What’s next for now-defunct John Doe probe?

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — So now what?

After a federal judge’s ruling shut down a politically charged John Doe investigation into dozens of conservative organizations, there are a lot of “what’s next” questions to answer.

First question: What will John Doe prosecutors do now?

The answer came swiftly. As expected, Milwaukee County District Attorney John Chisholm and his assistant DAs, Bruce Landgraf and David Robles, submitted their appeal with the 7^th Circuit Court of Appeals.

Those who thought this cadre of prosecutors — who have so intensely investigated conservatives across the state, would go quietly into that good night — are rudely mistaken.

Chisholm and crew seem intent on salvaging their nearly three-year secret investigation, a probe that Judge Rudolph Randa ordered halted and all conservative targets held under its sway “relieved of any and every duty under Wisconsin law to cooperate further with” the investigation.

Randa issued his preliminary injunction Tuesday, siding with conservative activist Eric O’Keefe and his Wisconsin Club for Growth in the opening and urgent request of their civil rights lawsuit against the Milwaukee County prosecutors, John Doe Special Prosecutor Francis Schmitz and Government Accountability Board-contracted investigator Dean Nickel.

“The Defendants must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation,” wrote Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee.

And Randa warned that any attempt by the prosecutors or John Doe presiding Judge Gregory Peterson to force conservative targets to comply with the halted probe “is grounds for a contempt finding by this court.”

Most urgently, prosecutors want to preserve their stuff, the business papers, computer equipment, phones and other devices they seized from conservative targets during what sources close to the probe have described as predawn, “paramilitary-style” raids of homes.

A preliminary injunction is immediately appealable, and Chisholm and crew have exercised that right.

But one constitutional law expert says that after two judges, including the investigation’s own presiding judge, have told prosecutors they don’t have a case and that their interpretation of campaign finance law is “simply wrong,” it might be time they pick up their ball and go home.

“A lawyer has to have a little voice in the back of his head to tell him to stop. Somebody in this case is not listening to that little voice,” said Rick Esenberg, founder, president and general counsel of the Wisconsin Institute for Law and Liberty, a Milwaukee-based public interest law firm.

Esenberg believes prosecutors have an uphill battle, basically forced to win their appeal at the federal and state level. Should the matter go to the U.S. Supreme Court, well, the high court has been in a First Amendment-defending mood of late.

In January, Peterson quashed several subpoenas issued in the investigation, saying they failed to show probable cause to support the prosecutors’ notion that conservative organizations illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections.

Both Randa and Peterson assert the conservative targets were engaged in issue advocacy and didn’t appear to have violated campaign law. Randa seems to have taken the matter a step further, asserting that prosecutors have either disregarded the law or interpreted it incorrectly to fit their investigation.

Contrary to what John Doe prosecutors believe, Randa said, issue advocacy, even that involving like-minded groups that share the same political philosophies as a candidate, do not equal a quid pro quo.

“O‘Keefe and the Club obviously agree with Governor Walker‘s policies, but coordinated ads in favor of those policies carry no risk of corruption because the Club‘s interests are already aligned with Walker and other conservative politicians,” the ruling states. “Such ads are meant to educate the electorate, not curry favor with corruptible candidates.”

Esenberg said it’s quite clear Randa isn’t amused by prosecutors’ claims, particularly their contention they’re protected by immunity and that the federal judge has no business meddling in matters of the state.

“I would not relish the prospect of going forward,” Esenberg said of the prosecutors’ appeal. He said Chisholm and his fellow prosecutors will be subject to discovery, which could uncover some embarrassing details.

The constitutional law expert believes the John Doe investigation is “going to die eventually,” that if Randa’s ruling doesn’t kill it something else will.

“It is so ill-conceived on so many levels,” Esenberg said. “My hope is that somebody in charge has the good judgment to realize that this thing needs to be ended. It is just as much the responsibility of the prosecutor to understand when he shouldn’t go forward as it is to go forward with cases.”

But this is a group that has been stubbornly affixed to its investigation, a court-administered dragnet we now know targeted “all or nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present,” according to Randa’s ruling.

Attorneys for Chisholm, Landgraf and Robles didn’t immediately return calls from Wisconsin Reporter seeking comment.

Meanwhile, one question that may never be answered is this: how much has and will this secret investigation cost Wisconsin taxpayers? Chisholm refused to provide cost statements following his last John Doe probe into former aides and associates of Walker when he was Milwaukee County Executive.

Taxpayers are on the hook for tens of thousands of dollars to defend prosecutors in court. They just wrote a check for $505 to file the appeal, according to a court filing.

What will the final tab be when all is said and done?

And what about the Government Accountability Board’s involvement in all of this? Kevin Kennedy, director of the state campaign and elections watchdog, has remained mum on GAB’s role, but court documents released through the litigation are shining more light on the agency and its shadowy investigator, Dean Nickel.

Esenberg said it’s ironic that GAB and the Milwaukee County DA’s office have “pled poverty” when it comes to opening particular campaign-related investigations.

“They can’t respond to open records requests, they don’t have staff to prosecute cases. Yet they can devote — your guess is as good as mine how many tax dollars are being diverted into this extremely unproductive witch hunt,” he said. “I think taxpayers might reasonably ask whether public resources have been used wisely.”

As for O’Keefe, he’s answering his own “what’s next.”

“Thanks to Judge Randa’s decision, I look forward to reengaging in Wisconsin and speaking out on issues I believe in,” the longtime conservative activist said in a statement.

O’Keefe’s Washington, D.C.-based attorney, David B. Rivkin Jr., said Randa’s decision is a “victory for free speech.” The judge, he said, saw the “nefarious probe” for what it was: “pure political payback.”

“For almost three years, the political left in Wisconsin, led by elected prosecutors, has been unsuccessfully trying to silence conservative voices because of their successes. Since the left can’t win at the ballot box, they secretly resort to the illegal use of government power — ‘dark power’ — to go after those who do not agree with them,” Rivkin said in a statement.

“We are pleased that the courts have once again confirmed what we have maintained from the start, that the state cannot silence political speech it does not like by violating the constitutional rights of private citizens.”

Contact M.D. Kittle at mkittle@watchdog.org