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Last week’s unanimous decision of the Wisconsin Supreme Court to take on three cases relating to the John Doe investigation into the political allies of Republican Gov. Scott Walker is ostensibly about campaign finance laws.
But in the big picture, the high-profile fight over whether Walker, the Wisconsin Club for Growth and roughly two dozen conservative special-interest groups could coordinate fundraising, messaging and spending during the 2011 and 2012 recalls shows the influence of big money on our court system. Big money is involved at all levels of the latest chapter of the John Doe saga, from buying justices to shutting down criminal investigations to potentially destroying the state’s campaign finance laws.
Ethical Conflicts of Justices
Six of the seven state Supreme Court justices agreed to take on and consolidate three cases related to the John Doe. The absent justice, Justice Ann Walsh Bradley, has recused herself from the cases since her son practices law with Dean Strang, one of the attorneys filing suit. Bradley is up for re-election in April 2015.
However, four of the remaining justices—Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler—benefited from the spending of two groups at the heart of the cases, Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce (WMC). According to the Center on Media and Democracy’s Brendan Fischer, the groups spent more than $10 million since 2007 to elect their four favored conservative justices.
Despite this financial connection, Wisconsin judges and justices aren’t forced to remove themselves from cases involving any campaign donor. That’s because the court amended their own Judicial Code of Conduct to allow them to rule on cases that involve donors. The majority of the court adopted the rule, verbatim, that had been proposed by WMC and the Wisconsin Realtors Association. WMC just happens to be a participant, along with Wisconsin Club for Growth and Walker, in what prosecutors call their “criminal scheme” to subvert Wisconsin’s campaign finance laws. The John Doe cases before the court target the groups’ coordination.
That said, if the conservative justices recused themselves, they’d fail to have a quorum to decide the cases. But Wisconsin, unlike the majority of other states, lacks the ability to appoint an appellate court judge to the Supreme Court to fill in for recused justices and preserve a quorum, according to Milwaukee attorney Jeremy Levinson.
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Levinson said the justices could have refused to take the cases, which would have sent them back to lower courts for hearings and decisions.
“They don’t have to take the case,” Levinson said.
Conservatives Attack the John Doe When It Targets Them
Five of the issues on which the Supreme Court asked to be briefed deal with Wisconsin’s John Doe law, the tool prosecutors use to launch criminal investigations. John Does give prosecutors a way to collect evidence and get testimony from witnesses in secret, shielding them from retaliation from those involved in criminal activities.
Five separate Wisconsin district attorneys requested John Doe investigations in an attempt to gather information about the alleged “criminal scheme” that involves Walker and the supposedly independent special interest groups. The investigation is overseen by retired Judge Gregory Peterson; its special prosecutor is Francis Schmitz, a former federal prosecutor.
The conservative groups under investigation are now attacking the John Doe process itself in lawsuits and in sympathetic media outlets as a partisan witch hunt conducted by overzealous prosecutors, among other things.
A John Doe, of course, was used to investigate and ultimately convict legislative leaders of both parties during the 2001-2002 caucus scandal. The funny thing, though, is that nobody attacked it as an investigatory tool back then, said Jay Heck, executive director of Common Cause of Wisconsin.
"The major difference now is that there are a lot of folks who are much more aggressive in not wanting to be found guilty of something,” Heck said. “They’re just striking back in a way that [Scott] Jensen and [Steve] Foti and Bonnie Ladwig and Chuck Chvala didn’t do back in 2002. Maybe it’s because they think that they can.”
Former Milwaukee District Attorney E. Michael McCann, a prosecutor in the caucus scandal, defended the use of a John Doe generally and in campaign finance cases like the one that has ensnared Walker. Unlike a grand jury, a John Doe investigation is run by a judge and not a district attorney, protects witnesses with secrecy and immunity from prosecution when necessary, and allows those providing testimony to be represented by an attorney—all benefits in McCann’s book.
“We used it many times on a day-to-day basis,” McCann said. “White collar crime is extremely difficult to do without it.”
Inhibiting white-collar prosecutions—not just campaign finance prosecutions—may be the ultimate goal of the well-paid, high-powered attorneys representing the conservatives caught up in the John Doe, said Marquette Law professor Edward Fallone, who ran against Roggensack in 2013.
He said that challenging and weakening the John Doe would increase the disparity in our court system, where those accused of committing street crime have few resources compared to prosecutors, but those accused of committing white-collar crimes can afford to hire an army of attorneys with unlimited resources.
“Someone prosecuted as a purse snatcher won’t have the resources to attack the prosecutor,” Fallone said. “But executives—I’m not going to say they will get away with their crimes, but it will be much harder to prosecute them.”
Protecting Big Corporate Donors
The John Doe was investigating the financial and messaging coordination of Walker’s campaign and allegedly independent groups. The special prosecutor, Francis Schmitz, alleged that the groups were involved in a “criminal scheme
