Still their little secret? Questions remain on John Doe gag order

M.D. Kittle
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May 14, 2014 1:22 PM
Still their little secret? Questions remain on John Doe gag order
Part 59 of 59 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Raw intimidation.

That’s how one conservative target describes the nearly three-year John Doe investigation into organizations like hers.

The worst part of the politically charged probe, she said, isn’t even that her group has been accused of crimes she insists it did not commit. It is the sense of powerlessness in knowing that she and so many other conservatives, bound by a strict court-administered secrecy order, have no way of defending their reputations.

“It is outright bullying, from a crowd that is constantly yapping about bullying,” the source told Wisconsin Reporter this week.  “If this isn’t bullying, I don’t know what is. It’s raw intimation.”

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TO REMAIN SILENT: A federal judge’s ruling striking down the secret John Doe probe into conservatives may not lift the investigation’s strict secrecy order.

Despite U.S. District Court Judge Rudolph Randa’s ruling — twice — last week shutting down the Democrat-launched John Doe investigation, the source who shared her story with Wisconsin Reporter wished to remain anonymous, fearing that the gag order, which could land violators in jail, lives on.

“Our attorneys have told us to hang on, there’s still a wild ride ahead,” the source said of a legal process being adjudicated in state and federal courts.

Silence, it seems, remains golden, among the dozens of conservatives targeted in the John Doe probe, launched by the office of Milwaukee County District Attorney John Chisholm, a Democrat, in August 2012.

The probe was looking into possible illegal coordination between conservative groups and Republican Gov. Scott Walker’s recall election campaign, but came under fire for the opaque way it was conducted.

Wisconsin Reporter on Friday contacted several conservative organizations reportedly targeted in the probe, including Wisconsin Family Action, Wisconsin Manufacturers & Commerce, Americans for Prosperity, the Republican Party of Wisconsin and the Republican Governors Association. Only WMC returned our call, but the group declined comment.

Rick Esenberg, Milwaukee attorney and constitutional law expert, said the conservatives subject to the secrecy order are rightly erring on the side of caution.

“As a general matter with whatever secrecy order there is and whatever the terms are, assuming those terms are even constitutional, which I have grave doubts about, I don’t think Judge Randa’s order would vacate the secrecy order in and of itself,” said Esenberg, founder, president and general counsel of the Wisconsin Institute for Law and Liberty, a Milwaukee-based public interest law firm.

Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee, ordered that the prosecutors-turned-defendants must “cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.”

The 7th Circuit U.S. Court of Appeals promptly stayed the so-called “return-and-destroy” order in Randa’s ruling but, for now, the judge’s preliminary injunction remains in effect.

But there remains a cloud of uncertainty surrounding the John Doe’s secrecy order.

Randa’s ruling relates to a civil rights lawsuit filed in February by conservative targets of the John Doe probe.

Conservative activist Eric O’Keefe and his Wisconsin Club for Growth are suing Chisholm, two of his assistant DAs, John Doe Special Prosecutor Francis Schmitz, and shadowy Government Accountability Board-contracted investigator Dean Nickel.

The investigation has operated on the theory that the conservative organizations may have illegally coordinated with the Walker campaign during Wisconsin’s partisan recall elections of 2011 and 2012. That theory has been roundly rejected by Randa and retired appeals court Judge Gregory A. Peterson, the presiding judge in the John Doe investigation.

O’Keefe and the club contend the probe, which has featured what some sources have described to Wisconsin Reporter as “paramilitary-style” pre-dawn raids at the homes and offices of conservative targets, has had a chilling effect on conservative organizations’ First Amendment rights.

That allegation was confirmed by the source who spoke this week with Wisconsin Reporter.

“It keeps you off balance. It makes it challenging to talk to people who see your name show up in a newspaper article. You have to say, ‘You may have read about us there, but I can’t say any more about it,’” she said of the John Doe and its secrecy order.

The conservative target said not only has her organization struggled to raise money to do its outreach and advocacy work, the group has struggled to raise funds to pay the legal fees accrued to silently defend itself.

“That was particularly frustrating,” she said, noting that the legal bills related to the investigation so far have climbed into the “thousands of dollars.”

“We were glad that people thought this was nuts and stepped up, like Eric O’Keefe,” the source said. “They have done a world of good for all of us.”

O’Keefe has “stepped up” at the peril of his personal liberty. Bound by the same gag order, he faced, and perhaps still faces, possible contempt charges.

Randa’s ruling shutting down the investigation specially covers the plaintiffs in the civil rights lawsuit, O’Keefe and club members. But the judge does state that the plaintiffs and “others,” presumably those subjected to the investigation, “are hereby relieved of any and every duty under Wisconsin law to cooperate further” with the prosecutors’ investigation.

But precisely what Randa means regarding the secrecy order remains unclear. An official in Randa’s office said staff could not interpret the judge’s ruling, and that Randa continues his policy of not discussing his decisions with the media.

Esenberg said the big problem is that relatively few people have seen the secrecy order.

“I was told that when lawyers asked for a copy of the secrecy order, when the warrants were executed, they were denied,” he said.

For now, it appears caution is the guide. Given Randa’s stern criticism of the prosecutors and their investigation, Esenberg said conservatives may find sympathy with the judge should Chisholm and crew try to enforce the secrecy order while the preliminary injunction is in effect.

“Given Judge Randa’s attitude on the whole thing … my guess is that motion would be successful” for conservative targets who challenge, Esenberg said.

For now, conservative targets such as the source who spoke to Wisconsin Reporter, have plenty to say about the John Doe investigation but worry that doing so could cost them their freedom.

“This is a classic example of (the prosecutors) trying to circumvent the will of the people,” the source said. “A majority of people voted for representatives to put these laws in place, like it or not … This is a classic case of attempting to change the law through means not provided for that, through the judiciary, through prosecution.”

“So much for checks and balances, the rule of law, the separation of powers,” she said. “These kinds of situations are at best disturbing and they fly in the face of the rule of law.”

Contact M.D. Kittle at mkittle@watchdog.org