Target files civil rights lawsuit against Wisconsin’s John Doe prosecutors

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — The only target of a Democrat-driven John Doe investigation to speak out publicly against what many Wisconsin conservatives see as a political witch hunt has made good on his promise to take prosecutors to court, charging they violated his civil rights.

Eric O’Keefe and his Wisconsin Club for Growth filed a federal civil rights lawsuit Monday against the special prosecutor, the presiding judge and top prosecutors in the Milwaukee County District Attorney’s office.

“This secret investigation and gag order on conservative activists is intended to stop their political successes in Wisconsin,” O’Keefe said in a news release. “The state cannot be allowed to silence political speech it does not like.”

The lawsuit, led by Washington, D.C., attorney David B. Rivkin Jr., contends “Milwaukee County prosecutors are abusing their authority in retaliation for the Club’s successful political activism in support of Wisconsin Republican Gov. Scott Walker’s ‘Budget Repair Bill,’” which reformed public-sector collective bargaining in the Badger State.

“Milwaukee County District Attorney John Chisholm and his staff have spent the past four years prying into the affairs of Scott Walker, his associates, and his supporters in a series of John Doe proceedings,” the news release states.

Thelawsuit asks the U.S. Court for the Eastern District of Wisconsin to enter an injunction blocking the John Doe investigation immediately and seeks monetary damages against the prosecutors for their violations of O’Keefe’s and the Club’s First Amendment rights.

Wisconsin’s unique John Doe probes act like grand jury investigations but grant a great deal of power and discretion to the judge and the prosecution in the court-administered dragnets. In this case, individuals from dozens of conservative groups have been questioned, some subjected to pre-dawn raids and property seizures. Under the terms of the secret John Doe, the targets cannot not talk publicly about the investigation, under penalty of contempt of court charges and possible jail time.

O’Keefe seemingly has defied the gag order in calling out what he has described as “political payback by elected prosecutors against conservative activists for their political successes in Wisconsin.”

On Jan. 15, O’Keefe threatened a civil rights lawsuit if prosecutors did not immediately drop the investigation, which was launched by the Democrat-led Milwaukee County District Attorney’s office in August 2012, according to court documents.

O’Keefe’s claims were buoyed by presiding John Doe Judge Gregory Peterson, who in early January quashed several subpoenas filed against conservative targets and ordered the prosecution to return seized property.

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 Wall Street Journal.

But the Madison-based state District IV Court of Appeals recently rejected motions by three conservative petitioners who sought to stop the John Doe and send the matter to the state Supreme Court. The targets argued in part that the previous presiding judge, retired Kenosha County District Court Judge Barbara Kluka, overstepped her authority and state law in conducting a multi-county John Doe investigation and in appointing special prosecutor Francis Schmitz.

The appeals court countered that the growing investigation is not a single probe but a several investigations, although they appear to be coordinated by a single special prosecutor.

“The lawsuit claims that the prosecutors’ actions — including harassment and threats of criminal prosecution — are intended to chill the Club’s and other conservatives’ First Amendment right to speak out on political issues,” stated the news release from O’Keefe’s attorney.

Chisholm, Schmitz and other prosecutors in the case repeatedly have declined comment on the investigation.

O’Keefe also challenges the prosecutors’ use of secrecy order to “limit public scrutiny of their actions, even as routine leaks have made the investigation a favorite topic of Walker’s opponents.” Due to those orders, the filing is heavily redacted, Rivkin said in the release.

“The First Amendment means that government officials cannot single out citizens for threats and abuse based on their political speech,” Rivkin said. “Our goal is to ensure that Wisconsinites of every political stripe can once again speak freely without fear of retribution by prosecutors wielding a political agenda.”

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

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