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Toney’s pandemic actions disqualify him for Attorney General

By Richard Moore, Richard’s Wisconsin In-Depth

All eyes may so far be trained on the looming 2022 gubernatorial election, but it’s hard to imagine that that race will be any more exciting than the run for state attorney general, with Democrat Josh Kaul set to defend his incumbency.

Before the fall race, though, there’s the not-so-little matter of just who will be running against Kaul as the GOP nominee, and that race is setting up to be a barnburner as former state legislator Adam Jarchow of Balsam Lake and Fond du Lac district attorney Eric Toney tangle in the Republican primary.

While Jarchow and Toney are the only candidates right now, that could still change, and the landscape has already changed once. The race began as a contest between Toney and University of Wisconsin political science professor Ryan Owens, but Owens said he would not subject his family to political attacks and dropped out.

Enter Jarchow, which sets the stage for a crucial showdown within the state Republican Party.

Toney is running as an aggressive crime-fighter and tough-on-criminals candidate, very narrowly so; Jarchow is running as a supporter of law enforcement, too, but also as a liberty-loving patriot who says the Covid-19 pandemic exposed Toney as a handmaiden to Democratic Gov. Tony Evers.

Indeed, Jarchow got into the race after Owens exited, saying Toney’s candidacy could not go unchallenged.

Jarchow is right, and, in this important election—especially in a year when Republicans will likely do well statewide and across the country—it matters to the conservative movement who wins the GOP attorney general’s nomination.

I’ll hold off on any endorsement since it’s early, but, in the current two-person race, that needs to be Jarchow. While Jarchow would undoubtedly be as much a supporter of law enforcement as Toney, Toney has indeed disqualified himself because of his actions during last year’s pandemic, which indicate he has neither the grasp nor the will to take on the leviathan known as the administrative state.

Jarchow does, and conservatives need not and should not wait to rule Toney out.

The attorney general’s race is almost always a lower profile race than the election for governor but the importance of the position should not be overlooked. The attorney general is indeed the state’s “Top Cop,” but the AG is much, much more. For one thing, the attorney general issues both formal and informal opinions to guide state agencies in the implementation of the law.

In his tenure, Josh Kaul has repeatedly sided with the administrative state against the will of the people as expressed through their elected representatives, embracing far-reaching legislative powers for state agencies, as well as interpretations that allow agencies to impose de facto rules via guidance documents and that green light their use of broad generalized grants of statutory power to effectively replace specific standards mandated by the Legislature with more restrictive ones.

He’s done a lot more than that. Rather than challenge the overreach of the Biden administration into the powers of states, Kaul has backed him up. He has breathtakingly embraced endowing unelected public health officials with the pure power to take control of our lives.

He has turned his back on the need to investigate the willful violation of state election laws and tried to shut down investigations that do so independently. He has joined the Evers administration in supporting brazen censorship through the denial of access to conservative journalists covering the governor and opposing transparency generally.

The attorney general can also play an outsized role in shaping and influencing proposed legislation, as Kaul did with his support of new gun control legislation and red flag laws that would strip law-abiding citizens of their due-process rights.

He has also served as the reliable litigation arm of the governor. See redistricting.

Attorneys general, because they are elected officials, do not have to follow every whim of the governor. Evers certainly didn’t when he was state superintendent of education, another elected position. And attorneys general in other states bucked their governor during the pandemic.

To cite just one example, in Louisiana, Democratic governor John Bel Edwards issued a slew of restrictions, including mandatory face coverings, limiting bars to offering takeout and delivery only, and capping social gatherings at 50 people or fewer. But the GOP attorney general promptly fought back—unlike Kaul—with a legal opinion deeming the orders “likely unconstitutional and unenforceable.”

All these points will be explored more deeply in future posts, but the point is that ousting Kaul would be an important step forward in defending constitutional rights and representative government in this state.

Who replaces him, if that person can win the election, matters.

On that front, Jarchow stands head and shoulders above Toney. He was first elected to the state Assembly in 2014, prompted to run in part because of what he perceived as an assault on property rights by the Wisconsin Department of Natural Resources. In 2019, Jarchow ran for the state Senate in a special election and narrowly lost in a low turnout special election. (Most observers consider the loss a fluke, given the Republicans took back the seat in the next general election.) He then decided against seeking re-election for his Assembly seat, but Jarchow has remained active and vocal politically, especially on Twitter.

While in office, Jarchow and then state Sen. Tom Tiffany spearheaded a number of successful reforms in shoreland zoning, including a provision that prohibits counties from being more restrictive than the state on any shoreland standard regulated by the state. He also proposed breaking up the DNR—a long overdue prescription that almost happened way back when save for a veto by a ‘Republican’ governor—and he vigorously supported Wisconin’s version of the REINS act, which requires passage of a bill for an agency to promulgate a rule that would result in implementation and compliance costs of $10 million over any two-year period. That was a huge step forward in rescuing representative government from the death grip of bureaucrats, who previously could promulgate almost any rule they wanted.

To sum it up, Jarchow’s time in office was marked by a desire to hold the administrative state accountable.

Not least, Jarchow had the courage to oppose massive Foxconn subsidies that would have burdened northern Wisconsin taxpayers—and still might—correctly recognizing that corporate welfare is no more productive than any other kind of welfare. A welfare state is a welfare state, sucking dry the prosperity of its people.

Toney lacks any such record of courage and coherence, and, in fact, the thin record he does have is one of surrendering to bureaucrats. It’s on that issue that Jarchow has taken dead aim.

Jarchow’s disenchantment with Toney surfaced in October, soon after Owens abandoned his bid. In a scathing column, Jarchow said Toney was unfit to lead the Department of Justice. At the heart of the matter was Toney’s decision to cite businesses in April 2020 for violating Evers’s Covid-19 stay-at-home order.

In his column, Jarchow said he was stunned by a letter-to-the-editor Toney wrote defending his prosecution of the businesses, a decision Jarchow framed as persecution and that he says helped cement his opposition to Toney’s candidacy.

“He essentially used the ‘Nuremberg’ defense — that he was just ‘following the law,’” Jarchow wrote in his October column. “First, even if it were a law (it never was), his defense was incredibly tone deaf. He essentially said no matter how immoral or unconstitutional, he would prosecute someone for violating any law.”

Anyone who has ever driven past a cop while going 58 in a 55, and didn’t get pulled over, understands the concept of enforcement discretion, Jarchow observed.

“Some transgressions are so minor as to not warrant enforcement,” he wrote. “Similarly, with regard to the Covid orders, nearly every Republican sheriff and DA in the state declined to enforce/prosecute.”

But not Toney, Jarchow emphasized.

“He charged business owners,” he wrote. “And when asked about it at the time, he defended his actions pointing out ‘it was an emergency.’ Really?”

Even more important, Jarchow argued, Toney’s claim that he was “following the law” showed that he didn’t even have a rudimentary understanding of the law. For starters, Jarchow explained, Toney prosecuted the businesses under an order known as Order 28, in which non-essential business and operations, as defined by the state, had to cease.

That order—ultimately struck down by the state Supreme Court—was itself the extension of an earlier Stay at Home order that DHS secretary designee Andrea Palm had issued after Evers had issued his first emergency declaration on March 12.

The bottom line was, Jarchow emphasized, the stay at home order was never, as Toney claimed, a law, which is legislation passed by the Legislature and signed by the governor:

It was an illegal order by an unelected bureaucrat. Under Toney’s reasoning, if an Evers’ bureaucrat issued an order to seize guns and prosecute those who refused to give them up, he would feel obliged to prosecute.

Of course, Jarchow observed, no sane Republican would ever prosecute someone for violating such a wildly unconstitutional order.

“But, apparently Toney would,” he wrote.

Second, Jarchow continued, some of Toney’s supporters have argued that Evers had 60 days, so prosecuting during that time was fine, because Evers acted within his powers.

But that was wrong, too, Jarchow asserted.

“Evers did not act,” he wrote. “Stay at Home was a DHS order, not an Evers’ order. It was challenged and ultimately struck down. The challenge came before the magical 60 days even expired. The order was never valid, the court ruled, because the order was actually a rule, and DHS failed to follow the law in promulgating the rule.”

In other words, Jarchow observed, it was never enforceable—not even on day one. What’s more, the attorney argued, many people recognized the flaw in the argument.

“Many elected sheriffs and DAs declined to help Evers carry out his administration’s illegal actions,” he wrote. “Some of us even used our law degrees to help fight it in court—for free. But not Toney. He used his law degree, government salary and authority to serve as Tony Evers’ handmaid by prosecuting small business owners who were just trying to survive.”

Jarchow said Toney’s actions were sad, despicable, and disqualifying:

This entire episode, including his defense of his horrific judgment, is proof that he is not fit for the job. He abused his authority as district attorney. He certainly doesn’t deserve a promotion. In fact, his letter makes it worse. Instead of apologizing for his ‘mistake’ and asking forgiveness, he doubles down. While most of us were fighting Tony Evers, Toney was serving Tony.

Of course, Toney has his side of the story, saying his record was being distorted for political gain. A close reading of his self-defense, however, actually supports Jarchow’s allegations against him.

For one thing, Toney asserts, no one was convicted by his office for violating any Safer at Home order. While true, that is not exactly a statement in his defense. It doesn’t mean he didn’t try to prosecute them, it means he stopped trying after a bit, probably after enormous blowback.

He also says he informed county officials that he would not enforce the governor’s mask mandate because it was clearly “an abuse of power and an unlawful executive order.” Because he did try to enforce business closures, Toney evidently believed that that order wasn’t an abuse of power or an unlawful executive order.

In the initial days of the Safer at Home order, Toney also argued, cases were filed in his county for prosecution but he ordered all the charges to be dismissed. What actually happened, Toney wrote, is that more than 200 complaints were called into local law enforcement for violations of the Safer at Home order, which led to law enforcement referring a small number of violations to his office.

The thing is, Toney did not have to file charges against any of those businesses that were referred to his office, but he went ahead and used his prosecutorial discretion to do so. In his letter, Toney made a weak attempt to explain why he did that:

“There were concerns because some businesses were spending money to comply with the orders, other businesses were shut down until they could become compliant, and some businesses appeared to be non-compliant,” he wrote. “The situation created an unfair playing field for the private sector and an equally difficult situation for law enforcement, distracting them from other core community safety efforts. Ultimately, I made the unilateral decision to dismiss all charges because it was the right thing to do.”

All this is so much bullshit. Before he “ultimately” did the “right thing,” he did the wrong thing, on a matter that was a no-brainer for other DAs and law enforcement. A government entity should never try to correct an “unfair playing field” created by another government entity’s unlawful order by punishing those who stood up for their rights. Toney sought to restore a level playing field not by doing away with the injustice that created the unlevel playing field but by subjecting everyone to the injustice.

In other words, Toney sought to expand the injustice rather than do away with it. Does that sound like someone we want running, of all things, the Department of Justice?

Rather, he should have, as Jarchow asserted he would have done, sued the Evers administration over the stay-at-home order instead of taking action to enforce it. Clearly, Toney is someone who not only fails to understand the difference between a law and an administrative order but lacks any comprehension of the proper limits of government activism: restraint at all times, except in the defense of fundamental liberties as defined by the constitution.

Toney presents himself as a tough law-and-order candidate, and there’s nothing wrong with that. But Jarchow is just as tough and just as much a supporter of law enforcement. And, it might be added, many of Toney’s law enforcement endorsements came after Owens dropped out but before Jarchow entered the race.

Above all else, Toney says he is running to restore the Department of Justice’s mission to fight crime, support law enforcement, protect families, and enforce the law. To underscore the point, the home page on his website lists a string of people convicted of and/or charged with various serious crimes in Fond du Lac, from murder to cocaine distribution to heroin conspiracy, and more.

Perhaps it’s too exclusive a focus. We need an attorney general who will do that but also provide a strong legal framework for the state to resist federal encroachment, hold the administrative state in line, and stand up for citizens’ Second Amendment and property rights and civil liberties.

That would be the kind of activism I like, not the kind where bureaucrats decree the law and compliant district attorneys actively do their bidding in the name “of following the law.”

Perhaps Toney would do well to read Thomas Jefferson, which I’ve quoted before but will again:

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.

Read more at Richard Moore In-Depth.

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3 thoughts on “Toney’s pandemic actions disqualify him for Attorney General

  • It’s about time for the public to realize that the left wants all power over the rest of us. That is the only thing that will make them happy. We have to start voting for Republicans, good conservative Republicans. And Republicans need to start standing up for themselves…

  • Jachow good attack dog. And lots of blah blahblah. What is his prosecutorial experience? Convictions? Cases tried? Court room experience? Nothing listed. Sounds more like a blow hard and a blatherer.

  • “I will support the constitution of the United States and the constitution of the state of Wisconsin, and will faithfully and impartially discharge the duties of the office of …. to the best of my ability. So help me God”…Attorney General’s oath of office. Kaul had selective memory when remembering it, Toney will too.

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