Contempt questions surround reported John Doe deal talks

Part 70 of 69 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – John Doe special prosecutor Francis Schmitz is in a deal-making mood, according to the Wall Street Journal editorial board.

But could Schmitz’s discussions with Gov. Scott Walker’s campaign attorney land the prosecutor behind bars on contempt of court charges?

QUESTION OF CONTEMPT: Could the special prosecutor in the John Doe probe be held in contempt of court for reportedly negotiating a possible settlement with Gov. Scott Walker’s campaign? U.S. District Judge Rudolph Randa, pictured here, did order the nearly three-year John Doe probe shut down.

U.S. District Judge Rudolph Randa, after all, did issue a preliminary injunction – twice – earlier this month, shutting down the nearly three-year investigation into dozens of conservative organizations.

In his ruling involving a civil rights lawsuit filed against the John Doe prosecutors, Randa made clear that “all activities related to the investigation” must cease.

But do “all activities” include discussions and offers by prosecutors to conservative targets in the campaign finance probe?

Randa wouldn’t say. An official from the federal judge’s office said the judge does not comment on pending cases.

Constitutional law expert Rick Esenberg said caution should be the guide for the prosecutors-turned defendants.

“Given the breadth of that order, I would be concerned about what I could and couldn’t’ do,” said Esenberg, founder, president and general counsel of the Wisconsin Institute for Law and Liberty, a Milwaukee-based public interest law firm.

“It’s problematic,” Esenberg added. “The order says the defendants must ‘cease all activities related to the investigation,’ and that was not reversed.”

The 7th Circuit U.S. Court of Appeals promptly stayed the so-called “return-and-destroy” order in Randa’s ruling that demanded prosecutors return all documents and items seized and destroy all of the copies. But, for now, the judge’s preliminary injunction remains in effect.

Perhaps, Esenberg said, Schmitz considers negotiating a legal settlement outside the scope of the judge’s preliminary injunction. But Esenberg said he’d be nervous.

“It’s troubling. It’s something that if I were in their shoes, I would worry about, what I could and could not do,” he said.

It is worth noting that conservative targets who have spoken out against the John Doe have apparently not been held in contempt of court for violating the probe’s secrecy order. Why that is, also, remains a secret.

According to the Wall Street Journal, Steven Biskupic, attorney for Walker’s campaign, Friends of Scott Walker, “has been negotiating with … Schmitz to settle the state’s investigation.”

The question is, what would such a deal mean for the conservative targets of the probe, including long-time conservative activist Eric O’Keefe and his Wisconsin Club for Growth, the plaintiffs in the civil rights litigation?

“The understandable concern among the direct targets of the John Doe is that Mr. Biskupic will cut a deal that would exonerate Mr. Walker while wresting concessions from some of Mr. Walker’s allies,” the Wall Street Journal piece states.

But how can the prosecutors wrestle concessions from “allies” who seem to have their “persecutors” by the tail?

Conservative targets of the probe who spoke to Wisconsin Reporter Wednesday on condition of anonymity expressed only disappointment, frustration and anger about reports of a potential deal between Walker’s campaign and the prosecutors – a settlement the conservative sources see as a deal with the devil.

It all comes in the wake of Randa’s ruling not only shutting down the probe, but his stinging criticism of the prosecutors’ theory that Walker’s campaign illegally coordinated with the conservative organizations. Randa has said that the theory, involving a kind of hybrid interpretation of express and issue advocacy that the judge argues does not exist in Wisconsin’s campaign finance law, is “simply wrong.”

Also this month, the 7th Circuit declared unconstitutional the state’s campaign finance statutes related to special interest advertising, calling the myriad laws, rules and regulations, “labyrinthian and difficult to decipher without a background in this area of law.”

“(I)n certain critical respects, it violates the constitutional limits on the government’s power to regulate independent political speech,” the appeals court wrote.

It seems to be more vindication for the targets of the secret, grand jury-esque investigation following John Doe presiding Judge Gregory Peterson’s ruling in January that quashed several subpoenas sought by prosecutors because they failed to show probable cause.

The probe was launched in August 2012 by Milwaukee County District Attorney John Chisholm, a Democrat. O’Keefe and the club are suing Chisholm, two of his assistant DAs, Schmitz, and a shadowy contracted investigator, alleging the investigation is nothing more than a partisan witch hunt, payback by the left for conservative victories during Walker’s first term.

O’Keefe and the club claim the prosecutors have abused their First Amendment rights of free speech and association, and that the investigation, which has featured what sources have described as pre-dawn, “paramilitary-style” raids, has chilled conservative cause fundraising.

Election and campaign finance law expert Hans von Spakovsky, said a settlement between the Walker campaign and the prosecutors who have hunted him for four years would be like “snatching defeat from the jaws of victory.”

“As I understand it, Scott Walker has greater political ambitions, particularly on the national stage,” von Spakovsky said of pundit talk of Walker’s potential presidential run in 2016. “I think the reaction across the country, if he settled a case like this, would really hurt him politically, besides from the standpoint of not being the right thing to do.”

“I don’t know this guy, Steven Biskupic, but if he thinks this could somehow help Scott Walker, he could not be more wrong,” said von Spakovsky, senior legal fellow at the Washington, D.C.-based Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Biskupic declined to comment on the matter, as did Schmitz.

Esenberg said it is possible that the Walker campaign sees a “good opportunity to make this go away.” They won’t have to spend more money on legal fees, they won’t have to deal with the appeal, and they can put the John Doe behind them and free Walker up to concentrate on his run for re-election – a contest that appears to be tightening up, according to the latest polling figures.

But von Spakovsky said standing up to the prosecutors may be the only way to stop the long-running John Doe probes into conservative activities.

“Wisconsin has some of the worst laws in the country when it comes to the campaign finance system, laws that very much are a violation of the First Amendment,” said von Spakovsky, a former member of the Federal Election Commission. “The folks being targeted by this need to fight back hard to overturn what I believe is a pervasively unconstitutional system.”

Walker’s campaign had not comment Wednesday.

Contact M.D. Kittle at