So Wilenchik demanded information from every New Times reporter who'd written critically about Arpaio, not just Dougherty. He issued grand jury subpoenas without actually convening a grand jury — demanding detailed information about the browsing habits of everyone who so much as glimpsed at our Web site. As the paper resisted, Wilenchik attempted to set up that infamous meeting with Judge Baca, a meeting she immediately deemed improper.
Finally, when New Times revealed the contents of the subpoena, the investigation got so out of control that the supposed "victim" on the case sent his men out under the cover of night to arrest New Times' executive editor and CEO in their homes. That one was such an overreach that even Andrew Thomas cried foul: He fired Wilenchik the next day.
Michael Ratcliff
Sylvia Nobel's dreams of filming her novel Deadly Sanctuary were dashed by her lawyer's "investment" in a Scottsdale nightclub.
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The bizarre denouement, though, is that the very actions that drew a public outcry have failed to result in accountability for anyone. When New Times sued, U.S. District Court Judge Susan Bolton found that Arpaio, Thomas, and Wilenchik were all within their rights. It doesn't matter how horrifying their actions; they argued that their offices give them immunity, and last March, Bolton actually agreed.
The State Bar, we know now, has done no better: Andrew Thomas got off the hook by arguing that he'd only appointed Wilenchik. He wasn't responsible for anything after that. (Never mind that he'd chosen as special prosecutor a man with an inherent conflict.) And Wilenchik got off the hook by arguing — well, we still don't know just how he did it. But the fact is, he's home free. The Bar didn't even issue a reprimand.
There's nothing New Times can do about the Bar's decision. But New Times' lawyers are appealing Bolton's ruling, and they make a compelling case that she erred in granting these officials immunity. In a brief filed last Thursday, attorneys Michael Meehan, Don Moon, and Michael Manning argue that Wilenchik lost immunity when he fabricated the existence of a grand jury. They also argue that Andrew Thomas should have never enjoyed immunity in this case: A prosecutor is not entitled to immunity for administrative actions, like hiring or firing employees. He must answer for hiring Wilenchik.
More importantly, the attorneys lay out a First Amendment claim against Arpaio and Wilenchik.
In a memo written to persuade prosecutors to take up the case, Arpaio's own lawyer explained why New Times should be investigated for publishing the sheriff's home address online, when government Web sites with the address have faced no similar persecution.
Unlike New Times, the sheriff's lawyer wrote, those Web sites had not been "historically anti-Arpaio."
So why was New Times the focus of a special prosecutor?
Because we were critical of the sheriff.
The newspaper's lawyers cite a case called White v. Lee, which was decided by the same circuit court now pondering our appeal. In that case, the court held that officials "may not rely on 'investigative authority' to shield investigative actions that chill protected speech and that occur after it is crystal clear that there is no 'case' to 'investigate,'" as New Times lawyers write.
"As here," they add, "White was a case about public officials throwing their weight around in an investigation of citizens who had simply and obviously exercised their First Amendment rights."
The case should shred the officials' defense.
"The press has a right to publish anything in the public domain," Moon explains. "The sheriff's address was all over the Net, he knew it was all over the Net, and the investigation he demanded was a pretext to go after journalists who had questioned his real estate investments and his conduct in office. We don't believe his conduct is protected by immunity."
The State Bar may not have a problem with what Thomas or Wilenchik did. Judge Bolton may not, either.
But the Constitution's framers would surely have a big problem with all three. And we can only hope that the appeals court is smart enough to understand why — and finally, do something about it.
