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Appeals court orders release of some John Doe documents

By   /   August 21, 2014  /   No Comments

Part 106 of 146 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — A ruling by the 7th Circuit U.S. Court of Appeals maintaining some documents under seal and opening up others for public consumption is a “vindication” of conservatives’ charges of prosecutorial abuse in Wisconsin’s politically charged John Doe investigation, according to an attorney for targets of the probe.

The appeals court on Thursday granted in large part motions by conservative activist Eric O’Keefe and Wisconsin Club for Growth to seal several documents involved in the case, while denying the sealing of others. In all, the court has granted the unsealing of some two dozen document, while keeping 10 completely or partially sealed.

“We have always said the public has right to know about the abuse of conduct by the defendants in this case, and we are gratified by the court’s decision today that will allow the public to have better understanding of what’s happened,” Andrew Grossman, an attorney for O’Keefe and the club, told Wisconsin Reporter.

Watchdog file photo

‘VINDICATION': The 7th Circuit U.S. Court of Appeals on Thursday ordered to seal some documents and release others in the civil rights lawsuit involving Wisconsin’s politically charged John Doe investigation.

The court’s decision was swift.

Earlier this week, the conservatives, again, asked that the 7th Circuit seal four affidavits filed by the prosecutors-turned-defendants, as well as a “handful of related documents relying on them.”

They argued, citing a key Supreme Court decision, the documents are protected by their First Amendment rights because public disclosure would “seriously infringe on privacy of association and belief guaranteed” under the Constitution.

O’Keefe and the club charge the prosecutors “stuffed the record (and their briefs) with lengthy affidavits consisting of email messages, phone records, bank records, and the like that they had seized through raids or subpoenas.”

“These materials concern fundraising, strategy, messaging, and other speech and associational activities by Plaintiffs and parties with whom they have associated to advance their policy goals,” the conservatives claim.

It appears the court granted the plaintiffs’ request on all four affidavits, and all but one of five remaining documents under seal. A source familiar with the case tells Wisconsin Reporter the document involves a Club for Growth donor who has allowed his name to go into the sealed record in order to testify about the harassment and retribution he has faced as a result of the secret investigation.

Wisconsin Report asked Grossman about the matter, but the attorney said, as of Thursday afternoon, that information remained under seal and he couldn’t identify the donor.

The court didn’t set a timeline for the release of the unsealed court documents; the records could be made public as soon as late Thursday afternoon.

O’Keefe and the club have asked that many of the records be open for public review. They say “(e)xcessive secrecy” surrounding the investigation has “frustrated the public’s right to be informed of the activities of its government and elected representatives.”

“The result has been, until quite recently, to keep the public in the dark regarding a massive abuse of governmental power by officials wielding criminal law to intimidate activists and silence political speech,” the plaintiffs argue.

Still, they assert there are reasonable limits on what information should be unsealed.

The 7th Circuit has dealt expeditiously with the issues before it since taking the case.

In May, U.S. District Court Judge Rudolph Randa shut down the investigation, launched in late summer 2012 by Milwaukee County District Attorney John Chisholm, a Democrat. Randa also denied the motion of prosecutors-turned-defendants — including Chisholm, two of his assistant DAs, John Doe special prosecutor Francis Schmitz, and a contracted investigator — to dismiss the civil rights lawsuit filed against them.

The prosecutors immediately appealed to the 7th Circuit.

The appeals court previously issued the release of hundreds of pages of court documents in the case, in which a media coalition had sought to intervene to unseal the John Doe records. A member of that coalition didn’t immediately return Wisconsin Reporter’s request for comment.

Grossman said the court’s ruling Wednesday vindicates the conservatives’ claims their First Amendment rights have been injured, abuses that include attacks on their political speech and association rights.

The lawsuit, filed in February, claims Chisholm and crew, in their multi-county investigation into dozens of conservative organizations, and only conservative organizations, was nothing more than a partisan witch hunt, retaliation for the right’s big policy victories in recent years.

As spelled out in previous court documents, the prosecutors have been operating under a legal theory the conservative groups may have illegally coordinated with the campaign of Republican Gov. Scott Walker during Wisconsin’s partisan recall elections.

Earlier this summer, mainstream media headlines screamed of a “criminal scheme” led by Walker, verbiage included in the court documents previously unsealed. In short order, Schmitz’s attorney released a statement asserting Walker wasn’t a target of the investigation.

Sources say documents slated to be released will clear up that confusion.

Sources also tell Wisconsin Reporter the court-ordered documents dump will for the first time open up briefings by O’Keefe and the club that will more clearly explain conservatives’ charges of prosecutorial abuse.

The 7th Circuit also granted some of the prosecutors’ motions to seal certain documents, including Schmitz’s concurrence with most of the conservatives’ motions.

And the court granted the prosecutors’ request to file redacted versions of their court filings in the public record.

“Appellants shall file by August 26, 2014, new versions of their redacted briefs that exclude only the information this court has now permitted to remain under seal,” the ruling states.

“The parties may raise any arguments regarding the sealed documents at oral argument” in the appeal, slated for Sept. 9.

Part of 146 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

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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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