Passes a test -- for now....
“The order of this Court and that of the Seventh Circuit offers clear guidance as to the parameters of the injunction,” the federal judge said. “In the absence of any further information regarding the content and import of ‘discussions’ that may violate the Court’s clear directives, it is impossible for the Court to offer further clarification at this time.” A legal expert close to the John Doe proceedings said Randa is saying that Schmitz knows precisely what he can and cannot do. “Judge Randa is saying, ‘Look, guy, you know what this means and if you’re skulking around trying to do something you know you are not supposed to be doing you are risking contempt,’” said the source, who did not want to be identified due to his proximity to the John Doe proceedings. “And contempt is really a serious thing, especially against a prosecutor.”------------------- The last time we wrote about the abusive "John Doe" investigation of conservative activists in Wisconsin, we were wondering whether Gov. Scott Walker would try to cut a prejudicial side deal with the investigators to have the probe dropped in exchange for some concessions including shutting out some key political activists, Dear Scott Walker: Don’t sell out conservative victims of “John Doe” abuses. Two developments directly related to the settlement. First, Walker issued what the Milwaukee Journal-Sentinel termed a "carefully worded" statement on the settlement controversy:
The statement by Friends of Scott Walker was attributed simply to the campaign and not to any individual and appeared to deal only with the federal lawsuit, not the state investigation in which both the Club for Growth and Walker's campaign are targets. "Neither Governor Walker nor his campaign committee are parties to the federal lawsuit. This means they have no legal standing to reach a settlement or deal in their lawsuit," the statement reads in full. A spokeswoman for Walker did not respond to questions clarifying the statement.That is technically true, but doesn't address whether a deal was being cut between Walker and the investigators on the probe itself. The issue, according to the lawyer for the plaintiff in the federal lawsuit, was that through the settlement, the investigators were trying to coerce a punishment forbidden by the court's preliminary injunction, as reported by The Wisconsin State Journal:
Thursday’s filing by David Rivkin, the attorney for O’Keefe and the group, was the latest twist in a complex legal battle over the investigation into Walker and conservative groups. In the filing, Rivkin said it appeared Schmitz was trying to “use the coercive power of the state to cut side-deals” that would violate his clients’ rights.(added) The motion by the investigators to clarify the injunction and the response by plaintiffs are embedded at the bottom of this post. There is a fascinating exchange of letters between the lawyers, in which the plaintiff's lawyers allege the investigators are in violation of the preliminary injunction, to which the motion was directed. The plaintiffs' counsel responded in the court filing:
Wisconsin prosecutors have suffered a series of stunning legal defeats in recent months as they pursue a secret investigation of the conservative groups that helped Governor Scott Walker get elected. Those cases are shaping up as a major policy victory for free speech and political debate—unless a last-minute settlement rescues the prosecutors. We've learned that Steven Biskupic, who represents Friends of Scott Walker, has been negotiating with Wisconsin special prosecutor Francis Schmitz to settle the state's investigation. The understandable concern among the direct targets of the John Doe is that Mr. Biskupic will cut a deal that would exonerate Mr. Walker while wresting concessions from some of Mr. Walker's allies....
Wis. prosecutors abuse the law for partisan ends U.S. District Judge Rudolph T. Randa, revolted by the police-state arrogance of some elected prosecutors, has stopped a partisan abuse of law enforcement that was masquerading as political hygiene. Last Tuesday, Randa halted the corruption being committed by people pretending to administer campaign regulations — regulations ostensibly enacted to prevent corruption or the appearance thereof. The prosecutors’ cynical manipulation of Wisconsin’s campaign laws is more than the mere appearance of corruption. Eric O’Keefe’s refusal to be intimidated by lawless law enforcement officials produced Randa’s remarkably emphatic ruling against an especially egregious example of Democrats using government power to suppress conservatives’ political speech... As a director of Wisconsin Club for Growth, which advocates limited government, O’Keefe had participated in his state’s 2012 debate surrounding attempts by Democrats and state and national government-employee unions to recall Gov. Scott Walker (R) and some state senators. The recalls were intended as punishment for legislation limiting the unions’ collective bargaining rights. Walker prevailed. The Democratic prosecutors, however, seeking to cripple his 2014 reelection campaign and to damage him as a potential 2016 presidential aspirant, have resorted to a sinister Wisconsin process called a “John Doe investigation.” It has focused on the activities of O’Keefe and 28 other conservative individuals or organizations.Between this and the IRS harassment of Tea Party groups, progressives have shown the depths they will sink to when they can't win based on their ideas. Tactics they would decry as abuses of power if the situation was reversed come quite naturally to them when used against their opponents. WAJ adds: I was honored to see O'Keefe at Anne's wedding this weekend (second from right, seated):
Last night we noted Fed District Court enjoins Wisconsin “John Doe” anti-conservative investigation. Late this afternoon the U.S. Court of Appeals for the 7th Circuit issued a stay of the injunction, on procedural grounds which leave the District Court the opportunity to reinstate the injunction. The issue for the appeal was that a “Notice of Appeal” of certain court rulings had been filed prior to the injunction being issued. Once a Notice of Appeal is filed, it moves the case automatically to the Court of Appeals and the District Court no longer has jurisdiction, unless certain exceptions are met. So the Court of Appeal basically said the District Court Judge didn’t have the case before him anymore, and couldn’t issue the injunction.That key exception would be if the District Court found the appeal to be frivolous. It just did, and reinstated the injunction in an Order issued today, which reads in part (full embed at bottom of post):
After 24 hours of legal maneuvering in a politically charged investigation of Gov. Scott Walker and his allies, an appeals court late Wednesday handed prosecutors a victory, preventing for now the destruction of evidence from the case. The three-judge panel of the 7th Circuit Court of Appeals in Chicago stayed U.S. District Court Rudolph Randa's preliminary injunction from Tuesday stopping the John Doe investigation, saying he had overstepped his authority. The appeals court ruling also said Randa cannot order prosecutors to destroy evidence they have collected in the five-county probe.Here's the key part of the Appeals Court ruling:
Suit against Wisconsin “John Doe” star chamber investigators can move forward
The John Doe investigation into conservatives is dead. In a monumental victory for targeted conservatives, Judge Rudolph Randa on Tuesday granted a preliminary injunction to stop the politically charged probe, ruling in favor of conservative activist Eric O’Keefe and his Wisconsin Club for growth. ’Keefe and the club in February filed a civil rights lawsuit against Milwaukee County District Attorney John Chisholm, two of his assistant DAs, John Doe Special Prosecutor Francis Schmitz, and a shadowy investigator contracted by the Government Accountability Board. “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. Randa further ordered that the plaintiffs in the civil rights case “and others” are “hereby relieved of any and every duty under Wisconsin law to cooperate further with Defendants‘ investigation.” “Any attempt to obtain compliance by any Defendant or John Doe Judge Gregory Peterson is grounds for a contempt finding by this Court,” he ordered in the 26-page ruling.An interesting aspect of the ruling was the reliance on the Supreme Court's McCutcheon case, in holding that the investigation was an attempt to interfere with the targets first amendment rights:
Eric O’Keefe’s civil rights lawsuit against prosecutors in a Democrat-driven John Doe probe into conservative targets will go on after a federal judge on Tuesday thoroughly denied a motion to dismiss the litigation. Judge Rudolph Randa of the U.S. District Court Eastern District of Wisconsin in Milwaukee, pushed aside the argument by the prosecutors-turned-defendants that federal courts generally must abstain from taking up federal constitutional claims that involve or call into question ongoing state proceedings.
The John Doe investigation, a multi-county secret probe into dozens of conservative groups, including conservative political activist O’Keefe and his Wisconsin Club for Growth, "does not fit into any of the categories" for abstention, the judge wrote in his decision. "It is an investigatory process, not an ongoing criminal prosecution case," Randa said.
Prosecutors in the John Doe investigation into spending and fundraising during the raucous Wisconsin recall elections were dealt a major procedural blow Friday, according to sources. The five-county investigation remains open, but subpoenas issued in the probe to conservative political groups supporting Gov. Scott Walker were quashed, sources familiar with the development said. The ruling — which is sealed — raises First Amendment concerns about the subpoenas. The Journal Sentinel has not turned up any Democratic candidates or liberal interest groups involved in the recall elections that have been contacted by John Doe prosecutors. "The John Doe is still open," said one individual familiar with the case. But other sources said Friday's ruling seriously undercuts the well-publicized probe, launched in the summer of 2012. Those familiar with the case said the decision was handed down by retired Appeals Court Judge Gregory A. Peterson, the presiding judge in the investigation who took over the case in November.
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