Expert: John Doe raids raise ‘troubling’ Fourth Amendment questions

Part 89 of 89 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Troubling.

That’s how one Fourth Amendment expert describes the manner in which search warrants were executed in a politically charged John Doe investigation into dozens of conservative groups.

“It seems to me somewhat absurd if what (investigators) were looking for were campaign finance violations,” Robert M. Bloom, professor of law at Boston College Law School, said of the predawn searches and seizures at the homes of targeted conservatives in a nearly two-year-old probe critics say is rife with civil rights violations.

UNREASONABLE SEARCH? A civil right lawsuit against prosecutors in a politically charged John Doe investigation has raised serious Fourth Amendment questions about raids on homes of conservative targets.

While Bloom acknowledges he is only somewhat familiar with the secret John Doe investigation that is the subject of several legal actions, he is troubled by what multiple sources have described as “paramilitary-style” raids related to alleged campaign finance violations debunked by two judges.

“It’s troubling. There is no need for that, but once again that’s something a court will have to decide,” added Bloom, author of numerous publications in the areas of criminal and civil procedure.

The approach of law enforcement officials in conducting the raids prompted one target earlier this month to ask whether “these kinds of armed pre-dawn raids (are) standard operating procedure when investigating potential campaign violations?”

Bloom would suggest, for the most part, they shouldn’t be. And one Wisconsin sheriff tells Wisconsin Reporter such use of force at such an early hour is not common in what arguably would be considered low-risk warrant operations.

According to court documents, armed officers raided the home of R.J. Johnson, an adviser to the Wisconsin Club for Growth, one of at least 29 conservative organizations targeted in the investigation and a consultant to Gov. Scott Walker’s campaign. Sheriffs ‘deputies also served warrants at the home of Wisconsin Club for Growth adviser Deborah Jordahl, and several other targets across the state.

“Sheriff Deputy vehicles used bright floodlights to illuminate the targets’ homes. Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys,” according to a civil rights lawsuit filed by the club and one of its directors, long-time conservative activist Eric O’Keefe.

On the same day, a flurry of subpoenas were issued, including to O’Keefe, demanding he and other members of the organization turn over “more or less” all of the club’s records from March 2009 until Oct. 3, 2013.

The targets were told to tell no one, with the exception of their legal counsel, on penalty of perjury, according to the lawsuit. The probe, which operates much like a grand jury investigation without the benefit of a jury of peers, is administered by a judge vested with extraordinary power and bound by a strict secrecy order.

Several sources with knowledge of the secret investigation have confirmed the account in the lawsuit, some adding that law enforcement officials entered the rooms of the targets’ children, taking property belonging to family members.

Dane County Sheriff David Mahoney recently told Wisconsin Reporter he could not comment on the raids because he did not know enough about them, although search warrants were executed in Dane County.

Grant County Sheriff Nathan Dreckman says law enforcement considers a variety of factors when preparing to serve a warrant. Grant County was not involved in the five-county John Doe investigation, but Dreckman has plenty of experience with warrants over the course of his law enforcement career.

He said Grant County generally employs such raids in “high risk” cases, those involving weapons and the threat of violence.

“The whole goal is officer safety and the element of surprise,” the sheriff said. “It keeps everybody safer that way.”

Most often, Grant County deputies deal with warrants during business hours, without a crisis resolution team, Dreckman said.

“Where there is no threat of guns or violence, officers in the past have gone up and knocked on the door. If there is someone there, we tell them why we are there,” the sheriff said.

That’s precisely what law enforcement could have – and should have – done in the case of the John Doe investigation raids, conservative targets assert. The reason for the big display of force and strong-armed tactics, they say, is all about intimidation.

But Dan Richman, professor of law at Columbia Law School and an expert in criminal law, says there will always be debates about the proportionality of police and prosecutorial tactics. It’s a debate that generally is not waged constitutionally in courts.

“What you find is when police have the authorization to go in and exercise a search warrant, they will act like police,” Richman said. “That generally involves some degree of kinetic force and some degree of surprise.”

The law professor said in the not-too-distant past, search warrants were not frequently used as a tool in white-collar crime investigations. They are increasingly used today, from wiretaps in insider trading cases to raids on hedge-fund managers.

In other words, the Fourth Amendment guarantees that the “Right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It does not say anything about the mode of searches and seizures.

One of the concerns, however, in the John Doe probe is that the search warrants were overly broad in allowing the seizure of personal property belonging to family members of the targets, particularly electronic devices.

The whole issue of searches of electronic devices — smart phones and personal computing devices in particular — has become a pressing Fourth Amendment issue. Courts are beginning to “rebel” against prosecutors’ bulk requests for email in criminal investigations, according to a story earlier this year in the Wall Street Journal.

Two federal judges, in Washington, D.C., and in Kansas City, Kan., have “rejected or modified a number of applications for warrants” by the U.S. Department of Justice to “search people’s emails and other electronic communications at Internet firms such as Google Inc. and Yahoo Inc.,” according to the Journal.

“The rulings go against the grain of a federal judiciary that has generally approved them, according to current and former law-enforcement officials. They also come against the backdrop of a legal and political debate over the scope of government surveillance that has raged since the National Security Agency’s bulk collection of phone records was revealed last summer,” the article states.

Due to the secrecy of the John Doe investigation, the warrants have not been made public, but the seizures, experts say, suggest the former presiding judge in the proceeding, Kenosha County reserve Judge Barbara A. Kluka, signed off on a broad search and seizure language.

Bloom, the Boston College law professor, said it is probable that within the confines of the warrant was the right to search computers, in the general sense.

“Our Founding Fathers put in the requirements for the use of warrants and those requirements involve the place to be searched, the things to be seized, as well as probable cause,” Bloom said. “The problem that we face during this digital age is how much does that all mean when we are dealing with computers? … Where does it all end?”

In the John Doe investigation, the allegation of investigators rummaging through property of family members may be disturbing, but Bloom said it probably would hold up in court.

At issue now is the question of probable cause.

In January, John Doe presiding Judge Gregory Peterson, who took over in October after Kluka suddenly recused herself without explanation not long after authorizing as many as 100 subpoenas, quashed key subpoenas. He ruled that the prosecutors, including Milwaukee County District Attorney John Chisholm and two of his assistant DAs, failed to show evidence for probable cause.

The prosecutors’ legal theory, that the conservative groups illegally coordinated with Walker’s campaign, didn’t hold water.

Now Peterson’s ruling is being appealed to the state Supreme Court, while it is simultaneously front and center in a federal civil rights lawsuit against the prosecutors. Legal questions surrounding that suit, including a federal judge’s order shutting down the investigation, are pending in two federal courts.

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

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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