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What about those prosecutors? Questions surround other John Doe DAs

By   /   June 19, 2014  /   No Comments

Part 84 of 156 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — As the old saying goes, it takes two to tango.

In the case of a politically charged John Doe probe into dozens of conservative targets, we often forget it took six top prosecutors to expand this secret investigative dance.

Well known by now are:

* Milwaukee County District Attorney John Chisholm, the Democrat who launched the so-called John Doe II — really, it appears, just a continuation of a lengthy John Doe investigation into former aides and associates of Republican Gov. Scott Walker when Walker was Milwaukee County executive — in late summer 2012. Chisholm’s two henchmen, assistant DAs Bruce Landgraf and David Robles, were also heavily involved.

* Francis Schmitz, the former assistant U.S. attorney brought in to serve as the John Doe’s special prosecutor.

.

SILENT TREATMENT: Four district attorneys in a multi-county, secret John Doe investigation, refuse to answer questions regarding their role – what they knew and when they knew it – in appointing a special prosecutor.

Each prosecutor is now a defendant in a civil rights lawsuit filed in federal court by conservative activist Eric O’Keefe and his Wisconsin Club for Growth. The complaint alleges Chisholm, the assistant DAs and Schmitz, as well as a shadowy for-hire investigator by the name of Dean Nickel, violated the First Amendment rights of conservative-leaning groups.

The secretive John Doe procedure, which has featured what sources have described as “paramilitary-style,” predawn raids on the homes of conservative targets, has operated under a theory that Wisconsin Club for Growth and groups like it may have illegally coordinated with Walker’s campaign during the state’s partisan recall drives of 2011 and 2012.

The names of Jane E. Kohlwey, Ismael R. Ozanne, Kurt F. Klomberg and Larry E. Nelson rarely ever come up.

These county district attorneys — Kohlwey from Columbia County; Ozanne of Dane County; Klomberg of Dodge County; and Nelson of Iowa County — aren’t defendants in O’Keefe’s civil rights lawsuit.

Yet.

But the prosecutors were integrally involved in what quickly grew from a Milwaukee County affair into a broad, five-county investigation.

These quiet DAs were spurred on by Chisholm and the state Government Accountability Board, according to court documents in another lawsuit against the GAB, and allegedly begged the presiding John Doe judge at the time to bring in a special prosecutor, who turned out to be Schmitz.

In their letter to Judge Barbara Kluka, the John Doe judge who issued the orders for the predawn raids and multiple subpoenas seizing personal property, the five district attorneys argued a special prosecutor was warranted.

“(T)he responsibility for the prosecution of the crimes alleged in the John Doe Petition is fractioned across the offices of five different Wisconsin prosecutors,” although the proceeding is “one overall undertaking and should be managed by one prosecutor with general authority in all five counties,” asserted the DAs in the letter.

Of course, there were the political considerations. Kohlwey and Klomberg are Republicans, while Chisholm, Nelson and Ozanne are Democrats. Ozanne, coincidentally, is a candidate for state attorney general.

While a John Doe probe into the Democrats’ most hated nemesis, Walker, would certainly play well in the liberal bastion of Madison, it doesn’t do much for the candidate beyond the gates of Dane and Milwaukee counties and other Democratic-centric urban centers.

“An Independent Special Prosecutor having no partisan affiliation addresses the legitimate concerns about the appearance of impropriety,” the DAs’ letter states.

According to another lawsuit O’Keefe and the club filed last month against the GAB, the state agency that oversees Wisconsin campaign and election law, Kluka in August 2013 issued orders appointing Schmitz as special prosecutor for each of the five counties in the John Doe probe.

What the accountability board had not made known, the lawsuit charges, is that Schmitz had been on the GAB’s payroll as a special investigator before his appointment as special prosecutor. The agency had provided Schmitz with office space to do his investigating.

One month later, on Sept. 30, 2013, Kluka issued the subpoenas and at least five search warrants, according to the lawsuit.

O’Keefe’s lawsuit claims the GAB had been involved in John Doe since late 2012, after being contacted by Chisholm.

Within days after state Attorney General J.B. Van Hollen declined Chisholm’s request to serve as special prosecutor in the John Doe probe in late May 2013, the GAB met with and referred the matter to the five district attorneys, according to O’Keefe’s lawsuit.

With these new revelations, some important questions beg to be answered.

* First and foremost: Did the four DAs brought into the broader investigation know about Schmitz’s role as a GAB investigator before they sought a special investigator for the multi-county probe?

* Do they think the apparent omission of Schmitz’s status with the GAB in their letter to Kluka, and their role in that appointment, might impact their status in the federal lawsuit? In short, are they worried they will be the next prosecutors-turned defendants?

* Why did they recommend Schmitz serve as special prosecutor despite Schmitz’s dearth of state prosecutorial experience, no expertise in campaign finance law and no expertise arguing cases in Wisconsin circuit or appellate courts?

Supporters of Schmitz and the John Doe probe say Schmitz was tapped because of his reputation as a Republican and as a “straight-shooter,” who served as assistant U.S. attorney in Milwaukee during former Republican President George W. Bush’s administration. Schmitz, in one court document, claims he even once voted for Walker.

Critics don’t buy what they see as the special prosecutor’s nonpartisan act, claiming any ostensible party label means nothing; it’s his prosecutorial overreach that is at question.

* Whose idea was it to appoint Schmitz?

* Was Schmitz in attendance during the meeting with the five district attorneys on June 26, 2013, at the GAB headquarters in Madison?

* Were the DAs aware the secrecy order specified that although Schmitz was supposedly appointed to run an independent investigation, the entire Milwaukee County District Attorney’s office remained agents of the probe after the special prosecutor was appointed? According to multiple sources, the secrecy order insists that members of the Milwaukee County DA’s office be present at all meetings and dispositions and that Chisholm’s office remain in control of all evidence and information.

Wisconsin Reporter attempted to ask these questions and others of the four district attorneys. They either didn’t return our request for comment or declined it. Schmitz and Milwaukee County DAs have repeatedly declined comment.

An official in the Iowa County DA’s office said Nelson is “not going to speak to you regarding this matter.”

“My understanding is that it is still under seal,” Ozanne told Wisconsin Reporter when reached for comment at his Dane County office this week.

“So you cannot comment on any of this?” Wisconsin Reporter asked.

“That’s my understanding,” the DA answered.

Last month, U.S. District Court Judge Rudolph Randa issued a preliminary injunction shutting down the investigation.

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

Presumably, that includes the secrecy order.

One legal expert with knowledge of the lawsuits told Wisconsin Reporter the DAs’ insistence that the secrecy order remains in effect even as the investigation is halted is “beggar’s belief.”

The expert, who spoke on condition of anonymity due to his proximity to the matter, said the four DAs seemed to have long ago stopped their county-level John Doe operations so there may be no need to name them in an official capacity lawsuit.

As far as the DAs being ultimately sued, as Chisholm and crew have been, in a personal capacity, the jury remains out.

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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