By M.D. Kittle | Wisconsin Reporter
MADISON — The district attorney isn’t talking.
The keeper of records isn’t talking.
Daniel Bice isn’t talking about who’s talking.
But somebody with information on the super-secret-turned very public John Doe investigation into people once associated with Republican Gov. Scott Walker is divulging at least enough information to make headlines and spur campaign rhetoric.
One legal expert tells Wisconsin Reporter that whoever is leaking information to the media appears to be connected to the John Doe probe, and could pay a legal price for doing what such secret investigations strictly prohibit on penalty of jail time — talking.
While Democrats wait for the legal and political “bombshell” of charges connecting Walker to a probe that has yet to implicate the governor, political insiders say their prayers probably won’t be answered before Tuesday’s recall election.
Milwaukee Journal-Sentinel investigative reporter Bice has covered the story of John Doe over its run of more than two-plus years. He’s broken a lot of stories, picked up plenty of leaked information and whipped up the hopes and imagination of Walker haters.
The investigation has trained on several Walker aides and associates when he served as Milwaukee County executive. Six people have been charged, one convicted, on accusations ranging from campaigning for Walker on government time to embezzlement.
Walker has not been charged with any wrongdoing, but that hasn’t stopped his opponent, Milwaukee Mayor Tom Barrett, and Barrett's backers from either calling Walker a crook or charging that he’s hiding something. Walker does have a legal defense fund, and has declined to release emails in the case, in part citing that he is respecting the terms of the investigation.
John Doe bits and pieces have popped up in the weeks leading up to the election, but nothing substantive. Rumors and innuendo have choked social networks.
On Thursday, reports surfaced that Walker’s former county spokeswoman, Fran McLaughlin, was granted immunity in the case, the 13th person to be protected.
Bice’s latest No Quarter column, written just days before the recall election, posits that “after more than two years of raids, subpoenas and closed-door courtroom testimony,” the investigation comes down to “determining the significance of a private email exchange in the spring of 2010 between Walker and his longtime campaign advisor John Hiller over a potential county real estate contract in which Hiller had a financial stake.”
“Those familiar with the exchange — the emails were among the documents seized by authorities — say it has to do with the county's efforts to find private or public office space for its Department on Aging. Milwaukee County prosecutors have been investigating whether there was an attempt at bid-rigging in that case,” Bice wrote.
The reporter’s unidentified sources described the implications of the email as everything from a “bombshell” to “legally inconclusive,” Bice wrote.
His sources refused to release the documents because of the secrecy of the order. “Anyone divulging information from the closed court hearings could face criminal charges under the secrecy order,” Bice wrote.
While Bice has denied as much, legal expert Rick Esenberg said the leaks appear to be coming from those subject to secrecy.
“We know that because the reporter in the paper has told us he will not release certain emails discussed because of the secrecy order,” said Esenberg, president and general counsel of Wisconsin Institute for Law & Liberty, a free-market organization, noting the legal implications. “It’s not OK to talk a little bit about something you’ve been ordered not to talk about at all.”
Bice has said he has no plans to out his sources, but he has at times said who they are not.
“I have said in other forums that I don’t know of anyone who broke the law by talking to me for my story. That remains true,” he said in a Q&A column earlier this year.
Wisconsin Reporter is interested in who is talking, and if that talking is politically charged.
Milwaukee County District Attorney John Chisholm declined to comment when asked if he would comment on the leaks and whether the Barrett campaign, the Democratic Party of Wisconsin, the Republican Party of Wisconsin or any other recall-related players have been in touch with his office regarding the John Doe investigation.
“He wouldn’t talk about it, period, for obvious reasons related to the secret investigation,” said Sheila Stanelle, senior executive assistant to the district attorney.
Wisconsin Reporter, on May 14, submitted an open records request seeking, among other things, “any and all communications involving the John Doe investigation between, concerning and/or involving: Tom Barrett, his Milwaukee mayoral office, his campaign for governor, the Democratic Party of Wisconsin, the Republican Party of Wisconsin, United Wisconsin, We are Wisconsin (both liberal organizations supporting the recall) the Milwaukee Journal, WTMJ Television, and the Wisconsin State Journal.”
Wisconsin Reporter also asked for correspondence between the District Attorney's Office and the governor, his office, or the Friends of Scott Walker campaign.
The information request was denied because that information, according to James Martin, deputy district attorney, is private under Wisconsin statute and case law.
“You have no right under the public records law to confidential John Doe records or to any district attorney records integral to the criminal investigation and prosecution process,” Martin wrote.
The deputy argued that the request was not specific enough, that the investigation is more than 2 years old, and numerous state and county employees of the District Attorney’s Office have worked on the probe over that time.
Then Martin, who more than likely should not be privy to much of the investigation, offered this:
“To the best of my knowledge, there are no communications concerning the John Doe investigation between the district attorney’s office and the persons and entities you name, except the communications for investigative purposes exempt from disclosure,” he said.
Martin said searching the files would take several days and impose an “unreasonable burden on this office and the state department of District Attorney Information Technology.”
As for the leaks to the public, Esenberg said the breach of secrecy violates a public trust in the rule of law.
“The problem I have with all of this, it’s serious business in which the lives of people are profoundly affected by the John Doe proceeding,” he said. “To turn this into a political football because we have a recall election creates a false sense of urgency. That’s not fair.”
Barrett and others have tried to make the case that Walker is at the center of a corrupt machine, with Democrats comparing him to former President Richard Nixon.
The implications may be sticking with the faithful, but they don’t seem to be moving too much in many of the polls, which show Walker ahead.
Walker spokeswoman Ciara Matthews said it’s all about political distraction.
“Tom Barrett is desperate to talk about anything other than his failed record in Milwaukee,” she said.
The Barrett campaign did not return requests for an interview for this story.
Republican strategist Mark Graul said this election is replete with voters who already have made up their minds, and Barrett’s John Doe ads aren’t likely to move many than true believers.
It’s an empty campaign issue, said Graul, of Arena Strategy Group, a political consulting and public relations firm in Madison and Green Bay.
“The extent that the Barrett campaign is using it is surprising given that there isn’t anything there, other than speculation,” he said.
For Walker haters waiting for last-minute John Doe charges against the governor, Graul said don’t bet on it.
“We’re 3 o’clock on Thursday before election day. If the D.A. wanted any sort of credibility on this investigation, he can’t possibly think of filing charges now,” Graul said.