By M.D. Kittle | Wisconsin Watchdog
MADISON, Wis. – Newly unsealed documents in a lawsuit against the state Government Accountability Board further reveal a rogue agency all in from the beginning of a political John Doe investigation into dozens of conservative groups and the campaign of Gov. Scott Walker – even as their hapless special prosecutor was “really questioning the validity of the case.”
Thursday evening, Waukesha County Court released 182 pages of emails, transcripts of closed-door meetings and other previously sealed documents after attorneys for the GAB and the plaintiffs came to terms on precisely what can be made public — for now. The judge in the case has said more records will be made public when the lawsuit goes to trial.
The records release comes just as the Legislature takes up a bill that would overhaul the troubled accountability board.
There’s a lot of black on the records, with lengthy sections, even complete pages, redacted.
But what remains is a startling picture of an agency that zealously pursued a problem-riddled campaign finance and illegal coordination investigation in the face of multiple warnings that they were on the wrong path. An agency, that despite its public comments, seemed very much in control of a secret probe that has been struck down as unconstitutional and described as a “‘perfect storm’ of wrongs.”
And emails from key GAB employees, like former staff counsel Shane Falk, raise more questions about the partisan nature of the “nonpartisan” agency.
“Bottom line, he is really questioning the validity of the case,” Falk wrote in an email, dated Nov. 6, 2013, to GAB Director Kevin Kennedy and other key staff members involved in the investigation. Falk was referring to Francis Schmitz, the former U.S. attorney the GAB tapped to serve as special investigator and John Doe special prosecutor at a rate of $130 an hour.
Falk sent the email a little more than a month after law enforcement officials served warrants (applied for by the GAB) in predawn, paramilitary-style raids.
The unsealed records show John Doe investigators obtained five physical search warrants, 17 subpoenas in the Madison area, and 12 subpoenas outside of Madison, including Milwaukee and Washington, D.C.
In the November 2013 email, Falk berates the special prosecutor as a man out of his depth.
“He said he is having a rough time with all the attorneys and is worried about arguing the case to the Judge,” Falk wrote. “Essentially, he was whining that I was beating him up too much and he is really trying to get up to speed on the law.”
Again, Schmitz, the special prosecutor is trying to “get up to speed on the law” a month after investigators raided the homes of Wisconsin citizens and seized millions of pages of their documents.
Schmitz, as special prosecutor, had to appear in court around that time to defend the raids and the John Doe probe at large.
“He said that he has been getting beat up by these attorneys and felt really beat up by Esenberg,” Falk wrote, apparently a reference to Rick Esenberg of the Wisconsin Institute for Law & Liberty, which was involved in the defense of some of the Doe targets.
“He also admitted to me that he, David and Bruce have been discussing things and in light of the motions, were very fearful that they had missed something. He said that he knew we had discussed this before and seemed certain, but they are really worried that we missed something,” Falk wrote, referring to David Robles and Bruce Landgraf, the Milwaukee County assistant district attorneys who were integrally involved in the John Doe probe.
In the same email, there is a statement that permeates the communications from the opening days of the investigation through the initial court challenges, a kind of arrogance that defies the investigator’s creed.
Falk asserts that the conservatives’ legal counsel, attorneys who specialize in First Amendment and campaign finance law, don’t have any idea what they are talking about when they argue that their clients have broken no laws.
“There is the reality of the law and what they think the law should be. They conflate the two and misrepresent the reality,” Falk wrote.
Conservative targets of the long-idle investigation believe the same about the prosecutors and GAB agents, and multiple courts have sided with those conservatives.
From the beginning
The newly released documents on the conduct of the GAB, which regulates Wisconsin’s campaign finance, elections, lobbying and ethics law, show the agency was in on “John Doe II,” as it has been billed, from the beginning.
An email dated Aug. 8, 2012, from Robles to GAB Ethics Division Administrator Jonathan Becker discuss a meeting on the John Doe. Milwaukee County District Attorney John Chisholm, a Democrat, was getting permission to roll his “John Doe I” into an expanded campaign finance investigation. The first Doe was, according to one whistleblower, a vendetta investigation of Walker when he was Milwaukee County executive. That probe ended with six convictions, but only two of them had anything to do with the original intent of Chisholm’s ever-expanding secret investigation.
In November 2012, Robles sent an email to his partners at GAB advising them to use segregated Gmail addresses for “stuff related to the Badger Doe.”
Falk seems to take the reins early on, getting the investigative wheels in motion.
“As you may know, things are really heating up here,” he wrote to Robles in an email dated Feb. 28, 2013. “Kevin (Kennedy) and Jon (Becker) would like a status on what is happening with Badger Doe and update you on a communication Kevin had with the IRS.”
Kennedy, as we have learned in recent months, is a longtime “personal friend” of former IRS tax-exempt director Lois Lerner, who led the IRS division accused of targeting conservative groups seeking 501(c)(4) nonprofit status.
The Wall Street Journal in July reported that John Doe investigators asked the IRS to look into a conservative group that was a primary target of the probe.
Asked about his relationship with Lerner earlier this month during a legislative hearing, Kennedy sounded indignant.
“Seriously? Have you no decency?” Kennedy sharply responded to Republican state Sen. Chris Kapenga’s question. “That’s a question right out of Joseph McCarthy,” Kennedy said, his voice rising and cracking with anger.
Setting the table
In a closed session in June 2013, the retired judges presiding over the GAB unanimously approved launching the agency’s investigation (after nearly a year of staff members working closely with Milwaukee County prosecutors). They expressed concerns that the agency needed to accomplish a great deal and quickly.
The notes from the meeting show an agency driving the manifold parts of an unprecedented, multi-county investigation.
Board members wondered whether reserve Judge Barbara Kluka, who was presiding over the Milwaukee County investigation, would authorize the GAB to conduct an investigation. GAB Judge Gerald Nichol, now chairman of the accountability board, said he was confident Kluka would, “based on conversations he had previously” with the judge in which she said she “would be open to any requests from the G.A.B. to get involved in the John Doe.”
Nichol, it appears, was gaming the system before the GAB officially jumped into the investigation.
Kluka, who removed herself from the case a few weeks after the home raids citing a conflict of interest, has been accused of being a “rubber stamp” for the prosecutors and the GAB.
Even though some board members expressed disbelief that the conservative groups, usually “so savvy,” would be engaged in such “blatant” campaign finance offenses, they still seemed unsure of precisely what those offenses were.
Judge Michael Brennan asked what Chisholm and his assistants were “relying on to bring this case.”
“He asked if it is just based on emails that have been obtained, emails believed to still be out there and oral testimony or is if there is something else that is going to be looked into,” the confidential meeting notes state. “Mr. Falk indicated it is a combination of all of that information.”
The GAB had no idea what any of it would cost taxpayers, estimating charges for documents storage, for instance, that has come nowhere near the actual expenses three years later.
At that time, the GAB was setting up the meetings that would bring five counties into the probe and put Schmitz at the helm. Before they did, they considered contracting with attorney Paul Schwartzenbart to serve as special prosecutor. Schwartzenbart, who would eventually become the GAB’s defense attorney in the state lawsuit, wanted $240 an hour to do the job.
Much has been made about Schmitz’s political background. The mainstream media in its defense of the Doe investigation has declared the special prosecutor a Republican because of his statements in a previously released court document.
The newly disclosed records note:
“Mr. Schmitz indicated that he had very little by way of political background, and his only real entrance into the political forum was when he was applying for the U.S. Attorney position that was ultimately given to Steve Biskupic. He indicated that he joined the Republican Party for this purpose and had minimal contacts with some party officials at that time, but nothing extensive.”
Not quite the conservative prosecutor the John Doe defenders have painted him to be.
The wheels on the investigation appear to have come off shortly after the raids.
In an email to Kennedy, Falk criticizes Robles for failing to add an attorney to an attorney/client privilege spreadsheet. It turned out the firm worked with the Wisconsin Club for Growth.
“UGH!” Falk wrote. “Fran is really worried now.”
Schmitz had reason to be worried. O’Keefe’s attorneys were indeed asking some very tough questions about the investigation.
On Oct. 10, 2013, Schmitz emailed Falk worried that O’Keefe’s legal counsel was calling the investigators’ tactics “heavy handed.”
Two weeks later, Falk warned his colleagues, “We have some vulnerability here.”
But on several occasions as the John Doe cabal was being challenged in court, Falk attempted to steel the courage of the special prosecutor.
“As I also said, if you think me crazy after reading this, I will shut up. But … me thinks you will start believing big time,” Falk wrote in an email on Nov. 6, 2013. By then, conservative targets were asking Kluka’s successor, Judge Gregory Peterson, to quash the subpoenas. He did, in January 2014, finding that the investigators had shown no probable cause that a crime had been committed.
‘Parallel investigation’ no more
Kennedy has insisted that, contrary to the claims of conservative targets, that the GAB did not lead the probe, that it conducted a “parallel investigation.”
GAB emails repeatedly suggest otherwise.
“Nate and I offered to go through (Landgraf’s) brief today and make some general comments, along with softer suggested language for the GAB references. We offered to do this rather than a straight edit because we were rewriting so much of the brief,” Falk wrote in a December 2013 email to Kennedy.
Kennedy was reluctant to disclose just how involved the GAB was.
“Please note that (Landgraf) relied heavily on GAB involvement. Nate and I are very concerned that he was too strong and will modify it; however, this response will be public and so we need to fish or cut bait as far as GAB’s involvement.”
“I think you must forewarn the Board members that GAB involvement will be public in a big way …”
The unsealed documents contain several partisan tweets sent by GAB staff counsel Nathan Judnic in February 2011. during the battle over Walker’s public employee collective bargaining reform bill known as Act 10.
“Stand in solidarity. Kill the bill. Support public employees and their right to bargain. Rally @ Capitol @ noon Tues. and Wed,” he wrote in one tweet.
“Time for some good old-fashioned rallying. Tuesday and Wednesday @ the Capitol. Stand up for Wisconsin public employees against Guv. Walker,” stated another message.
Kennedy has defended his staff, including Falk, who once chastised Schmitz for public statements that Falk believed would complicate the campaign of Democratic gubernatorial candidate Mary Burke. He insists they are simply “passionate” about their jobs.
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- 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’
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- Expert: It’s as if GAB decided ‘Citizens United didn’t exist’
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- 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
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- 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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- Conservative group asks court to stop John Doe ‘constitutional injury’
- Conservatives to appeals court: ‘You don’t know Doe’
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- The silence of the left is the Dems’ transparency hypocrisy
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- Kevin Kennedy’s spin to save the GAB and his job contradicts the record
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- 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
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- Court filing shows GAB’s Kennedy asking Lois Lerner if IRS ‘would be interested’
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- Lawmaker advises GAB’s Kevin Kennedy to ‘obey the law’
- Walker yet to sign GAB overhaul bill
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- Lawmaker takes one more try at records request with reluctant GAB
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- 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
- Bruce Murphy: When journalists (don’t) attack
- 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
- A year after Supreme Court pronounces John Doe dead, conservatives still waiting for justice
- Fitzgerald: GAB’s Michael Haas not long for new administrator role