Is John Doe probe a case of a mini NSA in Wisconsin?

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Conservatives long have likened Wisconsin’s Democrat-launched John Doe investigation to the IRS scandal.

Much like the Internal Revenue Service’s intense scrutiny of mostly conservative groups, the politically charged John Doe probe apparently has targeted only conservatives — on a legal theory that has been roundly dismissed by two judges.

But documents obtained by Wisconsin Reporter suggest Milwaukee County District Attorney John Chisholm, the Democrat who launched the ever-widening campaign finance probe in late summer 2012, and his fellow prosecutors were involved in a court-sanctioned sweep of Internet service providers and email operators that conservatives and others describe as a miniature domestic spying operation, akin to the National Security Agency, and run from Milwaukee using taxpayer dollars.

Recent U.S. Supreme Court decisions on police seizures of electronic devices, meanwhile, could put the John Doe prosecutors’ apparent national subpoena blitzkrieg of mega Internet portals in legal jeopardy.

“I do believe that my email and computer were being monitored illegally,” one conservative target of the secret political probe told Wisconsin Reporter.

“They were clearly collecting people’s emails throughout John Doe I … and all of that information was transferred into John Doe II,” said another target of the so-called John Doe II probe.

Chisholm and crew launched the first investigation, under cover of a press-porous secrecy order, in 2010.

The probe was specifically aimed at former aides and associates of Republican Gov. Scott Walker when Walker was Milwaukee County executive. That nearly three-year investigation ended with six convictions, only two of which had anything to do with the original scope of the probe — the pilfering of money from a veterans fund, discrepancies first reported by Walker’s county executive staff.

John Doe I reportedly ended in late winter 2013, but an opinion piece last month by the Wall Street Journal suggests it was really just rolled into a second, more expansive probe.

John Doe II, ordered shut down in May by a federal judge, has targeted at least 29 conservative groups over the past two years, and has featured what sources have described as predawn, “paramilitary-style” raids on the homes of conservatives throughout Wisconsin.

Prosecutors have operated under the theory that dozens of conservative organizations may have illegally coordinated with Walker’s campaigns during Wisconsin’s partisan recall drives. That theory has been declared “simply wrong” by U.S. District Court Judge Rudolph Randa. And an appeals court in May declared unconstitutional portions of Wisconsin’s campaign finance laws that deal with issue advocacy advertisements, the kind of ads the conservative targets of John II were involved in.

Wisconsin Reporter has obtained several purchase orders handled by the Milwaukee County Department of Administrative Services. The orders show bills to the Milwaukee District Attorney’s office from global Internet portal Yahoo!, for “reimbursement of costs associated with subpoena compliance.” The purchase orders, involving Yahoo’s custodian of records at the multinational Internet corporation’s Sunnyvale, Calif., headquarters. The earliest documents are from December 2010, in the thick of the first John Doe probe.

Wisconsin Reporter obtained six records in all involving Yahoo, with the last order dated Oct. 16, 2012. The orders are for varying amounts, from $49.50 to $416.60.

Yahoo officials did not return a request for comment.

Wisconsin Reporter also obtained a “Petty Cash Replenishment Request” filed by the District Attorney’s office. The vendor on the request, dated April 26, 2011, is the custodian of records for mega web search engine Google.

Several other requests on the form are blacked out.

Sources say the invoices are connected to the John Doe investigations.

An appeal filed by Kelly Rindfleisch, one of the main conservative targets in John Doe I, contends the prosecutors’ overly broad, “general” searches of Internet services providers are inexcusable violations of basic Fourth Amendment rights protecting against unreasonable searches and seizures.

Rindfleisch in 2012 agreed to plead guilty to a felony count of the nebulous charge of misconduct in public office, for responding to emails regarding fundraising on behalf of failed lieutenant governor candidate Brett Davis. She was on the government clock when she sent those communications, working as an aide to Walker in the county executive’s office.

She took the deal, she previously told Wisconsin Reporter, in part because it opened the door to the appeal.

“The state’s seizure of ‘all’ of Kelly M. Rindfleisch’s emails and private records eviscerated any sense of security from government intrusion,” the appeal charges.

Prosecutors, using court-issued subpoenas, seized from Rindfleisch’s Internet service providers “all” records related to her email addresses, including the content of her emails, “under the guise of seeking evidence of criminal conduct by a third party,” according to the court document.

Prosecutors and Milwaukee County Circuit Judge David Hansher rejected Rindfleisch’s claims that her constitutional rights were violated. Her appeal asserts prosecutors did so “cavalierly” and at times “belittlingly,” characterizing Rindfleisch’s argument as “rhetoric,” “nonsense,” and “baldashery.” Prosecutors during the trial insisted their wide-ranging warrants passed constitutional muster.

They did not, said Franklyn Gimbel, Rindfleisch’s attorney.

“It was like going out into Lake Michigan and throwing a net to see what fish you can catch,” Gimbel said of the prosecution’s search of emails, cell phones and other electronic devices in the John Doe probe.

Other conservative targets have been treated similarly.

Conservative sources with knowledge of the second John Doe investigation say the prosecutors were armed with information they could not have known without rooting through emails and other communications.

Chisholm did not return phone calls from Wisconsin Reporter seeking comment. He and the other prosecutors being sued in a federal civil rights case, also alleging Chisholm and crew violated conservatives’ constitutional rights, have consistently declined to comment or have failed to return multiple requests for comment. They constantly cite the secrecy order of the John Doe investigation, but the documents obtained appear to stem from the first probe, long since shut down.

What Wisconsin Reporter seeks to find out is:

• Does the district attorney’s office routinely collect people’s personal email records?
• Are prosecutors maintaining a database warehousing all of the records they have obtained during the past four years of John Doe investigations?
• Would the existence and continued use of such a database (as in the high-profile document dumps related to the investigations) violate the secrecy order.
• Finally, are the subpoenas apparently issued to Internet service providers and web-based companies part of the subpoenas quashed by John Doe presiding Judge Gregory Peterson for failure to show probable cause?

Gimbel takes solace in this month’s landmark U.S. Supreme Court decision, Riley v. California that digital is different, that “police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”

The unanimous decision, billed by constitutional law observers as one of the more significant Fourth Amendment rulings to date, could have major implications on investigative data grabbing cases — from shady-looking characters talking on cellphones all the way up to the NSA’s bulk collection of telephone metadata.

“I think it helps us,” Gimbel said of the high court’s decision and its potential impact on Rindfleisch’s appeal. Further, it speaks to the notion of general warrants, or warrants giving investigators broad discretion or authority to search and seize unspecified places or persons. Such open-ended tools are prohibited under the Fourth Amendment.

“If people are going to search a house for contraband, they have to tell the judge where they are going to look … what they are looking for and why they are there,” Gimbel said.

In Rindfleisch’s case, the attorney claims, prosecutors simply asked a judge to give them a “blank check, so that they could go to Internet (s)ervice (p)roviders and say, ‘Give us everything you have that our target may be engaged in,’ without specifying what they are looking for.”

Rindfleisch’s case slogs on at the appeals level as the court decides whether to hear oral arguments or make a ruling based on the briefs.

Gimbel said the general search and seizure of online information eventually led to a court-ordered document dump of hundreds of Rindfleisch’s emails, many of which had nothing to do with the investigation.

“That’s how you got all that stuff used as tabloid stories in the Milwaukee and Madison papers. That never should have been part of this enterprise. It was just a bunch of crap,” Gimbel said.

The attorney asserts the prosecutor’s subpoenas generically requesting “all” records related to Rindfleisch’s email addresses, strikes him as similar to what he has read concerning the NSA.

“… (A) government, whether that government is a Milwaukee County district attorney or someone operating under the auspices of federal intelligence or security, has to abide by the constitution,” he said.