John Doe prosecutors voice phony outrage, legal source says

Part 64 of 63 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – The prosecutors who have for years tried to keep documents from their secret investigation out of the public eye are now bemoaning conservatives for seeking a seal on the release of some personal information.

In what the Milwaukee Journal Sentinel described as a “feisty filing,” prosecutors of the John Doe probe object to an earlier motion by conservative activist Eric O’Keefe and Wisconsin Club for Growth’s requesting that most – but not all – of sealed John Doe documents in a federal civil right lawsuit be released to the public.

SUDDENLY OPEN? After years of keeping their investigation into conservatives secret, John Doe prosecutors are expressing indignation about conservatives who want to keep some private information under court-ordered seal.

O’Keefe and the club in February filed the lawsuit against the John Doe prosecutors and a shadowy investigator contracted by the state Government Accountability Board.

An attorney for Milwaukee County District Attorney John Chisholm and two of his assistants contend that O’Keefe and the club filed a “baseless lawsuit that features as a central component contention that they were deprived of the ability to defend themselves because of malevolent John Doe secrecy orders.”

“It is beyond irony that plaintiffs and their counsel now ask the Court to block media access to the documents that outline the investigation and detail the reasons why the plaintiffs’ conduct was subject to scrutiny,” Samuel J. Leib, attorney for the prosecutors-turned-defendants, writes.

“Having rarely passed on an opportunity to comment on the ‘evidence’ and excoriate the defendants in the press, plaintiffs and their counsel ask the Court to be complicit in preventing a public airing of the evidence,” Leib adds.

David B. Rivkin Jr., the attorney for O’Keefe and Club for Growth declined to comment on the prosecutors’ objection, which, coincidentally, was not requested by U.S. District Court Judge Rudolph Randa, the federal judge who twice last week ordered the nearly three-year John Doe shut down.

The prosecutors’ latest filing comes across as incredibly cynical, according to a legal source close to the John Doe investigation.

“This is an appalling cynicism only to be countenanced by someone who doesn’t understand the history,” said the legal expert, who asked not to be identified due to his proximity to the John Doe probe.

“They are the ones who sought to seal those documents. They are the ones who kept leaking information while insisting on a gag order. Now all of a sudden they’re pretending outrage?”

The Milwaukee County prosecutors, as well as John Doe special prosecutor Francis Schmitz and investigator Dean Nickel, this week suddenly gave their blessing to a request that the court open some 125 court John Doe-related documents under seal. The prosecutors, it seems, now agree with a coalition of five media organizations asking Randa to lift the seal.

So do the people who are suing them – for the most part.

“These documents … reveal Defendants’ abusive tactics, from home raids to kitchen-sink subpoenas, and flimsy legal justifications for their actions,” Rivkin wrote in a court filing, filed Wednesday in the U.S. District Court Eastern District of Wisconsin in Milwaukee.

“And they (the documents) convey the enormous injury that Defendants’ actions have inflicted on Wisconsin’s political and public-policy communities. The public has a right to know these things, and Plaintiff Eric O’Keefe is a willing speaker with a First Amendment right to disclose them …” the filing states. “These documents should be unsealed so that the public can see for itself what has transpired over the past four years and hold those responsible to account.”

O’Keefe and the Wisconsin Club for Growth have asked the court to keep four of the documents under seal, arguing that they would do little to advance the public’s understanding of the investigation but, if disclosed, “would require substantial redactions to protect the personal, financial, and other confidential information.”

“These four documents, and limited portions of five party filings that extensively rely upon those documents or otherwise implicate Plaintiffs’ First Amendment privilege, should remain under seal to protect Plaintiffs’ rights and interests,” Rivkin wrote.

The prosecutors, however, assert the records O’Keefe and the club would keep from the public are the “most important documents that the defendants here, having been sued by the plaintiffs, selected to demonstrate their good faith and lack of merit to plaintiffs’ claim of political retaliation.”

“The plaintiffs’ selection of documents could not have been more surgical in preventing the public from understanding this lawsuit, nor could their motivation for doing so be more transparent,” Leib writes in the filing. “The order as proposed by plaintiffs is not justified by principles of law, it is neither fair to the public nor balanced for the parties, and the Milwaukee County prosecutors object to it.”

But lost in the prosecutors’ indignation is the fact that Randa has seen all of the sealed documents, including the ones the lawsuit’s plaintiffs wish to keep sealed. And Randa not only ordered the John Doe probe shut down, he cited serious concerns about the investigation and the prosecutors’ theory that the conservative groups may have illegally coordinated with Gov. Scott Walker’s campaign.

“The judge saw this information and was impressed with it,” the legal source told Wisconsin Reporter.

The civil rights suit alleges the prosecutors’ investigation into dozens of conservative organizations, launched by Chisholm, a Democrat, in August 2012, was nothing more than a partisan witch hunt, political payback for recent conservative victories in Wisconsin. O’Keefe claims the probe, which sources say has included predawn raids on the homes of conservatives, has stifled his First Amendment rights of speech and association.

Randa is awaiting response from the media coalition before making his ruling on the court documents.

Two unnamed individuals, reportedly targets of the John Doe probe, have intervened in the case aksing the court keep documents related to them out of the public eye. The unidentified individuals site similar concerns that the documents would disclose too much private and personal information.

Contact M.D. Kittle at