The day John Doe rushed through the door

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — One year ago, about an hour before dawn, police surrounded the homes of several Wisconsin conservatives and then hit them with floodlights.

Police didn’t draw their guns. They didn’t have to. Garish light blinded the groggy targets of the secret probe, startling neighbors. The uniforms, the lights, the early hour got everybody’s attention. One of the targets says police threatened that police threatened to battering rams to break down the front door, but the targets let them in.

Armed with warrants approved at the request of prosecutors, investigators searched the homes for evidence of a political crime.

The fact that Milwaukee District Attorney John Chisholm is a Democrat and the targets of the simultaneous paramilitary-style raids were all conservatives has generated controversy over the past year.

But the dramatic details of the raids have been lost in the fog of Chisholm’s war. Under terms of the state’s so-called John Doe law, targets of such investigations are ordered to keep their prosecution a secret.

But now Eric O’Keefe and others have agreed to speak for the first time about what happened on the morning of Oct. 3, 2013.

O’Keefe is a director of the Wisconsin Club for Growth. While his home was not targeted in the raids, he and the Club for Growth were subpoenaed as part of the same John Doe probe. That subpoena demanded “all records and information” from the organization, its employees and officers dating back more than four years, to March 2009.

Despite the gag order that came with the subpoena, O’Keefe has done more than spoken out. He’s fought back. The long-time conservative activist and the club earlier this year filed a federal civil rights complaint against the prosecutors, winning a preliminary injunction that temporarily shut down the investigation. A federal appeals court this month dismissed the injunction and the lawsuit, saying the matter was a state rather than federal issue.

O’Keefe says he has spoken with conservatives whose homes were raided. He knows their stories.

Because of his unique position as an activist who won’t be gagged, O’Keefe may be the only named source of information about the raids. Others whose homes were raided, but who wish to remain anonymous for fear of prosecution, confirmed key details.

“Houses were surrounded and lit up,” O’Keefe said. “Children and spouses were home in multiple cases, and made to suffer through two-and-a-half-hour raiding parties going through all paper files and seizing computers and phones. Children in multiple cases were told they could not inform their schools why they were late.”

After investigators stormed into their homes and rooted through their possessions, the conservative targets and their families suffered the additional insult of the gag order, O’Keefe said.

“So a traumatic event is imposed on entire families, and they are told to suck it up, don’t talk to your friends, relatives, ministers, colleagues,” O’Keefe said. “Don’t explain the deputies’ cars, the boxes they took from your house. Don’t allow your children to tell the truth.”

Like drug dealers?

And these raids, the kind employed in drug busts and gun crimes, were ordered because John Doe prosecutors had a “legal theory” that conservative advocacy groups like the Wisconsin Club for Growth may have illegally coordinated with the campaign of Gov. Scott Walker during Wisconsin’s bitter recall season of 2011 and ’12.

“We ran a meticulous political operation,” O’Keefe said. “Not only did we comply with Wisconsin’s laws — we were over-compliant, because we knew that Kevin Kennedy (director of the state Government Accountability Board, the agency that oversees campaign finance and
election laws) was hostile to WCFG as well as independent political speech in general. So we ran only issue ads — and none pertained to the elections for governor.”

“Issue ads” are generally granted wider protection; as the name suggests, they’re ads that address issues. And they’re not subject to the limits imposed on so-called “express ads,” ads that directly support or oppose a candidate.

The prosecutors, assisted — and some say directed — by the Government Accountability Board, insists that issue ads are effectively transformed into express ads if there is any coordination between the campaign and the advocacy groups.

That legal theory has since been rejected by two judges, including presiding John Doe Judge Gregory Peterson. In January, Peterson quashed several subpoenas, ruling that prosecutors had failed to show probable cause that a campaign-finance crime had been
committed.

In May, a federal court judge wrote that the prosecutors’ theory was “simply wrong.”

O’Keefe said he was stunned that the prosecutors and their allies at the GAB would suggest he and his advocacy group had violated the law.

And then there was the subpoena, signed on Sept. 30, 2013, and delivered to O’Keefe the following day. It was “so sweeping and extensive that it showed the prosecution had already conducted a sweeping domestic spying operation on my activities,” he said.

The impact on the club’s activities in Wisconsin was immediate — severe, chilling, O’Keefe said.

“I recognized that this created both a crisis among friends and allies, and a challenge to illuminate the risks to our freedom of powerful prosecutors and obtuse campaign laws,” he said.

And so he began his legal battle to push back against the prosecutors on what has become a nationally defining political speech issue.

‘I know more than Chisholm’

The raids on Oct. 3, 2013, were just the latest installment of such tactics by the prosecutors.

Chisholm launched the probe in August 2012. According to a whistleblower inside the DA’s office, Chisholm was motivated in part, at least, by a personal grudge against Walker.

Former decorated Milwaukee police officer and special prosecutor Michael Lutz said Chisholm was furious about Walker’s centerpiece legislation, Act 10, which reformed Wisconsin’s public-sector collective bargaining. Chisholm’s wife, a union steward at a Milwaukee area school, was reduced to tears over the legislation, Lutz said, and the DA “felt it was his personal duty to stop people from being treated like this, to stop Walker from treating people like this.”

According to court documents, the Government Accountability Board was involved early and often, and the John Doe spread to five counties. Ultimately, the prosecutors selected special prosecutor Francis Schmitz, a Republican, to manage their case against the conservatives.

The investigation into the conservative organizations is just the latest iteration of a continuing series of the John Doe shakedown of Walker’s allies since May 2010.

O’Keefe said he has learned of at least nine raids of private homes, including “synchronized paramilitary raids at sunup on Sept. 14, 2011” — almost two years before last year’s raids.

Chisholm’s defense attorneys downplayed, even mocked O’Keefe’s descriptions of the raids in court filings.

O’Keefe said Chisholm’s attorneys challenged his reports of abusive raids while they insisted on gag orders imposed on their conservative targets.

“This is one of the most disgraceful actions of the prosecution,” he said. “I am confident that (the prosecutors’) defense counsel is not aware of what happened. It is also likely that I know more than Chisholm about how various raids were conducted. Neither of us were there. But I
have interviewed many victims. He has not. At least not about the raids.”

Chisholm, Schmitz and the other prosecutors named in O’Keefe’s civil rights lawsuit repeatedly have declined to comment.

“Is Chisholm suggesting that search warrants were not executed by armed deputies during the early morning hours of Oct. 3, 2013 at his direction?” one target with knowledge of the raids asked earlier this year. “Is he suggesting that evidence collected from those raids including
paper files, computers and other electronic devices were not confiscated and delivered to his office at the Milwaukee County Courthouse immediately following the raids? Is he suggesting that copies of electronic devices were not made under his direction and that inventories of the information collected are not maintained by his office? Is he suggesting a slip of paper with Francis Schmitz’s name and Milwaukee County Courthouse phone number were not left with targets of the raids?” said the source, who requested anonymity, fearing the prosecution’s retribution on targets.

O’Keefe asserts the prosecutors have misled their own defense counsel, which in turn misled the federal appeals court on a factual matter.

“The only thing good about this is that it shows the prosecutors are not proud of their behavior. They understand that the truth about the raids will be very damaging to their position,” he said.

To date, O’Keefe is the only target to speak on the record about the raids, and to speak out publicly against the prosecutors — at the risk of his liberty. He said court filings by Chisholm and crew reveal their anger at his disclosures, and they do use the word “contempt.”

He said it quickly became apparent that of all of the targets he was best positioned to lead “this pushback.” It has come at a steep cost, O’Keefe said.

“So I closed an investment fund I was raising money for, and dropped most of my business activities, and many of my national political activities, in favor of a focus on gaining justice in Wisconsin,” he said, adding that his “whole political and professional life seems like a
preparation for this conflict.”