John Doe, as it is being used, must go, WI senator says

Part 44 of 44 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — State Sen. Glenn Grothman is no fan of Wisconsin’s longstanding John Doe law, at least as it has been applied by prosecutors secretly investigating conservative groups.

The West Bend Republican tells Wisconsin Reporter he will work to change the law, if he’s still in a position to do so.

“If I’m still in Madison and I am (still) chairman of the Judiciary Committee, I will look at the John Doe law,” he said, adding that he doesn’t support gutting the law, but amending it.

“I think there is a purpose for the John Doe, but I think it’s gone way over the top.”

CHANGING JOHN DOE: State Sen. Glenn Grothman, R-West Bend, says he would like to see Wisconsin’s unique John Doe law amended. He says there have been too many possibilities for political mischief.

Wisconsin’s unique John Doe proceedings function much like grand jury investigations, without the benefit of a jury of peers. Instead, they are administered by a judge, who is invested with awesome powers in determining the direction and scope of the investigations. The presiding judge also has the power to determine whether the proceedings will be conducted in secret. Violators of such gag orders can face jail time.

Witnesses and potential targets of the probes have dramatically reduced rights.

“Any witness examined under this section may have counsel present at the examination but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses, or argue before the judge,” according to Wisconsin law on John Doe proceedings.

Due process doesn’t require that a John Doe witness be advised of the nature of the proceeding or that the witness is a “target” of the investigation, according to court cases upholding the statute.

So, investigators can raid homes and personal property, and judges can hand out subpoenas like candy and swear out warrants, and the targets of John Doe probes legally can say nothing to no one about any of it.

Such is the case in the current politically charged John Doe investigation into a reported 29 conservative organizations. The probe, launched in August 2012 by Milwaukee County District Attorney John Chisholm, a Democrat, has included what sources have described as “paramilitary-style” predawn raids at the homes and offices of targets.

“This is a taxpayer-funded, opposition-research campaign,” one source told Wisconsin Reporter in October. “This is not a question of what conservatives did wrong. It’s a question of one party in this state using prosecutorial powers to conduct a one-sided investigation into conservatives.”

Prosecutors in the multi-county investigation are working under a theory that the conservative groups may have illegally coordinated with Gov. Scott Walker’s campaign during Wisconsin’s partisan recall elections in 2011 and 2012.

Conservative activist Eric O’Keefe and his Wisconsin Club for Growth, each targets of the probe, have filed a civil rights lawsuit against Chisholm, two of his assistant DAs, the special prosecutor in the case and a shadowy state Government Accountability Board investigator.

O’Keefe asserts the prosecutors have violated conservatives’ First Amendment rights. He alleges the never-ending, secret investigations have chilled his organization’s political speech during an election year, and that prosecutors are effectively rewriting state campaign law as they go along in a probe that has proved to be nothing less than a political witch hunt.

Grothman said he doesn’t like what he’s hearing about the way the investigations have been handled.

“The rumors of how they (investigators) treat these people when they show up to investigate them are shocking,” the senator said. “The rumors I hear make it seem like something you would think of in the Soviet Union in 1948.”

Grothman said he wouldn’t push for any changes until the next legislative session, lest he be criticized for political motives.

Assembly Speaker Robin Vos, R-Rochester, voiced the same concerns in January, after the presiding judge in the current John Doe quashed several subpoenas because the prosecution had failed to prove probable cause.

“I don’t want to get in the way (of the investigation),” said Vos, responding to a Wisconsin Reporter question.

The speaker said leadership needed to sit down with legal counsel and talk about their “options.”

One option, Vos said, is replacing the John Doe system of investigation with the more public grand-jury system found in many other states.

Vos’ spokeswoman didn’t return phone calls this week seeking an update on the speaker’s position.

For Grothman, much also depends on his political future. He is among a crowded field of conservatives running for the 6th Congressional District seat being vacated by U.S. Rep. Tom Petri, R-Fond du Lac. Petri is retiring after a 35-year career in Congress.

Contact M.D. Kittle at