Secret probe of conservatives makes Wisconsin ground zero in First Amendment war

Secret probe of conservatives makes Wisconsin ground zero in First Amendment war

[WAJ Intro: There are huge developments targeting conservatives and Scott Walker supporters in Wisconsin. I asked Matt Kittle of Wisconsin Reporter, who has written extensively about the so-called “John Doe” investigations, to explain the situation to Legal Insurrection readers because of the national implications, and he kindly agreed to do this guest post.]

There’s a secret war being waged in Wisconsin, and the outcome could have national ramifications on free speech and the rule of law.

As first reported by Wisconsin Reporter in late October, a Democrat-led, secret probe now nearly two years in the making has targeted dozens of conservative organizations on the ground in the Badger State.

The so-called John Doe investigation, which one former Federal Elections Commission member said makes the “Alien and Sedition Act mild by comparison,” has raised serious questions of partisanship and prosecutorial abuse.

A Nov. 18 Wall Street Journal opinion piece, headlined “Wisconsin Political Speech Raid,” reported at least three homes had been raided, and more than 100 subpoenas had been handed out – including one that demands “all records of income received, including fundraising information and the identity of persons contributing to the corporation.”

What’s it all about?

As Wisconsin Reporter first revealed, the investigation, launched in early 2012 by the Democrat-led Milwaukee County District Attorney’s office, aims to prove conservatives illegally coordinated activities in the historic recalls of Gov. Scott Walker and Republican state senators, multiple sources say.

One source with knowledge of the investigation has told Wisconsin Reporter the ultimate goal is to bring down Walker, the bane of Wisconsin liberals.

Conservative targets and others close to Wisconsin’s latest politically charged John Doe contend the probe is nothing more than a “taxpayer-funded, opposition-research campaign.”

“This is not a question of what conservatives did wrong. It’s a question of one party in this state using prosecutorial powers to conduct a one-sided investigation into conservatives,” said one source who spoke on condition of anonymity due to his proximity to the probe.

What is striking is that no liberal organizations appear to be targeted in the John Doe, particularly interesting in light of the tens of millions of dollars pumped into Wisconsin’s unprecedented spate of recalls in 2011 and 2012 by union and left-leaning groups.

There is reason for skepticism and concern, according to conservatives.

It appears the latest John Doe, billed as John Doe II or the “son of John Doe,” is at least in part connected to a previous secret investigation led by the Milwaukee County DA’s office. That John Doe probe spanned nearly three years, beginning in May 2010.

John Doe I was a meandering, court-administered dragnet that ended in the convictions of six people who were former aides or associates of Walker when he was Milwaukee County executive. The investigation closed without any charges of wrongdoing against Walker, and critics say prosecutors got little for the untold taxpayer money spent on pursuing the probe.

“It was all something other than what (prosecutors) were originally looking for, and it wasn’t very much for three years of looking,” a legal source connected to the current John Doe told Wisconsin Reporter.

But John Doe I, conservatives charge, certainly set the political narrative for Democrats in 2012, when Walker was wrapped up in the fight of his political life. The left had launched recall campaigns against the Republican governor, his lieutenant governor and several GOP state senators – ostensibly payback for Walker’s Act 10, the state’s public-sector collective bargaining reform law that unions and their Democrat politicians abhor.

The campaign was peppered with leaked information about the John Doe. Much of the information was wrong, including reports that Walker was due to be indicted for one reason or another at any moment. Liberal issue ads focused on the John Doe as if the secret investigation alone were an indictment of the governor.

The more things change, the more they stay the same.

Reports of John Doe II first surfaced in the Milwaukee Journal Sentinel on Oct. 21, about the time Walker’s Democrat challenger Mary Burke announced she was jumping into the race for governor.

Conservatives are challenging the nebulous notion of illegal campaign coordination, and at least three of the targets in unnamed petitions have contested the authority of the court and the special prosecutor in the latest John Doe.

At issue, they say, is a basic battle for free speech.

“The state of Wisconsin should be embarrassed, embarrassed that it is involved in an effort that makes the Alien and Sedition acts mild by comparison,” said Hans von Spakovsky, a senior legal fellow at the Washington, D.C.-based Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Von Spakovsky, who previously served on the Federal Elections Commission and at the U.S. Justice Department as counsel to the assistant attorney general, says the prosecution’s seizure of electronic equipment and files and its demands for phone email and other records make the probe look like nothing more than a “witch hunt to intimidate conservative groups.”

“What’s even worse about this is the secrecy imposed by state law,” von Spakovsky told Wisconsin Reporter. “Political speech is one of the most fundamental things protected by the First Amendment. No kind of investigation like this should be secret. Any organization that receives a subpoena like this ought to be able to make it public and go to court.”

But speaking out could land a witness or a target in jail.

Wisconsin’s John Doe law comes with secrecy oaths, and violators risk contempt of court charges.

Political activist Eric O’Keefe is the one target of the investigation to date who has taken his story public, telling the Wall Street Journal that he’d been subpoenaed by the judge.

To date, there have been no reports of O’Keefe being penalized. Wisconsin Reporter has been unable to reach O’Keefe, director of conservative advocacy group Wisconsin
Club for Growth, one of at least 29 organizations reportedly targeted by the John Doe probe.

There’s more cause for concern.

Like a grand jury, John Doe investigations give presiding judges subpoena and search powers, as well as the ability to call oath-bound witnesses to testify. Above all, judges are imbued with expanded discretion.

The style of investigation, older than the state of Wisconsin, draws its name from the unnamed people involved, and is intended to be an independent, investigative tool to determine whether a crime has been committed – and if so, by whom.

Multiple sources have told Wisconsin Reporter that Bruce Landgraf, a top prosecutor in the office of John Chisholm, Milwaukee County’s Democrat district attorney, has shown
himself ready to bully and even flout the law in pursuit of political targets.

In John Doe I, the prosecution and the presiding judge put two men in jail for refusing to be strong-armed into testifying.

“Except for the fact that he’s willing to break the law, (Landgraf is) something of an Inspector Javert,” said a source, referring to the ruthless policeman in Les Miserables.

Landgraf is being sued by Rice Lake Harley-Davidson dealer Christopher Brekken, who alleges false imprisonment and abuse of process following a run-in with Landgraf in the fall of 2010, during the first John Doe.

The judge in that investigation issued a subpoena on the prosecution’s request and later ordered Brekken arrested and jailed because he would not turn over the credit card information of a man eventually convicted in the probe.

Ironically, submitting to the DA’s demand for credit card information from his motorcycle dealership would have exposed Brekken to prosecution under a separate Wisconsin law that prohibits retailers from revealing confidential credit card information.

Then there was the case of Andrew P. Jensen, the commercial real estate broker locked up for refusing to cooperate with the first Doe. Jensen was quietly exonerated several months later.

Landgraf, because of the secrecy order, has declined to comment on the John Doe investigations. So have the other prosecutors and the judges involved.

Landgraf did comment on the Rice Lake retailer and his lawsuit, telling Wisconsin Reporter Brekken got what was coming to him and that the investigation ultimately got its man.

“What difference does it make?” Landgraf shrugged. “We ultimately got the information and the details we needed.”

Critics of the John Doe see Landgraf as an overzealous prosecutor obsessed with political convictions. At the very least, there is a perception problem with an investigation reeking of conflict, according to one law enforcement official.

Milwaukee County Sheriff David A. Clarke has blasted the secret investigations as politically motivated, “unbridled,” “dangerous,” and “tainted.”

The bigger problem may be the current investigation’s “chilling effect” on campaign fundraising, an essential measure of free speech. As one source put it, in the shadow of investigator raids, document seizures and precisely timed leaks, the process may be the punishment.

O’Keefe told the Wall Street Journal that the flurry of subpoenas “froze my communications and frightened many allies and vendors of the pro-taxpayer political movement in Wisconsin and across the country.”

And, as the Wall Street Journal piece notes, political silence may be exactly what Democrats driving this latest John Doe case are hoping for.

That fact is not lost on inner-circle Republicans.

“It’s frustrating,” a Republican source said. “The longer this drags on, the longer it’s going to play into the (2014) re-election (of Walker). It’s stifling any kind of talk, and I imagine it’s difficult to raise money right now … It’s not good for anybody.”

Contact M.D. Kittle at [email protected]

[Featured image source: News 3 Video]

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