Federal judge says his order halting John Doe probe should be clear to prosecutor

Part 74 of 74 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – The federal judge who shut down a politically charged John Doe investigation into dozens of conservative groups has effectively told the probe’s special prosecutor his preliminary injunction couldn’t be any clearer – and that the prosecutor ought to know better.

In a dismissive-sounding filing late Friday, U.S. District Judge Rudolph Randa partially grants and partially denies a request by John Doe special prosecutor Francis Schmitz to clarify the federal court’s order halting a nearly three-year John Doe probe.

GOT IT: U.S. District Court Judge Rudolph Randa saying his order shutting down John Doe investigation should be clear enough to prosecutors.

On May 6, and again on May 8, Randa issued a preliminary injunction barring Schmitz and his fellow prosecutors-turned defendants in a civil rights lawsuit from “obtaining compliance with any order, subpoena, or other process issued in furtherance of the investigation.”

Earlier this week, after the Wall Street Journal reported that Steven Biskupic, attorney for Gov. Scott Walker’s campaign, had been “negotiating” with Schmitz to settle the investigation, Schmitz stepped back and asked Randa for clarification. In essence, he asked for forgiveness after failing to seek permission.

Violating the federal judge’s order could land Schmitz in contempt of court.

Schmitz then asked the court to clarify whether operative language in the injunction – that the defendants “must cease all activities related to the investigation” – may be construed to enjoin the special prosecutor from “all activities related to ongoing state court proceedings” that arise from John Doe lawsuits (and there are several) in which Schmitz is a named party.

Secondly, Schmitz asked if the injunction covers discussions with attorneys for individuals and organizations that were subjects of the John Doe investigation and that are parties in the state-court proceeding.

“Obviously, the Court’s injunction does not prevent all discussions with subjects of the John Doe investigation,” Randa writes in his order.

For example, the plaintiffs in the civil rights lawsuit, conservative activist Eric O’Keefe and the Wisconsin Club for Growth, advised Schmitz that he should provide all targets of the probe and subpoenaed parties with a copy of the court’s injunction so that those parties would understand those rights. In a filing Thursday, O’Keefe’s attorney said Schmitz has refused to do so.

In his order issued Friday, Randa demands that Schmitz must “provide all targets and subpoenaed parties with a copy of the Court’s injunction.”

As to the subject of Schmitz’ discussions with Walker’s campaign, Randa writes that he could not have been any more clear in his order stopping the John Doe investigation.

“The order of this Court and that of the Seventh Circuit offers clear guidance as to the parameters of the injunction,” the federal judge said. “In the absence of any further information regarding the content and import of ‘discussions’ that may violate the Court’s clear directives, it is impossible for the Court to offer further clarification at this time.”

A legal expert close to the John Doe proceedings said Randa is saying that Schmitz knows precisely what he can and cannot do.

“Judge Randa is saying, ‘Look, guy, you know what this means and if you’re skulking around trying to do something you know you are not supposed to be doing you are risking contempt,’” said the source, who did not want to be identified due to his proximity to the John Doe proceedings. “And contempt is really a serious thing, especially against a prosecutor.”

The 29 conservative organizations targeted in the investigation, launched in late summer 2012 by Milwaukee County District Attorney John Chisholm, know all too well the threat of contempt. They have all been under a secrecy order issued by the presiding judge of the probe. Most have feared the repercussions, including jail time, of speaking out against what they assert is nothing more than a partisan witch hunt, initiated by Chisholm, a Democrat.

Randa, it seems has lost patience in the prosecutors-turned defendants, who have fought the civil rights lawsuit at every turn, insisting that the federal judge does not have the jurisdiction to hear the case and that, as prosecutors, they should be immune from such litigation.

Schmitz had repeatedly declined to comment on all matters related to the John Doe probe.

It’s been a rough stretch for the instigators of the probe. On Friday, O’Keefe and the club filed a lawsuit in Waukesha County Circuit Court against the state Government Accountability Board, the agency that oversees campaign finance and election law. The lawsuit alleges the GAB, involved in the probe since nearly its inception, according to court documents, has overstepped its authority and cost taxpayers untold amounts of money pushing an illegal investigation.

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

Read Judge Randa’s order here