John Doe probes have created ‘poisonous environment,’ civil rights suit contends

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Eric O’Keefe isn’t just fighting what he considers to be a prosecution steeped in abuse; he’s fighting to reclaim his voice.

That’s the assertion of a civil rights lawsuit filed Monday by O’Keefe and his Wisconsin Club for Growth against prosecutors and the presiding judge of a politically charged John Doe investigation into dozens of conservative organizations.

“The state cannot be allowed to silence political speech it does not like,” O’Keefe said in a news release after he filed suit in the United States District Court for the Eastern District of Wisconsin, in Milwaukee.

The lawsuit, led by Washington, D.C., attorney David B. Rivkin Jr., contends “Milwaukee County prosecutors are abusing their authority in retaliation for the Club’s successful political activism in support of Wisconsin Republican Gov. Scott Walker’s ‘Budget Repair Bill.” The bill, which became law under Act 10, reformed public-sector collective bargaining in the Badger State and spurred an unprecedented spate of recall campaigns, including a failed drive, led by unions and the Democratic Party of Wisconsin, to remove Walker from office in 2012.

John Doe II, as the investigation has been billed, was launched by the Democrat-led Milwaukee County District Attorney’s office in August 2012, according to court documents. Investigators have been digging for evidence of illegal campaign coordination that allegedly occurred between conservative groups and Walker’s campaign during the recall elections.

But O’Keefe’s lawsuit asserts Milwaukee County DA John Chisholm and his investigators have had their eye on one political prize since the office launched the original “breathtakingly broad” John Doe investigation in 2010.

“Milwaukee County District Attorney John Chisholm and his staff have spent the past four years prying into the affairs of Scott Walker, his associates, and his supporters in a series of John Doe proceedings,” the news release states.

The lawsuit asks the court to enter an injunction blocking the John Doe investigation immediately and seeks monetary damages against the prosecutors for their violations of O’Keefe’s and the Club’s First Amendment rights.

The suit alleges prosecutors violated the plaintiffs’ rights under the First and Fourteenth Amendment, as well as the Civil Rights Act of 1871′s Section 1983.

Section 1983 of Title 42 of the U.S. Code was formerly enacted as part of the Ku Klux Klan Act of 1871 and was originally designed to combat post-Civil War racial violence in the Southern states. Reenacted as part of the Civil Rights Act, section 1983 is as of the early 2000s the primary means of enforcing all constitutional rights.

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Ultimately, the “natural and probable consequence of the (John Doe) investigation is therefore to chill speech and association” of the conservative targets, the complaint alleges.

“What the prosecution has done by this comprehensive and abusive investigation is to create an environment that Mr. O’Keefe and the Wisconsin Club for Growth, each active in political speech, are not able to carry out those activities – to raise money, to engage in any issue advocacy, to engage with like-minded people,” said Rivkin, O’Keefe’s attorney, in an interview Monday with Wisconsin Reporter.

In essence, he said, fellow conservative activists and organizations have “lawyered up,” worried about court-administered gag orders and the legal punishments they carry. The fear, Rivkin said, is that conservatives would run the risk of exacerbating their “alleged sins.”

Wisconsin’s unique John Doe probes act like grand jury investigations but grant a great deal of power and discretion to the judge and the prosecution in the court-administered dragnets. In this case, individuals from dozens of conservative groups have been questioned, some subjected to pre-dawn raids and property seizures. Under the terms of the secret John Doe, the targets cannot talk publicly about the investigation, under penalty of contempt of court charges and possible jail time.

The investigation “suppresses the right to associate with like-minded people,” Rivkin said. “We have declarations, redacted declarations of national conservative groups that say, ‘We are less likely to participate in political discourse in Wisconsin because it is such a poisonous environment.’” Those concerns as the 2014 campaign season, including Walker’s bid for re-election, kicks into high gear. “Everyone is afraid and terrified and not playing ball. Why would you want to play in Wisconsin? It has been chilling across the board.”

That fear is not shared among liberal organizations that have engaged in similar coordinated efforts over the past four years without prosecutorial notice, much less the consequence of a long and meandering John Doe investigation, according to the lawsuit.

“This has been a never-ending investigation that has effectively sidelined the entire conservative political bench in Wisconsin,” Rivkin said. “That is very much in our view what the prosecution is motivated by. That’s what makes it particularly odious.”

Rivkin, a partner with Washington, D.C.-based firm BakerHostetler, boasts an impressive resume in constitutional cases. The attorney has developed and implemented legislative, regulatory and litigation initiatives for two presidential administrations, according to his bio page.

His wide range of case experience includes:

• Represented Senators Senators John McCain (R-AZ), Lindsey Graham (R-SC), and Kelly Ayotte (R-NH) in the Second Circuit case Hedges, which entailed a challenge to the constitutionality of the military detention-related provisions contained in the National Defense Authorization Act.
• Represented 26 states and was lead outside counsel in the District Court and Court of Appeals when the states challenged the constitutionality of Medicare revisions under the Patient Protection and Affordable Care Act and argued that an “individual mandate” was beyond the powers granted to Congress under the Commerce Clause and the Necessary and Proper Clause.
• Handled the development and implementation of President George H.W. Bush’s deregulatory initiatives, which entailed review of all existing federal regulatory strictures and the application of a more rigorous cost-effective standard to new regulations. His substantive areas of responsibility included international sanctions, energy, environment, and tax issues.

Defendants in the civil rights lawsuit include Chisholm; the investigation’s special prosecutor, Francis Schmitz; Assistant Milwaukee County DAs Bruce Landgraf and David Robles; Dean Nickel, a state Government Accountability Board contracted employee who signed probable cause affidavits clearing the way for search warrants executed in pre-dawn raids of conservatives, according to the Wall Street Journal; and presiding John Doe Judge Gregory Peterson.

Interesting to note that the four other district attorneys involved in the probe spanning five counties, including three Democrats and two Republicans, are not named in the suit.

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

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