Target: John Doe prosecutors making up campaign law as they go along

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — The prosecutors in a secret investigation into conservative groups not only have offered a flimsy defense of their politically charged probe, they are badly interpreting state law to fit their purposes, say attorneys representing key conservative targets in a civil rights lawsuit.

Of course, the attorneys make a more eloquent — if not highly redacted — legal argument in their 44-page supplemental response in support of a motion asking a federal judge to stop the 21-month probe.

But make no mistake about it: The plaintiffs in the conservatives’ civil rights lawsuit say Milwaukee County District Attorney John Chisholm, two of his henchmen, a special prosecutor and a shadowy investigator have offered the court a seriously flawed and flimsy defense of their secret investigation.

In short, the prosecutors-turned-defendants are full of spin.

More than that, they are making up Wisconsin campaign law as they go along, argues conservative activist Eric O’Keefe and his Wisconsin Club for Growth in their response to a massive document dump last week by the prosecutors’ attorneys.

O’Keefe, in the lawsuit filed in the U.S. District Court Eastern District of Wisconsin in Milwaukee, charges the probe, launched in August 2012 by Democrat Chisholm’s office, is nothing more than a partisan witch hunt, political reprisal for conservative successes under Republican Gov. Scott Walker.

Furthermore, O’Keefe argues that the secret investigation, which has featured what sources have described as “paramilitary” pre-dawn raids at the homes of conservative activists, has chilled the First Amendment rights of conservative organizations.

“These legal flaws render Defendants’ long-awaited ‘evidence’ of wrongdoing by Plaintiffs irrelevant in all but one respect: those materials show that Defendants are animated not only by a hostility to conservative views, but also by disdain for individuals who choose to lawfully exercise their First Amendment rights outside the system of campaign-finance regulation that Defendants favor,” O’Keefe’s attorneys write in their latest response.

The prosecutors’ supplemental briefing, filed last week, “actually embraces this retaliatory purpose, as if they expect the Court to hold that this petty end somehow justifies their lawless means,” the response states. “It does not. Defendants have absolutely no legitimate interest in enforcing made-up ‘laws’ to silence political speech — whether because they disagree with its substance or because they would prefer it was made in some other manner that is subject to regulation.”

Until the defendants’ “inquisition is stopped, they will continue to achieve their goal of chilling Plaintiffs’ exercise of their First Amendment rights of association and advocacy,” the response asserts.

That’s a victory for the left, the attorneys insist. But it’s a victory that comes at the expense of Wisconsin election and campaign law, and at the cost of liberty, they say.

Earlier this month, Judge Rudolph Randa thoroughly rejected the prosecutors’ motion to dismiss the civil rights lawsuit, pushing aside their argument that federal courts generally must abstain from taking up federal constitutional claims that involve or call into question ongoing state proceedings.

The John Doe investigation, a multicounty secret probe into dozens of conservative groups “does not fit into any of the categories” for abstention, the judge wrote in his decision.

“It is an investigatory process, not an ongoing criminal prosecution case,” Randa said.

The judge said the federal court is the proper place to hear the case, in large part because the “John Doe proceeding does not offer O’Keefe the opportunity to adjudicate the federal constitutional issues that are raised in this lawsuit.”

“The underlying theory of this case is that O’Keefe, along with other conservative groups, are being targeted for their political activism, whereas the ‘coordination’ activities of those on the opposite side of the political spectrum are ignored,” the judge wrote.

O’Keefe’s complaint points to numerous examples of similar coordinating campaign activities among liberals that failed to trigger a lengthy, secret investigation by the Milwaukee County DA.

“The alleged bogus nature of the prosecutors’ theory of criminal liability as a matter of federal constitutional law is simply more evidence of the defendants’ bad faith,” Randa wrote. “Even if the need for injunctive relief somehow fell by the wayside, the merits of O’Keefe’s claims can and should still be adjudicated here in federal court.”

Much of O’Keefe’s latest response is redacted, leaving out details of the prosecutors’ legal theories, for instance. Previous court documents have corroborated what sources have stated, however — that prosecutors believe dozens of conservative organizations may have illegally coordinated with Walker’s campaign during Wisconsin’s partisan recall elections of 2011 and ’12.

The plaintiffs don’t mince words about what they see as the fatally flawed nature of the prosecutors’ theories. They assert the “defendants cannot salvage their rejected legal theory,” something that only confirms “their bad faith.”

“In sum, Defendants’ new theory of criminal liability violates the First Amendment and finds no support in Wisconsin law. It is a pretext adopted solely for the purpose of targeting Plaintiffs and others who speak out in ways of which Defendants disapprove.”

Precisely what illegal coordination theories the prosecution hold remain shrouded from the public. Prosecutors repeatedly have declined comment on the probe, citing the court-ordered secrecy requirements.

O’Keefe could not be reached for comment.

Retired Appeals Court Judge Gregory A. Peterson, also named as a defendant in the civil rights case in a professional capacity, earlier this year quashed multiple subpoenas issued in the probe, saying they failed to show probable cause.

O’Keefe’s attorneys assert that the prosecutors, in their response, effectively concede that their investigation is “retaliation against First Amendment-Protected Advocacy and Association.”

The prosecutors express “significant dissatisfaction with the right of social-welfare organizations like Wisconsin Club for Growth to engage in robust political speech that is beyond the regulatory scope of the Wisconsin Election Code,” the plaintiffs assert.

“..(T)heir defense is that they targeted the Plaintiffs for secret criminal investigation, not because of the viewpoint of their protected speech on issues of public interest in Wisconsin, but because of the very fact that Plaintiffs dared to vigorously exercise their First Amendment rights in a lawful manner not subject to regulation under Wisconsin law. But launching a secret criminal investigation against social-welfare organizations for exercising their right to speak is no less First Amendment retaliation than targeting groups based on viewpoint.”

O’Keefe’s latest filing takes aim at John Doe Special Prosecutor Francis Schmitz, who, in his response, said he bears no animosity for Walker or conservative groups like the Wisconsin Club for Growth. Schmitz said he even voted for Walker in the 2012 gubernatorial recall election, and that he “generally supported the Governor’s efforts to balance the State budget” during the state’s 2011 budget crisis

Those admissions were the focus of a column by the Milwaukee Journal Sentinel’s Daniel Bice, who, conservatives charge, has accumulated a lot of friendly sources in and around the Milwaukee County DA’s office.

“This disclosure is intended to counter claims by conservative groups that they are being targeted by prosecutors because they backed the first-term Republican governor,” Bice wrote. “Milwaukee County District Attorney John Chisholm, a Democrat, acknowledges in a separate filing that he initiated the investigation.”

In his filing, Schmitz, a former federal prosecutor and failed candidate for U.S. attorney in Milwaukee during President George W. Bush’s administration, states that he previously was a member of the Republican Party. He enlisted, he said, in “connection with seeking the Presidential appointment as the United States Attorney.” Schmitz said he is no longer affiliated with any political party.

His declaration of nonpartisanship falls on deaf ears of conservatives like O’Keefe, who insist it’s the special prosecutor’s tactics that concern them — a point borne out in court just last week.

“…Defendant Schmitz filed a motion to prevent Plaintiffs’ state-court counsel from receiving information disclosed in this litigation — a questionable course of conduct that Plaintiffs will oppose in due course,” O’Keefe’s attorneys write. “In so doing, Schmitz disclosed to the public for the first time the identity of Plaintiffs’ state-court counsel, which had heretofore been a secret and which had been maintained as such by the various attorneys in the John Doe proceeding.”

The law firm, Graves Garrett, of Kansas City, Mo., led by former U.S. Attorney Todd Graves, is defending Wisconsin Club for Growth in state-level cases involving the John Doe probe, a fact shared by Bice in his column.

“The next day, the information was published by Daniel Bice of the Milwaukee Journal Sentinel in an article favorable to Defendant Schmitz,” O’Keefe’s response asserts. “This was reminiscent of the special prosecutor’s supposedly inadvertent disclosure several months ago of the identity of Plaintiff O’Keefe and Ms. (Kelly) Rindfleisch as targets of the John Doe probe, which had before then been secret information,” a disclosure that also ended up in the Journal Sentinel.

Rindfleisch, a former aide to Walker when he was Milwaukee County executive, in late 2012 was sentenced to six months in jail on a misconduct conviction for campaign fundraising at the courthouse, according to the prosecution. Rindfleisch, who was caught up in the Milwaukee County DA’s first meandering John Doe that spanned nearly three years, is appealing her conviction.

Randa was scheduled to hear the civil rights case on April 30. The court session has been rescheduled for May 7.

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