The “John Doe” investigations of Wisconsin conservatives, targeting particularly Governor Scott Walker, was a shameful chapter of political abuse of the prosecutorial process.
My most recent post was The rotting corpse of Wisconsin’s John Doe investigation still stinks, which details the history of investigations based on unconstitutional attempts to silence conservatives. The cases eventually were thrown out and shut down by the Wisconsin Supreme Court. But not until lives had been ruined, and people terrorized.
There was John Doe No. 1, investigating Scott Walker’s time as Milwaukee County Executive. They never came up with any wrongdoing by him.
Then there was John Doe No. 2, regarding Walker’s alleged unlawful collusion with conservative groups during the recall election. It is John Doe No. 2 that has generated litigation over several years. In the end, every court that ruled on the issue found that the entire prosecution legal theory was legally unfounded — that even if these conservative groups did what they were alleged to have done, it was constitutionally protected speech and not illegal.
(note: Michael Lutz in this interview from late April 2015 committed suicide in late July).
We have several dozen posts about the history of John Doe No. 2 . Scroll through our John Doe (WI) tag. Here are some key posts in our extensive coverage of the John Doe investigation reflecting the abusive tactics:
Now there are new revelations in a Report from the Wisconsin Attorney General (full embed at bottom of post)(pdf.)that was unsealed by the court today.
The AG investigation concerned the violation of a court order sealing investigation records. In violation of that order, documents about Wisconsin conservatives, gathered as part of the investigation, were leaked to The Guardian newspaper in Britain.
Wisconsin Public Radio reports:
Attorney General Brad Schimel is asking for disciplinary action against nine people following his investigation into the leaking of documents collected during a now-closed probe of Gov. Scott Walker’s campaign.
Schimel made the recommendation in a report released Wednesday. Jefferson County Circuit Judge William Hue is overseeing the probe and says he hopes to make a decision within 40 days after receiving the report Tuesday afternoon.
Schimel says former Government Accountability Board attorney Shane Falk should be referred to the Office of Lawyer Regulation for knowing and repeated violations of secrecy orders.
Schimel also said contempt proceedings should be brought against Falk and three other former GAB employees, special prosecutor Franc Schmitz, Elections Commission attorney Nathan Judnic and three employees of the Milwaukee County District Attorney’s Office.
There was “systemic and pervasive mishandling” of evidence during the investigation that led to the leak of documents to the Guardian newspaper, Schimel said.
The Wisconsin Department of Justice is not recommending the filing of any criminal charges following its investigation.
The numerous news reports about the Report gloss over the malfeasance disclosed in the Report, focusing mostly on the fact that no criminal charges were recommended.
But the Report is a blockbuster. It’s so long and detailed that I’m likely to update this post later. But here are some lowlights.
The introduction to the Report provides the overview (emphasis added):
As this report describes in detail, the systemic and pervasive mishandling of John Doe evidence likely resulted in circumstances allowing the Guardian leak in the first place, and now prevents prosecutors from proving criminal liability beyond a reasonable doubt. 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.
In the following pages, this report will explain how the former GAB never fully divested itself of evidence from the John Doe investigations and how former GAB employees and current employees of the Wisconsin Ethics Commission (Ethics) left sensitive evidence unsecured in the former GAB office space and on former GAB computer systems. This report also describes how DOJ investigators, in searching for the leaked documents, discovered what this report calls “John Doe III,” a previously unknown and secret investigation into a broad range of Wisconsin Republicans. John Doe III reached far beyond John Doe II’s original (and unsubstantiated) allegation centering on unlawful “coordination” during Governor Walker’s 2010 election and 2012 recall election. As explained more thoroughly below, this secret investigation collected hundreds of thousands of private emails from dozens of Wisconsin Republicans (and at least two national conservative leaders, Ed Gillespie and Leonard Leo). In searching for the leaked documents and the leaker, DOJ investigators found over 500,000 of these John Doe III emails in the basement of the former GAB in two unsecured boxes labeled “Shane Falk.” Moreover, for reasons that perhaps may never be fully explained, GAB obtained and then held thousands of private emails from Wisconsin Republicans in several folders on their servers marked “Opposition Research.”
Government Accountability Board employees, who were supposed to supervise elections in a non-partisan manner, were motivated by anti-Walker politics during their investigations of Walker and conservatives (pg 80-81, emphasis added):
GAB attorneys represented themselves to the Milwaukee ADAs and to the special prosecutor as experts in the field of campaign finance law. The Milwaukee ADAs and the special prosecutor relied on the advice of GAB attorneys in proceeding with the investigation. After reviewing the emails exchanged between the attorneys
at GAB, it is apparent that GAB attorneys had prejudged the guilt of Governor Walker, Wisconsin Republicans, and related organizations that they were investigating and this dramatically influenced their ability to give competent legal advice.
GAB attorneys did not act in a detached and professional manner. The most reasonable inference is that they were on a mission to bring down the Walker campaign and the Governor himself.
As the AP reports, there was a broad invasion of the privacy of people whose emails and other electronic information was collected:
In a report to the judge overseeing the probe released Wednesday, Schimel concluded the leak came from the former Government Accountability Board, but couldn’t determine who exactly was behind it.
“Although probable cause certainly exists to believe that a crime was committed, DOJ does not currently possess proof beyond a reasonable doubt necessary to convict any particular person of a criminal offense at this time,” Schimel said.
The report also discloses that Justice Department investigators discovered a previously unknown secret investigation “into a broad range of Wisconsin Republicans” related to illegal campaigning on state government time. The GAB, which was disbanded in late 2015, held thousands of private emails from Wisconsin Republicans in several folders on their servers marked “Opposition Research,” the report said.
Investigators received chat logs or emails from Walker; U.S. Sen. Ron Johnson; U.S. Rep. Sean Duffy; Assembly Speaker Robin Vos; and Reince Priebus, the former Wisconsin Republican Party chairman who went on to head the Republican National Committee and serve briefly as President Donald Trump’s chief of staff.
Many of the emails obtained were personal and “completely unrelated to campaigns” and DOJ was unable to determine why investigators had them, Schimel said in the report.
Three also was disclosed the previously unkown existence of John Doe No. 3
A DOJ report on a leak to the Guardian newspaper regarding a previous John Doe investigation into @GovWalker shows there was “a previously
unknown and secret investigation into a broad range of Wisconsin Republicans” known as John Doe III.
— Molly Beck (@MollyBeck) December 6, 2017
The Report describes how John Doe III was discovered when AG investigators were tracking down documents (pp. 62-63):
In addition, DOJ also discovered that comingled with this evidence was evidence related to a previously unknown GAB investigation into members of the Republican Party of Wisconsin (hereinafter “Wisconsin Republicans”). For ease of reference, this report will identify this previously unknown investigation as “John Doe III.” ….
Due to the nature of evidence collected, DOJ believes that John Doe III expanded and ultimately became intertwined with the other investigations into Wisconsin Republicans since much of the evidence of John Doe III was comingled with evidence from John Doe II and John Doe I. In fact, a database obtained from the
Milwaukee County DA’s office describing over 200 search warrants and subpoenas issued between 2010 and 2013 did not make any distinction between evidence from John Doe I, John Doe II, or John Doe III. 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.
The Report describes how John Doe No. 3 swept up large amounts of personal information about Wisconsin conservatives (pp 65-66)(emphasis added):
The investigation included subpoenas to state officials (such as the Assembly Chief Clerk, Legislative Technology Services Bureau, and the Department of Financial Institutions) and several search warrants executed on the private email accounts of state employees, state officials, and campaign workers and fundraisers associated with Wisconsin Republicans and Governor Walker. 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 GoDaddy.com 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….
Because of the very broad nature of the search warrants, the John Doe III investigators obtained emails and chat logs from hundreds and perhaps thousands of other individuals who corresponded with the individuals listed above. For example, investigators obtained chat logs and/or emails from the following individuals, merely because they corresponded with one or more individuals in the list above: Governor Scott Walker, Speaker Robin Vos, U.S. Senator Ron Johnson, former U.S. Senate candidate Terrence Wall, former RNC Chair Reince Priebus, Congressman Sean Duffy, State Senators Van Wanggard and Howard Marklein, State Treasurer Matt Adamczyk, former Republican Party of Wisconsin Executive Director Joe Fadness, and legislative staffers Tad Ottman, Jenny Toftness, and Adam Foltz.
Many emails obtained did, in fact, include campaign-related conversations and plans. But in addition to campaign-related emails (which were apparently the target of the investigators), a very large portion of emails were personal and completely unrelated to campaigns. 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.
It’s now confirmed that the #JohnDoe witchhunt reached my own life, even so far as to collect private medical information included in my emails with my daughter and stored in a file titled “opposition research.” Horrifying! pic.twitter.com/Qkac57GZzF
— Senator Leah Vukmir (@LeahVukmir) December 6, 2017
The Report recommended a Bar disciplinary referral and contempt of court proceedings against numerous individuals:
Under separate cover, DOJ will provide the necessary evidence for the Court
to take the following actions:
Refer Attorney Shane Falk to the Office of Lawyer Regulation for
knowing and repeated violation of Judge Peterson’s January 27, 2014,
Initiate contempt proceedings against the following individuals to
remedy violations of orders of the John Doe Judge and orders of the
Wisconsin Supreme Court, as more specifically outlined in a separate
letter to the John Doe Judge:
o Former Special Prosecutor Francis Schmitz
o Former GAB employee Kevin Kennedy
o Former GAB employee Shane Falk
o Former GAB employee Molly Nagappala
o Former GAB employee Jonathan Becker
o Elections Commission Counsel Nathan Judnic
o Milwaukee ADA David Robles
o Milwaukee Administrator James Krueger
o Milwaukee DA Investigator Robert Stelter
Here is the full report (pdf.):
Wisconsin AG Report on Violations of John Doe Secrecy Orders by Legal Insurrection on Scribd