John Doe targets sue GAB

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — The targets of a politically charged John Doe investigation are now targeting the state’s Government Accountability Board, alleging in a lawsuit the agency that oversees election and campaign finance law has created a “Frankenstein monster” out of its enforcement authority.

The GAB has “exceeded its statutory authority and evaded its statutory obligations by pursuing and funding a far-reaching criminal investigation into virtually every conservative-leaning group in Wisconsin,” according to the lawsuit, filed Friday morning in Waukesha County Circuit Court by conservative activist Eric O’Keefe and his Wisconsin Club for Growth, and on “behalf of others similarly situated.”

O’Keefe takes particular aim at the GAB and its involvement in the John Doe probe, a nearly three-year investigation into 29 conservative issue advocacy organizations.

The court-administered dragnet, launched in late summer 2012 by Milwaukee County District Attorney John Chisholm, a Democrat, is nothing more than a partisan witch hunt, O’Keefe asserts in a civil rights lawsuit filed earlier this year in federal court against John Doe prosecutors.

In that complaint, O’Keefe argues that the prosecutors violated his First Amendment rights via an investigation that, sources say, involved pre-dawn, “paramilitary-style” raids on the homes of conservative targets.

And it was all done with the backing of the Government Accountability Board, using powers not ascribed to the board, O’Keefe’s lawsuit alleges.

The GAB, in conjunction with district attorneys in five counties in Wisconsin, has initiated a wide-scale criminal investigation into O’Keefe, the club, and other conservative-leaning groups throughout Wisconsin and the country, according to the lawsuit.

“The GAB’s use of a John Doe has created a Frankenstein monster,” the complaint states. “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.”

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.”

Court documents in recent months have shown GAB’s integral involvement in the investigation, including the activities of the agency’s shadowy contracted investigator, Dean Nickel.

Nickel filed the original affidavit for probable cause in the search warrants that were executed in the John Doe raids. Nickel, in documents filed in federal court, said that’s all he did. Others — Chisholm, his assistant DAs, special prosecutor Francis Schmitz and former John Doe presiding Judge Barbara Kluka — are responsible for the investigation, Nickel’s legal team argued in a long explanation filed in March in the U.S. District Court for the Eastern District of Wisconsin, Milwaukee Division.

U.S. District Judge Rudolph Randa earlier this month ordered the probe shut down, noting that the prosecutor-turned-defendants’ theory that the conservative groups may have illegally coordinated with Walker’s campaign is “simply wrong.”

That decision was followed by a ruling from the 7th Circuit U.S. Court of Appeals, which declared unconstitutional sections of Wisconsin campaign finance law involving issue advertisements, the same ads in question in the John Doe probe. The court scolded the state Legislature for not keeping up with recent U.S. Supreme Court decisions on campaign finance laws, and took issue with the GAB’s interpretation of the “Labyrinthian” rules and regulations.

In the lawsuit against the GAB and Kevin J. Kennedy, the board’s director and general counsel, O’Keefe and the club assert the agency’s use of the John Doe device exceeds the agency’s statutory authority, and doing so deprives the plaintiffs of their statutory rights.

“In a calculated power grab, the GAB has improperly used a John Doe proceeding to explore speculative criminal theories of campaign finance law without challenge by the accused or scrutiny of the public,” the lawsuit alleges, referencing the strict gag ordered placed on the investigation.

“Due to the secretive nature of the GAB’s investigative process and its confidential John Doe proceeding, the full extent of the GAB’s conduct is unknown to many, including Mr. O’Keefe and the Club,” the complaint states.

Wisconsin’s unique John Doe procedures are similar to grand jury investigations, without the benefit of a jury of peers. A presiding judge is vested with extraordinary powers to compel witnesses to testify in order to determine if a crime has been committed, and by whom.

More so, the lawsuit, alleges, the “GAB’s illegitimate and unauthorized participation in the John Doe proceeding has come at significant expense to taxpayers.”

“Since at least August of 2012, the GAB has spent and continues to spend substantial resources in furtherance of the proceeding,” the lawsuit asserts. “To date, the GAB and its staff have obtained and examined hundreds of thousands of documents in connection with the John Doe proceeding.”

John Doe prosecutors and the GAB have repeatedly declined to provide cost estimates of the investigation; in fact, they’ve declined to talk at all about the probe, citing its secrecy order.

“The total expenditures related to the investigation, and the hourly rate of the special investigators, have remained a closely guarded secret,” the lawsuit states.

The GAB has appointed at least two special investigators, including Nickel and Schmitz, and issued more than 30 subpoenas throughout Wisconsin and across the country to conservative-leaning groups, Internet service providers, and financial institutions, according to the lawsuit.

“In addition, the GAB has obtained and executed search warrants through pre-dawn raids by armed deputies on the homes of targets throughout Wisconsin,” the complaint states.

The GAB had appointed Schmitz as a special investigator before Kluka appointed Schmitz as special prosecutor of the five-county probe in August 2013, a point not previously reported, according to the lawsuit.

“Furthermore, on information and belief, the GAB continues to employ Mr. Schmitz as a special investigator for the GAB, providing him an office and paying him to pursue John Doe II on behalf of the GAB,” the lawsuit asserts.

In 2014 alone, the GAB has spent at least $55,000 in connection with the John Doe II investigation, including paying both Dean Nickel and Schmitz as special investigators, according to the complaint.

John Doe II, as the probe is often called, is the outgrowth of “an unprecedented set of interrelated John Doe proceedings spearheaded by District Attorney John Chisholm at the Milwaukee County Attorney’s Office” more than four years ago, the lawsuit states.

In the first John Doe, the GAB opened an investigation into William Gardner and the Wisconsin & Southern Railroad Company (WSOR) after receiving a complaint by Mr. Gardner’s former girlfriend that she had been asked to make a campaign contribution on their behalf.

While state law demands GAB either pursue civil enforcement or refer such complaints over to the district attorney where the alleged violator resides, “the GAB sought the best of both worlds,” the lawsuit asserts.

“The Board subsequently contacted the Milwaukee County District Attorney’s Office and the two agencies worked closely together over the past year to complete a John Doe investigation before Judge Neal Nettesheim,” a GAB press release stated.

Gardner agreed to plead guilty to two felony counts, and WSOR agreed to pay a civil forfeiture to the GAB of $166,900.

“Not only did the GAB fail to follow its statutory mandate to refer the matter to the district attorney in lieu of civil prosecution by the GAB, the GAB also failed to refer the matter to the appropriate district attorney (i.e., the district attorney for the county in which Mr. Gardner resides, Washington County, or the principal place of business for WSOR, Madison County).

But GAB’s Kennedy found other photo-op moments with Chisholm along the way, in a John Doe probe that netted six convictions of former aides and associates of Walker when Walker was Milwaukee County executive. Only two of those convictions had anything to do with the original reason for the investigation, pilfering a Milwaukee County veterans’ fund. And Walker’s staff brought the theft to investigators’ attention, a report that launched the meandering John Doe probe.

The lawsuit also states that the current John Doe proceeding, John Doe II, officially commenced on Sept. 5, 2012, pursuant to an order by Kluka. “At or near the same time, board members of the GAB and its staff, including GAB Director and General Counsel Kevin J. Kennedy, were admitted as parties to John Doe II.”

The lawsuit seeks to “halt the GAB’s end-run around the substantive and procedural mandates” of its “enabling statute,” which lays out the agency’s authority. Doing so, the complaint asserts, would “dismember” the GAB’s “Frankenstein monster” and require it to “conduct only those activities for which it receives taxpayer dollars.”

O’Keefe and the club seek a judgment declaring the GAB has made and continues to make “illegal expenditures associated with its participation in the secret John Doe proceeding, and enjoining GAB from making any additional unlawful expenditures of public funds.”

The plaintiffs say the lawsuit deals with state statute, and is in no way intended to take away from the significant civil rights claims made in the federal complaint. They ask for a jury trial.

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