John Doe prosecutors jump back into the dark?

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Secret, secret, they’ve got more secrets.

Prosecutors in a politically charged John Doe investigation into dozens of conservative targets have asked for — and received — clearance to once again file records under seal, less than a month after they agreed it was time to bring Doe-related documents out of the dark.

On June 9, Milwaukee County District Attorney John Chisholm, the Democrat who nearly two years ago launched the secret second act of the long-running probe, and two of his assistant DAs, Bruce Landgraf and David Robles, asked a federal court to grant a motion for leave to file materials under seal.

The motion does not make clear what materials the prosecutors want kept out of the public eye, but U.S. District Court Judge Rudolph Randa did grant the motion.

Interestingly, the prosecutors’ request came a few weeks after they made a showy public motion siding with a media coalition that is seeking to have sealed John Doe documents in an ongoing civil rights lawsuit opened up to public scrutiny.

Wisconsin’s mainstream media seemed to swoon over the fact that Chisholm and crew, after years of locking their far-reaching investigation behind a court-ordered wall of silence, was suddenly jumping on the open-records train.

“The John Doe investigations at issue in this litigation have become so widely known that maintaining the integrity of the investigation may no longer justify maintaining secrecy,” Randall Crocker, attorney for John Doe special prosecutor Francis Schmitz, wrote in a federal court filing made public in mid-May.

Schmitz and Dean Nickel, an investigator contracted by the state Government Accountability Board, are named as defendants, along with Chisholm and his two underlings, in a federal civil rights complaint.

Left and mainstream outlets alike picked at motions by conservative activist Eric O’Keefe and the Wisconsin Club for Growth, plaintiffs in the civil rights lawsuit against the prosecutors, that request some of the John Doe documents remain sealed — particularly those records that would, the plaintiffs charge, violate their First Amendment rights all over again.

Prosecutors picked, too.

“It is beyond irony that plaintiffs and their counsel now ask the Court to block media access to the documents that outline the investigation and detail the reasons why (Wisconsin Club for Growth) conduct was subject to scrutiny,” the prosecutors-turned defendants wrote in their filing.

Looks like Chisholm and crew are back in the sealing business.

O’Keefe, according to court filings, agrees that the vast majority of the John Doe documents filed in the civil rights lawsuit should be made public.

“These documents … reveal Defendants’ abusive tactics, from home raids to kitchen-sink subpoenas, and flimsy legal justifications for their actions,” O’Keefe’s attorney David B. Rivkin Jr. wrote in a court filing in the U.S. District Court Eastern District of Wisconsin in Milwaukee.

“And they (the documents) convey the enormous injury that Defendants’ actions have inflicted on Wisconsin’s political and public-policy communities. The public has a right to know these things, and Plaintiff Eric O’Keefe is a willing speaker with a First Amendment right to disclose them …” the filing states. “These documents should be unsealed so that the public can see for itself what has transpired over the past four years and hold those responsible to account.”

O’Keefe, an executive member of the Wisconsin Club for Growth, asserts the prosecutor,s through their investigation, have trampled the First Amendment rights of conservative organizations philosophically aligned with Gov. Scott Walker.

The John Doe investigation has operated under the theory that groups like the Wisconsin Club for Growth may have illegally coordinated with Walker’s campaign during the state’s bitter, partisan recall campaigns of 2011 and 2012.

But Randa — twice — last month ordered the investigation shut down, ordering a preliminary injunction. The 7th Circuit U.S. Court of Appeals subsequently ruled that Randa had the authority to halt the probe and to declare “frivolous” the prosecutors’ attempts to stop the injunction and the lawsuit. The 7th Circuit is hearing the appeal.

Randa also ruled that the prosecutors’ theory is “simply wrong” and that, as John Doe presiding Judge Gregory Peterson decided in January, it does not appear that conservative targets violated Wisconsin campaign finance law. Indeed, the 7th Circuit, also last month, declared unconstitutional portions of the very law that prosecutors have attempted to apply in their roving probe.

The prosecutors repeatedly have declined to comment on the lawsuit or anything related to the John Doe probe.

Meanwhile, two unidentified individuals, presumably conservative targets of the investigation, have asked the appeals court to stop the release of records in the case. The court earlier this week ordered certain records be made public, but did not identify which documents would be released.

The unnamed intervenors argue that they have not been charged with any crimes and that the federal district court has found that they did not violate state law. If Wisconsin’s John Doe law is designed to protect subjects of an investigation from the “public opprobrium that may attend disclosure of unsubstantiated, unwarranted and unfiled criminal charges,” than the individuals should be shielded from a general release of documents.

“Given the immediacy of this issue, including the fact that once the documents are released to the public it will be too late, we respectfully request that the Court issue a temporary stay of its order in order to permit us to file an Emergency Motion To Intervene And Grant Stay Pending A Motion For Reconsideration,” wrote Madison attorney Dean Strang.

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