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John Doe (WI) Tag

We have extensively covered the Wisconsin John Doe investigations. The extremely abbreviated version is that Milwaukee County prosecutor John Chisholm has led two distinct investigations of conservatives in Wisconsin. John Doe No. 1 targeted Scott Walker's term as Milwaukee County Executive. That case is over, and no wrongdoing by Walker was uncovered. John Doe No. 2 involved allegations that a wide range of Wisconsin conservatives engaged in illegal coordination with Walker in the Recall Election, which Walker won. John Doe No. 2 has resulted in federal and state litigation, with conservative individuals and groups asserting that the wide-ranging seizure of records violated their constitutional righs. Currently, the probe effectively is shut down by a state court judge's ruling refusing to issue any more search warrants, and a federal court's decision that Wisconsin could not apply the state campaign laws so as to prohibit issue coordination.  A separate federal case on that legal point may be headed for the U.S. Supreme Court. Now some more information, via M.D. Kittle at Wisconsin Reporter, who has been the leading reporter covering the various John Doe proceedings and cases, regarding yet another lawsuit, against the Wisconsin Government Accountability Board. Rogue agency defied judges to carry out partisan probe of Wisconsin conservatives:
Agents for the embattled state Government Accountability Board continued a zealous campaign finance investigation into dozens of conservative groups even after judges who preside over the board voted to shut it down, according to a previously sealed brief made public Friday. The documents, from an updated complaint filed by conservative plaintiffs in a case against the GAB, appear to support claims that the campaign finance, ethics and election law regulator is a rogue agency. They also show that the GAB considered using the state’s John Doe law to investigate key state conservatives and even national figures, including Fox News’ Sean Hannity and WTMJ Milwaukee host Charlie Sykes.

As part of my continuing effort to gain exposure to new audiences, I have a post at Fox News regarding how Scott Walker's ability to survive the Democratic, union and prosecutorial (John Doe) onslaughts has turned Walker into an emerging star. Congratulations, Democrats you made Scott Walker a rising 2016 star:
Republican victories in the midterm elections widely are viewed as a rejection of President Obama’s failed policies. But are the elections a harbinger of things to come in 2016? For Scott Walker, the answer is yes.... In reelecting Walker, Wisconsin struck a blow against the politics of personal destruction. That is a message Walker now is uniquely capable of delivering to an electoral sick of politics as usual.... Instead, Democrats gave Walker a national electoral credibility they may regret in 2016.
For the rest of the story, go over to the link. Walker is parlaying his victory into greater notoriety, as this appearance from Sunday shows:

Welcome to the Soviet Socialist Republic of Wisconsin Democratic Prosecutors:
The early-morning paramilitary-style raids on citizens’ homes were conducted by law enforcement officers, sometimes wearing bulletproof vests and lugging battering rams, pounding on doors and issuing threats. Spouses were separated as the police seized computers, including those of children still in pajamas. Clothes drawers, including the children’s, were ransacked, cellphones were confiscated and the citizens were told that it would be a crime to tell anyone of the raids.
That's what George Will calls The nastiest political tactic this year. Will was describing how dozens of conservative activists were targeted by Milwaukee County District Attorney John Chisholm in connection with the John Doe (No.2) investigation of supposed campaign law violations. That would be the same John Chisholm whose wife is a school union representative and who, according to a whistleblower, drove the investigation out of fury over Governor Scott Walker's collective bargaining reform bill. John Doe No. 2 relates to Walker's recall campaign, in which he defeated a national union effort to oust him, and whether there was illegal coordination with the conservatives who were targeted in the raid. A state court judge already has ruled that even if there was such coordination, it was not illegal. A federal District Court ruled the same way, but was reversed by the federal appeals court primarily on procedural grounds as to whether a federal court should interfere in a state investigation. The federal case may be headed to the U.S. Supreme Court in what could be another blockbuster campaign regulation case on the scale of Citizens United, if the court takes the case. In a second federal case brought by a different conservative group, the same District Judge ordered Wisconsin not to enforce its coordination law as relates to issue advocacy.  We'll see if that holds up on appeal. More from Will's column, calling John Doe No. 2 the "nastiest episode" of this political season:

Yesterday, the 7th Circuit Court of Appeals denied a request by two targets of the Wisconsin John Doe investigation to rehear a decision by a three-judge panel to vacate an injunction issued by the District Court preventing the state investigation from continuing. (Order at bottom of post.) The substantive issue underlying the case is whether the Wisconsin campaign regulations violated the First Amendment, specifically laws that purportedly bar "issue advocacy" coordination between campaigns and outside groups. In the John Doe investigation, the Milwaukee County prosecutor -- who allegedly has a family political bias -- targeted dozens of conservative Wisconsin activists for sweeping subpoenas. Two of the targets -- Eric O'Keefe and the Wisconsin Club for Growth -- filed suit in federal court to halt the investigation, and for money damages. The District Court granted the injunction and allowed the case to move forward. The 7th Circuit, however, reversed the District Court. That original 7th Circuit decision was based, primarily, on the issue of whether a federal court in this circumstance should interfere in a state court investigation. The 7th Circuit panel ruled that the federal court should abstain. I reached out to one of the lawyers for the John Doe targets, Andrew Grossman, as to whether Supreme Court review via a Petition for Certiorari would be sought, and he responded as follows:
"We will be seeking Supreme Court review and have every expectation that the Seventh Circuit's decision will be reversed."

Two of the targets of the John Doe investigation against Scott Walker and conservative activists have filed a Petition for en banc rehearing by the full 7th Circuit Court of Appeals, after a 3-judge panel dismissed their lawsuit against the John Doe prosecutors on the grounds that the federal courts should not intervene in a state investigation. The Petition for Rehearing, With Suggestion for En Banc Review, is embedded at the bottom of this post. The legal history is detailed in these prior posts: The short version is that the targets initially succeeded at the federal trial court level in obtaining an injunction shutting down the investigation (which already was on hold because of a state court judge's ruling), and allowing the civil damages lawsuit against the prosecutors/investigators to go forward in federal court. The Court of Appeals reversed, finding that there was no ground for the federal courts to intervene in a state investigation, particularly where a state judge already had effectively shut it down (which is on appeal in the state court system). Here are the grounds stated in the Petition to have the entire 7th Circuit rehear the case:

We reported last night on a demand by one of the targets of the Wisconsin John Doe investigation for a Special Prosecutor to investigate the John Doe prosecutors, particularly John Chisholm, WI “John Doe” target seeks criminal investigation of prosecutors Also last night, the Milwaukee Journal Sentinel reported that a new lawsuit on behalf of a conservative group has been filed alleging that the John Doe prosecutors violated conservative groups’ rights:
As a sixth lawsuit was filed Thursday connected to an investigation of Gov. Scott Walker and his conservative allies, the leader of one group being probed took to the airwaves to accuse Milwaukee's district attorney and state election officials of engaging in "domestic spying." "We have in Wisconsin a taxpayer-funded domestic spying operation of over three years' duration conducted by the Milwaukee County DA, John Chisholm, and now in concert with Kevin Kennedy at the Government Accountability Board, which is corrupt and so is Kennedy," said Eric O'Keefe, one of the directors of the Wisconsin Club for Growth. O'Keefe spoke to WISN-AM (1130) host Vicki McKenna. His comments came as a Milwaukee County group sued Chisholm, Kennedy and the members of the accountability board, arguing it has a constitutional right to collaborate with candidates — raising issues at the heart of the legal battle over whether Walker and the Wisconsin Club for Growth and other conservative organizations have illegally worked together. Citizens for Responsible Government Advocates has not been involved in the investigation connected to Walker. But the group has been a longtime Walker ally, and its lawsuit addresses what has been raised in the investigation into his campaign's activities. The lawsuit is being funded by a group affiliated with O'Keefe using lawyers who have represented O'Keefe and the Wisconsin Club for Growth.
The Complaint in the new case now is available on PACER, and is embedded in full below.

We've covered the Wisconsin "John Doe" proceeding targeting Governor Scott Walker and dozens of conservative Wisconsin activists many times before. Scroll through the John Doe (WI) tag. The legal short version is that Milwaukee County prosecutor John Chisholm has been on a years-long investigation of Scott Walker and the conservative movement, claiming there was illegal coordination. A state court judge effectively shut down the investigation finding that there was no legal basis for that claim. A federal district court judge made a similar finding, but that finding was reversed by the 7th Circuit Court of Appeals mainly on procedural grounds -- that federal courts should not interfere in state court proceedings, finding that the Supreme Court had not yet definitively ruled on whether the alleged conduct at issue, so-called "issues advocacy," could be regulated. The political short version is that the John Doe investigation, which seized records before it was shut down, chilled and stifled conservative speech in Wisconsin. The John Doe investigation also has become a political hammer over Scott Walkers' head, used by his political enemies to try to defeat him at the ballot box. One of those political enemies of Walker, according to a whistleblower who used to work in Chisholm's office and was friendly with his family, was Chisholm's wife, a school system union representative furious at Walker's collective bargaining reform. The Milwaukee Journal Sentinel outed the whistleblower, and has been attacking him as untrustworthy, as the Journal Sentinel calls for the the investigation to continue. Now one of the main targets of the John Doe case, and one of the plaintiffs in the federal lawsuit, has fired back at the prosecutors by demanding a criminal investigation of the prosecutors' alleged political motivations.  (Embedded at bottom of post.) The Milwaukee Journal Sentinel reported on September 29, John Doe target strikes back with call for probe of prosecutor:

The 7th Circuit Court of Appeals has vacated a District Court injunction prohibiting Wisconsin prosecutors from utilizing a "John Doe" proceeding investigating Scott Walker and conservatives. (Full Opinion embedded at bottom of post.) The Court ruled that it was an issue for the state courts, not the federal courts. While not ruling on the ultimate issue of whether the conduct at issue was protected under the First Amendment, the Court ruled that the law on that issue was not so clear that a federal court could take the extraordinary step of enjoining a state court issue. The Court suggested that the U.S. Supreme Court may have to one day decide whether "issue advocacy" is beyond the purview of campaign regulation. Whether the John Doe targets/plaintiff will try to get the Supreme Court to take the case at this stage to decide the constitutional issues remains to be seen. Whether the Supreme Court would take the case also is a question mark. Because the state courts already were addressing the issue, and in fact a state court judge had refused to issue any more subpoenas effectively halting the case, the Appeals Court deferred to the state court system to resolve the issues. From the Opinion:
The issuance of injunctive relief directly against Judge Peterson is hard to justify in light of the Anti-­‐‑Injunction Act, and the district court did not try to do so. The Anti-­Injunction Act embodies a fundamental principle of federalism: state courts are free to conduct their own litigation, without ongoing supervision by federal judges, let alone threats by federal judges to hold state judges in contempt.... One important question is whether the plaintiff suffers irreparable injury. O’Keefe and the Club say yes, because donations have dried up, but that’s not the right temporal perspective. We must ask whether the injury would be irreparable if the federal court were to stay its hand. And it is hard to see that kind of injury, because plaintiffs obtained effective relief from Judge Peterson before the federal judge acted—indeed, before filing this suit.... A second important question is whether the plaintiff has adequate remedies at law (which is to say, without the need for an injunction). That Judge Peterson entertained and granted the motion to quash shows that the answer is yes. A third important question is whether federal relief is appropriate in light of normal jurisprudential principles, such as the rule against unnecessary constitutional adjudication.....Yet the district court waded into a vexed field of constitutional law needlessly. Judge Peterson had already concluded that the investigation should end as a matter of state law, because prosecutor Schmitz lacks evidence that state law has been violated. The result is an injunction unnecessary at best, advisory at worst.
The Appeals Court refused to decide the First Amendment issue, ruling that the John Doe plaintiffs (who received subpoenas) may one day be vindicated, but that vindication on constitutional grounds would have to come from the Supreme Court:
Plaintiffs’ claim to constitutional protection for raising funds to engage in issue advocacy coordinated with a politician’s campaign committee has not been established “beyond debate.” To the contrary, there is a lively debate among judges and academic analysts. The Supreme Court regularly decides campaign-­‐‑finance issues by closely divided votes. No opinion issued by the Supreme Court, or by any court of appeals, establishes (“clearly” or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-­‐‑advocacy groups—let alone that the First Amendment forbids even an inquiry into that topic. The district court broke new ground. Its views may be vindicated, but until that day public officials enjoy the benefit of qualified immunity from liability in damages. This makes it unnecessary for us to consider whether any defendant also enjoys the benefit of absolute prosecutorial immunity, which depends on the capacities in which they may have acted at different times.....
So where does this leave us? The John Doe investigation now will be fought in the Wisconsin state courts. That creates a cloud of uncertainty for Wisconsin conservatives, but as of this moment, the state courts effectively have halted the investigation. The Appeals Court ordered the case dismissed, but that seems odd (I want to reflect on this) since there are damage claims apart from the injunction. UPDATE: The attorneys for the John Doe Plaintiffs issued the following statement:
Statement of David B. Rivkin, Jr., Attorney for the Wisconsin Club for Growth and Eric O’Keefe The Seventh Circuit’s decision today, while disappointing, does not revive the John Doe investigation, which John Doe Judge Gregory Peterson found violated state law. It does not lend any support to Milwaukee County District Attorney John Chisholm’s allegations against the Wisconsin Club for Growth, given that he has failed to identify a single advertisement by the Club that was coordinated with Scott Walker or even had anything to do with Walker’s campaign. And it does not alter our resolve. We will ask the Seventh Circuit to correct today’s mistaken decision, and we will continue to fight this abuse of government power. Today’s decision does not honor a federal court’s duty to vindicate and protect Americans’ rights under the U.S. Constitution. The Wisconsin Club for Growth and Eric O’Keefe did not only challenge a subpoena or a John Doe proceeding—as the Seventh Circuit assumed—but a years’ long campaign of harassment and intimidation by Milwaukee County District Attorney John Chisholm to retaliate against the Club, Mr. O’Keefe, Wisconsin conservatives, and Governor Scott Walker. According to a whistleblower who worked under Chisholm, the District Attorney declared it his “personal duty to stop Walker” and undermine Walker’s economic reforms—a vow that led to his targeting nearly the entirety of Wisconsin’s conservative movement. The Seventh Circuit’s view that a federal court is powerless to enjoin this blatant abuse of prosecutorial power in violation of citizens’ First Amendment rights is simply wrong.
Here is the Opinion:

Michael Lutz is the whistleblower who came forward to legal reporter Stuart Taylor with a story of political bias by Milwaukee County District Attorney John Chisholm in connection with the "John Doe" investigation of Scott Walker. Lutz then was outed as the source, after a mole hunt at the D.A.'s office, by Milawukee Journal Sentinel reporter Daniel Bice. For background, see our prior posts: Bice has admitted coming to Lutz's door late at night, but denies loud banging or any other harassing conduct. Lutz was interviewed this morning by Wisconsin radio host Charlie Sykes.  I will post the audio and transcript if and when available. (added) Here is link to podcast: Lutz is standing by his story both as to political bias in the prosecutor's office and Bice's late night visit. In something of a bombshell, Lutz says that the story he gave Stuart Taylor about political bias he also gave to the Journal Sentinel in 2012 -- something I don't believe the Journal Sentinel disclosed when it went after Lutz's credibility. Here are tweets by Syke's website, Right Wisconsin, as to the content of the interview:

In our post on September 9, we asked Was Prosecutor’s union-operative wife behind “John Doe” investigation of Scott Walker?. That post was based on a report by the well-regarded legal reporter Stuart Taylor about anti-Scott Walker political bias in the office of Milwaukee District Attorney John Chisholm, who has led the "John Doe" investigations against Walker and a wide-range of conservative activists in Wisconsin. In his report, District attorney’s wife drove case against Wis. Gov. Walker, insider says, Taylor reported, among other things:
…. Walker became a national figure in 2011, when his “Budget Repair” bill cut state spending and sharply curbed public employee unions — perhaps the biggest reversal of public union power in U.S. history. Conservatives were delighted and liberals alarmed. Now a longtime Chisholm subordinate reveals for the first time in this article that the district attorney may have had personal motivations for his investigation. Chisholm told him and others that Chisholm’s wife, Colleen, a teacher’s union shop steward at St. Francis high school, a public school near Milwaukee, had been repeatedly moved to tears by Walker’s anti-union policies in 2011, according to the former staff prosecutor in Chisholm’s office. Chisholm said in the presence of the former prosecutor that his wife “frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved … She took it personally.”
The reaction to Taylor's report was furious and aggressive, but from an unlikely source: The Milwaukee Journal Sentinel, which not only outed Taylor's confidential source, but personally attacked the source in a detailed column by reporter/columnist Daniel Bice, Source who accused Chisholm of vendetta has troubled past. When I first read Bice's column, the two things struck me.

We have covered the onslaught unleashed by Democratic District Attorney John Chisholm on Governor Scott Walker and conservatives in Wisconsin many, many times. We note the obsessive nature of the investigation, and how it seemed that Chisholm found the man -- Scott Walker -- and was searching for the crime. In a blockbuster revelation, Stuart Taylor at Legal Newsline reports that Chisholm's wife, who is a union operative, may be the motivating force, District attorney’s wife drove case against Wis. Gov. Walker, insider says:
.... Walker became a national figure in 2011, when his “Budget Repair” bill cut state spending and sharply curbed public employee unions — perhaps the biggest reversal of public union power in U.S. history. Conservatives were delighted and liberals alarmed. Now a longtime Chisholm subordinate reveals for the first time in this article that the district attorney may have had personal motivations for his investigation. Chisholm told him and others that Chisholm’s wife, Colleen, a teacher’s union shop steward at St. Francis high school, a public school near Milwaukee, had been repeatedly moved to tears by Walker’s anti-union policies in 2011, according to the former staff prosecutor in Chisholm’s office. Chisholm said in the presence of the former prosecutor that his wife “frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved … She took it personally.” Citing fear of retaliation, the former prosecutor declined to be identified and has not previously talked to reporters.

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.

We've covered the abusive anti-conservative Wisconsin "John Doe" proceedings many times before. The short story is that two separate proceedings were commenced under the auspices of Democratic District Attorneys in order to try to take down Scott Walker. John Doe No. 1 concerned Walker's time as County Executive and ended without finding any wrongdoing by Walker himself. John Doe No. 2 concerned Walker's time as Governor and recall election.   Both a state court judge and a federal judge found that even if everything the investigators claimed was true, it was not illegal.  This John Doe No. 2 resulted in a federal lawsuit by two of the targets alleging that the investigators violated the targets' constitutional rights. Some documents released Friday by the federal Court of Appeals reveal just how abusive this John Doe No. 2 was.   The investigators conducted a widespread fishing expedition through the otherwise private records of numerous conservative activists, as described by M.D. Kittle of Wisconsin Reporter, who has followed the case more closely than anyone (h/t Instapundit):

‘Retaliation’: Docs show state prosecutors’ launched mini-NSA probe of state conservatives

Conservative targets of a Democrat-launched John Doe investigation have described the secret probe as a witch hunt. That might not be a big enough descriptor, based on records released Friday by a federal appeals court as part of a  massive document dump.

After a week of complete media malpractice, in which scurrilous accusations that Wisconsin Governor Scott Walker participated in a "criminal scheme" were plastered all over the headlines, a lead prosecutor has completely backed off. The Wisconsin State Journal reports, Scott Walker not a target, John Doe special prosecutor says:
Randall Crocker, the lawyer for special prosecutor Francis Schmitz, noted the investigation has been halted, saying, "At the time the investigation was halted, Governor Walker was not a target of the investigation. At no time has he been served with a subpoena." Crocker issued the statement a week after a court document Schmitz wrote late last year and made public late last week identified Walker as being part of an alleged "criminal scheme" to coordinate with outside groups and violate campaign finance laws. Crocker said no conclusions have been made about whether there is enough evidence to charge anyone with a crime. "Contained in these documents is a reference to the request for production of documents that relates to an alleged criminal scheme. Gov. Walker's name was included in this reference," Crocker said. "While these documents outlined the prosecutor's legal theory, they did not establish the existence of a crime; rather, they were arguments in support of further investigation to determine if criminal charges against any person or entity are warranted." Crocker added, "Mr. Schmitz has made no conclusions as to whether there is sufficient evidence to charge anyone with a crime."
With impeccable timing, Democratic challenger Mary Burke just released a TV ad focusing on the accusations of "criminal scheme" from which prosecutors have just walked away:

Wisconsin Gov. Scott Walker has been the subject of a brutal smear campaign by local district attorneys using the so-called "John Doe" procedure, as discussed in my post Media Malpractice – Report false criminal accusations against Walker, but not contrary judicial rulings. I also encourage you to read Gabriel Malor's column, A Basic Primer On The Scott Walker Case For Ignorant Reporters. Since it's obvious the media, particularly on the left, is running with the false accusations to damage Walker's current 2014 gubernatorial campaign and possible 2016 presidential bid, it's important that the media malpractice be exposed and the lies refuted. As with smears against Republicans in the past, it's not about the particularly target, in this case Walker.  It's about the media's desire to take down potential Republican candidates early and often, without regard to the truth. We've seen it already in the disgusting attack in The New Republic by Alec MacGillis claiming that Walker's success is based on white racism, New Republic’s race-baiting of Scott Walker just a 2016 warm up. Gov. Walker has written the following column, which he is encouraging others to run. It's a way of going around the mainstream media. Every single conservative blog and website should run this column. Here is Gov. Walker's column: