John Doe prosecutors sound defensive in latest court filings

Part 46 of 46 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Prosecutors in a politically charged John Doe investigation into dozens of conservative targets filed a flurry of legal documents in federal court Tuesday, answers and responses to a civil rights lawsuit filed against them.

In the words of Bob Dylan, the filings arguably amounted to too much of nothing.




ON THE DEFENSIVE: Prosecutors in a secret investigation into conservative targets sounded a bit testy in their latest legal filings. The prosecutors are defendants in a civil rights lawsuit filed by conservative activist Eric O’Keefe.

That’s the standard response of the prosecutors-turned defendants in their answer to the lawsuit filed by conservative activist Eric O’Keefe and his Wisconsin Club for Growth.

When they aren’t denying the allegations against them, the defendants point to legal conclusions that they say require no answer. Or they claim they lack “information sufficient to form a belief as to the truth or falsity of the allegations,” then go ahead and deny them.

O’Keefe’s attorneys late last week filed a memorandum opposing the John Doe prosecutors’ motion to stay any further legal proceedings in the U.S. District Court Eastern District of Wisconsin in Milwaukee, while they seek to appeal parts of the court’s earlier ruling.

On Tuesday, the defendants in the civil rights case – Milwaukee County District Attorney John Chisholm; two of his assistant DAs; John Doe Special Prosecutor Francis Schmitz; and a shadowy state Government Accountability Board-contracted investigator by the name of Dean Nickel – responded to O’Keefe’s filing.

And while one legal expert close to the John Doe matter told Wisconsin Reporter the prosecutors pushed out a lot of pages without much defense of their actions, attorneys for Chisholm and crew sound extremely defensive in their filings.

In opening their 29-page answer to the civil rights complaint, the prosecutors sound downright snippy.

“The fundamental rule in drafting a complaint is to set forth a ‘short and plain statement’ of the claims supporting the plaintiff’s request for relief,” the answer insists. “Far from being (a) ‘short and plain statement’ of their claims, their Complaint rambles on for 62 pages, contains single paragraphs spanning nearly a full page, and lapses into discussions of Wisconsin politics and elections in general without reference to the plaintiffs, defendants, or even the offices or counties of jurisdiction in which the they work.”

Chisholm’s attorney asks the judge to strike the complaint for its “failure to comply” with the pleading requirement under federal law.

O’Keefe’s Washington, D.C.-based attorney, David Rivkin Jr., declined to comment on the prosecutors’ answer.

But a legal expert with knowledge of the John Doe probe into at least 29 organizations, says the prosecutors’ contention is absurd in such an involved civil rights case.

“When you are dealing with a shorter legal matter, say somebody’s dog came on to your lawn and defiled it, (the complaint) doesn’t have to be 80 pages. But when you have multiple counts in a case like this, there is nothing in the rules that says you cannot have a long complaint,” said the legal expert, who asked to remain anonymous because of his proximity to individuals involved in the John Doe probe.

One need only look at Schmitz’s long lineup of lengthy complaints when he served as an assistant U.S. attorney in Milwaukee, specializing in counterterrorism operations.

Chisholm charges the plaintiffs’ complaint was “drafted for media consumption rather than compliance with the Rules of Civil Procedure.”

The lawsuit, filed in February, is a detailed account of what O’Keefe and the Wisconsin Club for Growth allege to be a partisan witch hunt, led by Chisholm, a Democrat, to punish conservatives in the state for their political successes in recent years. The complaint seeks a permanent injunction, halting the investigation.

Launched in August 2012 by Chisholm’s office, the investigation is operating under a theory the club and 28 other conservative organizations may have illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections of 2011 and 2012. It has since blown up into a five-county investigation.

O’Keefe in the lawsuit contends the probe, which has featured what some sources have described to Wisconsin Reporter as “paramilitary-style” pre-dawn raids at the homes and offices of conservative targets, has had a chilling effect on conservative organizations’ First Amendment rights. The Wall Street Journal editorial board has billed the John Doe as Wisconsin’s “Political Speech Raid.”

And the civil rights suit goes into detail about what the plaintiffs allege was the prosecutors’ and the state campaign and elections watchdog’s disparate treatment of activists and politicians on the left, whom, though they were involved in similar coordinated activity, were not the subject of lengthy, secret probes.

In their legal filing, the prosecutors sound amazed that anyone would ever suspect their motives in a sprawling investigation that is presided over by a judge with extraordinary power and conducted via a gag order that punishes the probe’s targets should they try to speak out and defend their reputations.

“It is simply astounding that plaintiffs could accuse lifelong law enforcement professionals of intentional misconduct in office and then seek to deny them the opportunity to have those claims challenged by appeal,” Chisholm’s attorney writes in the prosecutors’ response.

In January, retired appeals court Judge Gregory Peterson, the presiding judge in the John Doe case, quashed multiple subpoenas issued in the probe, saying they failed to show probable cause.

And Randa earlier this month, thoroughly rejected the prosecutors’ motion to dismiss the civil rights lawsuit, pushing aside their argument that federal courts generally must abstain from taking up federal constitutional claims that involve or call into question ongoing state proceedings.

Prosecutors in their response again argue that the federal court has no jurisdiction, and that the court should grant their appeal of Randa’s ruling.

And Chisholm and his assistant DAs disagree with Randa, arguing their claim to prosecutorial immunity. But they rely on a court case, Harris v. Harvey, that held that the judge in a 1970s John Doe probe in Racine could not be protected by judicial immunity, mainly because he acted in bad faith against the target of the investigation. The U.S. Court of Appeals for the Seventh District affirmed the lower court’s decision, and the U.S. Supreme Court denied the judge’s petition.

The conservative targets in the civil rights lawsuit assert the prosecutors are not only employing delaying tactics, they are making up campaign law as they go along.

They assert the “defendants cannot salvage their rejected legal theory,” something that only confirms “their bad faith.”

“In sum, Defendants’ new theory of criminal liability violates the First Amendment and finds no support in Wisconsin law. It is a pretext adopted solely for the purpose of targeting Plaintiffs and others who speak out in ways of which Defendants disapprove.”

Randa had originally scheduled a hearing on the permanent injunction for today, but that was pushed back to May 7. Now the hearing is delayed further while the judge mulls over the latest legal filings.

Contact M.D. Kittle at