Last Tuesday, a three-judge panel at the 7th U.S. Circuit Court of Appeals in Chicago heard arguments about whether a federal judge in Milwaukee properly shut down the John Doe investigation because it was violating the civil rights of Gov. Scott Walker’s political allies, the Wisconsin Club for Growth and its director, Eric O’Keefe.
O’Keefe and the Club got a favorable ruling in the federal court in Milwaukee, where conservative U.S. Judge Rudolph Randa decided to halt the investigation and ordered that all of the evidence be destroyed—a highly unusual order, according to court observers.
Now, the three-judge panel in Chicago—Chief Judge Diane Wood, a Clinton appointee; Frank Easterbrook, a Reagan appointee; and William Bauer, a Ford appointee—must decide if Randa was right to shut down the investigation. This is the same panel of judges that in 2007 found that Randa had convicted Doyle aide Georgia Thompson on evidence that was “beyond thin” and immediately released her from federal prison—another highly unusual order.
Last Tuesday’s oral arguments yielded few clues about how the panel will rule on the case, or when.
But the judges’ questions—along with a brief filed by attorneys for Milwaukee District Attorney John Chisholm and other prosecutors and investigators being sued by O’Keefe and the Club—shed light on the many myths being promoted by right-wing activists in court and in the media.
Myth: Chisholm is obsessed with Scott Walker, an obsession fueled by his wife’s tears over the damage done by the governor’s public union-busting Act 10. For Chisholm, it’s personal. And political, too, since he’s a highly partisan Democratic prosecutor.
Fact: This is the right wing’s new meme, first “reported” by a highly unreliable right-wing blog affiliated with the U.S. Chamber of Commerce and now repeated as a matter of faith by gullible conservatives, including Charlie Sykes. The accusation is from an anonymous source. Chisholm’s wife, a public school teacher, is now labeled by the right wing as a “union operative.”
It is true that Chisholm doesn’t reveal the information that he received that caused him to look into Walker’s coordination with Wisconsin Club for Growth. But we do know that it’s highly unlikely that his wife’s tears caused so many people across the political spectrum to join him in his “obsession” to take down Walker.
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As Chisholm’s brief states, “five separate county district attorneys, two retired Wisconsin judges, a career federal prosecutor, professional investigators, and a nonpartisan state agency comprised of all former judges” all agreed that the John Doe was not frivolous. Nor would they have known that Chisholm’s wife was upset about Act 10.
Myth: Chisholm initiated the John Doe investigation into O’Keefe and the Wisconsin Club for Growth.
Fact: The investigation involves five separate John Doe proceedings in five counties. Iowa County District Attorney Larry Nelson asked for the one involving O’Keefe. Then-John Doe Judge Barbara Kluka signed off on Nelson’s request, as well as a subpoena for documents from O’Keefe. In fact, none of the prosecutors or investigators being sued in this case was involved in this specific investigation or the O’Keefe subpoena, making some wonder why these folks are being sued in the first place.
Myth: Armed sheriff’s deputies shined floodlights on defendants’ homes while raiding them.
Fact: O’Keefe was served a subpoena at the offices of his attorneys, Godfrey and Kahn, in Madison, not at his home. O’Keefe provided no concrete evidence that any homes were raided by zealous armed deputies with floodlights, the brief claims.
Myth: This whole investigation is frivolous because the Club for Growth ads never said “Vote for Scott Walker.” Besides, Citizens United pretty much ended all limits on campaign donations.
Fact: Citizens United was in place when the John Doe commenced and the Chisholm brief claims that Wisconsin can regulate coordinated spending on ads that don’t specifically state “vote for” or “vote against.” (O’Keefe and the Club disagree about this interpretation of state law.)
The prosecutors were looking for information about whether Walker and the Club worked together to fundraise and pay for ads that supported his agenda, even if those ads were merely about “issues.”
We know from other John Doe documents that Walker raised funds for Club for Growth—he doesn’t deny it, either—and that the Walker campaign wanted to channel all messaging through the Club, which was run by his paid operative, R.J. Johnson. Some of that money was funneled to other organizations’ ads that were clearly supportive of Walker, the prosecutors argue. That’s why they call the Walker-Club operation a “criminal scheme.”
Myth: President Barack Obama raised money for the Priorities USA Action Super PAC, so there’s nothing wrong with Walker raising money for Wisconsin Club for Growth.
Fact: Candidates for federal office, such as Obama, and state candidates, such as Walker, as well as Super PACs and independent groups such as Wisconsin Club for Growth, abide by different rules. “A federal candidate can raise money for such outside organizations—even by appearing at a Super PAC fundraising event—as long as the candidate does not ask for money beyond the federal source and amount limitations,” the Chisholm brief explains. In addition, Super PACs must disclose their donors.
State candidates and groups like the Club for Growth play by different rules. Wisconsin candidates cannot coordinate their messaging or spending with an outside group unless those activities are publicly disclosed on the candidate’s campaign finance records. The Club, unlike a Super PAC, doesn’t have to disclose its donors. The prosecutors allege that Walker and his campaign staffers illegally coordinated their fundraising, messaging and spending with Wisconsin Club for Growth and didn’t disclose that relationship because they wanted to get around the state’s campaign finance disclosure laws.
Myth: O’Keefe and the Wisconsin Club for Growth had to sue in federal court because their civil rights were being violated. Chisholm and the John Doe proceedings in general were so unfair that they couldn’t get relief in Wisconsin’s court system, they argued.
Fact: Even the three federal appellate court judges were scratching their heads over why this case was being heard in federal court. O’Keefe and the Club were able to get their subpoena halted in state court, when they complained to Judge Gregory Peterson and he ruled in their favor. Peterson ultimately quashed all of the subpoenas in the investigation.
“I’m confused by your assumption that the Wisconsin courts don’t seem to have that power” to completely shut down the John Doe investigation, said Chief Judge Diane Wood.
“All you have to do to end this investigation is to persuade Judge Peterson to end this investigation,” Judge Frank Easterbrook told the Club’s attorney.
