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.
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.
“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.
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.
“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 firstname.lastname@example.org
- 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