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Disparate treatment: Civil rights lawsuit claims conservative speech trampled

By   /   February 11, 2014  /   No Comments

Part 25 of 136 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — In his no-longer-secret campaign to find evidence of criminal wrongdoing in Wisconsin politics, Milwaukee District Attorney John Chisholm, a Democrat, has focused on just one political party — the Republican Party of Wisconsin — and only on the political set around Gov. Scott Walker.

Of course, the ultimate target is undeniably Walker himself, conservatives say. Wisconsin’s Republican governor has become a national hero to the right — and Public Enemy No. 1 to the union-led left, including Chisholm — for his sweeping reforms of government collective-bargaining rules.

AP file photo

FREE SPEECH? A protester looks on near a poster of Gov. Scott Walker inside the state Capitol in Madison, Wis., during 2011 demonstrations. Opponents of Walker continue their push to find some wrong-doing on the part of Walker and his supporters.

On Monday, targets of Chisholm’s investigation filed a detailed civil rights complaint that documents the abuses of the four-year “never-ending” John Doe investigation, a probe the Wall Street Journal’s Editorial Board has dubbed Wisconsin’s “Political Speech Raid.”

The lawsuit, filed Monday on behalf of political activist Eric O’Keefe and his Wisconsin Club for Growth, in no uncertain terms accuses John Doe prosecutors, particularly the Democrat-led Milwaukee County District Attorney’s office, of crushing the First Amendment and 14th Amendment rights of O’Keefe and dozens of other activists in free-market organizations.

More so, the plaintiffs charge the investigation into alleged illegal campaign coordination — a concept, conservative legal experts assert, the prosecution vaguely understands — is political payback for the right’s successes in Wisconsin.

They note that investigators haven’t gone after liberal organizations with the kind of prosecutorial vigor they unleashed in two overlapping John Doe campaigns — disparate treatment painstakingly outlined in the 76-page complaint.

The complainants say they can point to “numerous other activities materially identical to the activities giving rise to the manifold branches of this massive investigation . . . within Democratic campaigns and among left-wing issue advocacy and independent expenditure groups.”

The lawsuit takes an exhaustive look back nearly four years, to the Milwaukee County DA’s original John Doe investigation into aides and associates of Walker, who was then Milwaukee County executive. The probe ended some three years later, netting six convictions — four of which had nothing to do with the original focus of the probe.

“For purposes of opening the proceeding, the crime that the Milwaukee District Attorney’s office purportedly had reason to believe was committed related to missing money from veteran’s fund called Operation Freedom, which was founded by Scott Walker,” the complaint states.

It was county executive employee Darleen Wink who identified the shortfall of funds from the account, notes the complaint. The executive’s office subsequently informed the district attorney.

But the missing veterans money wasn’t a pressing matter for the DA’s office. It didn’t open a John Doe proceeding into the alleged embezzlement until spring 2010, more than a year after the matter was reported — and, coincidentally, just as Walker was ramping up his campaign for governor.

“… (T)he Milwaukee County Attorney’s Office decided to use a John Doe proceeding to investigate the Milwaukee County Executive’s Office as a means of influencing the 2010 election in which Scott Walker was a candidate for Governor,” the lawsuit alleges.

With the missing funds as its pretext for a secret John Doe investigation, the district attorney’s office was able to investigate allegations that Wink effectively was campaigning for Walker on her county computer — “and possibly expand an investigation into Walker’s employees more generally to identify possible violations of law that could be linked directly to Scott Walker,” the complaint alleges.

The target has always been Walker, according to conservative critics.

Milwaukee County Assistant District Attorney Bruce Landgraf, one of the defendants named in the lawsuit, used the veterans fund matter as an “excuse for ‘subpoenaing county officials’ and for ‘examination of business records maintained by the County Executive’s office and other County Departments,’” the complaint alleges.

“The actual purpose of the petition was to obtain access to county officials and documents for an open-ended fishing expedition into Walker’s office,” according to the lawsuit.

Landgraf understood the political potential of the investigation from the beginning, arguing that the probe should be shrouded in secrecy because “publicity of allegations and inferences would be particularly unfair to the county executive,” who, of course, at the time was seeking the GOP’s nomination for governor.

But there was nothing particularly embarrassing about the original intent of the John Doe proceeding, an investigation that Walker’s chief of staff invited. Imposing a secrecy order, as was the case, could only prevent Walker from demonstrating that he was not the target of the probe.

And that’s exactly what happened.

“In fact, it was the secrecy order and the concomitant lack of public scrutiny that allowed Landgraf and others to turn the investigation against Walker, to permit selective leaks to embarrass Walker, and to prevent any substantive defense by Walker or others as the investigation became a media sensation during his recall,” the complaint asserts.

Those leaks, the lawsuit charges, reached the public through direct and indirect selective leaks from the DA’s office long before Walker was elected governor and colored every aspect of the political fight of his life — his 2012 recall elections.  Prosecutors have repeatedly denied the allegation.

In the complaint’s one exhibit not redacted due to the secrecy of the John Doe, Landgraf’s original petition for a John Doe proceeding, the prosecutor asked that “all prosecutors, support staff and investigative staff of the Milwaukee County District Attorney’s Office” have access to the record of the John Doe proceedings. Under law, the investigation’s targets and the public did not receive the same privilege.

Chisholm, the Milwaukee County DA, has not returned several calls from Wisconsin Reporter seeking comment. Prosecutors have repeatedly declined to comment on the ongoing John Doe investigation.

The complaint, alleging Chisholm and his office are driven by their political bias against Walker and his controversial collective-bargaining reforms, points to some potentially damning evidence:

  • During the 2011-2012 campaign to recall Walker, at least 43 (and possibly as many as 70) employees within Chisholm’s office signed the recall petition, including at least one deputy district attorney, 19 assistant district attorneys and members of the District Public Integrity Unit. The DA’s office is assisted directly by five deputy DAs, and 125 assistant DAs, according to the agency’s website.
  • Altogether, as of April 2012, employees in Chisholm’s office had donated to Democratic over Republican candidates by roughly a 4 to 1 ratio.
  • Chisholm, a Democrat, has been supported by labor unions in previous campaigns, including in the most recent race to hold his DA position, during which the received support from, among others, the AFL-CIO, the complaint notes. He also is a donor to Democratic Party candidates and, as of April 2012, had given $2,200 exclusively to Democratic and liberal candidates.

The first John Doe investigation concluded with the convictions of two men Walker had hoped would be investigated in the case of the missing veterans funds. Kevin Kavanaugh, treasurer of the veterans fund, and Walker former aide Timothy Russell were found guilty of embezzlement. Russell’s domestic partner, Brian Pierick, got caught up in the dragnet after investigators found damning images on the couple’s home computer. Pierick was sentenced to 50 hours of community service and ordered to pay a $2,148 fine for contributing to the delinquency of a child. He had been charged with one count of child endangerment and another count of exposing his genitals for an alleged online sexual relationship with a 17-year-old male. Pierick reportedly believed the 17-year-old to be of age.

But in its wide net, the John Doe investigation captured three others on convictions unrelated the veterans fund. The CEO of a Wisconsin railroad company got two years of probation for exceeding campaign contribution limits in support of Walker’s run for governor, as well as laundering campaign contributions through employees and associates. Walker’s campaign promptly returned the contributions. As the lawsuit points out, the conviction had nothing to do with the original intent of the John Doe investigation.

Neither did the conviction of Kelly Rindfleisch, who worked in Walker’s county executive office. She was sentenced to six months in jail on a misconduct conviction for campaign fundraising at the courthouse using a secret email system, according to the prosecution. She is appealing that decision. On Monday, a Milwaukee County judge ordered the release of all of Rindfleisch’s professional and personal emails.

Rindfleisch agreed to plead because she lacked the funds to mount a legal defense and hoped to “avoid jail time to care for her 88-year-old, ailing mother,” according to the lawsuit. Sources tell Wisconsin Reporter that Rindfleisch’s home was raided again during the latest John Doe probe into conservative organizations. Her attorney did not return calls seeking comment.

Wink, the county executive employee who first reported the discrepancy in the veterans fund, was convicted on two misdemeanors for campaigning for Walker on government time.

“As with Rindfleisch, (Wink’s) conviction is the result of prosecutors turning peoples’ lives upside down in a politically motivated fishing expedition,” the civil rights lawsuit asserts.

And through the meandering investigation, Chisholm and Landgraf “chose not to apply the same scrutiny to liberal individuals,” according to the complaint, which lays out several examples of left-wing activities that were “materially identical” to the actions on the right that generated such vigorous investigations.

Take, for example, the case of Milwaukee County employee and liberal blogger Christopher Liebenthal, who in spring 2010 was caught engaging in “excessive political blogging” for liberals from his taxpayer-funded computer.

The DA’s office recognized that “Mr. Liebenthal’s actions constitute an extreme example,” but stated that it would prefer to see the situation handled as a personnel matter rather than a criminal matter. The DA declined to prosecute.

“The decision by … Chisholm and Landgraf to treat this conduct as a personnel matter is completely different from how they treated indistinguishable conduct by Wink and Rindfleisch,” the civil rights lawsuit asserts. “Each was charged criminally on multiple counts, and Rindfleisch was sentenced to jail time for similar conduct treated as a ‘personnel’ matter in Liebenthal’s case.”

Above all is the left’s nebulous notion of illegal coordination and, according to the civil rights case, how similar coordinated activities among labor unions and liberal operatives have gone unnoticed by the Milwaukee County DA.

The complaint points to the Committee to Recall Scott Walker and its Nov. 19, 2011, announcement of a gathering to kick off the Walker recall campaign. The event was widely announced as being in “coordination with We Are Wisconsin and the (Democratic Party of Wisconsin),” according to the complaint.

“In fact, the Recall Committee was formed by leading Union and Democratic social welfare organization members, and the timing of the recall was carefully discussed between these members, political candidates, and nationwide Democratic Party leaders, including officials from the Barack Obama presidential campaign,” the lawsuit states.

But that coordination was not deemed as potentially “illegal” by John Doe prosecutors, certainly nothing warranting a prolonged government investigation.

“The investigation has, to date, been a complete failure,” the complaint states.

Others offered a similar assessment of the first John Doe probe when it closed down in March 2013.

William Jennaro, a former Milwaukee County judge and prosecutor, told the Milwaukee Journal Sentinel that he saw few positives out of the long John Doe other than catching Russell for stealing money from the veterans fund.

“Certainly, the governor comes out of this pretty much Clean Gene,” Jennaro told the newspaper.

The Journal Sentinel declared that while Walker’s administration made some questionable hires, Walker himself “avoided much taint.”

But Walker didn’t escape without injury, the lawsuit stresses.

Repeated leaks, many of them incorrect, were used by his opponents to color Walker as a corrupt candidate or executive involved in activities serious enough to warrant a secret investigation — even though the governor was never found to have engaged in any wrongdoing.

“John Doe has repeatedly been a political rallying cry — and even a fundraising tool — for Democrats at each turn in influence important political events,” the lawsuit asserts.

And the song remains the same, conservatives say, in the latest John Doe probe.

The plaintiffs in the new civil rights lawsuit argue that the first secret probe, although closed down, never really ended — that Milwaukee County prosecutors with all of their political baggage are still going after their ultimate target: Scott Walker. Now prosecutors are going through some 29 conservative organizations to get him, just as his re-election campaign ramps up.

“The natural and probable consequence of the investigation is therefore to chill speech and association,” the complaint states.

“As the investigation is ongoing throughout the 2014 legislative session and campaign period, the investigation will have the intended effect of silencing Plaintiffs in Wisconsin during the 2014 legislative session and election cycle.”

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

Part of 136 in the series Wisconsin's Secret War
  1. Sources: Secret probe targeting conservatives is abuse of prosecutorial powers
  2. Scary! Phantom prosecutor in Dems’ war on conservatives disappears inside courthouse
  3. EXCLUSIVE: Judge in Democrat-led John Doe probe recuses herself
  4. Democrats’ ‘intelligence-gathering’ spreads in Wisconsin
  5. Democrats tap anti-terror expert to head secret probe of Wisconsin conservatives
  6. Sheriff Clarke: John Doe case shows Milwaukee DA is ‘weaponized for political purposes’
  7. Clarke: John Doe into conservatives ‘unbridled,’ ‘dangerous’ and ‘tainted’
  8. Sources: New judge named in Democrat-led secret probe
  9. Vendetta justice? Criticism growing about John Doe prosecutor Bruce Landgraf
  10. Will Wisconsin’s own ‘Miserable’ inspector jail conservative activist for speaking out about Dem probe?
  11. Conservative targets bring in big guns to Democrat-led John Doe fight
  12. ‘Dangerous’ game: Former FEC official blasts Democrats’ secret investigation of conservative groups
  13. Center for Media and Democracy: Liberals are morally superior
  14. Wisconsin Dems suddenly support political investigations
  15. WI Republican attorney general to represent judges in Democrat-led John Doe probe
  16. Republicans speak out about silent John Doe targeting conservatives
  17. Biggest secret in John Doe may be just how judges and special prosecutors are selected
  18. WSJ: John Doe judge deals body blow to secret probe targeting conservatives
  19. Vos: Wait until John Doe in ‘rearview mirror’ before revisiting law
  20. Lawsuits looming in Wisconsin’s crumbling John Doe probe?
  21. Conservative to Democrat prosecutors: Shut down secret political probe or face civil rights lawsuit
  22. John Doe target O’Keefe taking on IRS, too
  23. Lawmaker: Wisconsin’s John Doe like Christie’s ‘Bridgegate’
  24. Target files civil rights lawsuit against Wisconsin’s John Doe prosecutors
  25. Disparate treatment: Civil rights lawsuit claims conservative speech trampled
  26. Liberal group looking to take Wisconsin’s John Doe national
  27. John Doe judge: ‘Results of the John Doe speak for themselves’
  28. John Doe special prosecutor appeals judge’s ruling quashing subpoenas
  29. John Doe prosecutor pushed for brain-damaged man’s conviction in ATF debacle
  30. Conservatives counterpunch John Doe prosecutors’ move to stall injunction
  31. Shadowy John Doe investigator invokes federalism in civil rights lawsuit
  32. John Doe prosecutors wanted higher-priced lawyers, source says
  33. Secret agent Dean Nickel’s defense: ‘Dean Nickel is not responsible’
  34. D’oh! John Doe prosecutors claim secrecy protection – after filing secret documents
  35. Recusal in John Doe case raises questions of fairness, purpose
  36. Absolute immunity makes it tough to prosecute the prosecutors of John Doe
  37. Poll suggests Dems’ big ‘secret’ weapon against Walker is backfiring
  38. ‘Easy target': Kelly Rindfleisch breaks silence about John Doe probe
  39. SCOTUS ruling on campaign finance shows abuse of John Doe, targets say
  40. Nobody will say what John Doe’s shadow man did, but taxpayers are paying his legal bill
  41. Judge denies John Doe prosecutors’ move to dismiss civil rights suit
  42. Civil rights expert: John Doe law is ‘un-American,’ like something from ‘Nazi Germany’
  43. Target: John Doe prosecutors making up campaign law as they go along
  44. John Doe, as it is being used, must go, WI senator says
  45. John Doe target says prosecutors latest move another delay tactic
  46. John Doe prosecutors sound defensive in latest court filings
  47. Federal judge denies John Doe prosecutors’ motion to stall civil rights case
  48. Media coalition asks judge to open sealed John Doe documents
  49. Are John Doe prosecutors sweating out federal judge’s decision?
  50. John Doe is dead: Judge stops WI prosecutors’ probe into conservatives
  51. This is what the Fourth Amendment looks like?
  52. What’s next for now-defunct John Doe probe?
  53. Appeals court stalls judge’s order halting John Doe probe
  54. Federal judge’s ruling could open up sealed John Doe records
  55. Federal judge orders John Doe probe shut down again
  56. Lawmakers call for review of GAB’s secret John Doe activities, funds
  57. Lawyers, lawyers everywhere and other dispatches from John Doe Land
  58. Secret’s out: The world is beginning to learn more about WI’s John Doe
  59. Still their little secret? Questions remain on John Doe gag order
  60. Appeals Court declares portions of Wisconsin campaign finance law unconstitutional
  61. John Doe prosecutors suddenly support opening sealed court records
  62. Expert: It’s as if GAB decided ‘Citizens United didn’t exist’
  63. John Doe prosecutors voice phony outrage, legal source says
  64. GAB still reviewing court ruling declaring WI campaign finance law unconstitutional
  65. State Farm still doesn’t want to cover John Doe prosecutor’s legal bills
  66. For the Walker-hating left, John Doe is ‘Mission Accomplished’
  67. Sources: No urgency in WI Supreme Court on John Doe
  68. Would Walker settlement with John Doe prosecutors be a deal with the devil?
  69. Contempt questions surround reported John Doe deal talks
  70. Walker’s John Doe response raises more questions than answers
  71. Sources: Attorney General passes on defending GAB in John Doe cases
  72. Attorney to judge: Don’t let John Doe prosecutor ‘moot’ injunction
  73. John Doe targets sue Wisconsin’s Government Accountability Board
  74. Federal judge says his order halting John Doe probe should be clear to prosecutor
  75. John Doe special prosecutor’s bill still shrouded in secrecy
  76. ‘Are these kind of armed pre-dawn raids standard operating procedure?’
  77. John Doe special prosecutor obeys judge’s order
  78. ‘Never-ending’ John Doe never ended, WSJ reports
  79. Appeals court upholds judge’s order shutting down John Doe probe
  80. O’Keefe keeps collecting big wins in John Doe lawsuit
  81. John Doe I judge says he’s not responsible for John Doe II
  82. Will taxpayers have to pay for frivolity of John Doe prosecutors?
  83. John Doe prosecutors jump back into the dark?
  84. What about those prosecutors? Questions surround other John Doe DAs
  85. Humiliated in court, WI Dems take their anti-conservative John Doe probe to the media
  86. Federal judge blasts John Doe prosecutors – again – as he denies records release
  87. Right on cue: Document dump fuels anti-Walker donation drive
  88. Wall Street Journal points out ‘disgrace’ of mainstream John Doe reporting
  89. Expert: John Doe raids raise ‘troubling’ Fourth Amendment questions
  90. Kelly Rindfleisch tells conservatives, ‘Don’t back down’
  91. Mainstream media forced to walk back Walker ‘criminal scheme’ narrative
  92. John Doe prosecutors engaged in premature justification, conservatives say
  93. Is John Doe probe a case of a mini NSA in Wisconsin?
  94. AG opinion means accountability board’s John Doe secrets are safe — for now
  95. Senator asks attorney general to compel GAB to open up its books
  96. GAB now playing secrets in state John Doe lawsuit
  97. Will John Doe prosecutors launch lengthy probe against Trek Bicycle?
  98. John Doe prosecutors engaged in war of words — lots and lots of words
  99. Judge denies conservatives’ request to add GAB to civil rights lawsuit
  100. Oral arguments set in John Doe prosecutors’ appeal
  101. In John Doe Land, the left doesn’t illegally coordinate
  102. John Doe document blitz must have broken mainstream media’s heart
  103. Senator: Looks like accountability board is hiding something
  104. Kelly Rindfleisch appeal to test validity of John Doe digital searches
  105. Conservatives in John Doe battle know disclosure comes with a heavy price
  106. Appeals court orders release of some John Doe documents
  107. Taxpayers on the hook up to $25,000 for GAB’s legal maneuvers
  108. Overheated media erroneously bring back Walker ‘criminal scheme’ theme
  109. ‘Retaliation': Docs show state prosecutors launched mini-NSA probe of WI conservatives
  110. John Doe prosecutors take desperate, unethical slap
  111. Walker ‘smoking gun’ story has tiny glaring flaw
  112. Wisconsin prosecutors aim to shut down conservatives
  113. Conservatives appeal to common sense in John Doe appeals case
  114. Conservatives say ‘incorrect disclosure’ of John Doe docs no ‘tiny error’
  115. First Amendment big guns back targets of John Doe probe
  116. Was John Doe judge a rubber stamp?
  117. $25,000 and counting: WI taxpayers’ bill so far to defend GAB and its ‘monster’
  118. Another blow for Wisconsin’s restrictive campaign finance law
  119. Wisconsin prosecutors appeal for protection from blowback in partisan probe
  120. Is John Doe story colored with a bit of ‘Macbeth?’
  121. GAB director says agency just following the law in John Doe probe
  122. Kelly Rindfleisch: Where are the tears for the kids the Milwaukee school system failed?
  123. Rindfleisch attorney: Appeals court can protect the Fourth Amendment in Digital Age
  124. Source: Wisconsin Supreme Court doesn’t want political heat of John Doe case
  125. Appeals court reverses John Doe injunction, but Wisconsin’s secret war far from over
  126. A whistleblower’s story: Taking on a ‘hyper-partisan’ district attorney
  127. Conservative O’Keefe seeks investigation into John Chisholm and his John Doe
  128. Who’s paying the bill? Report casts questions on GAB and John Doe payments
  129. Target of secret John Doe probe is fighting back and speaking out
  130. The day John Doe rushed through the door
  131. Rindfleisch: ‘Rape’ not too strong a word for how violated John Doe targets feel
  132. Conservative group asks court to stop John Doe ‘constitutional injury’
  133. Conservatives to appeals court: ‘You don’t know Doe’
  134. Armed and growing: Milwaukee County DA beefs up his ‘police force’
  135. Federal judge stops John Doe prosecutors from bothering conservative group
  136. Wisconsin Supreme Court takes another pass on John Doe case

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Kittle is a 25-year veteran of radio, newspaper and online journalism. In July 2011, Kittle joined Watchdog.org as bureau chief for Wisconsin Reporter. He has spent much of the past three years covering the seismic political changes taking place in the Badger State. Last year, Kittle joined Watchdog’s national reporting team, covering everything from energy policy to governmental assaults on civil rights. Beyond being published in Wisconsin’s daily newspapers and in multimedia news outlets, Kittle’s work has appeared on Fox News, and in Human Events, Reason Magazine, Newsmax and Town Hall. His special investigation into a politically charged John Doe probe, “Wisconsin’s Secret War,” was the basis of a 2014 documentary on Glenn Beck’s TheBlaze. Kittle has made several appearances on Fox News, including “On the Record with Greta Van Susteren. He serves as weekly politics commentator for Lake 96.1 FM in Lake Geneva, and WRJN-AM 1400 in Racine. His resume includes multiple awards for journalism excellence from The Associated Press, Inland Press, Wisconsin Broadcast Association and other journalism associations. Contact Kittle at mkittle@watchdog.org.

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