In heavily redacted documents released by the state Supreme Court last week, new details emerged about the John Doe investigation into the coordination between Gov. Scott Walker and allied conservative groups during the 2011-2012 recalls.
But if you want those details, you’re going to have to dig through hundreds of pages of those blacked-out court documents.
Citing the secrecy of the John Doe investigation, the state Supreme Court decided to cancel oral arguments that had been scheduled for April 17 and 20 and allow the eight plaintiffs to remain anonymous. Instead, the justices will decide the case based only on written briefs provided under seal. Redacted versions of those briefs were released last Wednesday for public consumption. Justice Shirley Abrahamson, who, along with Justice David Prosser, had wanted to hold oral arguments, stated that the documents were redacted more than was necessary.
The two justices aren’t the only ones who disagree with the court’s decision to forgo oral arguments on a case that could impact not only Walker’s personal fortunes, but also Wisconsin’s campaign finance laws and the legality of procedures used in a John Doe investigation.
“It’s outrageous that they’re not letting the public hear oral arguments,” said Wisconsin Democracy Campaign Executive Direct Matt Rothschild. “We’re supposed to have a democracy and open government and this is closing the government, physically closing the doors of government on a very important case in which there’s tremendous public interest.”
That said, some of the documents help to fill in the picture of the John Doe that’s been portrayed in other court documents and in the press.
And since the U.S. Supreme Court declined to take on a federal case filed by Wisconsin Club for Growth and its director, Eric O’Keefe, the John Doe cases will remain in state courts, at least for now.
Scott Walker’s Role
Although Walker is said to play a central role in what prosecutors have called a “criminal scheme” intended to subvert the state’s campaign finance laws during the recall period, he doesn’t make much of an appearance in the documents—at least, in the portions publicly available.
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Walker’s longtime attorney, Steven Biskupic, represents “Unnamed Movant #1.” Biskupic argues that Walker wasn’t subject to campaign finance restrictions on coordination between candidates and independent groups until April 9, 2012, when the signatures collected to recall him were certified and he officially became a candidate for recall. What’s more, Walker was able to raise unlimited funds from individuals from Nov. 15, 2011, until the recall signatures were certified the following April, a loophole in state law intended to benefit elected officials who are the target of a recall.
But Special Prosecutor Francis Schmitz—a former federal prosecutor during the George W. Bush administration who says he voted for Walker in the recalls—argues in his brief that elected officials’ campaign committees must adhere to campaign finance laws and filing requirements year round, even if they aren’t facing a specific election.
That distinction is significant since evidence released in other cases shows that Walker and his campaign aides directed donors to funnel money through the Wisconsin Club for Growth, which allegedly controlled spending and messaging during the 2011-2012 recalls. In fact other court documents revealed that Walker fundraiser Kate Doner emailed in April 2011, “The Governor is encouraging all to invest in the Wisconsin Club for Growth. Wisconsin Club for Growth can accept Corporate and Personal donations without limitations and no donors disclosure.”
At the time, Walker’s top aide, R.J. Johnson, was also working for the Wisconsin Club for Growth and also controlled the Citizens for a Strong America, a phony front group that spent $2.7 million during the recalls and the 2011 re-election of Justice Prosser.
The ‘Independent’ Groups
The seven other anonymous plaintiffs appear to be special interest groups and political operatives who were allegedly coordinating efforts during the recalls.
For years, the state has regulated coordination between candidates, who face contribution limits and must disclose their donors, and independent special interest groups, which can take in unlimited anonymous cash. However, if there’s a financial connection between the two entities, then the candidate must report that relationship on his or her campaign finance forms and treat it as a contribution, the prosecutor argues.
Prosecutor Schmitz is arguing that the groups involved in Walker’s scheme lost their independence and were controlled by a candidate’s committee. He called the loss of independence a “game changer.”
“It goes without saying that a candidate, dealing with a truly independent organization, does not get to finally decide whether donor money goes to the campaign or the ‘independent’ entity—this is true whether or not the candidate takes steps to encourage donations to a truly independent entity,” Schmitz argued.
The anonymous plaintiffs, on the other hand, argue that the kind of coordination alleged isn’t illegal, and trying to prohibit this kind of relationship is an unconstitutional attack on their First Amendment rights.
The Ads
The anonymous plaintiffs argue that the ads placed by the special interest groups were about policy issues and not intended to support or oppose anyone’s campaign. Therefore, they couldn’t be seen as an improper contribution to a candidate’s campaign.
Apparently to bolster their argument, Biskupic offered a list of ads that he says had nothing to do with the recalls. Although the sponsors of the ads were redacted, it was easy to discover that they were sponsored by Wisconsin Club for Growth and Citizens for a Strong America. The ads slammed some Democrats for opposing the mining bill that benefitted Gogebic Taconite; other documents show the group secretly donated $700,000 to Wisconsin Club for Growth during this period. Citizens for a Strong America ran an ad opposing a proposed casino in Sheboygan.
But Special Prosecutor Schmitz offers a very different view of the ads. In fact, he goes so far as to say that both issue ads and overt campaign ads were part of the coordinated scheme. But, of course, any details in the documents about the ads were redacted.
The John Doe
The plaintiffs are also taking on the John Doe itself, saying it gives too much power to the prosecutor who, they claim, is conducting a partisan witch hunt, complete with pre-dawn military raids of individuals’ homes. And the John Doe’s secrecy orders, they charge, prevents them from speaking out about this abuse.
Although most of Walker’s supporters’ ire is directed toward Milwaukee County District Attorney John Chisholm, who initiated the investigation, he isn’t a party to any of these suits. Instead, a bipartisan group of judges who signed off on the John Doe investigation are named as defendants. Their brief states that the John Doe investigation and the appointment of Schmitz and the John Doe judges were proper.
Separately, Republicans are debating a bill that would prohibit prosecutors from using a John Doe to investigate political crimes, such as the ones alleged in this case.
In an interview with the Shepherd, former Milwaukee County District Attorney E. Michael McCann, a board member of Common Cause in Wisconsin, defended the use of a John Doe to investigate political crimes, as he did during the caucus scandal in the early 2000s. McCann said that contrary to the plaintiffs’ arguments, the John Doe is an “effective, proven instrument.”
McCann also said that the John Doe process worked well for the plaintiffs. When some of the conservative groups were subpoenaed, they took their case to the John Doe judge, Gregory Peterson, who quashed the subpoenas and essentially halted the investigation.
“That’s the great irony here,” McCann told the Shepherd. “It’s much harder to shut down a grand jury.”
He also disputed the plaintiffs’ arguments that the John Doe’s secrecy order effectively silenced them. McCann explained that those questioned by a prosecutor in a John Doe can talk about the issue generally, but they can’t discuss what they were asked in the John Doe investigation specifically.
