Disparate treatment: Civil rights suit claims conservative speech trampled on

Part 25 of 25 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – In his no-longer-secret campaign to find evidence of criminal wrongdoing in Wisconsin politics, Milwaukee District Attorney John Chisholm, a Democrat, has focused on just one political party – the Republican Party of Wisconsin – and only on the political set around Scott Walker.

Of course, the ultimate target is undeniably Walker himself, conservatives say. Wisconsin’s Republican governor has become a national hero to the right – and Public Enemy No. 1 to the union-led left, including Chisholm – for his sweeping reforms of government collective-bargaining rules.

FREE SPEECH? A protestor looks on near a poster of Gov. Scott Walker inside the state Capitol Monday, Feb. 21, 2011, in Madison, Wis. Opponents to Gov. Walker’s bill to eliminate collective bargaining rights for many state workers are taking part in their seventh day of protesting. (AP Photo/Jeffrey Phelps)

On Monday, targets of Chisholm’s investigation filed a detailed civil rights complaint that documents the abuses of the four-year “never-ending” John Doe investigation, a probe the Wall Street Journal’s Editorial Board has dubbed Wisconsin’s “Political Speech Raid.”

The lawsuit, filed Monday on behalf of political activist Eric O’Keefe and his Wisconsin Club for Growth, in no uncertain terms accuses John Doe prosecutors, particularly the Democrat-led Milwaukee County District Attorney’s office, of crushing the First and Fourteenth Amendment rights of O’Keefe and dozens of other activists in free-market organizations.

More so, the plaintiffs charge the investigation into alleged illegal campaign coordination – a concept, conservative legal experts assert, the prosecution vaguely understands – is political payback for the right’s successes in Wisconsin.

They note that investigators haven’t gone after liberal organizations with the kind of prosecutorial vigor they unleashed in two overlapping John Doe campaigns – disparate treatment painstakingly outlined in the 76-page complaint.

The complainants say they can point to “numerous other activities materially identical to the activities giving rise to the manifold branches of this massive investigation . . . within Democratic campaigns and among left-wing issue advocacy and independent expenditure groups.”

The lawsuit takes an exhaustive look back nearly four years, to the Milwaukee County DA’s original John Doe investigation into aides and associates of then-Milwaukee County Executive Scott Walker. The probe ended some three years later in March 2013, having netted six convictions – four of which had nothing to do with the original focus of the probe.

“For purposes of opening the proceeding, the crime that the Milwaukee District Attorney’s office purportedly had reason to believe was committed related to missing money from veteran’s fund called Operation Freedom, which was founded by Scott Walker,” the complaint states.

It was county executive employee Darleen Wink who identified the shortfall of funds from the account, notes the complaint. The executive’s office subsequently informed the DA.

But the missing veterans money wasn’t a pressing matter for the DA’s office. It didn’t open a John Doe proceeding into the alleged embezzlement until spring 2010, more than a year after the matter was reported – and coincidentally just as Walker was ramping up his campaign for governor.

“… (T)he Milwaukee County Attorney’s Office decided to use a John Doe proceeding to investigate the Milwaukee County Executive’s Office as a means of influencing the 2010 election in which Scott Walker was a candidate for Governor,” the lawsuit alleges.

With the missing funds as its pretext for a secret John Doe investigation, the DA’s office was able to investigate allegations that Wink was effectively campaigning for Walker on her county computer – “and possibly expand an investigation into Walker’s employees more generally to identify possible violations of law that could be linked directly to Scott Walker,” the complaint alleges.

The target has always been Walker, according to conservative critics.

Milwaukee County Assistant DA Bruce Landgraf, one of the named defendants in the suit, used the veterans fund matter as an “excuse for ‘subpoenaing county officials’ and for ‘examination of business records maintained by the County Executive’s office and other County Departments,’” the complaint alleges.

“The actual purpose of the petition was to obtain access to county officials and documents for an open-ended fishing expedition into Walker’s office,” according to the lawsuit.

Landgraf understood the political potential of the investigation from the beginning, arguing that the probe should be shrouded in secrecy because “publicity of allegations and inferences would be particularly unfair to the county executive,” who of course, at the time was seeking the GOP’s nomination for governor.

But there was nothing particularly embarrassing about the original intent of the John Doe proceeding, an investigation that Walker’s chief of staff invited. Imposing a secrecy order, as was the case, could only prevent Walker from demonstrating that he was not the target of the probe.

And that’s exactly what happened.

“In fact, it was the secrecy order and the concomitant lack of public scrutiny that allowed Landgraf and others to turn the investigation against Walker, to permit selective leaks to embarrass Walker, and to prevent any substantive defense by Walker or others as the investigation became a media sensation during his recall,” the complaint asserts.

Those leaks, the lawsuit charges, reached the public through direct and indirect selective leaks from the DA’s office long before he was elected governor and colored every aspect of the political fight of his life – his 2012 recall elections. Prosecutors have repeatedly denied the allegation.

In the complaint’s one exhibit not redacted due to the secrecy of the John Doe, Landgraf’s original petition for a John Doe proceeding, the prosecutor asked that “all prosecutors, support staff and investigative staff of the Milwaukee County District Attorney’s Office” have access to the record of the John Doe proceedings. Under law, the investigation’s targets and the public did not receive the same privilege.

Chisholm, the Milwaukee County DA, has not returned several calls from Wisconsin Reporter seeking comment. Prosecutors have repeatedly declined to comment on the current John Doe investigation.

The complaint, alleging Chisholm and his office are driven by their political bias against Walker and his controversial collective bargaining reforms, points to some potentially damning evidence:

  • During the 2011-2012 campaign to recall Walker, at least 43 (and possibly as many as 70) employees within Chisholm’s office signed the recall petition, including at least one deputy district attorney, 19 assistant district attorneys, and members of the District Public Integrity Unit. The DA’s office is assisted directly by five deputy DAs, and 125 assistant DAs, according to the agency’s website.
  • Altogether, as of April 2012, employees in Chisholm’s office had donated to Democratic over Republican candidates by roughly a 4 to 1 ratio.
  • Chisholm, a Democrat, has been supported by unions in previous campaigns, including in the most recent race to hold his DA position, during which the received support from, among others, the AFL-CIO, the complaint notes. He also is a donor to Democratic Party candidates and, as of April 2012, had given $2,200 exclusively to Democratic and liberal candidates.

The first John Doe concluded with the convictions of two men Walker had hoped would be investigated in the case of the missing veterans funds: Kevin Kavanaugh, treasurer of the veterans fund, and Walker former aide Timothy Russell were found guilty of embezzlement. Russell’s domestic partner, Brian Pierick, got caught up in the dragnet after investigators found damning images on the couple’s home computer. Pierick was sentenced to 50 hours of community service and ordered to pay a $2,148 fine for contributing to the delinquency of a child. He had been charged with one count of child endangerment and another count of exposing his genitals for an alleged online sexual relationship with a 17-year-old male. Pierick reportedly believed the 17-year-old to be of age.

But in its wide net, the John Doe captured three others on convictions unrelated the veterans fund. The CEO of a Wisconsin railroad company got two years of probation for exceeding campaign contribution limits in support of Walker’s run for governor, as well as laundering campaign contributions through employees and associates. Walker’s campaign promptly returned the contributions. As the lawsuit points out, the conviction had nothing to do with the original intent of the John Doe investigation.

Neither did the conviction of Kelly Rindfleisch, who worked in Walker’s county executive office. She was sentenced to six months in jail on a misconduct conviction for campaign fundraising at the courthouse using a secret email system, according to the prosecution. She is appealing that decision. On Monday, a Milwaukee County judge ordered the release of all of Rindfleisch’s professional and personal emails.

Rindfleisch agreed to plead because she lacked the funds to mount a legal defense and hoped to “avoid jail time to care for her 88-year-old, ailing mother,” according to the lawsuit. Sources tell Wisconsin Reporter that Rindfleisch’s home was raided again during the current John Doe into conservative organizations. Her attorney did not return calls seeking comment.

Darlene Wink, the county executive employee who first reported the discrepancy in the veterans fund, was convicted on two misdemeanors for campaigning for Walker on government time.

“As with Rindfleisch, (Wink’s) conviction is the result of prosecutors turning peoples’ lives upside down in a politically motivated fishing expedition,” the civil rights lawsuit asserts.

And through the meandering investigation, Chisholm and Landgraf “chose not to apply the same scrutiny to liberal individuals,” according to the complaint, which lays out several examples of left-wing activities that were “materially identical” to the actions on the right that generated such vigorous investigations.

Take, for example, the case of Milwaukee County employee and liberal blogger Christopher Liebenthal, who in spring 2010 was caught engaging in “excessive political blogging” for liberals from his taxpayer-funded computer.

The DA’s office recognized that “Mr. Liebenthal’s actions constitute an extreme example,” but stated that it would prefer to see the situation handled as a personnel matter rather than a criminal matter. The DA declined to prosecute.

“The decision by … Chisholm and Landgraf to treat this conduct as a personnel matter is completely different from how they treated indistinguishable conduct by Wink and Rindfleisch,” the civil rights suit asserts. “Each was charged criminally on multiple counts, and Rindfleisch was sentenced to jail time for similar conduct treated as a ‘personnel’ matter in Liebenthal’s case.”

Above all is the left’s nebulous notion of illegal coordination and, according to the civil rights case, how similar coordinated activities among unions and liberal operatives have gone unnoticed by the Milwaukee County DA.

The complaint points to the Committee to Recall Scott Walker and its Nov. 19, 2011 announcement of a gathering to kick off the Walker recall campaign. Said event was widely announced as being “(i)n coordination with We Are Wisconsin and the (Democratic Party of Wisconsin),” according to the complaint.

“In fact, the Recall Committee was formed by leading Union and Democratic social welfare organization members, and the timing of the recall was carefully discussed between these members, political candidates, and nationwide Democratic Party leaders, including officials from the Barack Obama presidential campaign,” the lawsuit states.

But that coordination was not deemed as potentially “illegal” by John Doe prosecutors, certainly nothing warranting a prolonged government investigation.

“The investigation has, to date, been a complete failure,” the complaint states.

Others offered a similar assessment of the first John Doe probe when it closed down in March of last year.

William Jennaro, a former Milwaukee County judge and prosecutor, told the Milwaukee Journal Sentinel that he saw few positives out of the long John Doe other than catching Russell for stealing money from the veterans fund.

“Certainly, the governor comes out of this pretty much Clean Gene,” Jennaro told the newspaper.

The Journal Sentinel declared that while Walker’s administration made some questionable hires, Walker himself “avoided much taint.”

But Walker didn’t escape without injury, the lawsuit stresses.

Repeated leaks, many of them incorrect, were used by his opponents to color Walker as a corrupt candidate or executive involved in activities serious enough to warrant a secret investigation – even though the governor was never found to have engaged in any wrongdoing.

“John Doe has repeatedly been a political rallying cry—and even a fundraising tool—for Democrats at each turn in influence important political events,” the lawsuit asserts.

And the song remains the same, conservatives say, in the latest John Doe probe. The plaintiffs in the new civil rights lawsuit argue that the first secret probe, although closed down, never really ended – that Milwaukee County prosecutors with all of their political baggage are still going after their ultimate target: Scott Walker. Now prosecutors are going through some 29 conservative organizations to get him – just as his reelection campaign ramps up.

“The natural and probable consequence of the investigation is therefore to chill speech and association,” the complaint states.

“As the investigation is ongoing throughout the 2014 legislative session and campaign period, the investigation will have the intended effect of silencing Plaintiffs in Wisconsin during the 2014 legislative session and election cycle.”

Contact M.D. Kittle at mkittle@watchdog.org

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