Prosecutors Seek Restart of Wisconsin ‘John Doe’ Probe in Appeals Court

Published September 10, 2014

Wisconsin prosecutors have pursued an aggressive “John Doe” investigation into political advocacy for more than two years, seeking evidence of illegal political coordination between conservative organizations and politicians. Appeals court judges heard opening arguments in one activist’s attempt to seek compensation from the prosecutors, who he argues are using their office to quash political speech with which they disagree.

Earlier this year, a U.S. District Court issued an injunction terminating the probe, but the prosecutors appealed the decision, requesting permission to resume the investigation and retain the documents they seized from the conservative organizations. In the first public hearing associated with the investigation, the United States Court of Appeals for the Seventh Circuit heard oral arguments seeking the reversal of the District Court ruling in May . 

Conservative Groups Targeted

The “John Doe investigation,” so termed because the investigations are largely conducted behind metaphorical closed doors, shielded from public scrutiny, was launched shortly after Wisconsin Gov. Scott Walker won his June 2012 recall election.

Prosecutors from the Milwaukee County District Attorney’s office opened an investigation into the Wisconsin Club for Growth and 28 other conservative groups in the state, seeking to determine whether they illegally “coordinated” their political support with candidates for office.

In October 2013, the investigation escalated when armed officials raided the homes of targeted activists throughout the state. Law enforcement officials confiscated papers, phones, computers, and business records with sensitive information that the activists said was irrelevant to the investigation, such as the names of the organizations’ donors.   

Several months after the raids, one target filed suit against the Milwaukee prosecutors. Eric O’Keefe, a Wisconsin Club for Growth director, requested the investigation be terminated, and he sought compensatory damages from the prosecutors.

In its brief for the Circuit Court appeal, O’Keefe’s legal team charged the John Doe investigation was retaliatory in nature, a form of revenge against O’Keefe and other activists for exercising their First Amendment rights in the heated political environment. 

The brief further alleged the prosecutors’ actions had a chilling effect on political speech after the recall, as contributors may have feared donations to conservative groups could draw them into the investigation.

‘Coordination’ Claim Rejected

In May 2014, Judge Rudolph Randa of the U.S. District Court for the Eastern District of Wisconsin ruled in favor of O’Keefe, rejecting the prosecutors’ theory of “coordination” between conservative groups and candidates. 

Beginning the appeals process requested by the defendants, a three-judge panel of the 7th Circuit presided over the presentation of opening arguments. The first attorney to address the panel was Joseph Russell, counsel for special prosecutor Francis Schmitz.

Judge Frank Easterbook vigorously questioned the secretive nature of John Doe investigations, appearing dumbfounded at Russell’s request to vacate Randa’s ruling, noing such actions are not the role of an Appeals Court.

Arguing before the panel, defense attorney Samuel Leib claimed the defendants have “absolute immunity” from damages in their roles as prosecutors. Easterbrook disagreed, noting the “bright line” for determining prosecutorial immunity occurs only after the determination of probable cause a crime has been committed. 

Seeking Damages for Prosecution

In addition to requesting the case’s dismissal, the plaintiffs are seeking damages arising from the prosecutors’ John Doe investigation itself.

In response to Easterbrook’s rebuff, Leib said the plaintiffs had always assumed, from the beginning of the investigation, they have absolute immunity. 

Later in the hearing, federalism issues became prominent during the questioning of the plaintiff’s counsel, Mark DeLaquil.

Chief Judge Diane Wood seemed particularly troubled by the fact the suit was filed in federal court rather than a Wisconsin state court. She said federal court review of the case could establish a “troubling precedent.” 

Easterbrook, along with Judge William Bauer, wondered why the John Doe judge was unable to simply terminate the investigation, to which DeLaquil explained Wisconsin courts are unable to resolve all the associated issues.

‘The Process Is the Punishment’

Specifically, DeLaquil argued, the prosecutors’ confiscation and continued possession of sensitive information on conservative groups, including donor lists, potentially perpetuates the chilling effect on their First Amendment rights, which is a federal issue.

DeLaquil concluded his remarks by saying in this John Doe investigation “the process is the punishment.”

While the Circuit Court oral arguments were being made, Stuart Taylor, a respected Wisconsin legal journalist, published information received from an anonymous Milwaukee county prosecutor and “longtime Chisholm subordinate” claiming to have inside information about the genesis of the probe.

Taylor’s source says Colleen Chisholm, the district attorney’s wife, instigated the probe. Chisholm serves as a local organized-labor steward at a public school, and was reportedly emotionally upset at Walker’s efforts to limit the collective bargaining power of public sector unions in 2011. 

Taylor’s source says Chishom “‘frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved,” spurring the district attorney to begin the investigation of the political activists.

Larry Kaufmann ([email protected]) is a senior advisor at the Pacific Economics Group in Madison, Wisconsin.

Internet Info:

O’Keefe v. Chisholm, Brief of Plaintiffs—Appellees Eric O’Keefe and Wisconsin Club for Growth,” United States Court of Appeals,