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Still their little secret? Questions remain on John Doe gag order

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Part 59 of 112 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Raw intimidation.

That’s how one conservative target describes the nearly three-year John Doe investigation into organizations like hers.

The worst part of the politically charged probe, she said, isn’t even that her group has been accused of crimes she insists it did not commit. It is the sense of powerlessness in knowing that she and so many other conservatives, bound by a strict court-administered secrecy order, have no way of defending their reputations.

TO REMAIN SILENT: A federal judge’s ruling striking down the secret John Doe probe into conservatives may not lift the investigation’s strict secrecy order.

“It is outright bullying, from a crowd that is constantly yapping about bullying,” the source told Wisconsin Reporter this week.  “If this isn’t bullying, I don’t know what is. It’s raw intimation.”

Despite U.S. District Court Judge Rudolph Randa’s ruling — twice — last week shutting down the Democrat-launched John Doe investigation, the source who shared her story with Wisconsin Reporter wished to remain anonymous, fearing that the gag order, which could land violators in jail, lives on.

“Our attorneys have told us to hang on, there’s still a wild ride ahead,” the source said of a legal process being adjudicated in state and federal courts.

Silence, it seems, remains golden, among the dozens of conservatives targeted in the John Doe probe, launched by the office of Milwaukee County District Attorney John Chisholm, a Democrat, in August 2012.

The probe was 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.

Wisconsin Reporter on Friday contacted several conservative organizations reportedly targeted in the probe, including Wisconsin Family Action, Wisconsin Manufacturers & Commerce, Americans for Prosperity, the Republican Party of Wisconsin and the Republican Governors Association. Only WMC returned our call, but the group declined comment.

Rick Esenberg, Milwaukee attorney and constitutional law expert, said the conservatives subject to the secrecy order are rightly erring on the side of caution.

“As a general matter with whatever secrecy order there is and whatever the terms are, assuming those terms are even constitutional, which I have grave doubts about, I don’t think Judge Randa’s order would vacate the secrecy order in and of itself,” said Esenberg, founder, president and general counsel of the Wisconsin Institute for Law and Liberty, a Milwaukee-based public interest law firm.

Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee, ordered that the prosecutors-turned-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.”

The 7th Circuit U.S. Court of Appeals promptly stayed the so-called “return-and-destroy” order in Randa’s ruling but, for now, the judge’s preliminary injunction remains in effect.

But there remains a cloud of uncertainty surrounding the John Doe’s secrecy order.

Randa’s ruling relates to a civil rights lawsuit filed in February by conservative targets of the John Doe probe.

Conservative activist Eric O’Keefe and his Wisconsin Club for Growth are suing Chisholm, two of his assistant DAs, John Doe Special Prosecutor Francis Schmitz, and shadowy Government Accountability Board-contracted investigator Dean Nickel.

The investigation has operated on the theory that the conservative organizations may have illegally coordinated with the Walker campaign during Wisconsin’s partisan recall elections of 2011 and 2012. That theory has been roundly rejected by Randa and retired appeals court Judge Gregory A. Peterson, the presiding judge in the John Doe investigation.

O’Keefe and the club contend 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.

That allegation was confirmed by the source who spoke this week with Wisconsin Reporter.

“It keeps you off balance. It makes it challenging to talk to people who see your name show up in a newspaper article. You have to say, ‘You may have read about us there, but I can’t say any more about it,’” she said of the John Doe and its secrecy order.

The conservative target said not only has her organization struggled to raise money to do its outreach and advocacy work, the group has struggled to raise funds to pay the legal fees accrued to silently defend itself.

“That was particularly frustrating,” she said, noting that the legal bills related to the investigation so far have climbed into the “thousands of dollars.”

“We were glad that people thought this was nuts and stepped up, like Eric O’Keefe,” the source said. “They have done a world of good for all of us.”

O’Keefe has “stepped up” at the peril of his personal liberty. Bound by the same gag order, he faced, and perhaps still faces, possible contempt charges.

Randa’s ruling shutting down the investigation specially covers the plaintiffs in the civil rights lawsuit, O’Keefe and club members. But the judge does state that the plaintiffs and “others,” presumably those subjected to the investigation, “are hereby relieved of any and every duty under Wisconsin law to cooperate further” with the prosecutors’ investigation.

But precisely what Randa means regarding the secrecy order remains unclear. An official in Randa’s office said staff could not interpret the judge’s ruling, and that Randa continues his policy of not discussing his decisions with the media.

Esenberg said the big problem is that relatively few people have seen the secrecy order.

“I was told that when lawyers asked for a copy of the secrecy order, when the warrants were executed, they were denied,” he said.

For now, it appears caution is the guide. Given Randa’s stern criticism of the prosecutors and their investigation, Esenberg said conservatives may find sympathy with the judge should Chisholm and crew try to enforce the secrecy order while the preliminary injunction is in effect.

“Given Judge Randa’s attitude on the whole thing … my guess is that motion would be successful” for conservative targets who challenge, Esenberg said.

For now, conservative targets such as the source who spoke to Wisconsin Reporter, have plenty to say about the John Doe investigation but worry that doing so could cost them their freedom.

“This is a classic example of (the prosecutors) trying to circumvent the will of the people,” the source said. “A majority of people voted for representatives to put these laws in place, like it or not … This is a classic case of attempting to change the law through means not provided for that, through the judiciary, through prosecution.”

“So much for checks and balances, the rule of law, the separation of powers,” she said. “These kinds of situations are at best disturbing and they fly in the face of the rule of law.”

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

Part of 112 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

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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.