Boots & Sabers

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Tag: John Doe

Doe Investigators Looked for Way to Use Illegally Seized Materials Against Republicans

MacIver points out this nugget in the DOJ’s report.

Shane Falk, the GAB’s lead attorney on the John Doe probe, responded the question had been a concern from the beginning.

“…(I)f we know that the Judge is unlikely to allow use of records, or it will take too much time to release them publicly, or that any immunity may negate potential civil claims,” Falk wrote to Landgraf. But Falk knew then that the John Doe judge wasn’t likely to allow illegally seized records to be used.

Here is where Falk looks for an end-around.

“Can we solve the records problem by just issuing new subpoenas from the GAB based on the information gleaned from the JD investigation? Just thinking,” he wrote to Milwaukee County Assistant DA David Robles. Again, the John Doe judge months before had quashed John Doe subpoenas.

Anyway, the short answer was no. Such emails illustrate the kind of scheming that went on to keep the abusive probe alive.

Who will guard the guards themselves?

My column for the Washington County Daily News is online. Incidentally, my working title was “Quis custodiet ipsos custodes,” but my editor kindly translated it for y’all. Here you go:

Wisconsin’s Department of Justice was asked to investigate illegal leaks to the media by the now shuttered John Doe investigations. What the investigators found was more than just a few rogue prosecutors. They found a fascist political hit squad determined to use their police power to criminalize speech and silence their political opponents. Action must now be taken to punish the guilty and prevent it from ever happening again.

Wisconsin’s John Doe law allows a unique process where prosecutors are granted extraordinary powers to investigate in exchange for keeping everything secret. The intent of the law is to allow investigators to look for suspected criminal activity where there is not sufficient probable cause to use a normal investigatory process, but protect the reputations of those being investigated in the event no criminal acts are uncovered.

Leftist prosecutors and investigators abused this process as they hunted conservative people and groups in the wake of Gov. Scott Walker’s election in 2010. They used the broad powers granted to them under the John Doe process to sift through the lives of their political opponents while leaking selective information to the media. Then they used the process to silence the targets of their illegal investigations and did not even allow them to secure legal counsel for their own protections.

I strongly urge you to read the entire report written by the Department of Justice. It reveals behavior that would have been familiar to the Soviet Politburo in the 1950s, but it happened in Wisconsin in the 21st century. Here are a few of the more outrageous findings:

 They seized “millions of documents that had been created over a period of several years” by “29 organizations and individuals.” This was not a targeted investigation looking for a crime. It was a political operation sweeping up their opponents’ private information.

Much of that information was copied, placed on several digital drives, and distributed, but no record was kept of who made copies or to whom all of that private information was distributed.

 The prosecution team intentionally used Gmail and Dropbox accounts to avoid oversight.

 A key hard drive that Shane Falk used is missing. It contained all of the leaked documents.

 The specific information leaked was designed to influence the U.S. Supreme Court as it was considering a case related to the John Doe.

 After the court repeatedly ordered the investigators to cease their investigation, the investigators repeatedly and knowingly copied and distributed the captured information.

 After the court ordered all of the documents surrendered to the court, the DOJ found multiple caches of documents.

 Many of the ill-gotten documents were stored in a files labeled “opposition research,” indicating the real purpose for their collection.

 The John Doe persecutors also swept up and kept thousands of personal emails including private medical information. There is no rational investigatory value to these documents.

One has to read the entire report to fully appreciate the incredibly abusive behavior of a group of partisan activists using their broad investigatory powers to terrorize their political opponents.

Now that we can no longer hide behind the naïve illusion of impartial justice, we must act.

First, although the Government Accountability Board was rightly disbanded, many of the partisans who worked for it and were involved in the abuses of the John Doe persecutions just took new jobs working for the new Ethics and Elections Commissions. Anybody associated with those abuses must not be allowed in a similar position of power again. Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald have called for the resignations of those involved, but the bureaucrats have circled the wagons around their own. They have lost the mantle of impartial and dispassionate management of those Commissions. If they will not resign with honor, then they must be forced out with dishonor.

Second, the people directly involved in the abuses of the John Doe persecutions must be punished by whatever legal means available. This is important not only to punish the guilty, but to send the strong message that these kinds of abuses will not be tolerated in Wisconsin.

Third, Wisconsin must repeal the John Doe law. It is unique for a reason. It is unjust. The normal criminal justice process with all of the protections for victims and suspects that has grown through centuries of legal evolution is more than sufficient in dealing with suspected criminal activity. Government, secrecy and power rarely do a good job of protecting our civil liberties.

Finally, we must shed the misguided notion that great power can be so cavalierly handed to people presumed to be above petty human emotions and biases. We must reject any government entity that insists that it must operate in the shadows. No person is above corruption. No person is beyond the reach of our inherent sinful nature. Visibility and vigorous oversight must be our watchwords. Secrecy and unilateral power must be rejected.

Legislative Leaders Call for Resignations


Republican leaders of the state Legislature are urging the chief staffers of the state Elections and Ethics commissions to resign, citing “widespread concerns over partisan influence remaining” from their predecessor, the former Government Accountability Board.

Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald made the calls in separate letters to Mike Haas, administrator of the Elections Commission, and Brian Bell, administrator of the Ethics Commission.

“Due to past errors in judgment by leadership and staff at the recently disbanded Government Accountability Board, there are still widespread concerns over partisan influence remaining at the top of” the commissions, Vos and Fitzgerald wrote in letters to Haas and Bell, released by the lawmakers late Thursday. “You have lost the confidence of our caucuses to be an impartial administrator.

“Therefore, we believe that it would be appropriate at this time for you to tender your resignation.”

Suspect Commissions Defend Staff

Of course they do.

The state’s ethics and elections commissions defended their staff Tuesday against Attorney General Brad Schimel’s report on a leak investigation stemming from a now-shuttered investigation into Gov. Scott Walker’s 2012 recall campaign.

The Wisconsin Ethics Commission criticized the report for “omissions and inaccuracies” and called on Schimel to acknowledge that ethics staff cooperated.

Schimel responded that a letter from ethics commission officials doesn’t list a specific error and accused commission chairman David Halbrooks of having a conflict in the matter because he was granted immunity in the John Doe investigation.

Meanwhile the state Elections Commission defended its administrator and a staff member against a call for their termination, while saying it will ask Walker for permission to hire an outside lawyer to represent them in matters related to Schimel’s report.

“Nothing in that report has caused us to question our support of interim administrator Michael Haas,” chairman Mark Thomsen said.

There’s the problem. What bothers me about this is that there is an utter lack of introspection. If nothing else, given that these commissions are tasked with upholding the campaign and ethics laws, they would want to be above reproach. Even the appearance of bias or corruption should be a cause for concern. If they were serious about their jobs, I would have expected a statement that said something like, “the report has serious accusations that deserve a thorough review.”

Instead, we get a knee-jerk defense, claims of inaccuracies without proof or specifics, and the erection of a wall around their staff. These are not people who are serious about the truth and yet they are in charge of impartially judging the ethics of others? Puhlease.

Doe Judge to Step Down Because of Bias

Remember. He’s not stepping down because he’s biased. He’s stepping down because he was caught being biased.

MADISON – The John Doe judge overseeing possible contempt proceedings of nine state officials withdrew from the case Friday because he had posted comments about the case on Twitter before he was assigned the case this spring.

Jefferson County Circuit Judge William Hue said he had forgotten about the posts until the Milwaukee Journal Sentinel asked him about them on Thursday. He said Friday he was disappointed to be losing an interesting case but thought he needed to step aside so no one questioned whether the judge hearing the case was impartial.

“I don’t want to be the focus of any attention here,” Hue said.

Digging Deeper in the DOJ Report

Allow me to excerpt some of the more damning finds in the report of the investigation of the GAB and the John Doe investigation:

Moreover, DOJ is deeply concerned by what appears to have been the weaponization of GAB by partisans in furtherance of political goals, which permitted the vast collection of highly personal information from dozens of Wisconsin Republicans without even taking modest steps to secure this information.

“Weaponization” is the right word. They were acting as a weapon of the Democratic Party and liberal establishment.

The prosecution team obtained additional “wide-ranging subpoenas and search warrants for 29 organizations and individuals, seeking millions of documents that had been created over a period of several years.” Two Unnamed Petitioners, 363 Wis. 2d 1, ¶ 2. The Wisconsin Supreme Court, referring to these additional subpoenas and warrants issued in October 2013, stated that the “breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing.” Id. ¶ 29. The items seized included “business papers, computer equipment, phones, and other devices, while [the] targets were restrained under police supervision and denied the ability to contact their attorneys.” Id. These documents included “virtually every document possessed by the [targets] relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013).”

Everything. This is truly a sweep where government officials seized everything they could for the purpose of sifting through it and using it for whatever political or legal purpose they wanted. And they forced their targets into submissive secrecy – not even allowed to engage legal counsel. 4th Amendment be damned.

The information was duplicated, placed on portable drives, and distributed to various staff members at GAB for examination. Shockingly, despite the sensitivity of the information collected and the fact that the investigation targeted Governor Walker, there was no log kept of what was received by GAB staff, how many copies were made, to whom these records were given, or where these records were stored after the John Doe II investigation was closed.

That was on purpose. These are lawyers and they knew that if they were ever busted, they could blame sloppy record keeping and there is enough reasonable doubt to avoid being convicted. They were right.

The John Doe II core prosecution team included the special prosecutor Francis Schmitz, Milwaukee ADAs David Robles and Bruce Landgraf, Milwaukee DA investigator Robert Stelter, GAB attorneys Shane Falk, Kevin Kennedy, Jonathan Becker, and Nathan Judnic, GAB contracted investigators Doug Haag and Dean Nickel, and GAB staff employee Molly Nagappala. Then-GAB Staff Counsel Mike Haas was involved with reviewing and editing court filings. GAB board members at the time were Judges David Deininger, Gordon Myse, Michael J. Brennan, Thomas Barland, Thomas Cane, and Gerald Nichol. GAB Board members and DA Chisholm were kept advised of the investigation and reviewed documents that had been filed with the court, but neither the GAB Board nor DA Chisholm had possession of or access to the majority of John Doe II documents that were leaked to The Guardian

Remember those names. These are the zealots who used their official power to terrorize citizens and hunt their political opponents. All of them have lost the right to be considered anything other than unscrupulous ideologues.

Sometime in 2013, the core prosecution team decided to communicate with each other through Gmail accounts rather than use the secure Department of Administration email system.


The core prosecution team also decided that it would exchange documents, including several of the documents later leaked to The Guardian, with all members of the prosecution team via a cloud-based “Dropbox” account.

Again… to hide their illegal and unethical activity.

In sum, the leaked court filings show a specific intent to try to influence the United States Supreme Court as it was considering the pending petition for writ of certiorari in September 2016 by responding to particular parts of the opinion of the Wisconsin Supreme Court in Two Unnamed Petitioners. These leaked documents also indicate that the leaker has a sophisticated legal knowledge of the case and was motivated to try to influence the United States Supreme Court.

In other words, the illegal leaker was not just some schlub who wandered into the unsecure office and pilfered a few documents. The leaker knew what he or she was doing. It was one (or more than one) of the names above.

On the other hand, based on the evidence collected, DOJ assesses with reasonable certainty that the hard drive of Shane Falk is the only place where all of the leaked documents—court filings as well as Relativity emails—were located. Yet despite executing a search warrant at the offices of the former GAB and conducting numerous witness interviews, no one could account for Falk’s missing hard drive, which remains missing and unaccounted for to this day.

Someone is hiding the evidence. I’m sure that the hard drive is at the bottom of Lake Mendota.

Two weeks later, on January 27, 2014, at 9:55 a.m., Judge Peterson issued an order stating, “Property seized pursuant to search warrants shall not be examined by the State.” At 1:20 p.m. that same day, Shane Falk ordered Molly Nagappala to prepare a “data compilation” of donations to and from Wisconsin Club For Growth. Nagappala completed this task by reviewing “bank statements” seized as evidence in the John Doe II. This was in direct violation of the court order received by Falk just hours earlier.

Again, on February 6, Falk directed Naggappala to go into Relativity and print off emails seized from search warrants: “Periodically, you sent us some emails. Can you print out everything that you pulled out of Relativity and previously sent us? Then give a copy to Nate and one to me. Pretty please?” Again, this was in direct violation of Judge Peterson’s order.

Schmitz did not order Falk to stand down in light of Judge Peterson’s order. Instead, Schmitz responded that same day, stating, “I called Matt and he told me that Relativity is still up until the end of the month for now. So we should be able to access the information contained therein.” Relativity contained emails seized pursuant to search warrants, exactly the type of evidence that Judge Peterson ordered the prosecution team not to review.

In response to Schmitz’s permission, and despite the January 27 order, on February 13, 2014, Shane Falk directed Molly Nagappala to log into Relativity and download emails seized pursuant to search warrants:

These hacks were so brazen that they completely ignored the judges order. They considered themselves above the law. They were pulling the information out before the court took it away from them. One can only assume that all of this personal information about individual Republicans and conservatives is hidden away somewhere to be used by liberals at some future point.

One of their targets was State Senator Leah Vukmir, who is running for the U.S. Senate. If she wins the Republican nomination and is challenging Senator Baldwin next year, I guarantee than some salacious faux scandal will find its way into the campaign that has roots in this archive.

Buerger also notified DOJ of a file on their system entitled “Badger Doe.” DCI agents copied this drive, which comprised 1.318 GB of data, including 637 separate files in 31 folders. The Badger Doe drive, like the boxes of physical files and Gmail accounts, similarly included information, evidence, documents, and data derived from the John Doe II investigation, and remained in Ethics’ possession despite the December 12, 2015, order of the Supreme Court. Again, no explanation was provided by any member of the former GAB or any attorney involved in this investigation as to how or why this evidence remained in the custody of anyone other than the Supreme Court following its December 12, 2015, order.

AFTER the court had ordered all of the John Doe documents surrendered, the DOJ found thousands of other documents, Gmail accounts, digital files, etc. that were not surrendered. It appears that the miscreants were just making copies and scattering all of this stuff around. The report goes on for pages about them finding additional caches of files that were never turned over as ordered by the court.

It appears that prosecutors believed that Wisconsin Republicans were “coordinating” expenditures or campaigning on state time during the 2010 election and the subsequent 2012 recall election, and so prosecutors and the former GAB staff simply shared whatever evidence they could obtain related to Republican campaigning and fundraising. DOJ was not able to discern any limit into this investigation.

Of course, no charges were ever filed resulting from John Doe III, but the nature and scope of this investigation was exceedingly broad and, until now, unknown to the public.

Wisconsin’s unique John Doe law is supposed to be very defined. In exchange for extraordinary investigatory powers, investigators using a John Doe process are supposed to have a pre-defined scope that is overseen by a judge. In this case, the investigators were just using the John Doe process as a free-for-all to collect information on Republicans.

In the “Falk boxes,” three hard drives in particular contained nearly 500,000 unique emails (from Yahoo and Gmail accounts, for example) and other documents (email attachments, for example) totaling millions of pages. The hard drives included transcripts of Google Chat logs between several individuals, most of which were purely personal (and sometimes very private) conversations. GAB placed a large portion of these emails into several folders entitled, “Opposition Research” or “Senate Opposition Research.” DOJ has been unable to determine who labeled these emails as “Opposition Research,” what the purpose of this label was, or how these emails were to be used in the future. However, DOJ is deeply concerned by what appears to have been the weaponizing of GAB by partisans in furtherance of political goals. Indeed, it is difficult to conceive why GAB needed any information from related to former Republican Senate Leadership Association Chairman Ed Gillespie or why staff attorneys wanted information held by Google for Leonard Leo, Executive Director of the Federalist Society.

As far as DOJ has been able to determine from reviewing the hard drives in the “Falk boxes,” John Doe III investigators obtained the complete personal email accounts (in some cases multiple accounts per person), chat and messenger logs, – 65 – contact lists, IP login information, and similar information from other cloud-based accounts (such as of the following individuals:

As you can see, there is no investigatory or evidentiary value for all of this personal data they collected. You can see their intent by the fact they they stored it in a box labeled “OPPOSITION RESEARCH!” This is information intended to make a political hit.

As would be expected in most personal email accounts, many of the conversations were private and personal. DOJ investigators were unable to determine why GAB investigators obtained, reviewed, categorized, labeled, and organized private emails of Republican political operatives, state employees, and other related individuals.

The breadth of information and communications contained in the “Falk boxes,” apparently as the result of the John Doe III investigation into Wisconsin Republicans, was breathtaking. Just to illustrate this point, the investigators obtained, categorized, and maintained over 150 personal emails between Senator Leah Vukmir and her daughter, including emails containing private medical information and other highly personal information. DOJ was unable to determine why investigators ever – 67 – obtained, let alone saved and labeled, over 150 very private and very personal emails between a Senator and her child, or why investigators placed those emails in a folder named “Opposition Research.”

The Senator’s emails are just one example of tens or perhaps hundreds of thousands of very personal emails located in the “Falk boxes.”

It goes on… I highly encourage you to read the report in its entirety. This is what a fascist government looks like. It was right here in Wisconsin. And some of the people who were involved with this are still sitting in government jobs and are still allowed to practice law in our state.

Three things need to happen:

  1. The individuals involved need to be held accountable to the full extent possible including stripping law licenses, holding in contempt of court, removing them from government offices, and anything else legal and appropriate.
  2. We must dispense with the notion that any government body should be “independent.” Visibility and oversight are the best protections against tyranny – not fantasies of “non-partisanship.”
  3. Wisconsin must do away with the John Doe law. It is a process too ripe for abuse. 49 other states manage to prosecute criminals without it and this investigation shows why we must ensure that investigators and prosecutors are forced to respect our civil liberties ad Constitutional protections.






Wisconsin AG Commits Resources to Investigate Doe Leak


MADISON, Wis. – Today, Attorney General Brad Schimel filed a letter with Wisconsin Supreme Court Chief Justice Patience Roggensack requesting the Wisconsin Supreme Court appoint a special master to investigate the breach of the secrecy orders in the John Doe case related to the September 14, 2016, article published in The Guardian newspaper. The letter also requests the special master investigate and confirm the final disposition of the unlawfully seized evidence in this case.

Attorney General Schimel committed investigatory support and legal advice from the Wisconsin Department of Justice to any special master the Court appoints.

The entire John Doe investigation has been a horrible miscairrage of justice that violated the civil rights of dozens of people. Someone needs to watch the watchdogs and I’m glad that the Attorney General is stepping up to the plate. Now the Supreme Court needs to get moving.

Ding-dong, the Doe is dead

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

“The petition for a writ of certiorari is denied.” With those nine words from the U.S. Supreme Court, the long, winding road of the illegal and immoral John Doe investigation has come to an end. But with that end, there is a lot of work to be done to clean up the mess, right the wrongs committed and rewrite the laws to ensure rogue prosecutors are checked before they can do so much damage.

The John Doe process, which is unique to Wisconsin, allows prosecutors extraordinary powers to investigate people in exchange for utter secrecy to protect the lives and reputations of the targets of the investigations. In this case, Milwaukee County District Attorney and former chief investigator Francis Schmitz ran roughshod over the rules. In a wide-ranging investigation that included unannounced pre-dawn raids of people’s homes by armed police, confiscation of years’ worth of files and communications, capturing of electronic and phone communications through service providers without notifying the targets, and several other brute force investigatory tactics, the John Doe prosecutors thoroughly uprooted the lives of dozens of conservatives in Wisconsin.

Throughout the investigation, there were several leaks to the media and the media even happened to know when some of the unannounced raids were taking place so they could record it for their news broadcasts. Even as recently as a few weeks ago, more than a thousand pages of documents that are supposed to have been kept secret by the prosecutors were leaked to the British media, where it will be difficult for American law enforcement to track down the source.

It is clear that, from the beginning, John Chisholm and his cohorts used the power of their offices to target conservatives and bully them into silence while allowing the information they collected to be leaked to the media to influence elections.

After years of legal wrangling and news stories, it is worth backing up and remembering what Chisholm was trying to prosecute. He was trying to prosecute conservatives — only conservatives — for exercising their First Amendment right of free speech. The judges overseeing the John Doe process told Chisholm what he was trying to prosecute was not a crime. The Wisconsin Supreme Court told him the same thing. The federal Court of Appeals said the same thing. But the prosecutors were not acting as prosecutors enforcing the law. They were acting as political agents prosecuting their enemies for laws that do not exist.

In responding to the Supreme Court’s denial, Chisholm reiterated as much when he said, “We look forward to the day when Wisconsin adopts a more enlightened view of the need for transparency in campaign finance.” In other words, he knows that he was trying to prosecute conservatives for laws that he would like to exist, but do not, and cannot as long as the First Amendment still holds sway.

The fight is not over yet. The prosecutors have already demonstrated they are not honorable and not above political retribution. They still possess thousands of documents about dozens of people they should never have taken. Even if they claim to return or destroy those documents now, as the Wisconsin Supreme Court ordered months ago, the victims can have little assurance that copies do not exist to be used by their enemies in the years to come. That is why the state attorney general must aggressively investigate and prosecute whoever already leaked documents over the past several years. Only by strict enforcement of the law can future potential malcontents be deterred.

Also, the Legislature took a small step to reform the John Doe process by preventing it from being used for political infractions. They need to go the rest of the way by completely repealing the John Doe process. While it can be argued to have some value, its potential for abuse by dishonorable prosecutors is too great. All of Wisconsin’s citizens are at risk of the abuse of this process and should be protected — not just the politicians. Forty-nine other states manage to prosecute people for crimes without this process. So can Wisconsin.

Thankfully, this abusive John Doe is over. Now we must ensure that no prosecutor is ever allowed to use it to abuse Wisconsinites again.

SCOTUS Rejects Doe Appeal

Finally. Now let the prosecutions of the prosecutors begin for their egregious abuse of power.

Madison — The John Doe investigation of Wisconsin Gov. Scott Walker’s campaign is over.

In a terse order, the U.S. Supreme Court on Monday rejected a request by Milwaukee County District Attorney John Chisholm to take up litigation that stopped the probe last year. That ends the long-stalled investigation.

The order was issued less than three weeks after documents were leaked that showed the extent to which the Republican governor and his aides worked closely with a supposedly independent group on recall elections. The documents included details about large donations from those who benefitted from laws approved by Walker and GOP lawmakers.

Chisholm, a Democrat, launched the probe in 2012 based on information turned up in an earlier investigation of Walker aides and associates that resulted in six convictions, ranging from misconduct in office for campaigning on county time to stealing from a veterans fund. Walker was not charged in that investigation.

Walker Questions Need for More Prosecutors When the Current Resources Are Being Misallocated

Excellent point.

“I would think most people in the state would think after the U.S. Supreme Court rules on this that there’s certainly not a lack of work to be done in Milwaukee County on issues related to crime and on other issues,” Walker said. “We hear, not only in that county, but in other counties, about the need for additional district attorneys and additional resources. I think a lot of people wonder, if they continue to spend time after the U.S. Supreme Court were to rule on this, if that’s really necessary, if they have time to spend on this even after the courts have shut it down.”

Groups Sue John Doe Persecutors

Accountability can be a bear.

A conservative group has filed a class action lawsuit against the investigators and former state officials connected to a halted criminal investigation into Gov. Scott Walker’s 2012 recall campaign.

In the lawsuit, the John K. MacIver Institute alleges the investigators violated the a 1986 federal law that protects electronic communications from illegal searches and seizures.

The lawsuit, which seeks unspecified damages, including punitive damages and lawyer’s fees, names special prosecutor Francis Schmitz, Milwaukee County District Attorney John Chisholm, former Government Accountability Board director Kevin Kennedy and members of their staffs.

GAB Spent Gobs of Time and Money on Unconstitutional Doe Probe

More justification for disbanding this corrupt agency.

MADISON, Wis. – The Government Accountability Board staff involved in Wisconsin’s infamous John Doe investigation spent more than 2,500 hours engaged in what the GAB’s top administrator has described as a “parallel” probe, according todocuments obtained by Wisconsin Watchdog.

That doesn’t account for the many untold hours GAB staff spent on the investigation before agency director and general counsel Kevin Kennedy admonished the attorneys to begin charting their hours.

More so, the documented time amounts to $107,715.08 spent on the specialized labor between 2013 and 2015, based on the salaries of the six GAB employees and the percentage of their time devoted to the politically charged John Doe. Another $14,879.80 was not documented.

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.

Prosecutors Have to Use Traditional Tools After Doe Reform

I still think that the legislature should have scrapped the John Doe process in its entirety, but after being reminded what damage a corrupt, zealous prosecutor can do, I’m not going to worry over the fact that they may have to work a bit harder to prove a case.

MADISON, Wis. (AP) — A new Wisconsin law limiting secret John Doe probes doesn’t mean prosecutors’ days of pursuing political corruption are over. But their remaining tools have limitations that may make it more difficult, especially in complex cases, legal experts say.

Prosecutors and investigators will have to turn to old-fashioned detective work or the state’s little-used grand jury procedure to build their cases, presenting problems for overworked district attorneys who may not have the time to dig through misconduct allegations outside of the John Doe process, they say.

“You don’t have a cop bringing in the case on a platter to you,” said Ray Dall’Osto, a Milwaukee defense attorney who described himself as leaning Democratic. “There’s going to be a tendency that these DAs are focused on immediate issues, like crimes of violence. The DAs are going to have to be more creative.”

Wisconsin is the only state with John Doe proceedings. They’re similar to grand jury proceedings. Prosecutors can present evidence in secret and compel witnesses to testify in secret before a judge.

GAB Lawyer Planned Strategy for John Doe


On Feb. 11, 2013, Falk wrote in an email to Milwaukee County Assistant District Attorney David Robles that “A la the U.S. Supreme Court decision in Caperton, (Justice Patience) Roggensack may have to recuse herself from any appeals on this Badger Doe. (The conservative group) Club For Growth WI has been running expensive TV ads for Roggensack — issue ads but a clear support of her.”

“DA Chisolm (sic) may want to take this into consideration in his review of proceeding on this matter. I think it helps significantly,” Falk wrote, apparently referring to a potential court case prosecuting targets of the probe.

Ultimately, prosecutors sought to have two conservative justices, David Prosser and Michael Gableman, recuse themselves from litigation over the investigation, but not Roggensack.

So here you have a lawyer for the “non-partisan” Government Accountability Board making suggestions on a strategy to force a conservative Justice to recuse herself so that the illegal Doe prosecution could survive a legal challenge.

Clearly the GAB was an active and activist contributor to an unconstitutional prosecution. I hope Wisconsin legislators keep these actions in mind and throw the whole GAB into the “bad idea” trash can. And anyone currently working for the GAB should be prohibited from working for whatever agencies take over its functions.

Wisconsin Legislature to Vote on John Doe This Year

The devil is always in the details.

Legislative leaders in the Wisconsin Senate and Assembly have announced they plan to hold a vote later this fall on legislation that would make changes to how John Doe proceedings in the state are conducted.

The bill from Rep. Dave Craig (R-Big Bend) and Sen. Tom Tiffany (R-Hazelhurst) would end the use of the secret John Doe process to investigate political crimes. The measure comes largely in response to a pair of investigations surrounding Governor Scott Walker – one targeting his office when he was Milwaukee County executive and another that was looking in to potentially illegal coordination between his campaign and conservative groups during the 2012 recall election.

This is very good. Given the abuses of the John Doe process and its untenable premise that there needs to be a separate system of investigatory and proprietorial procedure that strips out due process protections for suspects, the entire John Doe law should be scrapped. I’m curious to see that the legislators mean by “political crimes.” We should just get rid of the whole thing and not try to reform it in a way that only protects politicians. That’s asking for bad publicity for a reform that needs to happen.

Assembly Takes up John Doe Reform

OK, but

The Assembly Judiciary Committee is expected to vote today on legislation that would put new limits on John Doe investigations.

Republicans proposed the bill in response to the John Doe probes that first resulted in the convictions of six aides or associates of then-Milwaukee County Exec Scott Walker and then looked at coordination between his campaign and conservative groups during the recalls.

Among other things, AB 68 would:

*impose a six-month time limit on a John Doe proceeding. It could be extended by additional six-month periods if a majority of administrative district chief judges found good cause for each extension. They would also have to agree to add specified crimes to the original complaint;

*make records reflecting the cost of John Doe probes and proceedings a public record;

*and allow special prosecutors to be appointed to assist a DA in a John Doe only under certain conditions.

The Senate version of the bill cleared a committee in that house earlier this year.

The Assembly Judiciary Committee and its Senate counterpart also plan a public hearing on a proposed overhaul of the state’s criminal procedure code 23 years in the making.

The bill’s proposed changes touch on strip searches, venues and bail, among many other elements of the code.

… they should scrap the entire John Doe law. There’s no reason to have a separate discretionary investigatory process. Just allow the normal rules of due process and constitutional protections apply.

Defense of John Doe Costing Taxpayers

Bear in mind that this only includes money spent on outside counsel. It does not include all of the time and expense incurred by the Milwaukee DA office and GAB.

Documents obtained by the MacIver Institute show taxpayers shelled out $965,191.70 from July 1, 2013 to November 30, 2014 to six different law firms, which are defending the Government Accountability Board (GAB), Milwaukee County District Attorney John Chisholm, and other John Doe investigators. The largest sum of money – $589,523.02 – went to three law firms representing the GAB or its special prosecutors in the John Doe probe.

It is worth noting that this is also money being spent in these law enforcement budgets that is NOT going to things like reducing gang violence, victim services, etc.



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