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
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