By M.D. Kittle | Wisconsin Reporter
MADISON, Wis. — Expressing deep concerns about a federal incursion on states’ rights, the U.S.Court of Appeals for the 7th Circuit on Wednesday reversed a lower-court injunction that had shut down a politically charged John Doe investigation into dozens of conservatives groups.
The court also backed up state claims of immunity and ordered a federal civil rights lawsuit against the secret probe’s prosecutors to be dismissed.
It was undoubtedly a tough day in court for Eric O’Keefe and the Wisconsin Club for Growth, conservative targets of the investigation, launched more than two years ago by Milwaukee County District Attorney John Chisholm, a Democrat.
But while the mainstream media headlines will scream victory for the prosecution, Wisconsin’s Secret War is far from over.
The court may have had its concerns about perceived federal interference into state business, but the investigation remains stalled, as David B. Rivkin Jr., lead attorney for O’Keefe and the club pointed out in a statement declaring that government abuse of power will not go unchecked.
“The Seventh Circuit’s decision today, while disappointing, does not revive the John Doe investigation, which John Doe Judge Gregory Peterson found violated state law,” Rivkin wrote, noting Peterson’s ruling in January that quashed several subpoenas because prosecutors had failed to show probable cause.
Rivkin said the ruling does not lend any support to allegations by Chisholm and crew that the club and at least 28 other conservative organizations may have illegally coordinated with Gov. Scott Walker’s campaign during Wisconsin’s partisan recall efforts in 2011 and ’12. As has been well documented in court, the prosecutors had failed to identify a single issue ad by the club that was coordinated with the Walker campaign, or had anything to do with the governor’s campaign.
“And it does not alter our resolve. We will ask the Seventh Circuit to correct today’s mistaken decision, and we will continue to fight this abuse of government power,” Rivkin added.
The ruling, issued by 7th Circuit Judge Frank Easterbrook, takes aim at U.S. District Judge Rudolph Randa’s ruling in May that ordered the preliminary injunction, and dismissed the prosecutors claims that they, as state government actors, are immune from such lawsuits — certainly in federal courts.
“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments,” Easterbrook wrote.
While the conservative plaintiffs have built a case alleging their First Amendment rights have been trampled on by the prosecutors in a partisan “witch hunt” that has featured “synchronized, predawn, paramilitary-style” raids on the homes of conservative targets, the court ruled that the federal courts have no right to get involved.
“We hold that this case does not present a situation in which state proceedings may be displaced,” Easterbrook wrote.
The 7th Circuit’s order remands the case back to the federal district court where the civil rights lawsuit is to be dismissed. Gone with the dismissal, at least for now, is the conservative’s pursuit of personal damages from the prosecutors.
“What we have said shows not only that an injunction was an abuse of discretion but also that all defendants possess qualified immunity from liability in damages,” Easterbrook wrote. He goes on to note that Randa’s views may be vindicated, but until then public officials enjoy the benefit of qualified immunity from liability in damages.
The court notes myriad transgressions of the investigation, including its assertion that the “subpoena issued to O’Keefe is extraordinarily broad, covering essentially all of the groups records for several years — including records of contributors that O’Keefe believes are covered by a constitutional right of anonymity.”
Indeed, many court decisions, including rulings from the U.S. Supreme Court, have protected long-established anonymous speech.
And it was Easterbrook, during oral arguments earlier this month in Chicago, who questioned the constitutionality of gag orders in John Doe investigations, asserting that they appear to be “screaming with unconstitutionality.”
But the 7th Circuit made it clear in its ruling: It is not getting into the merits of the case for either side; the court is simply ruling on whether the federal courts should be involved in the case.
In the ruling, Easterbrook, appointed to the court by President Ronald Reagan, cites the Anti-Injunction Act, which “embodies a fundamental principle of federalism.”
“(S)tate courts are free to conduct their own litigation without ongoing supervision by federal judges, let alone threats by federal judges to hold state judges in contempt,” Easterbrook writes.
Randa has made veiled threats to John Doe special prosecutor Francis Schmitz, advising him not to push the boundaries of the judge’s preliminary injunction through contact with targets.
There is a significant point of dispute between the conservative plaintiffs and the 7th Circuit decision, which asks whether the plaintiffs suffer “irreparable injury.”
“O’Keefe and the Club say yes, because donations have dried up, but that’s not the right temporal perspective,” Easterbrook writes. “We must ask whether the injury would be irreparable if the federal court were to stay its hand. And it is hard to see that kind of injury because plaintiffs obtained effective relief from Judge Peterson before the federal judge acted.”
Not quite, the conservatives have argued. Before Peterson took over as presiding judge in the investigation, the previous court-appointed arbiter, Judge Barbara A. Kluka, some targets assert, was nothing more than a “rubber stamp” who handed out subpoenas and warrants like Halloween candy.
“(P)ublic records indicate that she approved every petition, subpoena, and search warrant sought in the case, and purportedly reviewed hundreds of pages of affidavits and evidence, in just one day’s worth of work,” a brief by O’Keefe’s attorney states.
And then, suddenly, the judge was gone.
“Despite presiding over aspects of the secret criminal investigation for over a year, Judge Kluka immediately recused herself for an unexplained ‘conflict,’” the brief notes.
Wisconsin’s unique John Doe probes are akin to grand jury investigations, without the benefit of a jury of peers. One judge presides over the procedure, and is vested with extraordinary powers to compel witnesses to testify in order to determine whether there is evidence to suggest a crime has been committed. And targets and witnesses can say nothing publicly about the investigation, at the peril of going to jail on contempt charges.
Peterson’s decision was immediately appealed to the state’s 4th District Court of Appeals in Madison, which saw nothing wrong with the activities of the multi-county investigation. Unnamed petitioners and Walker’s campaign then asked the state Supreme Court to take the case.
As Wisconsin Reporter first reported Wednesday, the high court has not acted seven months after it received the first petition.
One inside source suggested the divided court was hoping the federal appeals court would settle the issue once and for all so the state court doesn’t have to deal with the political headaches and heat surrounding the John Doe.
“I think (the court) may be looking at the pendency of the federal action, and thinking, ‘Maybe the federal court will end all of this and we won’t have to put ourselves in a position to decide whether to recuse ourselves or rule in this case,’” said the source, who spoke on condition of anonymity due to his proximity to the case.
The legal expert said conservative members, who hold a slight majority on the court, may be concerned about the political fallout from ruling in favor of the Club for Growth, which has during the past several years pumped hundreds of thousands of dollars into issue ads showcasing the pros of the right-leaning justices and attacking the records of their challengers.
In last year’s Supreme Court election, the club spent at least $287,000 on issue ads highlighting conservative Justice Patience Roggensack, who went on to win another 10-year term.
While the left may excoriate them if they don’t recuse themselves, there’s nothing governing the court that demands the justices to do so.
Left-leaning Justice Ann Walsh Bradley already has begged off the case because her son, John Bradley, practices law with Dean Strang, an attorney representing one of the unnamed petitioners. Bradley writes that her son has had no involvement in the case, but says she must step aside in deference to “judicial impartiality.”
But doing so would only underscore the John Doe prosecutor’s theory that issue advocacy can be transformed into express advocacy, and therefore be subject to regulation, First Amendment experts say, a point they vehemently contest.
The idea that issue advocacy represents a contribution has been repeatedly rejected by the courts, including the Wisconsin Supreme Court.
But the 7th Circuit holds tightly to the concept of federalism in its ruling, asserting that Randa “waded into a vexed field of constitutional law needlessly.”
“Judge Peterson had already concluded that the investigation should end as a matter of state law, because prosecutor Schmitz lacks evidence that state law has been violated,” the ruling states. “The result is an injunction unnecessary at best, advisory at worst.”
Rivkin, the attorney for the club and O’Keefe, blasted the decision for not honoring the federal court’s “duty to vindicate and protect American rights under the U.S. Constitution.”
“The Wisconsin Club for Growth and Eric O’Keefe did not only challenge a subpoena or a John Doe proceeding — as the Seventh Circuit assumed — but a years’ long campaign of harassment and intimidation by Milwaukee County District Attorney John Chisholm to retaliate against the Club, Mr. O’Keefe, Wisconsin conservatives, and Governor Scott Walker,” Rivkin said in the statement.
He pointed to public statements by a whistleblower in Chisholm’s office during the 2011 recall campaigns that the DA declared it was his “personal duty to stop Walker” and undermine the governor’s economic reforms, particularly those involving public-sector collective bargaining.
“The Seventh Circuit’s view that a federal court is powerless to enjoin this blatant abuse of prosecutorial power in violation of citizens’ First Amendment rights is simply wrong,” Rivkin said.
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- Recusal in John Doe case raises questions of fairness, purpose
- Absolute immunity makes it tough to prosecute the prosecutors of John Doe
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- ‘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
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- Appeals court stalls judge’s order halting John Doe probe
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- Lawmakers call for review of GAB’s secret John Doe activities, funds
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- Appeals Court declares portions of Wisconsin campaign finance law unconstitutional
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- 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
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- John Doe targets sue Wisconsin’s Government Accountability Board
- Federal judge says his order halting John Doe probe should be clear to prosecutor
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- ‘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?
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- 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
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- 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
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- 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
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- Is John Doe story colored with a bit of ‘Macbeth?’
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- 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
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- 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
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- $775,000 and rising — Wisconsin taxpayers’ bill to defend John Doe prosecutors
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- Reform bill would open up the John Doe books to taxpayers
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- Secretive John Doe special prosecutor who fancies a good leak screams secrecy breach
- Kelly Rindfleisch hopes to avoid becoming first John Doe political prisoner
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- U.S. Supreme Court could soon decide whether to take John Doe Case
- Did chief justice show her hand in dissenting John Doe opinion?
- New documents expose GAB’s ‘parallel’ probe expenditures
- Lawmaker: Chief justice’s civil rights complaint is ‘pathetic’
- John Doe reform bill stalls in Legislature
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- U.S. Supreme Court to consider hearing John Doe-related case
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- Political prisoner Kelly Rindfleisch on home confinement, working for O’Keefe
- Warrants command John Doe targets to remain silent
- U.S. Supreme Court denies review of John Doe-related case
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- John Doe reform bill stuck in legislative waiting game
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- Kelly Rindfleisch: ‘I fear I will never get justice’
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- Cindy Archer: Chisholm’s John Doe was ‘campaign of intimidation’
- National Review: Political John Doe victimized 16-year-old boy
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- Vos: Time to ‘double down’ on GAB reform in wake of reported IRS links
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- Wisconsin Supreme Court shuts down John Doe investigation
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- Kelly Rindfleisch seeks release following death of John Doe probe
- Legal experts on right and left seek review of Rindfleisch John Doe conviction
- John Doe horror stories: ‘I felt completely helpless in my own home’
- Hillary Clinton plays victim card
- Legal expert: Abrahamson and John Doe civil rights cases like day and night
- Attorney: audio confirms traumatic John Doe raid of Cindy Archer’s home
- John Doe prosecutors open new assault on conservative targets
- John Doe prosecutors’ tape of raid raises questions about missing moments
- John Doe reform bill starts to move again
- Conservatives ask Abrahamson to turn over John Doe-related records
- John Doe investigators say there are more tapes of raids
- Legal defense of rogue John Doe agents costs taxpayers nearly $1.2 million
- Explosive email exposes GAB attorney’s partisan motives in John Doe probe
- An open letter to the Milwaukee Journal Sentinel’s Patrick Marley
- Wisconsin GAB reform bill could be ready in a few weeks, sources say
- Updated complaint shines more light on dark day in John Doe
- Partisan Falk once urged GAB to ‘get around constitutional right to free speech’
- Legislature to take up John Doe reform in October, GOP leadership says
- Knudson on GAB: ‘We need to take this thing apart’
- Did the GAB ‘illegally coordinate’ with left-leaning groups?
- John Doe prosecutors get a win, practice legal gymnastics again
- Wall Street Journal: GAB targeted conservative justices in John Doe defense
- Craig says bill to investigate GAB’s John Doe activities coming soon
- New emails show GAB assisting in John Doe defense after judge said stop
- ‘Nonpartisan’ GAB staff has partisan past
- John Doe political prisoner Kelly Rindfleisch nears end of her sentence
- Will the voices of the John Doe victims be heard?
- Supreme Court will not hear Kelly Rindfleisch’s Fourth Amendment case
- Judge orders GAB to turn over emails with liberal groups
- The silence of the left is the Dems’ transparency hypocrisy
- GAB chairman: ‘I wasn’t offended’ by John Doe raids
- Sources: Bill would overhaul controversial GAB
- GAB fighting to keep its secrets out of public eye
- GAB overhaul would eliminate blank checks on taxypayer dime
- John Doe victims to tell their stories in Fox News special
- Fiery GAB hearing invokes ghost of Joe McCarthy
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- Prosecutor plugged into ‘hotspot’ to email sensitive John Doe docs
- Judge holds off on release of GAB’s ‘very embarrassing’ records
- Craig blasts newspaper for Dem ‘press release’ coverage of John Doe bill
- Hyperbole happens as John Doe reform passes on party-line vote
- Fireworks coming on GAB and campaign finance reform debate
- GAB living on borrowed time?
- Back to the Future: Dems walk out on vote again
- Newly released John Doe docs reveal much more about rogue GAB
- Lawmakers want answers on GAB director Kevin Kennedy’s IRS conversations
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- Target of political John Doe targets reluctant senators in robocall campaign
- Kevin Kennedy’s spin to save the GAB and his job contradicts the record
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- GAB’s defense of John Doe database raises more question than answers
- Spokeswoman: Fitzgerald not ruling out extraordinary session on GAB bill
- GAB kept pushing political probe despite daunting evidence problems
- Memo to Legislature: Take a closer look at GAB Judge’s conduct
- Senate passes GAB overhaul, campaign finance reform in ‘extraordinary’ session
- Conservatives to court on GAB’s secrets: ‘Enough is enough’
- Milwaukee citizens petition Walker to remove DA John Chisholm from office
- Rogue GAB pushing strained legal arguments to keep its secrets
- GAB just about dead as final overhaul bill passes Assembly
- Speech cop, prosecutors argue for secrecy in the face of GAB extinction
- Milwaukee Journal Sentinel mentions petition to remove Milwaukee DA — finally
- Taxpayers on hook for at least $187,000 to defend rogue GAB
- Court filing shows GAB’s Kennedy asking Lois Lerner if IRS ‘would be interested’
- Lawmaker asking GAB to open its John Doe records
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- John Doe victims still in legal limbo four months after Supreme Court ruling
- John Doe political prisoner Kelly Rindfleisch completes probation
- Lawmaker advises GAB’s Kevin Kennedy to ‘obey the law’
- Walker yet to sign GAB overhaul bill
- Wisconsin Supreme Court to rule on motion to reconsider John Doe ruling
- Wisconsin Supreme Court reaffirms John Doe is dead
- John Doe prosecutor gets no respect from targets he intimidated for years
- Former John Doe special prosecutor has little chance before high court
- Political speech ‘watchdogs’ urge continuation of illegal John Doe
- Attorney General: End John Doe case now
- Attorney General: John Chisholm broke campaign finance law
- Milwaukee County Board signals support to fight for illegal John Doe
- The Milwaukee Journal Sentinel’s selective outrage on transparency
- District attorneys want out of political John Doe business
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- O’Keefe to Chisholm: Go ahead, make my day
- Bill creates legislative committee to investigate John Doe investigations
- Chisholm quietly returns illegal campaign contribution
- John Doe target: ‘Where and when does this abuse end?’
- ‘Good government’ group that celebrated Lois Lerner mourns for GAB
- Falk blasts incompetence of GAB, prosecutors in John Doe, emails show
- Defense attorney: Liberal John Doe cheerleaders beware
- Bad Santa: John Doe prosecutor delivers letters to the people he spied on
- Craig asks attorney general to compel GAB to open up John Doe records
- Former John Doe prosecutor not in compliance with court order
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- John Doe prosecutors ‘just playing games,’ says Cindy Archer’s attorney
- Supreme Court says no to John Doe prosecutors; Abrahamson lashes out
- Mainstream media displays selective principles on open records
- John Doe targets tell Supreme Court that prosecutor is not complying with order
- Schimel says decision coming soon on open records complaint against GAB
- Walker’s office won’t open hearing into Milwaukee County DA John Chisholm
- Petitioner against John Chisholm: Walker’s office dropped the ball
- Chisholm’s use of big guns in John Doe fight raises legal questions
- Lawmaker takes one more try at records request with reluctant GAB
- Schimel says John Doe prosecutors have no right to illegally obtained ‘evidence’
- GAB’s John Doe secrets could soon be released to the public
- John Doe targets: Chisholm has no right to share illegally seized ‘evidence’
- Conservatives: Attorney General alone has authority over John Doe petition
- AG Brad Schimel on John Doe authority question: It’s complicated
- Court denies DAs’ motion to open up John Doe records to private attorneys
- Chisholm’s unaccountable defense: ‘The records do not exist’
- Unsealed John Doe documents show view from Chisholm’s world
- Did John Doe cost Larry Nelson an election?
- Schimel: John Doe investigators living in ‘Alice in Wonderland world’
- First John Doe documents released from lawsuit show GAB’s partisan motives
- Vos names commissioners, end of GAB inches closer
- Will Senate take up Assembly amendment watering down John Doe reforms?
- Important court days coming soon to John Doe Land
- John Doe freedom fighter wins big victory against the IRS
- Oral arguments set in John Doe civil rights lawsuit
- Attorney to Milwaukee Journal Sentinel reporter: ‘Your article is ridiculous’
- Judge Lynn Adelman on John Doe records custody: ‘I don’t care about the law’
- Documents raise questions about John Doe judge’s review of warrant
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- New docs show GAB spent more than 2,500 hours on John Doe probe
- Chisholm invokes his illegal John Doe probe in re-election campaign
- Haas’ emails in GAB’s John Doe probe should give senators pause
- Liberal judge dismisses civil rights lawsuit against John Doe prosecutors
- John Doe victims stuck with GAB retread until at least January
- Mark Gundrum, architect of John Doe-driving GAB, could be next Supreme Court justice
- Before lamenting the end of the GAB, read this
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- Free-market group sues John Doe ‘ringleaders’ for violating federal law
- Cindy Archer appeals John Doe civil rights lawsuit to 7th Circuit
- Constitutional law experts come to defense of conservatives targeted in John Doe probes
- Schimel opposes John Doe prosecutors’ petition before U.S. Supreme Court
- Wall Street Journal: Hold John Doe prosecutors accountable
- Where was Russ Feingold’s defense of civil liberties in abusive John Doe probe?
- John Chisholm, the Captain Ahab of prosecutors, wants another shot at John Doe
- Fitzgerald: GAB’s Michael Haas not long for new administrator role
- Craig renews call for legislative investigation into John Doe investigators
- Different day, same old tired and faulty John Doe narrative by mainstream players
- More evidence points to prosecutors, investigators as source of John Doe leaks
- Schimel still weighing options on John Doe leaks
- John Doe dies again: Supreme Court won’t hear Chisholm’s case
- On John Doe: ‘People shouldn’t face jail time for speaking out on the issues’
- Attorney says conservatives still waiting for justice in John Doe saga
- Conservatives seek return of possessions, criminal probe of John Doe leaks
- Under fire, John Doe prosecutors now seek secrecy
- Former John Doe prosecutor continues to practice delay, attorney says
- Document suggests prosecutors leaked sealed John Doe records to Guardian
- Federal judge scolds John Doe prosecutors for ’emergency motion’
- Rep. Dave Craig: Time has come to investigate John Doe investigators
- Supreme Court won’t investigate John Doe leaks
- John Doe civil rights lawsuit about to heat up
- AG says grand jury likely to probe John Doe leaks
- Attorney General calls for investigation into John Doe leaks
- Joe Doe lawsuit seeks to answer whether prosecutors have boundless immunity
- An open letter to the Wisconsin Supreme Court from a John Doe victim
- Latest document dump reminder of how abusive Wisconsin’s John Doe probe was
- John Doe probe will never be over for furious Democrats
- Does prosecutorial immunity trump justice in John Doe-related lawsuit?
- Attorney general’s office remains silent on John Doe leak probe
- Seized documents could raise legal questions for John Doe special prosecutor, GAB