By M.D. Kittle | Wisconsin Reporter
MADISON, Wis. — Eric O’Keefe’s civil rights lawsuit against prosecutors in a Democrat-driven John Doe probe into conservative targets will go on after a federal judge on Tuesday denied the defense’s motion to dismiss the litigation.
Judge Rudolph Randa of the U.S. District Court Eastern District of Wisconsin in Milwaukee rejected the points of the motion, pushing aside the argument by the prosecutors-turned-defendants 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, including conservative political activist O’Keefe and his Wisconsin Club for Growth, “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.
O’Keefe and the Club for Growth are suing Milwaukee County District Attorney John Chisholm, his assistant DAs, Bruce Landgraf and David Robles, the probe’s special prosecutor, Francis Schmitz, shadowy investigator, Dean Nickel, and retired appeals court Judge Gregory A. Peterson, the presiding judge in the John Doe.
The complainants charge that the investigation is nothing more than a partisan witch hunt bent on punishing Republican Gov. Scott Walker and his allies for conservatives’ political successes, such as public-sector collective-bargaining reform, despised by the left. More so, the investigation, featuring what have been described as “paramilitary-style predawn raids” on the homes and properties of conservatives, has deprived the targets of their fundamental constitutional rights, particularly abridging the First, Fourth and 14th amendments.
As the court document notes, “O’Keefe alleges that this investigation is being conducted for the primary purpose of intimidating conservative groups, impairing their fundraising efforts, and otherwise preventing their participation in the upcoming election cycle.”
O’Keefe has asked the court to shut down the John Doe probe, on the grounds that it is an abuse of prosecutorial power and infringes upon his right to freedom of speech.
The office of Chisholm, a Democrat, launched the investigation in August 2012, targeting conservative organizations on suspicion of illegal campaign coordination with Walker’s campaign during Wisconsin’s partisan 2011 and ’12 partisan recall drives.
Peterson earlier this year quashed multiple subpoenas issued in the probe, saying they failed to show probable cause.
In his ruling, Randa asserts that Wisconsin’s unique John Doe proceedings, which are like a grand jury investigation without the oversight of a jury of peers, is an investigatory device.
It is “not so much a procedure for the determination of probable cause as it is an inquest for the discovery of crime in which the judge has significant powers” Randa wrote in the ruling.
“It is an investigatory process, not an ongoing criminal prosecution or civil enforcement proceeding. Nor is it a proceeding — like a civil contempt order,” Randa wrote.
The John Doe may be a criminal investigation, but it is not “akin to a criminal prosecution,” the judge notes. Therefore, it doesn’t fit under the long-held rules that federal courts must not interfere with state prosecutions.
Besides, Randa said he would not abstain even if the investigation fit into one of the abstention categories, 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.”
Randa, citing case law, which notes “the guarantee of free expression is always an area of particular federal concern,” said the court “will not sidestep its duty to exercise jurisdiction in this context.”
While the investigation lingers, the lawsuit claims, the First Amendment rights of O’Keefe and the Club for Growth effectively are frozen — all for an investigation the targets assert has overstepped its prosecutorial bounds.
“We are pleased with the judge’s excellent decision, and we’re looking forward to proceeding with this case,” said David Rivkin, O’Keefe’s attorney.
Contact M.D. Kittle at email@example.com
- Sources: Secret probe targeting conservatives is abuse of prosecutorial powers
- Scary! Phantom prosecutor in Dems’ war on conservatives disappears inside courthouse
- EXCLUSIVE: Judge in Democrat-led John Doe probe recuses herself
- Democrats’ ‘intelligence-gathering’ spreads in Wisconsin
- Democrats tap anti-terror expert to head secret probe of Wisconsin conservatives
- Sheriff Clarke: John Doe case shows Milwaukee DA is ‘weaponized for political purposes’
- Clarke: John Doe into conservatives ‘unbridled,’ ‘dangerous’ and ‘tainted’
- Sources: New judge named in Democrat-led secret probe
- Vendetta justice? Criticism growing about John Doe prosecutor Bruce Landgraf
- Will Wisconsin’s own ‘Miserable’ inspector jail conservative activist for speaking out about Dem probe?
- Conservative targets bring in big guns to Democrat-led John Doe fight
- ‘Dangerous’ game: Former FEC official blasts Democrats’ secret investigation of conservative groups
- Center for Media and Democracy: Liberals are morally superior
- Wisconsin Dems suddenly support political investigations
- WI Republican attorney general to represent judges in Democrat-led John Doe probe
- Republicans speak out about silent John Doe targeting conservatives
- Biggest secret in John Doe may be just how judges and special prosecutors are selected
- WSJ: John Doe judge deals body blow to secret probe targeting conservatives
- Vos: Wait until John Doe in ‘rearview mirror’ before revisiting law
- Lawsuits looming in Wisconsin’s crumbling John Doe probe?
- Conservative to Democrat prosecutors: Shut down secret political probe or face civil rights lawsuit
- John Doe target O’Keefe taking on IRS, too
- Lawmaker: Wisconsin’s John Doe like Christie’s ‘Bridgegate’
- Target files civil rights lawsuit against Wisconsin’s John Doe prosecutors
- Disparate treatment: Civil rights lawsuit claims conservative speech trampled
- Liberal group looking to take Wisconsin’s John Doe national
- John Doe judge: ‘Results of the John Doe speak for themselves’
- John Doe special prosecutor appeals judge’s ruling quashing subpoenas
- John Doe prosecutor pushed for brain-damaged man’s conviction in ATF debacle
- Conservatives counterpunch John Doe prosecutors’ move to stall injunction
- Shadowy John Doe investigator invokes federalism in civil rights lawsuit
- John Doe prosecutors wanted higher-priced lawyers, source says
- Secret agent Dean Nickel’s defense: ‘Dean Nickel is not responsible’
- D’oh! John Doe prosecutors claim secrecy protection – after filing secret documents
- Recusal in John Doe case raises questions of fairness, purpose
- Absolute immunity makes it tough to prosecute the prosecutors of John Doe
- Poll suggests Dems’ big ‘secret’ weapon against Walker is backfiring
- ‘Easy target': Kelly Rindfleisch breaks silence about John Doe probe
- SCOTUS ruling on campaign finance shows abuse of John Doe, targets say
- Nobody will say what John Doe’s shadow man did, but taxpayers are paying his legal bill
- Judge denies John Doe prosecutors’ move to dismiss civil rights suit
- Civil rights expert: John Doe law is ‘un-American,’ like something from ‘Nazi Germany’
- Target: John Doe prosecutors making up campaign law as they go along
- John Doe, as it is being used, must go, WI senator says
- John Doe target says prosecutors latest move another delay tactic
- John Doe prosecutors sound defensive in latest court filings
- Federal judge denies John Doe prosecutors’ motion to stall civil rights case
- Media coalition asks judge to open sealed John Doe documents
- Are John Doe prosecutors sweating out federal judge’s decision?
- John Doe is dead: Judge stops WI prosecutors’ probe into conservatives
- This is what the Fourth Amendment looks like?
- What’s next for now-defunct John Doe probe?
- Appeals court stalls judge’s order halting John Doe probe
- Federal judge’s ruling could open up sealed John Doe records
- Federal judge orders John Doe probe shut down again
- Lawmakers call for review of GAB’s secret John Doe activities, funds
- Lawyers, lawyers everywhere and other dispatches from John Doe Land
- Secret’s out: The world is beginning to learn more about WI’s John Doe
- Still their little secret? Questions remain on John Doe gag order
- Appeals Court declares portions of Wisconsin campaign finance law unconstitutional
- John Doe prosecutors suddenly support opening sealed court records
- Expert: It’s as if GAB decided ‘Citizens United didn’t exist’
- John Doe prosecutors voice phony outrage, legal source says
- GAB still reviewing court ruling declaring WI campaign finance law unconstitutional
- State Farm still doesn’t want to cover John Doe prosecutor’s legal bills
- For the Walker-hating left, John Doe is ‘Mission Accomplished’
- Sources: No urgency in WI Supreme Court on John Doe
- Would Walker settlement with John Doe prosecutors be a deal with the devil?
- Contempt questions surround reported John Doe deal talks
- Walker’s John Doe response raises more questions than answers
- Sources: Attorney General passes on defending GAB in John Doe cases
- Attorney to judge: Don’t let John Doe prosecutor ‘moot’ injunction
- John Doe targets sue Wisconsin’s Government Accountability Board
- Federal judge says his order halting John Doe probe should be clear to prosecutor
- John Doe special prosecutor’s bill still shrouded in secrecy
- ‘Are these kind of armed pre-dawn raids standard operating procedure?’
- John Doe special prosecutor obeys judge’s order
- ‘Never-ending’ John Doe never ended, WSJ reports
- Appeals court upholds judge’s order shutting down John Doe probe
- O’Keefe keeps collecting big wins in John Doe lawsuit
- John Doe I judge says he’s not responsible for John Doe II
- Will taxpayers have to pay for frivolity of John Doe prosecutors?
- John Doe prosecutors jump back into the dark?
- What about those prosecutors? Questions surround other John Doe DAs
- Humiliated in court, WI Dems take their anti-conservative John Doe probe to the media
- Federal judge blasts John Doe prosecutors – again – as he denies records release
- Right on cue: Document dump fuels anti-Walker donation drive
- Wall Street Journal points out ‘disgrace’ of mainstream John Doe reporting
- Expert: John Doe raids raise ‘troubling’ Fourth Amendment questions
- Kelly Rindfleisch tells conservatives, ‘Don’t back down’
- Mainstream media forced to walk back Walker ‘criminal scheme’ narrative
- John Doe prosecutors engaged in premature justification, conservatives say
- Is John Doe probe a case of a mini NSA in Wisconsin?
- AG opinion means accountability board’s John Doe secrets are safe — for now
- Senator asks attorney general to compel GAB to open up its books
- GAB now playing secrets in state John Doe lawsuit
- Will John Doe prosecutors launch lengthy probe against Trek Bicycle?
- John Doe prosecutors engaged in war of words — lots and lots of words
- Judge denies conservatives’ request to add GAB to civil rights lawsuit
- Oral arguments set in John Doe prosecutors’ appeal
- In John Doe Land, the left doesn’t illegally coordinate
- John Doe document blitz must have broken mainstream media’s heart
- Senator: Looks like accountability board is hiding something
- Kelly Rindfleisch appeal to test validity of John Doe digital searches
- Conservatives in John Doe battle know disclosure comes with a heavy price
- Appeals court orders release of some John Doe documents
- Taxpayers on the hook up to $25,000 for GAB’s legal maneuvers
- Overheated media erroneously bring back Walker ‘criminal scheme’ theme
- ‘Retaliation': Docs show state prosecutors launched mini-NSA probe of WI conservatives
- John Doe prosecutors take desperate, unethical slap
- Walker ‘smoking gun’ story has tiny glaring flaw
- Wisconsin prosecutors aim to shut down conservatives
- Conservatives appeal to common sense in John Doe appeals case
- Conservatives say ‘incorrect disclosure’ of John Doe docs no ‘tiny error’
- First Amendment big guns back targets of John Doe probe
- Was John Doe judge a rubber stamp?
- $25,000 and counting: WI taxpayers’ bill so far to defend GAB and its ‘monster’
- Another blow for Wisconsin’s restrictive campaign finance law
- Wisconsin prosecutors appeal for protection from blowback in partisan probe
- Is John Doe story colored with a bit of ‘Macbeth?’
- GAB director says agency just following the law in John Doe probe
- Kelly Rindfleisch: Where are the tears for the kids the Milwaukee school system failed?
- Rindfleisch attorney: Appeals court can protect the Fourth Amendment in Digital Age
- Source: Wisconsin Supreme Court doesn’t want political heat of John Doe case
- Appeals court reverses John Doe injunction, but Wisconsin’s secret war far from over
- A whistleblower’s story: Taking on a ‘hyper-partisan’ district attorney
- Conservative O’Keefe seeks investigation into John Chisholm and his John Doe
- Who’s paying the bill? Report casts questions on GAB and John Doe payments
- Target of secret John Doe probe is fighting back and speaking out
- The day John Doe rushed through the door
- Rindfleisch: ‘Rape’ not too strong a word for how violated John Doe targets feel
- Conservative group asks court to stop John Doe ‘constitutional injury’
- Conservatives to appeals court: ‘You don’t know Doe’
- Armed and growing: Milwaukee County DA beefs up his ‘police force’
- Federal judge stops John Doe prosecutors from bothering conservative group
- Wisconsin Supreme Court takes another pass on John Doe case
- No surprise: Bice buries the lead, Walker follows the law
- Federalism v. individual rights: A conversation with Eric O’Keefe
- Report: No district attorney will investigate District Attorney John Chisholm
- Appeals court denies request to rehear John Doe civil rights case
- Voters say ‘yes’ to Walker, ‘no’ to John Doe, law expert says
- Vos: There will be reforms to John Doe, GAB
- GAB, Milwaukee County DA bail on key provision behind war on conservatives
- John Doe lawsuit could be headed to U.S. Supreme Court
- Kelly Rindfleisch will fight on in Fourth Amendment case
- John Doe froze conservative speech, targets say
- Conservatives to court: Open up records on GAB’s role in John Doe
- Did the GAB doctor documents to cover their tracks in John Doe?
- Wisconsin’s Van Hollen says goodbye to AG post, John Doe
- Rindfleisch appeals to Supreme Court in John Doe Fourth Amendment abuse case
- Audit: GAB has failed to follow the law
- Wisconsin Supreme Court to take up John Doe complaints
- ‘R word’ surfaces in wake of state Supreme Court taking up John Doe challenges
- GAB won’t say whether it has reauthorized its role in John Doe probe
- Rogue agency defied judges to carry out partisan probe of Wisconsin conservatives
- ‘Outside the … law’: Lawmakers call for investigation of GAB
- Attorney: GAB’s John Doe justifications don’t hold up to law
- Isn’t it ironic: Mainstream silence follows reports of secret GAB Gmail in John Doe
- GAB offers contradictory defense of its John Doe activities
- O’Keefe officially asks judge to open probe into John ‘Doe’ Chisholm
- State lawmakers look to investigate the GAB and its investigators
- One year ago, judge’s ruling shakes up John Doe probe
- Doe possessed: ‘They have information about every aspect of our lives’
- GAB plays victim card in ‘complicated’ John Doe, campaign finance farce
- Public defender asks Supreme Court to take up John Doe-related Fourth Amendment case
- GAB has a sudden change of heart on campaign finance reform
- O’Keefe takes his case against John Doe to U.S. Supreme Court