Conservatives counterpunch John Doe prosecutors’ move to stall injunction

Part 30 of 30 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Facing sudden death, officials behind a Democrat-led investigation into conservative political groups on Friday begged a judge to keep their probe alive while they draft a motion to dismiss a suit that would kill the inquiry immediately.

Conservative plaintiffs, who say Milwaukee County District Attorney John Chisholm has used his office to shut down conservative political activity in the state, blasted the move as a delay.

“WILLFULLY BLIND”: In a legal response by conservatives suing John Doe prosecutors on civil rights violations, the plaintiffs argue the prosecutors continue to work to silence conservative speech.

Their withering response, filed Monday in the U.S. District Court for the Eastern District of Wisconsin, in Milwaukee, chides the DA’s motion asking the court to indefinitely delay consideration of a preliminary injunction that would shut down the year-and-a-half-long John Doe probe into conservative organizations.

“(The motion) demonstrates only that (the defendants) are willfully blind to the substantial ongoing injury that their conduct inflicts on Mr. O’Keefe and the Wisconsin Club for Growth,” states the response, filed on behalf of political activist Eric O’Keefe and his free-market advocacy organization, Wisconsin Club for Growth, by O’Keefe’s attorney, David B. Rivkin Jr.

If not for the DA’s investigation, Rivkin wrote, O’Keefe and the Wisconsin Club for Growth would be “engaging right now in multiple issue-advocacy campaigns.”

“Instead they are silenced, and Plaintiffs’ injury grows by the day, as (the conservatives) are prevented from speaking out on the issues during the Wisconsin legislative session and as the 2014 election – a time of high public interest in matters of policy – approaches.”

The plaintiffs’ response argues that, “absent an immediate injunction” against the John Doe probe, the “Plaintiffs’ fundamental right to participate in the debates of the day will be snuffed out a day at a time, with no adequate remedy for that injury possible.”

In their civil rights lawsuit, filed last month, O’Keefe and the Wisconsin Club for Growth charge that the multi-county John probe, launched in August 2012 by the Milwaukee County D.A.’s office, has targeted only conservative organizations on allegations of illegal campaign coordination during the Badger State’s unprecedented season of recalls. The John Doe, sources say, has targeted at least 29 conservative organizations, in an attempt to dig up evidence that the groups illegally coordinated with Republican Gov. Scott Walker during the 2012 recall campaign.

Investigators conducted pre-dawn raids at the homes of conservative targets, seizing electronic equipment and other property and, sources have said, terrifying family members of targeted individuals. And the probe has been done under the shroud of a court-ordered secrecy code, with violators of the gag order facing possible jail time.

In January, presiding John Doe Judge Gregory A. Peterson, quashed several subpoenas and ordered prosecutors to return confiscated property. Peterson, who also is named as a defendant in the civil rights lawsuit in a professional capacity, said the subpoenas “do not show probable cause that the moving parties committed any violations of the campaign finance laws,” according to the judge’s sealed order obtained by the Wall Street Journal.

Asking the court to deny the defendants’ motion, Rivkin asserts the John Doe prosecutors “real motive” is “delay.” The defendants – including Chisholm and his assistant district attorneys Bruce Landgraf and David Robles, as well as Special John Doe Special Prosecutor Francis D. Schmitz – filed their motion on Friday, days before a March 12 court deadline.

“Why else would Defendants wait until the Friday afternoon before their papers were due to seek additional time?” the conservatives’ ask the federal court. “Why else would they seek relief to which they are plainly not entitled – relief which they do not even attempt to show they are entitled – other than to make their fallback position, a 40-day extension, appear more reasonable by comparison?”

In their motion, the prosecutors-turned-defendants, seek to postpone “briefing, argument and any decision” on O’Keefe’s motion for the injunction “until such time as the Court has addressed defendants’ motions to dismiss.”

“In the event that defendants’ motions should be denied, in whole or in part, defendants request that the Court establish a deadline for responses to the Motion for Preliminary Injunction at 40 days after the Court’s decision on those motions,” beg the John Doe prosecutors.

The Defendants argue that the prosecutors have had plenty of time to respond, that most were served with the complaint and preliminary injunction motion on Feb. 12.

Included in the short list of defendants is the ever-mysterious Dean Nickel, a former head of the Wisconsin Department of Justice Public Integrity Unit and, at least at one time, a contracted employee of the state Government Accountability Board. It was Nickel, according to the Wall Street Journal, who filed an affidavit for probable cause to obtain the search warrants executed last year at the properties of conservative targets.

Attorneys for Chisholm, Schmitz and the other defendants claim “lack of jurisdiction by sovereign immunity and the Eleventh Amendment” and “absolute prosecutorial immunity” among other grounds for their motion to stall the injunction process.

O’Keefe’s attorneys, at least legally, say hogwash.

“In sum, Defendants identify no ground at all that could merit any delay in briefing and adjudication of Plaintiffs’ motion for a preliminary injunction.”

Contact M.D. Kittle at

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