisan outlook. See CASS R.
SUNSTEIN, REPUBLIC.COM 2.0, at 49-57, 60-71, 76-78 (2007); Natalie Jomini Stroud,

Polarization and Partisan Selective Exposure, 60 J. OF COMM. 556 (2010); Shanto

Iyengar & Kyu S. Hahn, Red Media, Blue Media: Evidence of Ideological Selectivity

in Media Use, 59 J. OF COMM. 19 (2009); ILYA SOMIN, DEMOCRACY AND POLITICAL

IGNORANCE: WHY SMALLER GOVERNMENT IS SMARTER 93-96 (2d ed. 2016).

See also Ilya Somin, The Disturbing Growth of Partisan Bias, WASHINGTON POST
(Dec. 9, 2015), http://goo.gl/aIWoSb (data show growing hatred of supporters of the opposing
party among both Republicans and Democrats); Ezra Klein & Alvin Chang, Political
Identity is Fair Game for Hatred: How Republicans and Democrats Discriminate, VOX (Dec.
7, 2015), http://goo.gl/cv9TdU (Party and ideology have become powerful forms of personal
identity); Shanto Iyengar & Sean J. Westwood, Fear and Loathing Across Party Lines: New
Evidence on Group Polarization, 59 AM. J. POL. SCI. 690, 691 (2015) (the level of partisan
animus in the American public exceeds racial hostility); Lilliana Mason, I Disrespectfully
Agree: The Differential Effects of Partisan Sorting on Social and Issue Polarization, 59 AM.
J. POL. SCI. 128, 128 (2015) (levels of partisan bias, activism, and anger have increased);
Shanto Iyengar, Gaurav Sood & Yphtach Lelkes, Affect, Not Ideology: A Social Identity
Perspective on Polarization, 76 PUB. OPIN Q. 405, 405 (2012) (both Republicans and
Democrats increasingly dislike, even loathe, their opponents).
2

-3-

Whatever the precise factors accounting for the phenomenon, the research data
reveal a startling increase in partisan animus during the past half century an
increase so profound that today the level of partisan animus in the American public
exceeds racial hostility. Iyengar & Westwood, supra note 2, at 691. [S]ocial norms
appear to suppress racial discrimination, but there is no such reluctance to
discriminate based on partisan affiliation. Id. at 702. Americans increasingly
dislike people and groups on the other side of the political divide and face no social
repercussions for the open expression of these attitudes. Id. at 692. Indeed, they
enthusiastically voice hostility for the opposing party and its supporters. Id. at 705.
As levels of partisan bias, activism, and anger have increased, the typical partisan
now behaves more like a sports fan than like a banker choosing an investment,
feeling emotionally connected to the welfare of the party so that, when the party
is threatened, [partisans] become angry and work to help conquer the threat . . . .
Mason, supra note 2, at 128-29.
Consider, for example, the following research findings:
In 1958, according to Gallup polling, 96% of Americans disapproved of
interracial marriage. By 2013 the disapproval rate had dropped to 13%. Disapproval
of black-white marriages was even lower (6% among whites, and 3% among blacks).
Sunstein, supra, at 5 & n.20. But a dramatically opposite trend holds for what might
be called interparty marriage. In 1960, at most 5% of Americans disapproved of
their children marrying someone outside their party. By 2010, that figure had
increased more than five-fold with 33% of Democrats, and 49% of Republicans,
disapproving of interparty marriage. Iyengar, Sood & Lelkes, supra note 2, at 415-18.
-4-

These preferences are reflected in marriage decisions. Actual marriage across

party lines is rare; in a 2009 survey of married couples, only 9% consisted of
Democrat-Republican pairs. Iyengar & Westwood, supra note 2, at 692 (citations
omitted). Interracial marriage is now much more common than interparty marriage,
with about 15% of new marriages involving partners of a different race or ethnicity.
Wendy Wang, The Rise of Intermarriage, PEW RESEARCH CENTER: SOCIAL &
DEMOGRAPHIC TRENDS (Feb. 16, 2012), http://goo.gl/xg60TG.
Other survey data reflect increasing partisan animus. For example,
thermometer ratings ask people how they feel toward a particular subject, with 0
meaning cold and 100 meaning warm. Both Democrats and Republicans
generally rate their own parties around 70. In 2008, even Democrats rated Big
Business at 51, and even Republicans rated people on welfare at 50. But they
ranked members of the opposing party at about 30 a 15-point drop compared to
1988. Sunstein, supra, at 3.
Finally, controlled social-science experiments have confirmed the powerful effect
of partisan animus on the exercise of discretion when people are in a position to favor
partisan allies and disfavor partisan opponents. For example:
One experiment carried out by Stanford and Princeton researchers, involving
more than 1,000 participants, sought to determine whether people would act on
partisan animus in awarding college scholarship money. The participants were given
the resumes of two high school seniors and asked to decide which candidate should
receive a $30,000 scholarship. Iyengar & Westwood, supra note 2, at 697 & n.6.
Through variations in the race and political affiliation of the candidates presented to
-5-

the participants, the experimenters revealed the heavy impact of partisan

considerations. When the resumes contained no evidence of partisan affiliation in the
listing of five extracurricular activities, the participants as a whole chose the most
academically qualified candidate (4.0 vs. 3.5 GPA), irrespective of race. For example,
whites chose the black candidate, if more academically qualified, 64% of the time. Id.
at 700-01. But the participants generally refused to award the scholarship to a
partisan opponent. Even when clearly more qualified, when the candidate was
identified as President of Young Republicans, Democrats rejected the candidate
70% of the time. When the clearly more qualified candidate was identified as
President of Young Democrats, Republicans rejected the candidate 85% of the
time. Id. at 698-99. It is worth underlining this finding: racial preferences were

eliminated when one candidate was clearly better than the other. By contrast, party
preferences lead people to choose a clearly inferior candidate. Sunstein, supra, at 6.
A separate experiment conducted by the Stanford and Princeton researchers,
involving 814 participants, provided a more consequential test of bias, by assessing
the extent to which participants are willing to donate or risk money they would
otherwise receive themselves, depending on whether the partner in the game was a
member of the same party, or of the same race. Iyengar & Westwood, supra note 2, at
701. The researchers found that race did not matter but party did. People are
significantly more trusting of others who share their party affiliation. Sunstein,

supra, at 7.
Other studies have reached similar conclusions. In one study, for example,
participants were asked to play the role of a college admissions director to decide
-6-

which of two applicants should advance to an on-campus interview. The application

materials showed that one applicant had slightly but consistently weaker numbers
than the stronger applicant (class ranking, top 18% vs. top 12%; SAT score, 1230 vs.
1260; GPA, 3.58 vs. 3.79). Each application contained a favorable recommendation
that mentioned one weakness. The experiment was designed to test whether the
participants would reject academically more qualified applicants who were active in
the opposing party, by seizing on that one weakness to rationalize the exercise of
partisan animus. Geoffrey D. Munro, Terell P. Lasane & Scott P. Leary, Political

Partisan Prejudice: Selective Distortion and Weighting of Evaluative Categories in

College Admissions Applications, 40 J. APPLIED SOC. PSYCH. 2434, 2440-42 (2010).
Unsurprisingly, the participants who rated themselves mostly strongly partisan did
exactly that. Id. at 2444-45. Importantly, the decisionmaking task used in the
[experiment] was deliberately designed to be apolitical, but [e]ven so, participants
political preferences affected their decisions. Id. at 2454. The study thereby
confirmed that political identities can produce prejudicial judgments against
members of the political out-group, even on judgments for which political preference
has no relevance. Id. at 2456.
At least one research experiment has demonstrated that even in matters of life
and death, people are swayed by irrelevant partisan considerations. A study
conducted at University College London involved lay people, and how they rankorder patients queuing up to use scarce resources in this case a kidney machine.
Adrian Furnham, Factors Relating to the Allocation of Medical Resources, 11 J. SOC.
BEHAV. & PERSONALITY 615, 617 (1996). Participants were informed that there is
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only one place available on this machine, and were told to select who would be
most deserving of this treatment and would benefit the most. Id. at 619. The
study concluded that the participants clearly used the similar political beliefs of the
hypothetical patients to influence their prioritisation for scarce medical resources.

Id. at 622.
B.

Law-Enforcement Officials Today Have Opportunities

to Exercise Partisan Animus Against Political Opponents,
by Harassing Them With Investigations, on a Scale
Inconceivable During the Founding Era

Of course, extreme partisan animus is hardly unique to our current era. Recall,
for example, the existential struggle between the Federalists and Jeffersonian
Republicans early in our nations history. Partisan debate in the 1790s was perhaps
the most extreme and heated in American history, featuring the Jeffersonian
Republican theme that the Federalists were war-mongering Anglophile monarchists
and the Federalist charge that the Republicans were French-inspired radical
democrats ready to revolt and cut off heads. JEFFREY A. SMITH, WAR & PRESS
FREEDOM: THE PROBLEM OF PREROGATIVE POWER 75 (1999). See also id. at 80 (Each
side represented the other as the worst possible threat to the new and presumably
vulnerable American system of government.). The crisis, and with it the threat of
either civil war or the dismemberment of the Union, ended only in 1801 with the
election of Jefferson as president.3

See generally JAMES ROGER SHARP, THE DEADLOCKED ELECTION OF 1800:

JEFFERSON, BURR, AND THE UNION IN THE BALANCE (2010). See also Harry V. Jaffa, A NEW
BIRTH OF FREEDOM: ABRAHAM LINCOLN AND THE COMING OF THE CIVIL WAR 34-43, 50-66
(2000); STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 750-54 (1993).
3

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However, even though the Federalists controlled all three branches of the
federal government during this critical period of high partisan animus, there was
very little the Federalists could do to use government power to harass their political
opponents. Nearly all the usual methods by which government officials had
historically targeted their political enemies had been banned by the Constitution:
detention without justification (art. I, 9, cl. 2); bills of attainder and ex post facto
laws (art. I, 9, cl. 3); prosecutions for treason, expansively defined, based on
unsubstantiated assertions not supported by direct evidence (art. III, 3, cl. 1);
unreasonable searches and seizures, and general warrants (amend. IV); compelled
confessions and confiscation of property (amend. V); Star Chamber proceedings in
secret, without legal representation (amend. VI); and excessive fines and cruel and
unusual punishments (amend. VIII). Further, the federal government had almost no
role in criminal law (the province almost entirely of the states) and it possessed only
a skeletal legal staff. Its principal functions involved collecting customs revenue,
delivering mail, maintaining an army and navy, and managing relations with foreign
nations and Native Americans.
The main step the Federalists were able to take in an effort to target their
opponents using government resources proved largely ineffectual and, in the end,
counterproductive. In 1798, only a quarter of the nations newspapers took proRepublican positions, and less than a dozen of them . . . embraced Republicanism
aggressively.4 [T]he freedom of the Republican press to pass judgment on

SUSAN DUNN, JEFFERSONS SECOND REVOLUTION: THE ELECTION CRISIS OF 1800 AND
THE TRIUMPH OF REPUBLICANISM 103 (2004).

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officeholders openly, aggressively, even abusively was essential to the partys

survival. Elkins & McKitrick, supra note 3, at 701. So, determined to crush those
who they regarded as enemies of the state, on July 14, 1798, the Federalists enacted
the Sedition Act, making criticism of the government a criminal offense. Id. at 59293. The Act was written so it could never be used by Republicans against Federalists
(it would terminate on the last day of the Adams Administration, id. at 593), and
Federalist attorneys applied it only against Republicans (never against extreme
Federalists like Hamilton, who denounced Adams in print as thoroughly as anyone,
Smith, supra, at 85).
But the Act proved to be a hugely miscalculated strategy. Dunn, supra note 4,
at 101. Under it, only seventeen people were prosecuted, all but one in New England
(where Federalists were dominant). Id. at 112. Moreover, the prosecutions were
political trials that offered Republicans opportunities to ridicule and castigate the
administration and become martyrs. Smith, supra. at 88. Further, the Act gave
Republicans evidence for their conspiracy theory and a topic for their
communications with voters for years to come. Id. The resulting public outcry . . .
damaged the Federalist party beyond any hope of recovery. Id. at 85. Further
completing the Federalist humiliation, those convicted under the Act were pardoned
following Jeffersons victory,5 and the Federalist jurist most zealous in applying the
Act (Justice Samuel Chase) was impeached and nearly convicted.6

Dunn, supra note 4, at 235.

WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE

SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON 47-49, 52-53, 58-113 (1992).

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Now contrast the inability of the Federalists to meaningfully harm their

partisan opponents with the ease by which todays government officials with lawenforcement authority can target their opponents with retaliatory investigations.
Three developments have opened up opportunities for abuse unimaginable during
the Founding era.

1. Enormous Resources Available for Law-Enforcement Investigations

For decades after the federal government was created, its legal work was
handled by the Attorney General, assisted by a small staff of assistants,
supplemented by the retention of private attorneys; not until 1870 was the
Department of Justice created.7 Given the federal governments budget constraints,
even investigations into the most serious potential wrongdoing were leanly staffed.
For example, the case against Aaron Burr for treason (Burr had apparently planned
to stage a coup and split off the west from the rest of the United States) was handled
by only three attorneys (two of whom inspired little confidence).8 By contrast, the
myriad of government agencies at the federal, state, and local level which now
regulate nearly every nook and cranny of our society employ more than 128,000
lawyers,9 and obviously many more support personnel, and possess ample resources

About DOJ, http://www.justice.gov/about.

BUCKNER F. MELTON, JR., AARON BURR: CONSPIRACY TO TREASON 172, 178, 185-88,
195, 209-12, 218 (2002).
9

According to the latest available statistics, the federal government employs 35,270
lawyers; state governments, 40,770; and local governments, 52,130. BUREAU OF LABOR
STATISTICS, U.S. DEPT OF LABOR, OCCUPATIONAL EMPLOYMENT AND WAGES MAY 2015,
http://www.bls.gov/oes/current/oes231011.htm.

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to target citizens for even trivial legal violations.10

2. Access to Documents Contained in Vast Digital Databases.

During the Founding era, and for well over a century thereafter, government
attorneys were powerless to obtain access to documents possessed by a target of
investigation for use as evidence. They were absolutely barred from obtaining
documents under the holding of Entick v. Carrington, 19 How. St. Tr. 1029 (C.P.
1765),11 which was a well-settled aspect of American common law.12 Eventually the
U.S. Supreme Court supplemented this common-law rule by holding that Enticks
bar against the seizure of documents as evidence of a crime had been incorporated
into the Fourth Amendment. Boyd v. United States, 116 U.S. 616, 626-27 (1886). The
Court adhered to that rule well into the 20th century. E.g., Abel v. United States, 362
U.S. 217, 695 (1960) (reaffirming that private papers desired by the Government
merely for use as evidence may not be seized, no matter how lawful the search which
discovers them). See also Schnapper, supra note 11, at 869-71.

E.g., Gary Fields & John R. Emshwiller, As Criminal Laws Proliferate, More Are
Ensnared, WALL ST. J. (July 24, 2011), http://goo.gl/qPxCKi (Bobby Unser ended up with a
10

criminal conviction on his record when he accidentally drove his snowmobile on to protected
federal land during a snowstorm, and later asked authorities for help finding the snowmobile,
whereupon he was cited for violating the Wilderness Act); Jonathan Strong, USDA Fines
Missouri Family $90k for Selling a Few Rabbits Without a License, DAILY CALLER (May 24,
2011), http://goo.gl/Vbmmtx.

See generally William J. Stuntz, The Substantive Origins of Criminal Procedure,

105 YALE L.J. 393, 397-404 (1995); Eric Schnapper, Unreasonable Searches and Seizures of
Papers, 71 VA. L. REV. 869, 873-77, 880-84 (1985).
11

Donald A. Dripps, Dearest Property: Digital Evidence and the History of Private
Papers as Special Objects of Search and Seizure, 103 J. CRIM. L. & CRIMINOLOGY 49, 73-76
& n.127 (2013). A review of case law through 1860 citing Entick reveals no reported decision
permitting the seizure of private papers. Id. at 85.
12

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Notably, this rule was scrupulously observed even during the 1807 treason
prosecution of Aaron Burr, despite the obvious relevance of the correspondence
exchanged between the notorious Burr and others involved in his machinations,
particularly General James Wilkinson, the armys top officer who had schemed with
Burr beginning in 1804 and who ultimately betrayed Burr. DAVID O. STEWART,
AMERICAN EMPEROR: AARON BURRS CHALLENGE TO JEFFERSONS AMERICA 52-54, 71,
96, 102-03, 109-11, 126, 132, 147, 163-65, 175, 209 (2011). Even though Burr and an
ally had each spoken of plans use armed men to kidnap the president and vice
president, id. at 119, 124-25, 127, and even though Burr had personally warned
Jefferson he could do him much harm, id. at 130-31, and even though convicting Burr
was the Jeffersons top priority, id. at 206-07, 231, 233, no attempt was made to seize
Burrs documents, or Wilkinsons, or to force surrender of the documents through
legal process, 241-42 even though Burr himself had been allowed to subpoena a
letter in the presidents possession. Id. at 237. The prosecutors never demanded the
letters so diligently concealed by both Burr and Wilkinson. They have never come to
light. Id. at 242.
By contrast, the failure of courts to enforce previously well-accepted rules
against prying into personal documents has accorded government investigators
extraordinary power. Even though the most private aspects of a persons life are
routinely stored in digital form in computers and in online accounts, government
investigators have for years enjoyed wide latitude to seize and rummage through all
of an individuals data files often, in the case of online accounts, without ever

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informing the individuals of the rummaging (unless they were later charged).13
3. A Cornucopia of Broadly Worded, Often Vague, Statutes and Regulations.
The final development opening up vast opportunities for government officials to
target their political opponents for retaliatory investigations is the sheer number of
statutes and regulations now on the books, coupled with their broad, and often
vague, wording.
The first federal criminal statute defined a finite, easily ascertainable set of
offenses, in 28 separate sections. Act of April 30, 1789, 1 Stat. 112. However, today
federal criminal statutes are so numerous and varied, and dispersed throughout the
statute books, that it is impossible to know them all. These laws are scattered in
over 50 titles of the United States code, encompassing roughly 27,000 pages.14 The
federal government has not been able develop an authoritative methodology for
counting how many criminal statutes exist, and there is no compendium of federal
criminal law to which someone seeking guidance could turn.15 In sum, even teams of
legal researchers let alone ordinary citizens cannot reliably ascertain what

See generally Nicole Friess, When Rummaging Goes Digital: Fourth Amendment
Particularity and Stored E-Mail Surveillance, 90 NEB. L. REV. 971 (2012); Patricia L. Bellia &
Susan Freiwald, Fourth Amendment Protection for Stored E-mail, 2008 U. CHI. L. FORUM
13

121.

Paul Rosenzweig, The History of Criminal Law, in ONE NATION UNDER ARREST:
HOW CRAZY LAWS, ROGUE PROSECUTORS, AND ACTIVIST JUDGES THREATEN YOUR LIBERTY 129
(2010) (Paul Rosenzweig & Brian W. Walsh, eds.).
14

Paul Larkin, Supplying the Information Required by Law: Directing the Federal
Government to Identify All Federal Criminal Laws (Heritage Found., Washington, D.C.),
Feb. 10, 2014, at 1, http://goo.gl/zXag86. See also Gary Fields & John R. Emshwiller, Many
Failed Efforts to Count Nation's Federal Criminal Laws, WALL ST. J. (July 23, 2011),
http://goo.gl/1Yhd3V; John S. Baker, Jr., Revisiting the Explosive Growth of Federal Crimes,
15

(Heritage Found., Washington, D.C.), June 16, 2008, at 1, http://goo.gl/ATpwk2.

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federal law prohibits.16 Recent estimates peg the number of federal criminal statutes
at around 5,000.17 But those are merely the federal statutes based on which officials
can investigate people. They apparently represent less than 2% of the provisions of
federal law that can trigger an investigation (one expert having estimated in the
early 1990s that there are over 300,000 federal regulations that may be enforced
criminally).18
Of course, it is not merely the number of criminal statutes and regulations that
may be enforced (both at the federal and state level) which creates the danger. The
combination of broad prosecutorial discretion and the vast web of legislation and
regulation that exists today has created the situation under which virtually any
American bears the risk of being targeted for prosecution.19 [F]ederal criminal laws
have become dangerously disconnected from the English common law tradition and
its insistence on fair notice, so prosecutors can find some arguable federal crime to
apply to just about any one of us, even for the most seemingly innocuous conduct

16

GENE HEALY, GO DIRECTLY TO JAIL: THE CRIMINALIZATION OF ALMOST EVERYTHING,

at vii (2004).
Matt Vespa, How Many Federal Laws Are There Again?, TOWNHALL, June 6, 2015,
http://goo.gl/yauuZY.
17

John C. Coffee, Jr., Does Unlawful Mean Criminal?: Reflections on the

Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 216 & n.94
(1991).
18

Glenn Harlan Reynolds, Ham Sandwich Nation: Due Process When Everything Is a
Crime, 113 COLUM. L. REV. SIDEBAR 102, 102-03 (2013), http://pdfsr.com/pdf/reynolds.pdf. See
also id. at 104 (the proliferation of federal criminal statutes and regulations has reached the
point where virtually every citizen, knowingly or not (usually not) is potentially at risk for
prosecution.).
19

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(and since the mid-1980s have done so increasingly).20 We are coming ever closer to
a world in which the law on the books makes everyone a felon, and in which
prosecutors and the police both define the law on the street and decide who has
violated it.21
This poses the danger, as Justice Jackson warned in a 1940 speech while serving
as Attorney General, that the prosecutor
will pick people that he thinks he should get rather than pick cases that
need to be prosecuted.
With the law books filled with a great assortment of crimes, a
prosecutor stands a fair chance of finding at least a technical violation of
some act on the part of almost anyone. In such a case, it is not a question of
discovering the commission of a crime and then looking for the man who
has committed it, it is a question of picking the man and then searching the
law books, or putting investigators to work, to pin some offense on him. It
is in this realm in which the prosecutor picks some person whom he
dislikes or desires to embarrass, or selects some group of unpopular persons
and then looks for an offense, that the greatest danger of abuse of
prosecuting power lies. It is here that law enforcement becomes personal,
and the real crime becomes that of being unpopular with the predominant
or governing group, being attached to the wrong political views, or being
personally obnoxious to or in the way of the prosecutor himself.
Robert H. Jackson, The Federal Prosecutor (address at Conference of United States
Attorneys, Washington, D.C., April 1, 1940), http://goo.gl/JjPTAC.

20

Harvey Silverglate, THREE FELONIES A DAY: HOW THE FEDS TARGET THE INNOCENT,
at xxx (2011). See also id. at xliv ([A]s the criminal code became broader, it also became
more and more vague, or at least it has been interpreted so by prosecutors and often by
courts as well. Because of this vagueness, the federal criminal law has become too often a
trap for the unwary honest citizen instead of a legitimate tool for protecting society.).
William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV.
505, 511 (2001).
21

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That danger has heightened significance, of course, in a society such as ours

steeped with partisan animus. Because everyone is a criminal if prosecutors look
hard enough, they are guaranteed to find something eventually and a prosecutor
who is anxious to go after a political enemy will always find sufficient staff to bring
charges . . . .22
II.

The Danger That Public Law-Enforcement Officials May

Be Tempted to Target Political Opponents Based on
Partisan Animus Is Illustrated by Archers Allegations
The danger posed by the high levels of partisan animus, or partyism, in

American society today and the consequent need for First Amendment doctrine to
afford citizens a retaliatory-investigation claim as a means of remedying and
preventing abuses by public law-enforcement officials are well illustrated by the
allegations in Archers complaint, which on a motion to dismiss must be accepted as
true. We briefly highlight some key points, supplemented by the findings in the
opinions of the Wisconsin Supreme Court justices who held unconstitutional the
John Doe proceedings targeting Archer and others, State ex rel. Two Unnamed

Petitioners v. Peterson, 866 N.W.2d 165 (Wis. 2015), which Archer presumably could
prove at trial if allowed to proceed with her retaliatory-investigation claim.
Defendant Chisholm is the Milwaukee County district attorney, and the other
defendants were his subordinates in the investigation of Archer and dozens of other
John Doe targets. A17, 6-11. Chisholm is a prominent Wisconsin Democrat who
has openly engaged in partisan activity by campaigning for Milwaukee Mayor Tom

22

Reynolds, supra note 19, at 104-05.

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Barrett, a fellow Democrat who was Scott Walkers opponent in the 2010 race for
governor. A22-23, 36, 40-41.
In staffing his office, Chisholm tends to hire and promote those who share his
political convictions. A25-26, 50, 61. For example, all five of the defendant
subordinates who carried out the John Doe investigations obtained their positions
at least in part because they were politically allied with Chisholm. A22, 37-38. On
at least one occasion, Chisholm threatened to terminate a staff member if he assisted
with the campaign of a Republican candidate for office. A25, 53-56.
The intense pro-Democrat affiliation of the John Doe investigators, and of
Chisholms office generally, was objectively verifiable during the relevant time
period. On his Facebook page defendant Robles listed himself as a member of an antiWalker group. A24, 49. Defendant Budd put a Recall Walker sign in his yard.
A24, 49. Chisholm expressly encouraged the posting of Blue-Fist signs (conveying
solidarity with union opponents of Walkers policies; image viewable here:
http://goo.gl/7kTN9x) in public areas of the district attorneys offices and in the
parking lot. A23-24, 43, 44. At least 43 (and perhaps up to 70) members of
Chisholms staff signed a petition advocating Walkers recall. A24, 48. Chisholm (as
well as defendants Landgraf and Robles) routinely permitted staff members to
participate in political demonstrations against Walker during office hours, and
encouraged them to engage in anti-Walker political discussions during office hours.
A24, 45-47.
Based on social-science research, one would predict that Chisholms office would
be an incubator for partisan animus, and abusive conduct based on it, in the event
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that Democrats came to believe that their vital interests were put at risk by
Republicans. See pp. 2-8, supra. And crediting Archers allegations, Chisholms office
did indeed facilitate heightened partisan animus. Chisholms subordinates faced no
social repercussions for the open expression of anti-Walker sentiments and they felt
free to enthusiastically voice hostility for the opposing party and its supporters.
Iyengar & Westwood, supra note 2, at 692, 705.
In the fall of 2010, even before Walker was elected governor, Archer was
regarded by Chisholm and the five other defendants as a close political ally of Walker,
in light of her many years of working for Republican officeholders, including several
years of working in high-level positions in Walkers County Executive office. A18-19,
14-17, 22. Because they worked for the same county and Archer was a highranking employee of the county executive, Chisholm personally knew Archer and
knew of her close association with Walker and support for his policies, A19, 22.
Given her close ties with Walker, social-science research suggests that Archer
would be a logical target for retaliation by Chisholm and his subordinates. See pp. 24, supra. And it turned out she was a prime target. Archer was one of the earliest
political allies of Walker targeted in the two John Doe investigations, beginning
sometime in the fall of 2010, prior to Walker even taking office as governor. A35,
102-04. The targeting of Archer intensified after she took on a lead role in advocating
for Governor Walkers Act 10 budget reforms. A20-21, 27-30; A36-37, 108-09.
Once Walker became governor, the John Doe investigation into his political
allies intensified, as Chisholm and his subordinates began to view themselves as
under siege by hostile partisan forces, threatening their vital interests, in a vivid
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manifestation of the fact that, as levels of partisan bias, activism, and anger have
increased, the typical partisan now behaves more like a sports fan than like a
banker choosing an investment, feeling emotionally connected to the welfare of the
party so that, when the party is threatened, [partisans] become angry and work to
help conquer the threat . . . . Mason, supra note 2, at 128-29.
In February, 2011, Governor Walker introduced his Act 10 reforms, which
proposed radical reductions in the power of public-sector unions, and which these
unions naturally viewed as an existential threat. A21-22, 33. The proposal
sparked massive unrest among Democrats in Wisconsin. As emotions ran high, the
capitol was besieged by protesters, and 14 Democrat senators fled the state for
nearly a month to deprive the Senate of a sufficient quorum to pass Act 10. Two

Unnamed Petitioners, supra, 363 N.W.2d at 215 (Prosser, J., concurring). Death
threats were made against Walker and others who supported Act 10. A22, 34.
Crediting Archers allegations, Chisholm and many of his subordinates realized
that Act 10 would have a direct negative impact on them personally. Chisholm had
received strong support from unions in his successful campaigns for office, and Act 10
would weaken those unions and their ability to support his future campaigns. A23,
39. Assistant district attorneys such as defendants Landgraf and Robles would be
doubly impacted: (1) additional amounts would be deducted from their paychecks to
cover the increased pension and health care costs imposed by Act 10; and (2) the
union of which they were members would be negatively affected by Act 10. A23, 42.
Chisholms wife would be triply impacted by Act 10 because it would (1) impact
her pocketbook, given her status as a public school teacher; (2) impact her union
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membership, as a member of the teachers union; and (3) impact her position as a
steward for the union. A25, 51. Chisholms wife attended rallies against Act 10. Id.
Contemplating the potential effects of Act 10 on her and her union was such an
emotional matter for Chisholms wife, Chisholm told a junior prosecutor, that she
would often cry when discussing it. A26, 58. Chisholm told the junior prosecutor
that given the devastating impact of Act 10 on unions and their members, he felt it
was his duty to stop Governor Walker from treating people that way. A26, 57.
Based on statements by Chisholm and his associates, the junior prosecutor concluded
that Chisholm was allowing partisan animus to influence his official decisions as
district attorney. A26, 60. Further, the junior prosecutor learned from the brother
of Chisholms wife that Chisholm had a carefully crafted plan to put Walker and his
henchmen in prison by using the ongoing John Doe investigation to retaliate
against Walker and his political allies. A27, 65.
Under this plan of retaliation, over the next three years, as John Doe I
morphed into John Doe II, Chisholm and his subordinates managed to compile an
immense database of information on dozens of Walkers political allies, nearly all of it
involving aspects of their personal lives having no conceivable connection to any lawenforcement objective. According to Archers allegations, Chisholm and his
subordinates sought to use it to embarrass and harass Walker supporters, pressure
them to disclose (or invent) negative information about Walker, and dissuade them
from further support of Walker. A28, 69; A29-32, 75-81, 83-90; A38, 114-15;
A39, 118; A41, 126-28; A44, 144; A49-50, 163-64, 168.

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For most of American history, personal documents have been treated as

sacrosanct, beyond the ability of prosecutors to seize as evidence of a crime. See pp.
12-14, supra. Even Aaron Burr, accused of having exchanged letters with an army
general revealing a plan to kidnap President Jefferson and split off the west from the
rest of the United States, was allowed to keep his letters private when he was put on
trial for treason. See p. 13, supra. By contrast, every detail of the private lives of
conservatives who supported Scott Walker was laid bare by Chisholm and those
acting under his direction, even though there was little if any proof that they had
done anything wrong, and even though virtually none of the material collected had
any relevance to any conceivable claim of wrongdoing. For example, Chisholm seized

every e-mail Archer sent or received using her personal e-mail account dating back to
2006, years before any alleged wrongdoing. A44, 143. More than 99% of her e-mails
had no conceivable connection to the allegations the investigators made. Nonetheless
they were all seized, and were eventually released to the public, and many are now
available on the internet. Id.
This massive invasion of Archers private life was repeated with the many other
Walker allies targeted by the retaliatory-investigation scheme. Evaluating the end
product of the John Doe II probe, the Wisconsin Supreme Court observed:
The breadth of the documents gathered . . . is amazing. Millions of
documents . . . were subpoenaed and/or seized. . . . The special prosecutor
obtained virtually every document possessed by [the targets] relating to
every aspect of their lives, both personal and professional, over a five-year
span (from 2009 to 2013) . . . [including] wholly irrelevant information,
such as retirement income statements, personal financial account
information, personal letters, and family photos.

Two Unnamed Petitioners, 866 N.W.2d 165, 183. In sum, Chisholm and others
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carrying out the scheme mounted a fishing expedition into the lives, work, and
thoughts of countless citizens that makes the legendary Watergate break-in look
insignificant by comparison. Id. at 213, 233 (Prosser, J., concurring).
The excuse offered for this massive intrusion into the private lives of Walkers
political allies was that Chisholm and others carrying out the investigation suspected
that the targets had somehow been engaged in illegally coordinated issue advocacy.

Id. at 190; see also id. at 180-81. The theory relied on by the special prosecutor
eventually appointed to handle the John Doe II investigation evolved over the
course of the various legal challenges to his investigation, and even in the final
hour, when the challenges reached the Wisconsin Supreme Court, he was unable to
decide just how the [targets] have broken the law. Id. at 190. Ultimately the Court
held that the special prosecutors legal theory is unsupported in either reason or
law. Consequently, the investigation is closed. Id. at 196. See also id. at 190 (no
support in Wisconsin law); id. at 195-96 (theory depends on statutory definition that
is unconstitutionally overbroad and vague).
Thus ended perhaps the best example to date of the danger, in this era of
extreme partisan animus, that unless deterred by the availability of a retaliatoryinvestigation First Amendment claim, law-enforcement officials will abuse public
resources to hinder their political opponents and thereby help their political allies.

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III. Given the Allegations in Archers Complaint, There is No Basis

for Finding Qualified Immunity at the Motion-to-Dismiss Stage
The district court found that Chisholm and the other five defendants who
helped him carry out a retaliatory investigation against Archer were entitled to
qualified immunity, SPA 31-34, opining that it is unclear whether a retaliatory
investigation of the scope and intensity alleged by Archer, motivated by intense
partisan hatred, rises to the level of a constitutional violation, and even if it does
this was not clearly established at the time of the alleged violation. SPA 31.
But even if no one had ever before even thought to sue a law-enforcement
official for a retaliatory investigation, there is no way of avoiding the conclusion, if
Archers allegations are credited, that defendants actions strike at the core of the
First Amendment, so that a reasonable official would understand that what
Chisholm and his subordinates were doing violates that right. Anderson v.

Creighton, 483 U.S. 635, 640 (1987). [T]he general rule has long been clearly
established that the First Amendment bars retaliation for protected speech,

Crawford-El v. Britton, 523 U.S. 574, 592 (1998), and [i]t is of no moment that the
Supreme Court has never expressly held that a particular form of retaliation
violates the Constitution . . . . Whitlock v. Brueggemann, 682 F.3d 567, 586 (7th
Cir. 2012). [A] right can be clearly established on the basis of common sense. Id.
(quoting Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001)). Here common
sense tells us that to use law-enforcement resources to seize millions of records
documenting the private lives of ones partisan enemies, and to deploy that
information to harass them and try to drive them from the public square, violates the
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First Amendment.
Further, well before the events leading up to this appeal, this Court held that a
district court correctly found that an investigation conducted in retaliation for
protected speech was actionable. Rakovich v. Wade, 850 F.2d 1180, 1189 (7th Cir.
1988) (en banc). The district courts suggestion that dictum in Hartman v. Moore,
547 U.S. 250 (2006), somehow supplants that holding is incorrect. The five justices
who joined the majority opinion in Hartman (three of whom are no longer on the
Court) merely noted, via that dictum, that the issue of whether a retaliatory
investigation may constitute a distinct constitutional violation is not before us. Id.
at 262 n.9. This is not the sort of considered dictum that can affect the law of this
Circuit. E.g., United States v. Bloom, 149 F.3d 649, 653 (7th Cir. 1998).

Conclusion
For the reasons stated, the district courts dismissal of Archers retaliatoryinvestigation claim should be reversed.
Respectfully submitted,
/s/ Kenneth Chesebro
KENNETH CHESEBRO
1600 Massachusetts Ave.
No. 801
Cambridge, MA 02138
(617) 661-4423

kenchesebro@msn.com
August 9, 2016

Counsel for Amici Curiae

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APPENDIX
Institutional Affiliations of Amici Curiae
(for identification purposes only)
Erwin Chemerinsky received his B.S. from Northwestern
University and his J.D. from Harvard Law School. He is the
founding Dean, Distinguished Professor of Law, and Raymond
Pryke Professor of First Amendment Law, at the University of
California, Irvine, School of Law. Among many other works, he
is the author of FEDERAL JURISDICTION (7th ed. 2016) and
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES (5th ed. 2015).
Glenn Harlan Reynolds received his B.A. from the University of Tennessee, Knoxville, and his J.D. from Yale Law School.
He is the Beauchamp Brogan Distinguished Professor of Law at
the University of Tennessee College of Law, where he teaches
and publishes in the areas of constitutional law, internet law, and
technology, among other subjects. Among many other works, he
is the author of THE EDUCATION APOCALYPSE: HOW IT HAPPENED
AND HOW TO SURVIVE IT (2015), and AN ARMY OF DAVIDS: HOW
MARKETS AND TECHNOLOGY EMPOWER ORDINARY PEOPLE TO BEAT
BIG MEDIA, BIG GOVERNMENT, AND OTHER GOLIATHS (2007). He
writes regularly for popular media outlets and is the founder of
the INSTAPUNDIT blog, affiliated with PJ Media.
Ilya Somin received his B.A. from Amherst College, his M.A.
in political science from Harvard University, and his J.D. from
Yale Law School. He is Professor of Law at George Mason
University, where he teaches and publishes in the areas of
constitutional law, property law, and popular political participation and its implications for constitutional democracy. Among
many other works, he is the author of DEMOCRACY AND POLITICAL
IGNORANCE: WHY SMALLER GOVERNMENT IS SMARTER (2d ed.
2016), and THE GRASPING HAND: KELO V. CITY OF NEW LONDON
AND THE LIMITS OF EMINENT DOMAIN (2015). He writes regularly
for popular media outlets, in particular the VOLOKH CONSPIRACY
blog, affiliated with the Washington Post.

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Certificate of Compliance With Fed. R. App. P. 32(a)

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, the
undersigned hereby certifies that this brief complies with the type-volume limitation
of Rule 32(a)(7)(B). The text of this brief was prepared in 12-point Century
Schoolbook font. According to Wordperfects word-count feature, the brief consists of
6,980 words, excluding the tables of contents and authorities and the certificates of
compliance and service.
/s/ Kenneth Chesebro
KENNETH CHESEBRO
1600 Massachusetts Ave.
No. 801
Cambridge, MA 02138
(617) 661-4423

kenchesebro@msn.com

Counsel for Amici Curiae

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Certificate of Service
I hereby certify that on this 9th day of August, 2016, I electronically filed the
foregoing Brief of Erwin Chemerinsky, Glenn Reynolds, and Ilya Somin as Amici

Curiae in Support of Appellant, Urging Reversal, with the Clerk of the Court for the
United States Court of Appeals for the Seventh Circuit by using the CM/ECF system.
I further certify that the attorneys for all parties in this appeal are registered
CM/ECF users so that service on all parties will be accomplished by the CM/ECF
system.
/s/ Kenneth Chesebro
KENNETH CHESEBRO
1600 Massachusetts Ave.
No. 801
Cambridge, MA 02138
(617) 661-4423

kenchesebro@msn.com

Counsel for Amici Curiae

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