Appeals Brief: “a years-long crusade against Governor Scott Walker, his associates, and now his philosophical allies”
We have written many times about the secretive John Doe proceedings in which Wisconsin prosecutors seized a wide-range of records from numerous conservative activists on the theory that it was a crime for such activists to coordinate issue advocacy with the campaign of Governor Scott Walker.
In a federal lawsuit brought by two of the targets, Eric O’Keefe and Wisconsin Club for Growth (the “Club”), a federal district court judge enjoined the John Doe investigation finding, among other things, that the investigation violated the targets’ constitutional free speech rights. The court also found that the prosecutors advanced an invalid theory of criminal liability, since such coordination did not violate campaign finance laws. A state court judge earlier had made a similar finding.
The John Doe investigators, who are defendants in the federal lawsuit, have appealed to the 7th Circuit Court of Appeals.
O’Keefe and the Club filed their responsive appeals brief today. A copy is embedded at the bottom of this post.
The brief is deep into the law, but it’s the factual recitation which is riveting, detailing a prosecutorial conspiracy to sway the political process against conservatives and to undermine Walker.
Here is the full Summary of Argument:
In February 2012, at the outset of a tough reelection campaign and battle for control of Congress, President Barack Obama’s official campaign committee threw its support behind Priorities USA Action, a “super PAC” supporting Democratic candidates. “[T]op campaign staff and even some Cabinet members [would] appear at super PAC events,” and they helped Priorities USA Action raise millions that it spent in support of Democratic candidates.[fn]
Defendants launched and aggressively pursued a secret criminal investigation targeting every major right-of-center advocacy group in Wisconsin on the view that this kind of “coordination” between a candidate and supporters of his policies is illegal. They also claim the power to restrict speech on public policy issues based on an advocacy group’s communications with a candidate, whether or not that speech has anything to do with that candidate’s own campaign or election.
In short, Defendants claim a carte blanche to target more or less every person or group that has ever participated in Wisconsin political or policy debates, to raid their homes, seize their records and personal effects, subpoena their emails and phone records, and threaten them with prosecution – all things that Defendants actually did in this case – merely for speaking out on the issues. It would be difficult to conceive a more offensive disregard for the First Amendment rights of citizens to advocate and associate with others to advance their beliefs through the political process, the very lifeblood of representative democracy.
Defendants did not adopt this indefensible legal position out of some misplaced zeal to enforce Wisconsin campaign-finance law. The facts show that it was a pretext, contrived to support the latest phase of a years-long crusade against Governor Scott Walker, his associates, and now his philosophical allies. What began four years ago as a routine investigation into missing charitable funds immediately morphed into a pursuit of all-things-Walker, as Milwaukee County District Attorney John Chisholm and his accomplices repeatedly expanded their investigation to pursue new angles and new targets.
The latest phase, launched soon after Walker’s recall-election victory, targets nearly every right-of-center activist group in Wisconsin, with the only common denominator being their support for Walker’s policies. The intended and actual result was to virtually silence one half of policy debate in Wisconsin.
The district court correctly found that Plaintiffs “have been shut out of the political process merely by association with conservative politicians” on the basis of a legal theory that “cannot pass constitutional muster” and has no possibility of ever resulting in a valid conviction, only further harassment. R.l81 at 25. And that, it concluded, “cannot square with the First Amendment and what it was meant to protect.” Id. To vindicate Plaintiffs’ First Amendment rights, Defendants’ retaliatory investigation must remain enjoined and Defendants must be held liable for their abuse of power.
The Brief is rich in detail to back up this argument and theory of prosecutorial overreach. Here are just a few highlights from the Brief.
In the previous John Doe No. 1 (the investigation of Walker’s term as County Executive), there were 18 enlargements of the original John Doe Petition, as prosecutors roamed around in search of some crime to pin on Walker. The mechanisms were highly politicized:
The Milwaukee Defendants [the prosecutors] went out of their way to use the investigation for political purposes. They timed raids to coincide with political events (including raiding Walker’s office the day before the 2010 gubernatorial election, R.7 Ex. A. Ex. 21 at 5), and leaked details of the probe to the Milwaukee Journal Sentinel, R.1 ’11’1!157-172; seeR.7 Ex. A Ex. 23. In the middle of the Walker recall-petition drive, the Milwaukee Defendants released criminal complaints against five targets of the investigation. R.7 Ex. A Exs. 13, 14, 19, 21, 22. [Brief, at 13]
After John Doe No. 1 resulted in some minor convictions, none of which involved Walker himself, prosecutors commenced John Doe No. 2 (the current proceeding at issue in the current federal lawsuit, targeting Walker’s gubernatorial campaign activities), piggybacking on John Doe No. 1.
The state court judge originally assigned to John Doe No. 2 provided no oversight and signed off on a fishing expedition to seize records (a later request for more subpoenas made to a second state court judge who took over the case would be rejected):
After Walker defeated Milwaukee Mayor Tom Barrett in the June 2012 special election, the Milwaukee Defendants regrouped and redoubled their efforts, focusing their investigation on Walker’s campaigning. First, in August 2012, Defendant Robles petitioned to convene a second John Doe proceeding. R.53 Ex. J. The stated purpose of the proceeding was to investigate alleged coordination involving the Club, 28 other conservative social welfare organizations, Walker, and FOSW in 2011 and 2012. Id. Attachment at 2-3; see also infra at§ F.l. These were the identical “specific violations” enumerated in the eighteenth enlargement of the first John Doe proceeding, and much of the information supporting the petition was obtained in that proceeding. R.117 Ex. B at 1 0; R.11 0 Ex. C Ex. 1. Retired Court of Appeals Judge Barbara Kluka was appointed as John Doe judge. R.53 Ex. P. Judge Kluka provided no meaningful oversight over this John Doe proceeding. In fact, public records indicate that she approved every petition, subpoena, and search warrant sought in the case, and purportedly reviewed hundreds of pages of affidavits and evidence, in just one day’s worth of work. R.1 ‘1[128. [Brief, at 15]
There were numerous prosecutorial maneuvers which demonstrated a desire to get Walker and conservatives at all costs, including getting other district attorneys to open John Doe investigations to expand the original prosecutors’ reach and jurisdiction:
In July and August 2013, the Milwaukee Defendants persuaded district attorneys of four other counties to file petitions for John Doe proceedings to pursue the ongoing coordination inquiry. R.53 Exs. B-E. The pleadings
were boilerplate statements that incorporated the Milwaukee Defendants’ findings and included no independent consideration of the facts or the law. Id.
The petitions were granted in late August, and Judge Kluka was appointed to oversee them as well. R.53 Exs. K-N. The petitioning District Attorneys’ intent not to be involved in these proceedings is reflected in provisions precluding nearly everyone in their offices from accessing investigatory materials. R.53 Exs. B-E. By contrast, all employees of the Milwaukee County District Attorney’s Office were allowed to access secret materials. R.53 Ex. J at 2. [Brief at 17-18]
The Brief contains far too much detail to reproduce here, but late 2013 raids, which finally caused two of the targets to commence the federal lawsuit, were chilling:
Early on the morning of October 3, 2013, armed officers raided the homes of political acrivists across Wisconsin, including associates of the [Wisconsin Club for Growth]. R. 7 Ex. B ‘1[46. Sheriffs deputies’ vehicles mobbed targets’ homes and illuminated them with bright floodlights. Id. Deputies, accompanied in several instances by the Milwaukee County District Attorney’s office, executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were resttained under police supervision and denied the ability to contact their attorneys. Id. [Brief, at 18-19]….
Also on October 3, the Club’s accountant and directors, including O’Keefe, received subpoenas demanding that they turn over the Club’s records from March 1, 2009, to the present. R. 7 Ex. A Exs. 34, 35. This included donor information, correspondence with their associates, and all financial materials. The subpoenas revealed that nearly all right-of-center advocacy groups in Wisconsin had been targeted. Id. The subpoenas stated that disclosing the content of the subpoenas or the fact of their existence was grounds for contempt under secrecy orders. Id. The subpoenas did not, however, provide Plaintiffs with the secrecy orders themselves, leaving them unable to assess the scope of the orders. R. 7 Ex. B ~ 44.
Within the month, the Milwaukee Defendants’ contact at the Milwaukee Journal Sentinel was reporting on the investigation, despite the secrecy orders. R.7 Ex. A Ex. 30.
Lavrenti Beria, head of the KGB under Stalin, is reported to have said:
“Show me the man and I’ll find you the crime.”
If the factual recitation in the John Doe targets’ Brief is accurate, that was exactly the methodology used by prosecutors in Wisconsin.
The man was Scott Walker, the crime has not yet been found, but in the pursuit the conservative movement was silenced and had its constitutional rights violated.