John Doe prosecutors suddenly support opening sealed court records
By M.D. Kittle | Wisconsin Reporter
MADISON, Wis. – After four years of operating in the dark, prosecutors in a politically charged John Doe investigation now suddenly supports the disinfectant of sunlight.
“The John Doe investigations at issue in this litigation have become so widely known that maintaining the integrity of the investigation may no longer justify maintaining secrecy,” attorney Randall Crocker, attorney for John Doe special prosecutor Francis Schmitz, wrote in a federal court filing made public late Wednesday.
LET THE SUN SHINE IN? Finally, something John Doe prosecutors and some of their conservative targets can agree on. They both say they want scores of sealed John Doe documents in a civil rights case opened up for public inspection.
Schmitz and his fellow prosecutors are singing a much different tune after demanding scores of documents be sealed in a civil rights lawsuit filed against them, and after operating their latest lengthy probe under a strict, court-administered secrecy order.
Now they agree with a coalition of five media organizations asking U.S. District Court Judge Randolph Randa to open up the 125-plus separate documents currently under seal in the civil rights litigation.
Lawsuits can make strange bedfellows.
Conservative activist Eric O’Keefe and his Wisconsin Club for Growth, the plaintiffs in the suit, agree with the prosecutors-turned defendants. Let the light shine in, they say. As Paul Harvey used to say, it’s time for the rest of the story.
“These documents … reveal Defendants’ abusive tactics, from home raids to kitchen-sink subpoenas, and flimsy legal justifications for their actions,” O’Keefe’s attorney David B Rivkin Jr. wrote in a court filing, also filed late Wednesday in the U.S. District Court Eastern District of Wisconsin in Milwaukee.
“And they (the documents) convey the enormous injury that Defendants’ actions have inflicted on Wisconsin’s political and public-policy communities. The public has a right to know these things, and Plaintiff Eric O’Keefe is a willing speaker with a First Amendment right to disclose them …” the filing states. “These documents should be unsealed so that the public can see for itself what has transpired over the past four years and hold those responsible to account.”
The sealed documents apparently include records from the so-called John Doe I, which semi secretly (thanks to an abundance of leaks) targeted former aides and associates of Republican Gov. Scott Walker, before the 2010 gubernatorial election when he served as Milwaukee County executive.
“From the commencement of their investigation in 2010, Defendants have used secrecy as a tool to intimate and harass their targets,” Rivkin wrote. “The gag orders that they sought and obtained have allowed them to operate in secret and avoid any kind of public scrutiny.”
The prosecutor-defendants in the lawsuit include Milwaukee County District Attorney John Chisholm, a Democrat, two of his assistant DAs, Schmitz and Dean Nickel, a shadowy investigator contracted by the state Government Accountability Board. John Doe presiding Judge Gregory A. Peterson also is named in the suit, but entirely in a professional capacity.
Randa last week – twice – ordered the probe shut down, demanding that prosecutors “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.”
The 7th Circuit U.S. Court of Appeals stayed the return-and-destroy portion of Randa’s temporary injunction.
Prosecutors have operated under the theory that a reported 29 conservative groups, including the Wisconsin Club for Growth, may have illegally coordinated with Walker’s campaign during the state’s partisan recall campaigns of 2011 and 2012. The campaign finance issue comes down to express advocacy, or direct candidate support or opposition, versus issue advocacy, which does not directly endorse or criticize a candidate.
O’Keefe’s lawsuit asserts that the prosecutors argument is terribly flawed, a point supported by Judge Peterson, the presiding judge in the John Doe probe. Earlier this year, Peterson quashed several subpoenas granted by his predecessor, Judge Barbara Kluka, who recused herself in October without explanation. Peterson said the subpoenas failed to show probable cause.
In his ruling, Randa effectively agreed with Peterson, asserting the prosecutors’ “interpretation is simply wrong.”
The lawsuit argues that the secret probe has frozen the conservatives’ First Amendment rights.
“Mr. O’Keefe, like other of Defendants’ targets including the Governor of Wisconsin, has been unable to share his story with anyone other than counsel without fear of legal reprisal.
O’Keefe and the club seek to keep four of the documents under court seal, arguing that they would do little to advance the public’s understanding of the investigation but, if disclosed, “would require substantial redactions to protect the personal, financial, and other confidential information.”
“These four documents, and limited portions of five party filings that extensively rely upon those documents or otherwise implicate Plaintiffs’ First Amendment privilege, should remain under seal to protect Plaintiffs’ rights and interests,” Rivkin wrote.
Two unidentified individuals, possibly fellow conservative targets, have asked that any records that would identify them or unveil personal information about them remain sealed.
The individuals, filing under the pseudonyms, “Unnamed Intervenors No. 1 and No. 2,” argue that they have not been charged with a crime, that Peterson has quashed subpoenas because they lacked probable cause, and that the parties in the civil rights suit have filed, under seal to date, “documents that disclose much private and personal information about the unnamed intervenors including” their:
- Identities
- Home addresses
- Other identifying information, perhaps including Social Security numbers, phone numbers, and/or names of relatives
- Political opinions
- Political associates, friends, and opponents
- Financial information, both personal and business
- Personal correspondence
- Possibly medical information about themselves and their relatives and
- Possibly other very personal, private information about them
- Allegations by state prosecutors that they engaged in criminal activity, and possibly documents purporting to support those allegations
Randa last week granted the media coalition’s motion to intervene in the civil rights case, but has yet to decide whether to unseal the documents.
The coalition’s motion was filed earlier this month by the Reporters Committee for Freedom of the Press, American Society of News Editors, Wisconsin Broadcasters Association, Wisconsin Freedom of Information Council, and Wisconsin Newspaper Association.
“The press and the general public have a constitutional and common law right of access to civil proceedings and court documents, including the filings sealed in this case,” the coalition asserts in its motion. “The First Amendment right of access can be overcome only by a showing that restrictions on access are necessary to serve a compelling interest, and any such restrictions must be narrowly tailored.
In his order issued on May7, the judge notified any party that objects to unsealing any part of the record in the civil rights case should respond to the Coalition’s motion to unseal by May 14.
“If any response is filed, the Coalition may file a reply brief in support of its motion on or before May 21, 2014,” Randa wrote.
Contact M.D. Kittle at mkittle@watchdog.org
