John Doe prosecutors engaged in war of words — lots and lots of words

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Wisconsin’s political speech war has entered a relatively quiet phase, but the prosecutors in the politically charged John Doe probe appear intent on burying their accusers in paper, according to a legal expert with knowledge of the case.

Late last week, attorneys for the state Government Accountability Board filed a motion seeking to intervene as an appellant in a federal appeals court case to determine whether a portion of a civil rights lawsuit against the prosecutors and investigators of the probe into dozens of conservative groups would be allowed to proceed.

The 102-page motion devotes a lot of ink to the argument that the GAB, the agency that oversees the state campaign finance and election laws, stands with the John Doe prosecutors and wants to stand up and be counted in the appeal.

In short, a courtesy the GAB did not extend to the 7th Circuit U.S. Court of Appeals, the agency wants to intervene in the case because it is caught in the middle of the firefight between the plaintiffs and the prosecutors-turned-defendants in the lawsuit.

The courtroom battle “involves third parties litigating by proxy the GAB’s view of Wisconsin campaign finance law,” attorneys at Madison-based Lee, Kilkelly, Paulson & Younger, S.C. write on behalf of their government clients. “Accordingly, GAB requests that the court grant GAB leave to intervene in the appeal so that it can participate in party briefing…”

Failing that, the GAB would like to file an amicus brief in support of their pals, Milwaukee County District Attorney John Chisholm; two of Chisholm’s assistant DA’s; Francis Schmitz, John Doe special prosecutor; and Dean Nickel, a shadowy investigator contracted by the GAB – all named as defendants in the lawsuit.

In June, attorneys for conservative activist Eric O’Keefe and the Wisconsin Club for Growth, asked U.S. District Court Judge Rudolph Randa to add the Government Accountability Board as a defendant in the conservatives’ civil rights complaint.

Randa in May issued a preliminary injunction, shutting down the investigation, launched by Chisholm, a Democrat, nearly two years ago. Randa ruled that, contrary to the prosecutors’ theory that conservative groups such as the Wisconsin Club for Growth may have illegally coordinated with Gov. Scott Walker’s campaign, the theory is “simply wrong.”

It is interesting to note, as O’Keefe’s attorneys do in a response filed this week asking the appeals court to deny the GAB’s motion to intervene, that the agency’s executive director had been shy about the role the GAB played in the five-county John Doe, and when its involvement began.

“Although GAB has been an active participant in the John Doe investigation from its earliest days, … the agency has sought to hide its behind-the-scenes involvement, which was only revealed in Appellants’ final round of briefing opposing entry of a preliminary injunction …” O’Keefe’s attorneys write.

Now, it appears, the GAB is ready to defend itself.

But O’Keefe and the club, who have filed a state-based lawsuit against the accountability board on behalf of Wisconsin taxpayers, claim the GAB already acknowledges its support of the prosecutors’ positions — including the “invalid legal theory” that holds the conservative groups’ expenditures on issues ads, protected under campaign finance law, became “contributions” to the Friends of Scott Walker campaign and should have been reported as “in-kind” contributions.

“GAB is not entitled to intervene because its interests are, to say the least, adequately represented by the Appellants (prosecutors),” the conservatives’ response states. “According to his own sworn testimony in the district court, Appellant Franz (Sic) Schmitz was hired by GAB as a special investigator to carry out the John Doe investigation and continues to serve in that position.”

Schmitz is being represented in the lawsuit and in the appeal by state taxpayer-funded legal counsel.

“With GAB officials represented by State-appointed counsel defending GAB’s positions, the parties here are not, as GAB asserts, ‘litigating the GAB’s view of Wisconsin’s campaign finance law by proxy,’” the conservatives assert. “GAB is already a party to this appeal in all but name, and its private counsel has no greater claim to represent the interests of the State, in general, or of GAB, in particular, than the private counsel appointed by the State to represent Schmitz and Nickel, its own special investigators, in their official capacity.”

And the plaintiffs contend the GAB hasn’t exactly been speedy about its move to intervene. While the agency was aware of the appeal no later than April 22, when Schmitz and Nickel filed their initial notices, the GAB “delayed seeking intervention for nearly three months, until July 18, just two weeks before Appellants’ brief is due” to the court.

The prosecutors appear to be planning to file a novella-length “brief” in their appeal in defense of their position to dismiss the lawsuit and overturn the injunction. Their motion to consolidate their briefs into two joint documents would flood the court with more than 55,000 words of briefing, a “ludicrous amount,” according to a legal source with knowledge of the lawsuit.

“It sounds like they want to bury the court in paper and bury us in paper,” the source said on condition of anonymity.

The defendants have filed some hefty court documents in the five months since O’Keefe and the Wisconsin Club for Growth filed the lawsuit.

“Has it done them any favors?” the legal source posed.

So far, the prosecutors have lost at the federal district court level, and the 7^th Circuit agreed the defendants’ claims of immunity and jurisdiction on the official capacity side of the litigation didn’t hold water.

While the jury remains out on the conservatives’ personal capacity claims, the portion of the lawsuit going after the prosecutors individually and outside of their government positions, the evidence, it seems, is beginning to stack up against the John Doe prosecutors.