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Exposed: How Prosecutors targeted Scott Walker and conservatives

Exposed: How Prosecutors targeted Scott Walker and conservatives

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.

Wisconsin John Doe – Appeals Brief OKeefe Et Al


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this is what fascism looks like

    max_kain in reply to redc1c4. | September 2, 2014 at 2:49 pm

    You don’t know how right you are. We have rallys and speaking events and the college brown shirts show up and either shout down our speakers, threaten the attendees, or call in bomb threats or physical violence to cancel the entire event. Speakers from our side of the spectrum are disinvited from speaking events or commencement ceremonies. Union thugs commit acts of violence and terror against ‘scabs’ and destruction of company assets while blind eyes are turned. Our young are indoctrinated in public schools and businesses are looted and burned at the behest of community organizers and race-baiting thugs. This is reminescent more of Hitler’s Germany or Mussolini’s Italy than the US…but we’re the ones accused of fascism.

Dirty prosecutions are not just limited to Austin! This is how Wisconsin Democrats roll, if they can’t win fair, prosecute them and let their media allies try to manipulate the voters.

Oh the fear conservatives pose to libs! Lib always assume that everyone is a dirty as they are. The next step will be to plant evidence of a crime when there’s none. That will be a new function of the NSA.

    Deodorant in reply to showtime8. | September 3, 2014 at 3:42 pm

    I guess you missed the Mississippi State Sovereignty Commission.

    I guess you missed Cointelpro. The did “plant evidence of a crimes when there’s none”. They murdered people who were exercising their constitutional rights.

    I guess you missed it when GWB fired US Attorneys who were insufficiently zealous in going after democrats. It doesn’t justify abuse of power, but spare me the outrage.

      rightwheel in reply to Deodorant. | September 11, 2014 at 4:18 pm

      That’s a strange set of events to have chosen for your argument. Sov-Com was a project of a series of Democrat Mississippi Governors. CoIntelPro took place under two Democrat US Presidents, Kennedy and Johnson, and was wound down and ended by Nixon. The Bush US Attorney firings may have been political, but no crime was committed and no evidence planted so is irrelevant to your point, and the entire controversy was ginned up by a Democrat-controlled Congress as a means to harass the Republican administration. How does any of that argue against outrage at today’s lawlessness.

Prosecutors have too much discretion nationwide with little to NO oversight by a body empowered to bring meaningful sanctions and penalties.

Our justice system is in disrepute because of overeager, over zealous, politically and remuneratively motivated prosecutors who are at least unsympathetic to the circumstances which they foist onto poor defendants.

Prosecutors have lied, hidden evidence, overcharged so as to prevent bail or make it beyond reach of most defendants with the sole purpose of raising their “win” stats via plea “bargains” so as to aid them in political endeavors for the purpose of accumulation power and/or money.

It is almost assured that innocent people have died because of prosecutorial misconduct. (aided and abetted by Police callousness and disregard for the constitution)

They have rendered our Justice system into a self perpetuating factory of injustice and denier of civil rights.

This must end as the populace feels more and more to be hemmed in by rapacious elites who act above the law themselves yet demand a blind obedience from the citizen as the price for the citizens remaining at liberty.

They are an exemplar of the tyranny of law that was present and imposed at the time of this country’s declaration of Independence. They are perpetrators of injustice and need to be curbed before the entire edifice of Justice crumbles under the weight of it’s lawlessness.

    MaggotAtBroadAndWall in reply to jakee308. | September 2, 2014 at 2:02 pm

    It’s a crime to be conservative. See, e.g., political prosecutions of Senator Ted Stevens, Tom DeLay, Gov. Rick Perry and now the Wisconsin John Doe investigations.

    Add that to what is now the routine extortion of big business in astronomical amounts of tens of billions each by the Justice Department.

    Then there’s the Pickford settlement, that has been described as the biggest government sanctioned fraud against taxpayers in history.

    The IRS scandal, Fast and Furious, etc.

    It will take a big chunk of the country to take note and demand it end, but so far most Democrats seem to be fine with abusing the system for political gain.

Humphrey's Executor | September 2, 2014 at 12:49 pm

The apparent lack of actual judicial over site, at least initially, is very disturbing.

“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.”

The hardest working stamp in the rubber business!

    Do I sense a future Federal court appointee in a future Democrat administration, or as a recess appointment by the present resident on his way out the door? Heck, it sounds like she’s auditioning for the Supremes.

Marxists Never Quit!

Be they hard core (Hey, Vlad, howz’ it going?)

OR the Neo-Marxist (Gramsci, Alinsky and spawn Barry) You must be very proud.

BrightlyWrought | September 2, 2014 at 2:37 pm

I have a question.

What happens if during discovery it is found that the entire effort was itself coordinated between prosecutors and National Level politicians?

There should be some law on which to prosecute the misuse of office for political gains, particularly when Civil Rights have been broken.

These vermin won’t be happy until someone gets hurt.

Just remember: the Texas Democrats are using the same blueprint as the Wisconsin Democrats.

Find a district attorney who can twist the law. Target a prominent Pub. Use grand juries and secret proceedings. Intimidate everyone who gets in the way. Go for the big splash of publicity. Don’t worry about what the law says, just find the right judge.

Soon to come to your state.

Am I missing anything?

A very simple solution, or I would think, would be for the filers of these frivolous type lawsuits be made to compensate the defendants for all legal and court costs. Loser pays would eliminate so many of these type lawsuits.

Further, why in hell doesn’t Walker and company sue the pants off these guys for all costs involved. Might not win in the end but it just might give some of these type slugs second thoughts.

    Estragon in reply to Chuck912. | September 3, 2014 at 12:46 am

    They are prosecutors. They have immunity.

    This is directly related to people voting for Democrats. Vote in enough of them and before you know it, all the prosecutors and judges are Democrats, too. Of course, nearly all of the bureaucrats and regulators already were Democrats.

    Friends don’t let friends vote Democrat.

      Think38 in reply to Estragon. | September 3, 2014 at 6:48 pm

      No, they don’t have immunity. In Wisconsin, prosecutors have immunity only when they are making a decision to prosecute a crime, or any action in connection with actually prosecuting the crime.

      Here, they used the John Doe proceedings. The purpose and use of the John Doe proceedings is to determine if a crime has been committed. The court already rules (consistent with past decisions) that immunity does not apply to determinations of whether a crime has been committed. As a result, the defendants may be personally liable for violating the civil rights of the plaintiffs. That’s why this case is such a big deal, and it so essential to win it. A win means prosecutors (in Wisconsin) will be loathe to use the John Doe proceedings for political purposes because they are literally risking their own assets (and not just those of the taxpayers).

    stevewhitemd in reply to Chuck912. | September 3, 2014 at 7:35 am

    Some of the private individuals affected by the John Doe investigations are indeed suing. It’s why we know what we know.

There is a place for people like this.

It’s call prison.

Where’s the federal l983 lawsuit for deprivation of civil rights?

Just as libs hate conservatives not for arguing, but for arguing well, the WI dem machine hates Walker not for governing as a conservative, but for governing well.

Walker’s way is working after their way did not. Can’t have that.

Walker remains on my short list for 2016, big time.

Surely there are still trees and strong ropes in Wisconsin?

Wow, all this outrage and not one word on this site about 2 half-brothers who were just exonerated after 30 years – 1 from death row. Not one bit of outrage over Scalia, who had no problem with going forth with the execution of one with the mental age of a 9 year old.

Read all about it:

Any concern about the police and prosecuter who railroaded these men?

This site is nothing but a right-wing echo chamber.