You’d be forgiven if you have given up following the many twists and turns in the John Doe investigations into Gov. Scott Walker’s alleged links to conservative groups and mega-donors. But you’d be wise to continue paying attention.
As it stands now, the Wisconsin Supreme Court shut down the John Doe investigation, declared that candidates have a First Amendment right to coordinate with allegedly independent dark-money groups such as the Wisconsin Club for Growth and fired the special prosecutor who was leading the investigation. Then, the court decided to hold onto the sealed documents gathered in the case to preserve the John Doe investigation’s secrecy.
After Special Prosecutor Francis Schmitz was fired, the three district attorneys involved in the John Doe cases—Milwaukee County District Attorney John Chisholm, Iowa County District Attorney Larry Nelson and Dane County Attorney Ismael Ozanne—asked to step in so that they could appeal the decision to the U.S. Supreme Court.
The DAs received that permission and have filed their appeal, arguing that two Wisconsin Supreme Court justices—Michael Gableman and David Prosser—should have recused themselves because they benefitted from campaign spending by those under investigation. However, as many as four members of the state Supreme Court benefitted from right-wing groups’ spending, totaling more than $10 million.
In addition, the DAs say that the justices’ ruling on campaign finance coordination was wrong, since Wisconsin law at the time of Walker’s actions prohibited such coordination. Walker’s Republican allies in the Legislature passed a law legalizing much of his conduct, so now candidates can coordinate in secret on phony issue ads that are campaign ads in disguise.
But while we’re waiting to hear if the U.S. Supreme Court will take the prosecutors’ case, other John Doe-related cases are making their way through the court system—and they’re worth your attention.
Lisa Graves, executive director of the Madison-based Center for Media and Democracy, said the John Doe investigations and the attempts to shut them down in the courts show just how corrupt Wisconsin has become.
“I personally think that there is manifest evidence of corruption at the highest levels of government here in more than one branch of government,” Graves told the Shepherd. “I think many people in Wisconsin know that there’s corruption and are deeply concerned about it and rightly so.”
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Cindy Archer’s Case Tossed
At the end of May, U.S. District Judge Lynn Adelman dismissed the case brought by longtime Walker aide Cindy Archer, who sued Milwaukee County District Attorney John Chisholm and four members of his office. Archer argued that they violated her rights when they requested a search warrant of her Madison home to seize articles related to her work for Walker in Milwaukee County. She said her house was raided because Chisholm wanted to retaliate against her for her alliance with Walker and her support of the union-busting Act 10.
Archer received immunity, was never charged with a crime and she said she’ll appeal the decision dismissing her case.
Matt Rothschild, executive director of the Wisconsin Democracy Campaign, said that Archer’s suit actually hurt the John Doe foes more than it helped them.
“This decision blows Cindy Archer’s case out of the water,” Rothschild said. “It destroys the allegation that the investigation was improper and it exposes more information about Walker coordinating with Wisconsin Club for Growth, which, as Adelman points out, the statutes in Wisconsin said was illegal. By bringing this lawsuit forward Archer has brought into evidence more facts that show Walker was skating on really thin legal advice.”
In her original complaint, Archer made wild allegations about the conduct of those who searched her home. “When Archer opened the door,” her complaint reads, “officers and others flooded in, throwing the warrant at her without giving her an opportunity to read it. Their guns were drawn, and Archer believed they would shoot her two dogs, who were barking at the intruders.”
But when the DAs released the audio of the search, they directly refuted Archer’s allegations. She then edited them out of her revised complaint.
That said, Adelman found that the search warrant was properly served, it wasn’t overly broad, the judge who signed the warrant was neutral and unbiased, no misconduct transpired during the raid and that Archer’s rights were not violated.
Adelman also wrote that the prosecutors were entitled to immunity from prosecution while they’re doing their job investigating public corruption. The first John Doe investigation into Walker’s affairs resulted in convictions of six Walker aides and political allies, Adelman noted.
Allowing those under investigation to file suit against prosecutors could intimidate the prosecutors into dropping a case, Adelman wrote.
Adelman wrote that subjects of the investigation Archer was complaining about—that would be Archer, Walker and their right-wing allies—“had significant resources and were willing to bring numerous lawsuits in an attempt to shut the investigation down. It is not an overstatement to say that the opponents of the investigation made it very difficult for the defendants to proceed. Besieging public officials with lawsuits is precisely the kind of activity that can inhibit if not intimidate an official and cause her to refrain from taking action which, however justified, might engender more lawsuits.”
Evidence of Bid-Rigging?
Adelman also lays out the prosecutors’ reasons for searching Archer’s home and in doing so shines more light on Walker’s conduct as Milwaukee County executive.
According to the September 2011 search warrant, the prosecutors state that they were looking for evidence related to two county contract bids—one for a county lease at the Reuss Federal Plaza in Downtown Milwaukee, another to privatize custodial services at the Courthouse.
In both cases, documents and emails indicate Archer was among the Walker aides who sent confidential information to John Hiller, Walker’s campaign treasurer, who had business ties to two bidders. The office lease ultimately wasn’t given to Hiller’s client, the Boerke Company, but the housekeeping contract was awarded to Mid American Building Services, which was connected to Hiller.
Hiller, a commercial real estate agent who also had a consulting business, made more than $110,000 from the companies involved in these deals, according to the September 2011 search warrant. Interestingly, principals of both Boerke Company and Mid American were on the Friends of Scott Walker campaign finance committee and both made donations to his campaign, the search warrant alleges.
Chisholm didn’t charge anyone in these cases, but Adelman wrote that doesn’t mean a crime wasn’t committed by those leaking confidential information about the bids. Wisconsin law “does not require that a dishonest advantage actually be obtained, only that a public employee act ‘with intent to obtain a dishonest advantage.’”
In other words, Chisholm could have charged Archer but didn’t.
Wisconsin Court Withholds Documents from DAs
In addition, in what can be considered a rebuke of the Wisconsin Supreme Court, Adelman said he would hang on to the documents in the Archer case, since he couldn’t guarantee that the prosecutors could access the documents if they were filed in the Wisconsin court.
Adelman pointed out the Wisconsin justices refused to allow a private law firm which sought to represent Chisholm, Nelson and Ozanne in their U.S. Supreme Court appeal to review the documents. The DAs are representing themselves pro bono. In addition, the state Supreme Court refused to grant them access to the documents by allowing them to intervene in the larger John Doe case—twice.
Adelman said he has no choice but to keep the documents in the Archer case to ensure that Chisholm and his team could access them if or when the case is appealed.
“The [Wisconsin Supreme] court has not actually agreed to allow the parties in the present case access to the materials, stating only that the documents might ‘potentially’ be released, and the court has not set forth any procedure by which the parties could seek access to the materials,” Adelman wrote. “Based on the court’s unwillingness to address the issue of access to documents in any meaningful way, it is entirely possible that once the defendants turn over the materials, they could permanently lose the chance to access them for use in this litigation.”
In a separate John Doe case, in 2014 conservative U.S. District Judge Rudolph Randa had ordered all of the documents destroyed—a virtually unprecedented decision that was quickly reversed by an appeals court.
CMD’s Graves, an attorney, said Randa’s order to destroy evidence and the Wisconsin court’s decision to deny the prosecutors access to documents was “extraordinary.”
“These groups [fighting the John Doe] have been gunning to destroy the evidence from the get-go,” Graves said. “And the extraordinary intervention by this Wisconsin Supreme Court in trying to restrict the rights of the prosecutors to appeal by restricting their ability to confer with counsel, or even to be paid, is exceptional. I certainly think the decision by Adelman is the correct one.”
