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0649, 12 Jan 16

John Doe prosecutors violate opponents’ privacy

My column for the West Bend Daily News is online. Here you go:

We knew the John Doe prosecutors had abused their power and authority in their remorseless pursuit of Wisconsin conservatives for being politically active, but the revelations of last week still took one’s breath away with the sheer scope of their sleaziness.

For a quick background, the socalled John Doe II investigation was an illegal undertaking that came after prosecutors were told to shut down the first John Doe investigation. Milwaukee County District Attorney John Chisholm and special prosecutor Francis D. Schmitz were illegally pursuing exclusively conservative political activists for coordinating with candidates, which several courts have ruled is not even a crime. Most recently, the Wisconsin Supreme Court, in a firmly worded ruling, ordered the John Doe II investigation shut down and the collected materials be destroyed.

As part of their ruling, the Wisconsin Supreme Court also ordered the prosecution to inform everyone from whom they collected “evidence” about what records they seized in either John Doe investigations. Schmitz’s court filing last week informed the court that he had completed the task and sent out a stunning 159 notices to people and organizations.

Many of the target of the investigations are choosing to remain anonymous because they likely do not want their lives disrupted anymore, but thankfully, some are telling their stories. One of those is a long-time Wisconsin conservative activist who owns a media consulting firm, Brian Fraley.

Fraley was informed by Schmitz that he had seized four years — from Jan. 1, 2009, through Oct. 19, 2013 — of virtually everything Fraley had done online. That included all emails (including personal emails, emails with his attorney, emails about his health care, etc.), tax returns, online passwords, bank statements, credit card statements, health records and more. The prosecutors obtained all of this by subpoenaing Fraley’s Internet provider and Google, and never even told Fraley about it until now — more than two years later.

There are a tremendous number of outrageous aspects to the prosecutor’s actions, but let us highlight the big ones. First, Schmitz, in his continued insubordination to the Wisconsin Supreme Court, did not even comply with the order to inform people what he and his cronies had seized. Schmitz’s letter to Fraley said that he had seized information from a time period, but did not contain a catalogue of what was taken or held. Nor did it contain information about who had access to Fraley’s private information, how many copies there were, or where it was being held.

Second, the scope of the data collection is truly offensive. Bear in mind that Fraley was never a target of the investigation and had not been accused of doing anything wrong. Yet the prosecutors collected a vast amount of personal information about him and his family that would make the National Security Agency blush. The scope indicates the prosecutors were simply fishing for something — anything — with which to slander conservatives. In doing so, they blatantly abused their power and invaded a private citizen’s privacy to an intolerable degree.

Third, for part of the time period of the data collection, Fraley was writing for the John K. MacIver Institute for Public Policy and was particularly vocal in criticizing the Government Accountability Board (GAB), the rouge government agency that the Legislature is disbanding in a few months. The GAB worked in concert with the John Doe prosecutors in hunting conservative activists in the state. The fact that a rogue government agency partnered with partisan prosecutors to secretly scoop up years worth of personal information from one of their critics is beyond troubling — it is scary.

It is easy to discount the seriousness of what happened to Fraley as just another political hullabaloo, but it could happen to any of us. A rabid prosecutor used a secret process to scoop up years of personal information of a political critic without notifying him even though he was never accused of any wrongdoing. Imagine if it happened to you. Imagine a prosecutor was rifling through every email, tax return, medical record, chat, text, Internet search, browser history and more for something — anything — to use against you. And even if the prosecutor can’t find any crimes, his office has not been above selectively leaking sensitive and embarrassing snippets to the media. Still think it is not serious?

Chisholm and Schmitz have shown just what a motivated, vindictive, unethical prosecutor can do with the secrecy afforded by the John Doe laws. Late last year, the Legislature acted to reform the John Doe process. They should revisit that legislation and scrap the John Doe laws completely. If someone has committed a crime, then let them be prosecuted in the light of day with the full armor of their constitutional protections. Forty-nine other states do just fine without the John Doe laws and so should Wisconsin.


0649, 12 January 2016


  1. fraley

  2. Northern Pike

    Doesn’t it say something about the Republican legislature that it eliminated the John Doe law only as it pertains to themselves?

    The defining feature of Gov. Walker’s Teapublicanism is about using the state to reward friends and punish enemies, but give the Teapublicans credit — they didn’t neglect the fine political art of self-protection.

  3. bos

    funny the jd was done by existing law….you should try writing fiction, you’s be good at it…

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