Shadowy John Doe investigator invokes federalism in civil rights lawsuit

Part 31 of 31 in the series Wisconsin’s Secret War
By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – The state investigator involved in a Democratic District Attorney’s secret probe into Wisconsin conservative groups asks a federal court to dismiss a lawsuit – by making an unusual appeal to states’ rights.

Responding Wednesday to a federal civil rights suit filed against him and five other defendants last month, Dean Nickel told the U.S. District Court for the Eastern District of Wisconsin, Milwaukee Division, that the federal court cannot stop a state investigation.

CONSTITUTIONAL CONFLICT: An investigator-turned-defendant in a Democrat-led John Doe probe into conservatives says a federal civil rights case against him should be thrown out because it lacks jurisdiction. Dean Nickel claims states’ rights trump claims of First Amendment abuse.

That’s an argument that has come straight out of the conservative playbook, but an unusual one for Democrats who have appealed to federal power for everything from union protections and the environment to civil rights and education and, of course, health care.

Nickel is named in the civil rights suit filed on behalf of conservative political activist Eric O’Keefe and his Wisconsin Club for Growth.

O’Keefe’s lawsuit charges that a so-called John Doe investigation launched in August 2012 by the office of Milwaukee County District Attorney John Chisholm is an attempt to shut down the First Amendment rights of Wisconsin conservatives. In a separate ruling, a judge threw out Chisholm’s subpoenas, ruling they lacked probable cause.

Chisholm’s investigation, targeting at least 29 conservative organizations on allegations of illegal campaign coordination with Republican Gov. Scott Walker’s campaign during the state’s partisan recall campaigns, has featured pre-dawn raids at the homes of conservatives.

Nickel, a shadowy character in the investigation, filed the affidavit for probable cause in the search warrants that were executed in the raids. Nickel is a former head of the Wisconsin Department of Justice’s Public Integrity Unit under then-Democrat Attorney General Peg Lautenschlager and has worked as an investigator for the Government Accountability Board, the state’s elections and campaign overseer.

O’Keefe and other critics of the organization assert the latest prolonged John Doe investigation is designed to disrupt conservative political activity.

Nickel in his response says O’Keefe’s suit seeks the “extraordinary remedy of enjoining an ongoing state John Doe criminal investigation …In doing so, Plaintiffs turn a blind eye to longstanding principles of constitutional law. Much of the response is redacted due to the secret nature of the John Doe.

Nickel cites case law that he said “precludes federal lawsuits that seek to halt ongoing state criminal investigations or prosecutions.”

“The state of Wisconsin undoubtedly has a vital interest in enforcing its own campaign finance laws and intervention by a federal court on those interests violates principles of equity, comity and federalism,” asserts the response, filed by Nickel’s attorney, Patrick J. Fiedler, a former Dane County Circuit Court judge and U.S. attorney for the Western District of Wisconsin.

Nickel’s use of the states’ rights – or federalism – argument was a defense often used by Southern segregationists who sought to block implementation of the Fourteenth Amendment granting equal rights to African Americans.

David B. Rivkin, Washington, D.C.-based attorney for Eric O’Keefe and the Wisconsin Club for Growth, told Wisconsin Reporter that states’ rights do not supersede basic constitutional rights of citizens, and the courts have argued as much time and time again.

“While we have proper respect for the precepts of federalism, no state has a right to act in a way that violates the First Amendment rights of its citizens,” Rivkin said.

Rivkin, who took on President Barack Obama’s Patient Protection and Affordable Care Act, otherwise known as Obamacare, on states’ rights grounds, has a long record of defending federalism-related cases. And federalism, it would appear, is at the core of the Wisconsin Club for Growth, a free-market-based advocacy group.

The other defendants in the civil rights lawsuit – Chisholm; Milwaukee County Assistant District Attorneys Bruce Landgraf and David Robles; John Doe Special Prosecutor Francis Schmitz; and John Doe presiding Judge Gregory Peterson – apparently did not file their responses by Wednesday’s court-ordered deadline.

Rivkin declined to comment on the defendants’ apparent lack of a timely response.

More proceedings are scheduled for Thursday.

Contact M.D. Kittle at

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