Attorney to judge: Don’t let John Doe prosector ‘moot’ injunction

Part 72 of 72 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – “Enough is enough.”

That’s what David B. Rivkin Jr., lead counsel for conservatives in a civil rights lawsuit, says in response to a John Doe prosecutor’s reported coquettish courting of Gov. Scott Walker’s campaign in search of a settlement to a secret investigation that a federal judge has ordered shut down.

Francis Schmitz, special prosecutor of the nearly three-year investigation into conservatives, halted his discussions with Walker’s camp after the Wall Street Journal editorial board reported late Tuesday that Walker campaign’s attorney Steven Biskupic “has been negotiating” with Schmitz to settle the investigation.

WEIGHING CONTEMPT: The attorney for conservative plaintiffs in a civil rights case is asking a federal judge to resist allowing a John Doe special prosecutor to “moot” the judge’s order shutting down the secret John Doe probe.

Apparently operating under the notion that it’s better to ask forgiveness than seek permission, Schmitz has since sought an advisory opinion from U.S. District Court Judge Rudolph Randa that Rivkin says would “frustrate the court’s preliminary injunction.”

Randa earlier this month ordered the probe closed and that “all activities related to the investigation” must cease.

“While Schmitz’s motion is vague, it appears that he wants the Court to moot its injunction by allowing him to attempt to enforce subpoenas in Wisconsin state court and to use the coercive power of the state to cut side-deals that impair Plaintiffs’ associational rights, Rivkin wrote in a response filed in the U.S. District Court Eastern District of Wisconsin in Milwaukee.

“Enough is enough. The Court should confirm that its injunction precludes any attempt by Defendants to obtain compliance with any order, subpoena, or other process issued in furtherance of the investigation,” Rivkin added.

And Randa should defer a decision on the remainder of the motion until “Schmitz explains to the Court and Plaintiffs what he intends to do that would risk violating the injunction.”

Rivkin, lead counsel for conservative activist Eric O’Keefe and the Wisconsin Club for Growth, asserts that the federal judge’s order that “any attempt to obtain compliance” of the probe’s targets by the prosecutors-turned-defendants “or by John Doe Judge Gregory Peterson is grounds for a contempt finding” is in line with previous appeals court decisions.

“The preliminary injunction would be stripped of any force if Schmitz may continue his investigation or participate in state-court proceedings that seek to enforce a legal process that this Court has already declared violates Plaintiffs’ constitutional rights,” Rivkin wrote.

O’Keefe filed his civil rights lawsuit in February, alleging that Schmitz, Milwaukee County District Attorney John Chisholm, two of his assistant DAs, and a contracted investigator violated the conservatives’ First Amendment rights of speech and association. In October 2013, law enforcement agents charged into the homes of several conservative targets in what have been described as predawn, “paramilitary-style raids,” and confiscated their professional and personal possessions.

Walker’s campaign, the Friends of Scott Walker, on Thursday issued a brief statement, saying, “Neither Governor Walker nor his campaign committee are parties to the federal lawsuit. This means they have no legal standing to reach a settlement or deal in their lawsuit.” The statement says nothing about the reported negotiations between Biskupic and Schmitz.

The special prosecutor has “attempted to muddy the waters” in a way that would effectively allow him to maintain the probe, Rivkin wrote.

In a motion, Schmitz asks the court whether the preliminary injunction prevents him from discussions with counsel for individuals and organizations that were subjects of the John Doe proceedings and that are parties in the civil rights lawsuit.

Of course the special prosecutor can “discuss” certain matters with counsel and targets, Rivkin said. O’Keefe and the club earlier advised that Schmitz should provide all targets and subpoenas with a copy of the court’s injunction so that they knew their rights, the attorney said. Rivkin notes parenthetically that “Schmitz apparently refused to inform them of their rights.”

“Schmitz obviously wants more than idle chatter,” Rivkin wrote.

The special prosecutor has repeatedly declined to comment on any matters involving the John Doe investigation due to the probe’s secrecy order.

Rivkin smells a legal maneuver ahead.

(G)iven Defendants’ track record in this matter, it seems likely that Defendant Schmitz has raised the vague ‘discussion’ straw man to tee up yet another stay motion in the 7th Circuit” U.S. Court of Appeals, the attorney said.

That’s why the plaintiffs in the civil rights case have asked the judge to defer a decision on Schmitz’s “discussion” questions until he informs the plaintiffs and the court what he is doing and what he wants to do.

“That will allow the parties to consider an actual course of action—not a “discussion”—in light of the language of the injunction, attempt to resolve any dispute without the Court’s intervention, and to present a concrete controversy to the Court if they do not reach resolution,” Rivkin wrote.

Contact M.D. Kittle at