Federal judge orders John Doe probe shut down again

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — In the latest round of this week’s dizzying federal court filings, U.S. District Court Judge Rudolph Randa on Thursday morning quickly fired back at the prosecutors of a politically charged John Doe investigation, declaring their appeal frivolous and ordering a preliminary injunction halting the secret investigation reinstated.

Randa’s ruling came swiftly, less than a day after the 7th Circuit U.S. Court of Appeals stayed the judge’s preliminary injunction, issued Tuesday, that stopped the nearly three-year investigation and ordered all documents obtained in the probe destroyed.

The appeals court said Randa jumped the gun in issuing his decision before he determined the status of the prosecutors’ appeal. In its ruling on the prosecutors’ emergency appeal, the 7th Circuit said Randa erred in failing to certify that an appeal filed last month by the prosecutors with the 7th Circuit was frivolous.

Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee, quickly answered that lapse.

“To be clear, the Court is absolutely convinced that the defendants’ attempt to appeal this issue is a frivolous effort to deprive the Court of its jurisdiction to enter an injunction,” Randa wrote in the ruling Thursday. “The Court’s forbearance in allowing the defendants to raise these issues cannot and should not deprive the Court of jurisdiction to enter an injunction in this case.”

In February, conservative activist O’Keefe and his Wisconsin Club for Growth filed a civil rights lawsuit against Milwaukee County District John Chisholm, two of his assistant DAs, John Doe Special Prosecutor Francis Schmitz, and shadowy Government Accountability Board-contracted investigator Dean Nickel.

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.

Randa, taking 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, this week shut down the investigation.

The judge ordered the prosecutors-turned-defendants to “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.

He said the plaintiffs and “others” are “hereby relieved of any and every duty under Wisconsin law to cooperate further with Defendants‘ investigation.”

“Any attempt to obtain compliance by any Defendant or John Doe Judge Gregory Peterson is grounds for a contempt finding by this Court,” he ordered in the 26-page ruling.

The prosecutors have the right to appeal, and seemed poised to do so. The appeals court has indefinitely stayed Randa’s order that the prosecutors destroy information obtained in the five-county probe.

“(T)he portions of the injunction that require defendants to return or destroy documents will remain stayed as long as proceedings continue in this court,” the 7th Circuit wrote. Destroying the documents could “moot some or all of the issues on appeal.”

The validity of the John Doe investigation is before the state Supreme Court, too.

Wisconsin’s unique John Doe proceedings are similar to grand jury investigations, without the benefit of a jury of peers. The probes are presided over by a judge with extraordinary powers to compel witnesses to testify, and may be conducted under an order of silence.

David B. Rivkin Jr., lead attorney for O’Keefe and the Wisconsin Club for Growth, told Wisconsin Reporter Randa’s declaration is “an enormous rebuke” to the John Doe prosecutors and their investigator.

Rivkin expressed confidence that his clients will prevail in their lawsuit, which not only seeks damages from the government but from the defendants themselves.

“To me this prosecutorial investigation has never been about indicting anybody, although they (the prosecutors) would love to indict conservatives and would do so gladly if there were any basis to it,” Rivkin said. “But the whole purpose of the investigation has been to stifle speech by putting people on notice, by sending subpoenas, by making it impossible for them to go raise money and to spend money.”

Randa in his latest ruling strikes hard, taking on Schmitz’s claim that the plaintiffs fail to explain how he is “involved” in any ongoing “deprivations” of the conservatives’ rights.

“But Schmitz is the appointed leader of the investigation. Even if he’s just a figurehead, Schmitz is clearly ‘involved,’” the judge wrote in the filing.

Schmitz, a formal federal prosecutor who was brought in to lead the probe when it moved beyond Milwaukee County, has declared in court that he holds no animus against the conservative groups targeted in the investigation, that he has even voted for Walker.

None of that really matters when it comes to issuing a preliminary injunction, Randa wrote. Whether intended or not — and O’Keefe very much believes the acts were intentional — the prosecutors and their special investigator violated the civil rights of the conservative targets.

The civil rights “complaint clearly alleges that the defendants are engaged in an ongoing violation of federal law (retaliation against plaintiffs’ First Amendment-protected advocacy) and seeks prospective relief (that the defendants be forced to stop),” the filing states. “All of the defendants (save Judge Peterson) are participants in this ongoing deprivation. The complaint clearly states as such.”

Randa has taken issue with the prosecutors’ position that the federal court has no business involving itself in a state investigation, and that the prosecution is immune from the civil rights lawsuit. The judge said it doesn’t appear the John Doe targets, who engaged in issue advocacy, violated campaign finance law, a position seemingly shared by John Doe presiding Judge Gregory Peterson.

“While the defendants deny that their investigation is motivated by animus towards the plaintiffs’ conservative viewpoints, it is still unlawful to target the plaintiffs for engaging in vigorous advocacy that is beyond the state’s regulatory reach,” Randa wrote in his earlier ruling.

Randa wrote that he has been exceedingly accommodating to the prosecutors and their requests for “extensive briefing.”

“It was not meant as an opportunity to dodge the Court’s jurisdiction,” he states in the latest filing.

Rivkin called the prosecutors’ legal theories of illegal coordination “utterly constitutional … inconsistent with Supreme Court and Seventh Circuit jurisprudence,” not to mention, he said, that they violate Wisconsin law.

“They are trying to stifle issue advocacy,” he said. “If there is anything at the core of political speech, it’s issue advocacy. If you can stifle this, there really is nothing left of political speech.”

The attorney said he is looking forward to aggressively litigating the issues before the federal courts, emphasizing the next phase of “wide-ranging” discovery — well beyond the prosecutors in the case.

“We plan to serve discovery questions on a number of other people because we strongly suspect the defendants are not the only people whose fingers have been involved in driving this investigation there,” Rivkin said. “There may well be other individuals in the Wisconsin political establishment who have their finger on this.”

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