EXCLUSIVE: Secret agent Dean Nickel’s defense: “Dean Nickel is not responsible.”

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – A defendant in the federal lawsuit alleging a Democrat prosecutor, his assistants and others violated the civil rights of a conservative activist says he “is not responsible.”

Dean Nickel, a shadowy contract investigator for the state Government Accountability Board, made the claim in a legal response Wednesday. It was supposed to have been sealed or redacted by his legal team. Large sections of redacted copy became visible when copying and pasting them into a Word document, Wisconsin Reporter discovered.

Nickel is one of six people named in the civil rights suit filed on behalf of conservative political activist Eric O’Keefe and his Wisconsin Club for Growth.

O’Keefe’s lawsuit charges that a so-called John Doe investigation launched in August 2012 by the office of Milwaukee County District Attorney John Chisholm, a Democrat, is an attempt to shut down the First Amendment rights of Wisconsin conservatives. In a separate ruling, a judge threw out the prosecution’s subpoenas, ruling they lacked probable cause, a point Nickel is forced to concede in his response asking the U.S. District Court for the Eastern District of Wisconsin, Milwaukee Division dismiss the civil rights suit against the investigator.

John Doe prosecutors assert that dozens of conservative groups may have illegally coordinated with Gov. Scott Walker’s campaign during Wisconsin’s partisan recall campaigns of 2011 and 2012. They say they need the secret probe to collect evidence.

Nickel filed the original affidavit for probable cause in the search warrants that were executed in the John Doe raids. And that’s all he did, Nickel tells the court. Others – Chisholm, his assistant DAs, Special Prosecutor Francis Schmitz and former John Doe presiding Judge Barbara Kluka – are responsible for the investigation, Nickel’s legal team argues in a long explanation.

“Dean Nickel is a non-attorney investigator that did not initiate the subject John Doe investigation and has no ability to prosecute individuals for any crime, let alone for campaign finance violations,” states Patrick J. Fiedler, Nickel’s lead attorney and a former Dane County Circuit Court judge and U.S. attorney for the Western District of Wisconsin.

“Dean Nickel is not responsible for interpreting or implementing Wisconsin’s campaign finance laws or determining whether certain political expenditures constitute illegal ‘coordination.’ The sole allegation of misconduct by Dean Nickel is the mere signing of a probable cause affidavit during the investigation.”

The attorney goes on to argue that since the plaintiffs in the case have never seen the affidavit, which is under seal, “there is no factual basis for Plaintiffs to claim that Dean Nickel somehow carried out his investigation in bad faith and disregarded the law.”

The redacted response also notes a previously sealed decision by John Doe presiding Judge Gregory Peterson, who replaced Kluka after she recused herself, without public explanation on Oct. 23, 2013.

Peterson quashed several subpoenas served on conservative targets, searches, sources have told Wisconsin Reporter, that involved pre-dawn raids at homes and seizure of electronic equipment and other property.

According to Nickel’s response, Peterson believed there was no probable cause for investigators to target conservatives, but “recognized” that the prosecutors’ “legal theory of campaign finance violations was not frivolous” in ruling on Jan. 27 to stay his order that the prosecutors return the seized property.

Kluka, according to the response, “determined that there was a reasonable belief that a crime had occurred. This was based on affidavits and evidence submitted to Judge Kluka showing that possible violations of campaign finance law occurred.”

Peterson did not see it that way.

“The issue in this case is the scope of Wisconsin’s campaign finance laws. The State’s theory is that various parties engaged in illegal coordinated activities during the recent recall elections. I concluded, however, that the coordinated activities are not prohibited under the statutes,” the judge wrote in a sealed document quoted in Nickel’s loosely redacted response.

“As I see the dispute, it is a classic case of statutory interpretation. The State’s theory is not frivolous. In fact, it is an arguable interpretation of the statutes. I simply happen to disagree,” Peterson adds.

The judge encourages the District IV State Appeals Court to address the “alternative and significant Constitutional arguments raised in this case. Otherwise, the John Doe proceedings will suffer more delay while I grapple with those issues, after which one or more of the parties will undoubtedly seek supervisory review.”

Indeed, one of those parties has sought relief from the court.

Schmitz, the special prosecutor, recently filed a supervisory writ asking the appeals court to overturn Peterson’s order quashing the subpoenas.

“Following (Peterson’s) ruling, the State has filed a petition for supervisory writ and writ of mandamus with the Court of Appeals challenging Judge Peterson’s ruling on the motions to quash,” Nickel’s response notes.

O’Keefe and the Wisconsin Club for Growth are asking the judge to kill the John Doe probe. They say the investigation has had an unlawfully chilling effect on their rights First Amendment rights of free speech and association.

“O’Keefe and WCFG argued, among other things, that the government’s theory of criminal liability was invalid and that the subpoenas were unconstitutionally overbroad under the First and Fourth Amendments,” Nickel’s redacted response states, pointing to exhibits filed by O’Keefe’s attorney.

Nickel’s legal documents also further illustrate Wisconsin Attorney General J.B. Van Hollen’s refusal to conduct the growing, five-county John Doe investigation. After several months of consideration, the Republican AG declined Chisholm’s request to lead the investigation.

“(Van Hollen) claimed conflict of interest given his status as a partisan elected official and the availability of other state officials with equal or greater jurisdictional authority, specifically GAB,” the response notes.

“(T)he GAB met with the District Attorneys for Columbia, Dane, Dodge, Iowa and Milwaukee Counties. After each the district attorneys authorized the commencement of the John Doe investigation, they requested that Judge Barbara Kluka appoint Francis Schmitz, a former federal prosecutor, as the special prosecutor for the proceeding.”

Through the 28-page response, Nickel repeatedly declares that he should not be held liable for any possible breach of constitutional rights. After all, the legal documents take great pains to state, Nickel was just doing his job as a contract employee.

“(A)s an investigator and non-attorney, there is no reasonable basis to claim that Nickel knowingly violating (Sic) the constitutional rights of Plaintiffs by simply participating in the John Doe investigation,” the response says. “Therefore, an investigator with no experience in statutory interpretation cannot be said to have violated Plaintiffs’ clearly established constitutional rights.”

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

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