John Doe target says prosecutors latest move another delay tactic

Part 45 of 45 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis.— Frivolous and delaying.

That’s how conservative targets in a civil rights lawsuit describe the latest legal maneuvering by prosecutors of a politically charged John Doe investigation.

WAR OF WORDS: The war of words in Wisconsin’s Silent War is heating up. Conservative targets in a civil rights lawsuit call the latest maneuvering by prosecutors in the politically charged John Doe probe “frivolous,” and a delaying tactic.

Having lost on their motion to dismiss the civil rights case, Milwaukee County District Attorney John Chisholm and his two henchmen, Assistant DAs Bruce Landgraf and David Robles “now seek to escape this Court’s jurisdiction and thereby delay any ruling on their unlawful secret investigation,” wrote the attorneys for conservative activist Eric O’Keefe and his Wisconsin Club for Growth.

“They have no basis to do so. Their appeal is frivolous, and their motion suggesting the Court lacks jurisdiction is without merit.”

The conservatives on Friday filed a memorandum in federal court in opposition to the prosecutor-turned defendants’ 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.

In doing so, the prosecutors — again — claim U.S. District Court Judge Randolph Randa doesn’t have jurisdiction to hear the case.

Frivolous, charge the plaintiffs. Based on the pointed tone of the conservatives’ legal filing, one gets the feeling they wanted to use another less legal-sounding word to describe what they see as another ploy by the defense.

Earlier this month, Randa 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.

The John Doe investigation, a multi-county secret probe into dozens of conservative groups “does not fit into any of the categories” for abstention, the judge wrote in his decision.

“It is an investigatory process, not an ongoing criminal prosecution case,” Randa said.

The judge said the federal court is the proper place to hear the case, in large part because the “John Doe proceeding does not offer O’Keefe the opportunity to adjudicate the federal constitutional issues that are raised in this lawsuit.”

John Doe Special Prosecutor Francis Schmitz, also named as a defendant in the civil rights case along with shadowy Government Accountability Board-contracted investigator Dean Nickel, has argued the John Doe judge has the responsibility to “ensure procedural fairness.”

As the court briefs argue, “by invoking the formal John Doe investigative proceeding, law enforcement officers are able to obtain the benefit of powers not otherwise available to them, i.e., the power to subpoena witnesses, to take testimony under oath, and to compel the testimony of a reluctant witness.” It’s that broad power that O’Keefe and other conservatives claim has been abused.

The prosecutors have used Wisconsin’s John Doe law, which is similar to a grand jury investigation without the benefit of a jury of peers, to pursue a theory that at least 29 conservative organizations illegally coordinated with the campaign of Gov. Scott Walker during Wisconsin’s partisan recall elections.

O’Keefe and the Wisconsin Club for Growth are seeking a preliminary injunction, asking Randa to shut down a secret probe that the plaintiffs argue is nothing more than a political witch hunt by Chisholm, a Democrat. O’Keefe contends the investigation, which has featured what sources have described as “paramilitary” pre-dawn raids at the homes of conservative activists, has chilled the First Amendment rights of conservative organizations.

Randa has agreed to take up the prosecutors’ push for a stay, which in turn has delayed a scheduled hearing on the motion to stop the John Doe probe. The hearing, originally scheduled for Wednesday, was then pushed back to May 7, and now delayed further, at least until Randa rules on the latest legal filings.

O’Keefe argues the “deleterious effects” of an “unfounded appeal” are substantial.

“Plaintiffs filed this action and sought preliminary injunctive relief so that they could be free from Defendants’ abusive conduct and threats, and quickly resume their First Amendment-protected advocacy, so as to participate in current Wisconsin political and policy debates,” O’Keefe’s attorneys wrote in the memo.

Balancing the interests of both parties, Randa granted the prosecutors’ request to consider their motions to dismiss prior to ruling on the preliminary injunction, while setting both for accelerated briefing and consideration, O’Keefe’s attorneys write.

“But what Plaintiffs, and perhaps the Court, failed to recognize was that Defendants never had any intention of honoring the schedule set by the Court,” the memo asserts.

“The Court having denied Defendants’ motions, Defendants now seek to delay indefinitely its consideration of Plaintiffs’ request for relief and thereby prolong the irreparable injury to Plaintiffs’ First Amendment rights.”

Prosecutors have repeatedly declined to comment on the case. O’Keefe’s attorney, David Rivkin Jr., declined comment Monday.

O’Keefe signaled he is willing to live by a time limit of 90 days on any preliminary injunction issued by the court. That’s plenty of time, according to the memo, providing necessary relief to the targeted conservatives while offering prosecutors the opportunity to properly raise any additional defenses.

Earlier this month, O’Keefe, in a filing with the court, accused the prosecutors of making up Wisconsin campaign law as they go along.

“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,” the plaintiffs wrote.

Contact M.D. Kittle at