What about those prosecutors? Questions surround other John Doe DAs

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — As the old saying goes, it takes two to tango.

In the case of a politically charged John Doe probe into dozens of conservative targets, we often forget it took six top prosecutors to expand this secret investigative dance.

Well known by now are:

* Milwaukee County District Attorney John Chisholm, the Democrat who launched the so-called John Doe II — really, it appears, just a continuation of a lengthy John Doe investigation into former aides and associates of Republican Gov. Scott Walker when Walker was Milwaukee County executive — in late summer 2012. Chisholm’s two henchmen, assistant DAs Bruce Landgraf and David Robles, were also heavily involved.

* Francis Schmitz, the former assistant U.S. attorney brought in to serve as the John Doe’s special prosecutor.

Each prosecutor is now a defendant in a civil rights lawsuit filed in federal court by conservative activist Eric O’Keefe and his Wisconsin Club for Growth. The complaint alleges Chisholm, the assistant DAs and Schmitz, as well as a shadowy for-hire investigator by the name of Dean Nickel, violated the First Amendment rights of conservative-leaning groups.

The secretive John Doe procedure, which has featured what sources have described as “paramilitary-style,” predawn raids on the homes of conservative targets, has operated under a theory that Wisconsin Club for Growth and groups like it may have illegally coordinated with Walker’s campaign during the state’s partisan recall drives of 2011 and 2012.

The names of Jane E. Kohlwey, Ismael R. Ozanne, Kurt F. Klomberg and Larry E. Nelson rarely ever come up.

These county district attorneys — Kohlwey from Columbia County; Ozanne of Dane County; Klomberg of Dodge County; and Nelson of Iowa County — aren’t defendants in O’Keefe’s civil rights lawsuit.

Yet.

But the prosecutors were integrally involved in what quickly grew from a Milwaukee County affair into a broad, five-county investigation.

These quiet DAs were spurred on by Chisholm and the state Government Accountability Board, according to court documents in another lawsuit against the GAB, and allegedly begged the presiding John Doe judge at the time to bring in a special prosecutor, who turned out to be Schmitz.

In their letter to Judge Barbara Kluka, the John Doe judge who issued the orders for the predawn raids and multiple subpoenas seizing personal property, the five district attorneys argued a special prosecutor was warranted.

“(T)he responsibility for the prosecution of the crimes alleged in the John Doe Petition is fractioned across the offices of five different Wisconsin prosecutors,” although the proceeding is “one overall undertaking and should be managed by one prosecutor with general authority in all five counties,” asserted the DAs in the letter.

Of course, there were the political considerations. Kohlwey and Klomberg are Republicans, while Chisholm, Nelson and Ozanne are Democrats. Ozanne, coincidentally, is a candidate for state attorney general.

While a John Doe probe into the Democrats’ most hated nemesis, Walker, would certainly play well in the liberal bastion of Madison, it doesn’t do much for the candidate beyond the gates of Dane and Milwaukee counties and other Democratic-centric urban centers.

“An Independent Special Prosecutor having no partisan affiliation addresses the legitimate concerns about the appearance of impropriety,” the DAs’ letter states.

According to another lawsuit O’Keefe and the club filed last month against the GAB, the state agency that oversees Wisconsin campaign and election law, Kluka in August 2013 issued orders appointing Schmitz as special prosecutor for each of the five counties in the John Doe probe.

What the accountability board had not made known, the lawsuit charges, is that Schmitz had been on the GAB’s payroll as a special investigator before his appointment as special prosecutor. The agency had provided Schmitz with office space to do his investigating.

One month later, on Sept. 30, 2013, Kluka issued the subpoenas and at least five search warrants, according to the lawsuit.

O’Keefe’s lawsuit claims the GAB had been involved in John Doe since late 2012, after being contacted by Chisholm.

Within days after state Attorney General J.B. Van Hollen declined Chisholm’s request to serve as special prosecutor in the John Doe probe in late May 2013, the GAB met with and referred the matter to the five district attorneys, according to O’Keefe’s lawsuit.

With these new revelations, some important questions beg to be answered.

* First and foremost: Did the four DAs brought into the broader investigation know about Schmitz’s role as a GAB investigator before they sought a special investigator for the multi-county probe?

* Do they think the apparent omission of Schmitz’s status with the GAB in their letter to Kluka, and their role in that appointment, might impact their status in the federal lawsuit? In short, are they worried they will be the next prosecutors-turned defendants?

* Why did they recommend Schmitz serve as special prosecutor despite Schmitz’s dearth of state prosecutorial experience, no expertise in campaign finance law and no expertise arguing cases in Wisconsin circuit or appellate courts?

Supporters of Schmitz and the John Doe probe say Schmitz was tapped because of his reputation as a Republican and as a “straight-shooter,” who served as assistant U.S. attorney in Milwaukee during former Republican President George W. Bush’s administration. Schmitz, in one court document, claims he even once voted for Walker.

Critics don’t buy what they see as the special prosecutor’s nonpartisan act, claiming any ostensible party label means nothing; it’s his prosecutorial overreach that is at question.

* Whose idea was it to appoint Schmitz?

* Was Schmitz in attendance during the meeting with the five district attorneys on June 26, 2013, at the GAB headquarters in Madison?

* Were the DAs aware the secrecy order specified that although Schmitz was supposedly appointed to run an independent investigation, the entire Milwaukee County District Attorney’s office remained agents of the probe after the special prosecutor was appointed? According to multiple sources, the secrecy order insists that members of the Milwaukee County DA’s office be present at all meetings and dispositions and that Chisholm’s office remain in control of all evidence and information.

Wisconsin Reporter attempted to ask these questions and others of the four district attorneys. They either didn’t return our request for comment or declined it. Schmitz and Milwaukee County DAs have repeatedly declined comment.

An official in the Iowa County DA’s office said Nelson is “not going to speak to you regarding this matter.”

“My understanding is that it is still under seal,” Ozanne told Wisconsin Reporter when reached for comment at his Dane County office this week.

“So you cannot comment on any of this?” Wisconsin Reporter asked.

“That’s my understanding,” the DA answered.

Last month, U.S. District Court Judge Rudolph Randa issued a preliminary injunction shutting down the investigation.

“Any attempt to obtain compliance by any Defendant or John Doe Judge Gregory Peterson is grounds for a contempt finding by this Court,” Randa ordered in the 26-page ruling.

Presumably, that includes the secrecy order.

One legal expert with knowledge of the lawsuits told Wisconsin Reporter the DAs’ insistence that the secrecy order remains in effect even as the investigation is halted is “beggar’s belief.”

The expert, who spoke on condition of anonymity due to his proximity to the matter, said the four DAs seemed to have long ago stopped their county-level John Doe operations so there may be no need to name them in an official capacity lawsuit.

As far as the DAs being ultimately sued, as Chisholm and crew have been, in a personal capacity, the jury remains out.

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