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John Doe is dead: Judge stops WI prosecutors’ probe into conservatives

By   /   May 6, 2014  /   No Comments

Part 50 of 156 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis.  — The John Doe investigation into conservatives is dead.

At least for now.

In a monumental victory for targeted conservatives in the secret investigation, Judge Rudolph Randa on Tuesday granted a preliminary injunction to stop the politically charged probe, ruling in favor of conservative activist Eric O’Keefe, his Wisconsin Club for growth and “others.” The probe had been looking into possible illegal coordination between conservative groups and Republican Gov. Scott Walker’s recall election campaign, but came under fire for the opaque way it was conducted.

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GRANTED: On Tuesday, federal Judge Rudolph Randa granted conservative targets of a politically charged John Doe investigation their motion for preliminary injunction. The order shuts down the John Doe probe and demands the prosecutors return the conservatives’ property seized in pre-dawn “paramilitary-style” raids.

O’Keefe and the club in February filed a civil rights lawsuit against Milwaukee County District Attorney John Chisholm, two of his assistant DAs, John Doe Special Prosecutor Francis Schmitz, and a shadowy investigator contracted by the Government Accountability Board.

READ ALSO: John Doe brought terrifying police raids on conservative targets. 

“The Defendants must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation,” wrote Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee.

Randa  further ordered that the plaintiffs in the civil rights case “and others” are “hereby relieved of any and every duty under Wisconsin law to cooperate further with Defendants‘ investigation.”

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

Why? Because, according to the judge, the targets of a nearly 3-year-old probe claiming illegal coordination did nothing wrong, and prosecutors have either disregarded the law or interpreted it incorrectly to fit their investigation.

The prosecutors-turned-defendants had sought an emergency stay of the proceedings on Monday with the 7th Circuit U.S. Court of Appeals.

Prosecutors have been operating under the theory that the club and 28 other conservative organizations illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections of 2011 and 2012. It has since blown up into a five-county investigation through the cooperation of the Government Accountability Board, the state’s election and campaign watchdog, according to Randa’s filing.

O’Keefe in the lawsuit contends the probe, which has featured what some sources have described to Wisconsin Reporter as “paramilitary-style” pre-dawn raids at the homes and offices of conservative targets, has had a chilling effect on conservative organizations’ First Amendment rights. The Wall Street Journal editorial board has billed the John Doe as Wisconsin’s “Political Speech Raid.”

Wisconsin’s unique John Doe proceedings are similar to grand jury investigations, without the benefit of a jury of peers. The probes are presided over by a judge with extraordinary powers to compel witnesses to testify, and may be conducted under an order of silence.

The conservatives assert that the prosecutors’ theory of illegal coordination is erroneous, a point supported by former appeals court Judge Gregory A. Peterson, the presiding judge in the John Doe probe. Earlier this year, Peterson quashed several subpoenas granted by his predecessor, Judge Barbara Kluka, who recused herself in October without explanation. Peterson said the subpoenas failed to show probable cause.

In issuing his decision, Randa agreed with the plaintiffs, opening up some previously sealed information in making his argument.

The ruling discloses what sources previously had told Wisconsin Reporter, that the investigation pushed subpoenas across the country, and extensively targeted Wisconsin Club for Growth advisor  Richard “R.J.” Johnson, also a consultant for the Walker campaign. Prosecutors contend that Johnson acted as the conduit between advocacy groups and Walker’s campaign, according to the filing.

After Peterson’s ruling quashing the subpoenas, Johnson wrote on  his Facebook page, “To those who know the hell we have gone through over the last three months — we have been completely and utterly vindicated. Thank you Lord!”

The prosecutors argue that issue advocacy, political speech that does not expressly advocate for against a candidate, “does not create a free-speech safe harbor when expenditures are coordinated between a candidate and a third-party organization,” Randa wrote. Chisholm and crew, according to court documents, have characterized the activities of groups like Wisconsin Club for Growth as covered by Chapter 11 of Wisconsin campaign finance statutes, “rendering the plaintiffs a subcommittee of the Friends of Scott Walker and requiring that money spent on such speech be reported as an in-kind campaign contribution,” according to the ruling.

“This interpretation is simply wrong,” the judge wrote.

Randa draws from McCutcheon v. FEC, the U.S. Supreme Court’s recent decision raising political contribution limits and knocking down what the court saw as walls to the exercise of free speech. He describes the high court’s ruling as a “a ringing endorsement of the full protection afforded to political speech.” It just so happened to be rendered in the weeks after O’Keefe and the Wisconsin Club for Growth filed the civil rights suit.

“In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech,” Chief Justice John Roberts wrote. “We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.”

Contrary to what the John Doe prosecutors believe, Randa said, issue advocacy, even that involving like-minded groups that share the same political philosophies as a candidate, is not a quid pro quo.

“O‘Keefe and the Club obviously agree with Governor Walker‘s policies, but coordinated ads in favor of those policies carry no risk of corruption because the Club‘s interests are already aligned with Walker and other conservative politicians,” the ruling states. “Such ads are meant to educate the electorate, not curry favor with corruptible candidates.”

The federal judge said the prosecutors effectively attempt to transform issue advocacy into express advocacy by “interpretive legerdemain and not by any analysis as to why it would rise to the level of quid pro quo corruption.”

“If correct, this means that any individual or group engaging in any kind of coordination with a candidate or campaign would risk forfeiting their right to engage in political speech,” Randa wrote.

That would include all of the left-wing organizations that prosecutors have failed to target in John Doe probes for effectively doing what the conservative groups are accused of doing, according to the plaintiffs.

“The legislative tail would wag the constitutional dog,” Randa added.

Prosecutors have effectively told the federal judge to butt out, that federal courts have no business involving themselves in state law enforcement investigations and that the prosecutors are protected under the precedents of immunity. They sought refuge under the Eleventh Amendment of the U.S. Constitution.

Randa in April and again late last week thoroughly rejected those arguments, asserting that “if the defendants are violating the plaintiffs’ constitutional rights, the Eleventh Amendment (to the U.S. Constitution) does not apply and the plaintiffs are entitled to injunctive relief.”

The prosecutors have appealed Peterson’s ruling in state court. It was not certain what Randa’s ruling would mean for the matters before those courts.

Reached late Tuesday, Schmitz declined to comment. He did tell the Milwaukee Journal Sentinel that he expects to challenge.

“I’m virtually assured we will appeal this decision,” Schmitz told the newspaper. “I have to consult with the others and my attorney” before making a final decision.

In a concluding shot, Randa asserts the government does not have a right to pursue the “possibility of corruption.”

“While the defendants deny that their investigation is motivated by animus towards the plaintiffs‘ conservative viewpoints, it is still unlawful to target the plaintiffs for engaging in vigorous advocacy that is beyond the state‘s regulatory reach,” he wrote.

“The plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect.”

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

Part of 156 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
  137. No surprise: Bice buries the lead, Walker follows the law
  138. Federalism v. individual rights: A conversation with Eric O’Keefe
  139. Report: No district attorney will investigate District Attorney John Chisholm
  140. Appeals court denies request to rehear John Doe civil rights case
  141. Voters say ‘yes’ to Walker, ‘no’ to John Doe, law expert says
  142. Vos: There will be reforms to John Doe, GAB
  143. GAB, Milwaukee County DA bail on key provision behind war on conservatives
  144. John Doe lawsuit could be headed to U.S. Supreme Court
  145. Kelly Rindfleisch will fight on in Fourth Amendment case
  146. John Doe froze conservative speech, targets say
  147. Conservatives to court: Open up records on GAB’s role in John Doe
  148. Did the GAB doctor documents to cover their tracks in John Doe?
  149. Wisconsin’s Van Hollen says goodbye to AG post, John Doe
  150. Rindfleisch appeals to Supreme Court in John Doe Fourth Amendment abuse case
  151. Audit: GAB has failed to follow the law
  152. Wisconsin Supreme Court to take up John Doe complaints
  153. ‘R word’ surfaces in wake of state Supreme Court taking up John Doe challenges
  154. GAB won’t say whether it has reauthorized its role in John Doe probe
  155. Rogue agency defied judges to carry out partisan probe of Wisconsin conservatives
  156. ‘Outside the … law’: Lawmakers call for investigation of GAB

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M.D. Kittle is national First Amendment reporter at Watchdog.org. Contact him at mkittle@watchdog.org.

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