John Doe prosecutors claim secrecy protection after filing secret documents

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – The comedy of errors apparently continues from prosecutors-turned-defendants in a civil rights lawsuit filed against them by a fed-up conservative political activist.

Again, the mishap involves confusion over apparently sealed court documents.

In their legal response to a motion to dismiss the Democrat-launched John Doe investigation into conservatives, the prosecutors’ legal counsel claim that the probe’s “Secrecy Orders” as well as Wisconsin law concerning such secret inquiries “limit Defendants’ ability to make a full evidentiary showing as to why Plaintiffs’ motion should be denied.”

In other words, the prosecutors are asking Milwaukee Federal Judge Rudolph Randa who is hearing the lawsuit to deny Eric O’Keefe’s motion to stop an investigation alleged to be robbing conservative groups of their First Amendment rights, but the prosecutors can’t show evidence as to why.

There’s just one problem, as O’Keefe’s attorneys point out in their response: The defendants have already filed with the court the materials they claim they cannot disclose to the court.

The defendants include Democrat Milwaukee County District Attorney John Chisholm, his lieutenants, Assistant DA’s Bruce Landgraf and David Robles, John Doe Special Prosecutor Francis Schmitz, and Dean Nickel, a shadowy contracted investigator involved in the probe. Retired Judge Gregory Peterson, the presiding judge in the John Doe, also is named as a defendant in the civil rights suit.

In a scheduling conference on the lawsuit Thursday, the prosecutors’ attorneys repeatedly told the judge that Wisconsin law bars disclosure in the lawsuit of materials covered by the John Doe Secrecy Order, according to the plaintiffs’ motion to amend Randa’s scheduling order in the case. They claimed “disclosure of such information in this litigation at this time could subject Defendants to criminal prosecution, that they were uncertain that this risk could be ameliorated by an order of (the federal court), and that they preferred to seek action by the John Doe Judge or other state officials.”

The prosecutors want more time to make their to make their case against O’Keefe’s motion for a preliminary injunction against the secret probe.

But the prosecutors’ attorneys have already filed documents – under seal – with the court that they claim must not be filed with the court on penalty of law, according to O’Keefe’s response. The exhibits filed include “various materials covered by the John Doe Secrecy Order.” Those documents apparently are sealed but available to the judge, according to the response.

All of the materials were documents the defendants told the judge they could not use to show why the motion for preliminary injunction should be dismissed.

The judge granted the prosecutors’ request, giving their attorneys until April 15 to file a supplemental response. Randa did, however, set a hearing on the preliminary injunction motion for April 30. That hearing is contingent on what Randa decides to do about the defendants’ motion to dismiss O’Keefe’s entreaty to shut down the John Doe probe. That decision is expected to be issued on April 14.

Milwaukee attorney Samuel Leib, who is representing Chisholm, Landgraf and Robles, did not return a call seeking comment. Neither did attorney Randall Crocker, who is serving as legal counsel for Schmitz. The prosecutors’ attorneys are being paid $175 an hour by the state – aka Wisconsin taxpayers.

David Rivkin, attorney for O’Keefe and the Wisconsin Club for Growth, another plaintiff in the civil rights suit, declined to comment on the plaintiffs’ response.

Earlier this week, Nickel’s legal team did not properly redact large sections of their legal response, information supposed to have been kept out of the public eye. As first reported by Wisconsin Reporter, the information became visible when copying and pasting them into a Word document, Wisconsin Reporter discovered.

The documents unveiled a previously sealed decision by Peterson. The judge, in late January stayed part of his own ruling ordering John Doe prosecutors to return private property seized in raids on several conservative targets. The judge has quashed several subpoenas, ruling the prosecution did not provide probable cause in carrying them out.

“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.

Nickel’s response has since been properly redacted, but the redacted information still shows up on Wisconsin Reporter’s PDF link.

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

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