It seems that the years-long John Doe investigation into Gov. Scott Walker’s alleged “criminal scheme” committed with right-wing special interest groups may not be dead after all.
On Friday, three district attorneys asked to intervene in the case after the state Supreme Court fired Special Prosecutor Francis Schmitz on a highly controversial technicality, with at least one court watcher likening it to President Richard Nixon’s “Saturday night massacre,” when the ethically challenged president fired the prosecutor looking into the Watergate scandal in 1973.
Schmitz’s firing left the case with no one to appeal the state court’s decision to the U.S. Supreme Court.
So the state court is allowing the five district attorneys who initiated the case to petition them to step in. On Friday, three of them—Milwaukee County DA John Chisholm, Dane County DA Ismael Ozanne and DA Larry Nelson of Iowa County—filed to intervene. All three DAs who decided to pursue the case are Democrats.
Their request doesn’t mean that the court will give them the ability to appeal the case to the U.S. Supreme Court, however. The court in its Dec. 4 filing only wrote that it would allow the DAs to ask them for permission to intervene.
The four state justices who fired Schmitz and invited the DAs to try to step in are Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler. Justice Shirley Abrahamson dissented, calling the majority’s decision “a mess.” Justices Ann Walsh Bradley and Rebecca Bradley did not participate in the decision.
Conflicting Legal Rulings
Chisholm’s office had no comment on the matter and the three DAs’ six-page motion to intervene offers no insight into their decision to do so.
But two DAs who had been part of the five-county investigation—Columbia County DA Jane Kohlwey and Dodge County DA Kurt Klomberg—released filings and a letter to the other prosecutors explaining why they are halting their involvement in the case.
Interestingly, neither Kohlwey nor Klomberg wrote that they decided to withdraw because they thought the investigation lacked merit.
Rather, they claimed that their Republican Party ties, recent court decisions and the new Republican-backed laws attacking the state’s campaign finance laws forced them to end their participation in the case.
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“As you know, after the appointment of the special prosecutor, the law relevant to this matter changed materially,” wrote DA Kohlwey in a letter to her fellow prosecutors. “New decisions were rendered by both the United State[s] Supreme Court and the Wisconsin Supreme Court which largely invalidated the original conclusions of law supporting this investigation. Subsequent legislative action made the previously suspect actions now lawful. It is my opinion that the United State[s] Supreme Court review of this matter will not result in any meaningfully different outcomes from the present status.”
DA Klomburg used the same reason, writing, “After the appointment of the special prosecutor, relevant law changed. New decisions of the U.S. and Wisconsin Supreme Courts removed reliability on original conclusions of law supporting the investigation. Subsequently, legislative action made the complained-of actions lawful.”
But Matthew Rothschild, executive director of the government watchdog group Wisconsin Democracy Campaign, disagreed with the Republican DAs’ interpretation of recent court decisions.
No U.S. Supreme Court decision has formally legalized the type of candidate-special interest group coordination as Walker is alleged to have done with Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce and others, Rothschild argued. And the Wisconsin Supreme Court’s July decision shutting down the investigation and legalizing that kind of coordination is in conflict with long-held campaign finance regulations and court decisions, making U.S. Supreme Court review necessary, he said.
“When the U.S. Supreme Court says ‘black’ and the Wisconsin Supreme Court says ‘white,’ that doesn’t stand up and that’s what’s gone on with this issue of coordination,” Rothschild said. “The U.S. Supreme Court has been real clear that it’s not something that they’re in favor of and yet the Wisconsin Supreme Court said that the First Amendment requires you to allow coordination between candidates and issue advocacy groups. So there’s a direct, head-on collision there and that’s why I think the U.S. Supreme Court not only should but will take this appeal.”
Rothschild said the three DAs have a strong case on appeal, arguing that Gableman and Prosser should have recused themselves because they benefited from campaign spending by the groups under investigation; that the state court misinterpreted campaign finance law; and that the court ignored potential evidence that Walker had coordinated with groups not only on “issue ads” but on overt campaign ads as well.
“I sure hope the U.S. Supreme Court takes the case and I sure hope the U.S. Supreme Court overturns the state Supreme Court’s decision on this question on whether candidates can coordinate with outside groups,” he said.
One matter that the two GOP DAs did get right is that the state Legislature’s Republican majority changed campaign finance laws this fall. Now, candidates can work in secret with dark-money groups that can take in unlimited, corporate and anonymous contributions. In that way, candidates don’t need to worry about following the regulations and donor limits that impact their own campaign accounts—they can let the dark-money group, in essence, do their messaging and fundraising and the public will never know.
In addition, the Republican-dominated Legislature changed the John Doe law so that prosecutors can no longer use this type of investigation when looking into potential crimes committed by politicians. They can, however, use a John Doe investigation to look into any other crime.
