O’Keefe to prosecution: Shut down this John Doe or face civil rights lawsuit

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Eric O’Keefe has a message for the prosecutors who have targeted him and dozens of conservative groups in a politically charged John Doe investigation: Drop the probe now or become defendants in a federal civil rights lawsuit.

O’Keefe, director of the Wisconsin Club for Growth, a limited government advocacy organization targeted for alleged illegal “coordination” with Gov. Scott Walker’s campaign during the state’s recall elections, in a statement that the investigation is “political payback by elected prosecutors against conservative activists for their political successes in Wisconsin.”

“They are violating the constitutional rights of private citizens and must be held accountable,” O’Keefe said in the statement released Wednesday.

O’Keefe’s attorney, David B.Rivkin has sent a letter to prosecutors stating the nearly two-year John Doe investigation, conducted with a court-ordered gag order in place, has no basis in Wisconsin law and that it violates O’Keefe’s First Amendment rights to freedom of speech and association.

“I am confident that any federal court that reviews the facts will see your investigation for what it is, put a stop to it, and hold you publicly accountable,” the letter states.

Rivkin, perhaps best known outside the legal community as a frequent commentator and guest on national TV and radio shows, is a partner at Washington, D.C.-based law firm Baker Hostetler LLP, with extensive experience in constitutional law litigation.

He has represented the 26 states that have challenged the constitutionality of Obamacare and was the lead outside counsel in the District Court and Court of Appeals.

The letter demands Milwaukee County District Attorney John Chisholm, a Democrat, and the other prosecutors in the multiple-county probe “close the investigation immediately, publicly exonerate Mr. O’Keefe and the Club, and dissolve the gag order that bars discussion of the proceeding.”

O’Keefe, according to the statement, is “unable to comment on the probe or his anticipated federal action” due to the John Doe’s secrecy order. He has not returned Wisconsin Reporter’s calls seeking comment.

He seemingly defied the gag order in November, when he told the Wall Street Journal Editorial Board that he is a target of the investigation and confirmed that he received a subpoena. The Journal opinion piece, headlined “Wisconsin Political Speech Raid,” said copies of two subpoenas demanded “all memoranda, email . . . correspondence, and communications” internally and between the subpoena target and at least 29 conservative groups, including Wisconsin and national nonprofits, political vendors and party committees. “The groups include the League of American Voters, Wisconsin Family Action, Wisconsin Manufacturers & Commerce, Americans for Prosperity — Wisconsin, American Crossroads, the Republican Governors Association, Friends of Scott Walker and the Republican Party of Wisconsin,” according to the Journal.

The court-sanctioned dragnet has subpoenaed more than 100 conservative and free-market activists. Though gagged by provisions of the subpoenas, several sources have told Wisconsin Reporter the manifold legal attack on nonprofit political organizations has included pre-dawn raids on homes and offices; confiscated equipment and files; and demands for phone, email and other records.

Judge Gregory A. Peterson, the probe’s presiding judge, on Friday quashed several of the subpoenas to conservative groups and ordered the return of property to the targets of a so-called John Doe campaign-finance probe, according to a story broken by the Wall Street Journal Editorial Board.

O’Keefe’s Wisconsin Club for Growth – as well as Walker’s campaign, Wisconsin Manufacturers & Commerce Inc., and Citizens for a Strong America – were victims of improper subpoenas, according to the judge. Peterson said the subpoenas “do not show probable cause that the moving parties committed any violations of the campaign finance laws,” according to the sealed opinion, obtained by the Journal.

A Wisconsin legal expert close to the probe earlier this week told Wisconsin Reporter that litigation from the targets was a distinct possibility following the judge’s ruling.

“I don’t think the people who have been harmed by (the investigation) are going to let bygones be bygones,” the source said on condition of anonymity due to his proximity to the probe. “I could see them looking at litigation and it wouldn’t surprise me if there are calls for … an investigation into the investigators.”

Sources say it is probable the prosecution will appeal the judge’s ruling, although special investigator Francis Schmitz did not return a call Monday from Wisconsin Reporter seeking comment.

Prosecutors have repeatedly said they will not comment on any aspect of the John Doe.

Conservative sources close to the investigation tell Wisconsin Reporter that they have no illusions that a prosecution they believe is bent on bringing down Walker and freezing conservative political speech will simply walk away from the probe.

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

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