Conservatives to court: Open up records on GAB’s role in John Doe

By M.D. Kittle | Wisconsin Reporter

WAUKESHA, Wis. – The state Government Accountability Board still is fighting to keep its secrets in the politically charged John Doe investigation.

But just how much the GAB spent and who did what in the agency’s part of the secret probe into dozens of conservatives could soon be a matter for the public to decide.

On Friday, Waukesha County Circuit Judge Lee S. Dreyfus Jr. gave the GAB’s legal counsel until Dec. 12 to go through hundreds of pages of documents to determine what information should be redacted and remain classified.

Dreyfus also set a tentative trial date for two weeks in the middle of September 2015.

Attorneys for political activist Eric O’Keefe and the Wisconsin Club for Growth, the plaintiffs in a lawsuit claiming the GAB overstepped its authority and misused taxpayer money in doing so, argue that unsealing the information is critical to the public’s right to know.

The accountability board has argued since the lawsuit was filed in late May that it is bound by state confidentiality law, and that releasing any information related to the investigation could expose the agency to criminal liability.

Not so, say the attorneys for O’Keefe and the Club. They argue that the GAB, the regulator of state campaign finance and election law, may be prohibited from releasing the documents, but the targets of the probe – O’Keefe and the Club – certainly are within their rights to do so. Ultimately, the GAB could be secured from legal consequences through the judge’s protective order.

“It’s about how the Government Accountability Board is operating and about whether the Government Accountability Board is being accountable to the laws that create it,” said Eddie Greim, attorney for Kansas City, Mo. –based Graves Garrett LLC, the firm representing the plaintiffs.

Some 600 pages of documents have been produced through discovery of the GAB’s records, Paul Schwarzenbart, counsel for the GAB, said in court Friday. Much of the information included in the documents comes from minutes of closed-session meetings where the accountability board met to discuss the investigation. The GAB needs time, the defense attorney said, to go through the material and determine what must by law be redacted.

Greim said the material in question involves information about how much the GAB spent on the probe, who they paid to investigative and administer their part of the probe, when those people were paid and what they were paid to do. There’s even a question as to whether the GAB changed the players, particularly investigators, and what those individuals were paid to do.

Greim noted that the GAB is not so concerned with the confidentiality law when it comes to the board’s instinct for self-preservation.

“Ironically, the reason we know enough to even file the lawsuit in the first place is that GAB agents disclosed some of this information in defending themselves in the federal lawsuit,” Greim said, referring to a complaint O’Keefe and the club filed against the John Doe prosecutors and an investigator earlier this year.

In that suit, U.S. District Judge Rudolph Randa shut down the investigation and said the prosecution’s suspicions that conservatives may have illegally coordinated with Gov. Scott Walker’s campaign during Wisconsin’s bitter recall season was not sufficient grounds for launching an investigation into 29 conservative groups and their members.

The U.S. Court of Appeals for the 7^th Circuit in September tossed out the case, not based on the plaintiffs’ argument that the prosecutors operated in bad faith but because the court believed Wisconsin state judges – not federal courts – should resolve the legal controversies surrounding the John Doe.

Attorneys for O’Keefe and the Club have said they will appeal that ruling to the U.S. Supreme Court.

The federal lawsuit alleged the John Doe prosecutors violated the plaintiffs First Amendment rights. The probe, launched in August 2012 by Milwaukee County District Attorney John Chisholm, included predawn, paramilitary-style raids at the homes and offices of some of the conservative targets.

Conservative targets describe the probe as nothing more than a partisan witch hunt, a way for Democrat Chisholm and others to conduct “opposition research” on conservatives for their political allies and to retaliate against the successes of the right in recent years. Investigators sought donor lists and other private information from the conservative organizations.

Court documents show the accountability board was in on the probe very early on, that the GAB and Kevin Kennedy, the agency’s executive director, got involved in September 2012. District attorneys from five counties – Columbia, Dane, Dodge, Iowa, and Milwaukee met on June 26, 2013, to transform the probe into a coordinated secret dragnet.

In discovery, the GAB acknowledged that it did retain the services of Dean Nickel and Francis Schmitz as special investigators.

It was Nickel, according to court documents, who requested the search warrants for the raids.

Schmitz was provided an office at the GAB’s headquarters in Madison, according to court documents.

In the state lawsuit against the accountability board, attorneys for O’Keefe and the club ask the GAB to provide the name, title, address and rate of compensation for each person or entity the agency has “employed, engaged, retained, or contracted to provide services” and the period of time they did their work on the probe.

The plaintiffs also have sought all contracts and agreements associated with the investigation, including any contracts to retain a special investigator or special counsel.”

Schmitz, a former Milwaukee federal prosecutor, was eventually named as John Doe special prosecutor. He was named as a defendant, along with Nickel, Chisholm and two of Chisholm’s assistant DA’s, in the federal lawsuit.

O’Keefe’s attorneys sought all documents showing agreements between the GAB and other state agencies, including district attorneys offices, and the expenses associated with their duties in the John Doe probe.

And they asked for all subpoenas or notices of subpoenas issued by the GAB or on its behalf, as well as the evidence claimed in the investigation.

Greim said the public needs to know the answers to some very important questions.

“Did taxpayers, did their legislators, when they created the GAB, really believe that this is what it would turn into?” the attorney said.

Mostly, the defendants have hidden behind the confidentiality clause, although it does not seem to pertain to many of the questions O’Keefe’s attorneys have asked.

“Because of the defendants’ obligations under (state law) … defendants object and will submit an unredacted discovery response … under seal to the court,” the GAB states in response to many of the plaintiffs’ questions.

The state lawsuit charges that the GAB’s use of a John Doe – a court-administered procedure that is like a grand jury investigation without the benefit of a jury of peers – created a “Frankenstein’s monster.”

“The GAB has grafted its existing powers for civil enforcement of campaign finance laws onto law enforcement powers borrowed from John Doe statute, and from this hybrid bundle of investigative powers, has lopped off vital procedural protections,” the complaint states.

With horror-film flair, the lawsuit asserts the result of that administrative “monster” is “terrible to behold: a creature that covertly collects sensitive information on political activities that do not — and cannot — constitute a crime, all while maintaining a nearly impenetrable shield of secrecy.”

Most troubling of all, the complaint alleges, is that the “monster is fed by taxpayer dollars that were never intended for this purpose.”

The probe is stalled for now, via the order of the John Doe presiding judge who nearly a year ago quashed several subpoenas because the prosecutors had failed to show probable cause that a crime had been committed. Now, it’s up to the state Supreme Court to decide the legal questions surrounding this John Doe.

State lawmakers and the Wisconsin Legislative Audit Bureau have sought unsuccessfully to obtain much of the same information that O’Keefe’s attorneys have apparently garnered under discovery. The GAB, armed with backup from state Attorney General J.B. Van Hollen, has argued that it could face criminal penalties if it releases any information related to the investigation.

“We have financial records,” Greim said. “I won’t go as far as to say we have an accounting, but we have financial records.”