Conservative political entities who supported Wisconsin Governor Scott Walker are being subjected to a secret investigation. Special Prosecutor Francis Schmitz has issued a series of subpoenas to 29 conservative groups, demanding that they submit all documentation related to the recall campaigns mounted by unions and their supporters against Walker in 2011 and 2012. The investigation is being conducted under the auspices of the state’s John Doe law, which forbids the targets of subpoenas from revealing the contents of those subpoenas to anyone other than their lawyers.
The effort reeks of political intimidation. According to the Wall Street Journal, the two subpoenas they’ve reviewed demand ”all memoranda, email . . . correspondence, and communications” within the targets of the subpoenas themselves, and between those targets and conservative groups such as the Friends of Scott Walker and the Republican Party of Wisconsin, Wisconsin Manufacturers & Commerce, Americans for Prosperity-Wisconsin, American Crossroads, the Republican Governors Association, and the League of American Voters.
In a transparent effort to determine an entity’s list of campaign donors, one subpoena demands ”all records of income received, including fundraising information and the identity of persons contributing to the corporation.”
The investigation originated in the office of Milwaukee County Assistant District Attorney Bruce Landgraf. Landgraf works for Milwaukee County District Attorney John Chisholm, a Democrat. This latest John Doe investigation is the second one being conducted against Walker in only three-and-a-half years, and it was initiated just days before Democrat Mary Burke, a member of the Madison School Board, announced her intention to run for governor.
The previous John Doe probe was conducted in 2010, when Walker was Milwaukee County Executive. Chisholm spent three years on that investigation, which closed last March. It produced underwhelming results: six individuals pled guilty to crimes ranging from stealing money from a veterans’ fund, and sending political emails on government time, to violation of state campaign finance laws and contributing to the delinquency of a child.
Walker was never charged with, or convicted of, anything.
A John Doe investigation gives prosecutors a lot of latitude otherwise unavailable to them. Unlike normal investigations, which are initiated based on probable cause, John Doe investigations enable investigators to establish probable cause itself. In pursuing that effort, law enforcement officials are granted the power to subpoena witnesses, take sworn testimony, offer immunity from prosecution, and compel testimony from reluctant witnesses. Their reach is limited only by a judge, whose is responsible to ensure procedural fairness and decide whether to file a criminal complaint. Yet the judge has broad powers as well, including the power to determine whether the examination will be secret. All of this occurs while the gag order part of the statute leaves the target of a probe with no way to defend themselves publicly.
Since this investigation is being conducted in secret, details are hard to come by. But one target of the probe, Eric O’Keefe, who is director of the Wisconsin Club for Growth, has risked of contempt of court charges to reveal what he knows to the Journal. He told the paper he received a subpoena in October, and that he is aware of at least three other targets who had their homes raided at dawn. During those raids, police seized computers and files.
O’Keefe and other sources told the Journal that they don’t know who originated the probe, and Schmitz declined to comment. Yet the paper communicated with a source who has seen one of the Wisconsin search warrants, and that source contends they were issued at the request of Dean Nickel. Nickel is the former head of the Wisconsin Department of Justice Public Integrity Unit. He has also worked as an investigator for the Government Accountability Board (GAB), which regulates political speech in that state. O’Keefe’s Wisconsin Club for Growth has squared off against the GAB in court. Nickel refused to discuss the investigation, and GAB Director and General Counsel Kevin Kennedy refused to comment.
Despite the gag orders, multiple sources confirmed O’Keefe’s description of the investigation to the Wisconsin Reporter. Another source contended the probe is being conducted for political purposes. “This is a taxpayer-funded, opposition-research campaign,” the source said. “This is not a question of what conservatives did wrong. It’s a question of one party in this state using prosecutorial powers to conduct a one-sided investigation into conservatives.”
Another knowledgable source contended “investigators are spying on people and using the power of government to collect records.” Another insider emphasized the indiscriminate nature of the probe noting that “it’s all outside, independent groups being questioned about whether they worked with campaigns. Everybody is being sniffed into.”
The Journal concurs, noting that the “disclosure of conservative political donors has become a preoccupation of the political left across the country.” They also noted those targeting Walker were engaged in intimidation. “In the heat of the fight over Governor Walker’s reforms, unions urged boycotts of Walker contributors and DemocraticUnderground.com published a list of Walker donors for boycotting.”
The latest investigation spans five counties, and the original judge in the case, retired Kenosha County Circuit Judge Barbara Kluka who recused herself for unspecified reasons, has been replaced by former state Appeals Court Judge Gregory A. Peterson. Peterson’s political leanings are unknown, but he confirmed that he did not sign any recall petitions.
Last Thursday, two attorneys filed motions with the state appeals court seeking a stay of the probe. Attorneys Dean Strang and Matthew O’Neill named Peterson and Schmitz as respondents. Their motions were filed on behalf of three unnamed petitioners who sought to suspend the investigation in Milwaukee, Iowa, Dodge, Dane and Columbia counties. An additional motion was filed, suggesting the petitioners’ requests also be sent directly to the Wisconsin Supreme Court, where conservative justices outnumber their liberal counterparts four to three.
Mr. O’Keefe told the WSJ that the subpoenas “froze my communications and frightened many allies and vendors of the pro-taxpayer political movement in Wisconsin and across the country.” “Even if no one is ever convicted of a crime,” he says, “the process is the punishment.”
Milwaukee Journal Sentinel columnist Christian Schneider takes it one step further, noting that it is “particularly troubling that the investigation targets only conservative groups; apparently all the pro-union money that flooded into Wisconsin to help unseat Walker doesn’t quite gnaw on the consciences of these particular investigators,” he writes. “One needs to look no further than the Internal Revenue Service scandal from earlier this year to realize how dangerous partisan government can be when it has an agenda.”
Or an ideological fixation. No other politician in America has weathered an unrelenting storm of leftist intimidation tactics better than Scott Walker. The man who pushed through his ambitious union reforms and ultimately triumphed in the June 5, 2012 recall election, has undoubtedly become a prime target once again. And since the IRS investigation remains in limbo, it is not inconceivable that leftists in Wisconsin see that attempt to intimidate conservative organizations as a useful template. No matter how IRS investigations turns out, the damage done to conservative efforts during the 2012 presidential election campaign cannot be undone. A John Doe probe may or may not be justified. But it is certainly a useful tool for intimidating would-be donors.
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