Would a Would Walker settlement with John Doe prosecutors be a deal with the devil?

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Just as conservative targets seem to have John Doe prosecutors backs against in a critical First Amendment test, it appears Gov. Scott Walker and his legal counsel want to play “Let’s Make A Deal.”

Steven Biskupic, who represents the governor’s campaign, “has been negotiating with Wisconsin special prosecutor Francis Schmitz to settle the state’s investigation,” according to a Wall Street Journal opinion piece published Tuesday evening.

Word of the governor’s overtures for a settlement is not sitting well with conservatives who have had their lives transformed “into a living hell” by the nearly three-year secret investigation, which has featured pre-dawn raids and the confiscation of professional and personal items.

Conservative targets who spoke with Wisconsin Reporter expressed disappointment, anger and a sense of being sold out for political expediency.

Walker is seeking re-election in a tight race, and the politically charged investigations have been dogging him since he first ran for governor in 2010.

But there is a much bigger issue at stake than even a gubernatorial election, sources say: the First Amendment rights of political speech and association.

For a governor who is fond of saying he is focused on the next generation, not the next election, a settlement with the John Doe prosecutors — a deal with the devil, perhaps in the lexicon of the dozens of conservative organizations targeted — would make such rhetoric ring hollow.

“Sounds like Mr. Walker has to decide whose side he’s on — his own, or the larger principles he claims to represent,” the Wall Street editorial board wrote in its piece headlined, “Scott Walker’s Friends.”

Biskupic had no comment on the op-ed. Neither did Schmitz, who worked alongside his boss Biskupic in the U.S. Attorney’s office in Milwaukee for several years.

“I’ve made it a policy not to comment on any matter involving John Doe because of the secrecy order,” Schmitz told Wisconsin Reporter, again, on Wednesday.

But David B. Rivkin Jr., lead attorney for Eric O’Keefe and the Wisconsin Club for Growth, who are taking on the John Doe prosecutors in a civil rights lawsuit, had much to say on the reported potential deal — and the environment in which it may be created.

Rivkin takes aim at the notion by the left and the prosecutors pushing the probe that Walker’s campaign and the reported 29 conservative groups targeted in the investigation have illegally coordinated.

“Self-appointed campaign-finance ‘watchdogs’ act as if the Wisconsin Club for Growth is a proxy for the Walker campaign. They and the John Doe prosecutors assume issue advocacy groups are in cahoots with candidates whose policies they may support and, for that reason, those groups’ speech may be regulated by the government and even subject to criminal penalties. But reporting in today’s Wall Street Journal explodes that myth,” Rivkin wrote in a statement issued to Wisconsin Reporter.

“While the Club fights for its First Amendment rights to speak out on the issue, the Walker campaign apparently seeks to negotiate a settlement with the prosecutors that will keep the issue out of the spotlight. This shouldn’t be surprising: The business of political campaigns is to elect candidates, but the business of issue advocacy groups is to advance policy beliefs, plain and simple.”

“The John Doe prosecutors still don’t understand this fact, even when proof of it is staring them in the face from across the negotiating table,” Rivkin added.

More baffling to conservative targets is that Walker’s camp, sources tell Wisconsin Reporter, apparently discussed a settlement with Schmitz after a federal judge ordered the investigation shut down.

Earlier this month Judge Rudolph Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee, issued a preliminary injunction demanding that prosecutors-turned-defendants in the civil rights case “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 subsequently stayed the “return-and-destroy” order, but the injunction on the investigation remains, at least for now. The 7^th Circuit then followed up with a long-awaited ruling declaring unconstitutional sections of Wisconsin campaign finance law related to issue advertising – the kind of ads funded by the Wisconsin Club for Growth and other targets of the John Doe probe.

Sources close to the investigation told Wisconsin Reporter that Walker may have everything to gain in a sweetheart deal cut with prosecutors, but the conservative targets of the probe — and the basic tenets of free speech — have much to lose.

O’Keefe and the club contend the probe, which has featured what some sources have described to Wisconsin Reporter as “paramilitary-style” pre-dawn raids at the homes and offices of conservative targets, has had a chilling effect on conservative organizations’ First Amendment rights.

The legal battle asks whether such raids should have occurred at all.

In his ruling, Randa took aim at the prosecutors’ theory that conservative organizations like Wisconsin Club for Growth illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections. The judge said that theory is “simply wrong.”

John Doe presiding Judge Gregory Peterson, too, took issue with the prosecutors’ quest when, in January, he quashed several subpoenas sought by the prosecutors because they failed to show probable cause.

The civil rights lawsuit seeks unspecified damages from Milwaukee County District Attorney John Chisholm, a Democrat who launched the probe in August 2012; two of Chisholm’s assistant DAs; Schmitz; and Dean Nickel, a shadowy investigator contracted by the state’s Government Accountability Board.

Walker’s campaign spokeswoman declined to comment on the Wall Street Journal piece on Wednesday morning. She said she wasn’t sure whether the governor would comment later in the day.

As the Wall Street Journal editorial points out, Walker may help his political cause with a settlement, but he would be “letting down his allies if he did so in a way that lets the bogus theory of illegal coordination survive.” And, sources, insist, the governor could undercut the fight for free speech.

“Wisconsin has an especially pernicious regulatory machine that targets political speech, and the legal backlash to the John Doe probe offers a rare chance to dismantle it,” the Wall Street Journal editorial states. “Mr. Walker is a hero to many for his fight against public unions, but he will tarnish that image if he sells out the cause for some short-term re-election reassurance.

Contact M.D. Kittle at mkittle@watchdog.org