Conservatives in John Doe battle know disclosure comes with a heavy price

Posted: Aug 20, 2014 8:47 AM
Conservatives in John Doe battle know disclosure comes with a heavy price
Part 105 of 105 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Eric O’Keefe knows the consequences of speaking out against powerful prosecutors in a politically charged investigation.

“Indeed, Mr. O’Keefe has faced threatening behavior — including online stalking of his children and grandchildren — due to his participation in this litigation,” the conservative activist’s attorney writes in a court document filed this week.

O’Keefe, the man who sued Milwaukee County prosecutors of a secret John Doe probe into dozens of conservative groups and has won some key battles in the name of the First Amendment, has learned the risks of taking such a stand.

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THE RIGHT’S RIGHTS: Eric O’Keefe and the Wisconsin Club for Growth are arguing that some documents related to a John Doe investigation into conservatives remained seal. They assert that opening up those documents would reveal donors and strategies, and violate their First Amendment rights.

O’Keefe and the Wisconsin Club for Growth allege that Milwaukee County District Attorney John Chisholm, a Democrat, two of his assistant DAs, John Doe special prosecutor Francis Schmitz, and a contracted investigator, trampled on conservatives’ rights to speech and association.

The secret John Doe, launched two years ago by Chisholm under the theory that the conservative group may have illegally coordinated with Republican Gov. Scott Walker’s campaign during Wisconsin’s partisan recalls, was shut down in May by U.S. District Court Judge Rudolph Randa, The judge issued a preliminary injunction and dismissed the prosecutors’ motion to toss out the lawsuit. They have appealed to the 7th Circuit U.S. Court of Appeals in Chicago. Related court cases are working their way through state courts.

As a media coalition seeks to open up records in the federal case, O’Keefe argues releasing certain information could, again, victimize conservatives already subject to persecution in a partisan investigation.

“Based on these (O’Keefe’s) and other instances of retaliation and threats of retaliation, many Club supporters have specifically requested assurances that their identities will not be publicly disclosed, for fear that they too will face reprisal for their political associations and advocacy,” David B. Rivkin, Jr., attorney for the club and O’Keefe, wrote in a motion filed Monday in the 7th Circuit.

The conservatives, once more, are asking that the Aappeas Court seal four affidavits filed by the prosecutors-turned defendants, as well as a “handful of related documents relying on them.” They say, citing a key Supreme Court decision, the documents are protected by their First Amendment rights because public disclosure would “seriously infringe on privacy of association and belief guaranteed” under the Constitution.

O’Keefe and the club charge the prosecutors “stuffed the record (and their briefs) with lengthy affidavits consisting of email messages, phone records, bank records, and the like that they had seized through raids or subpoenas.”

“These materials concern fundraising, strategy, messaging, and other speech and associational activities by Plaintiffs and parties with whom they have associated to advance their policy goals,” the conservatives claim.

The prosecutors, however, in a motion also filed this week, concurred with the conservatives, saying they too wanted to keep documents out of the public eye. Schmitz claims he wants to maintain the “remaining integrity” of the John Doe probe, should it be allowed to resume. Schmitz, a former federal prosecutor, also says he wants to protect the “privacy interests of non-parties identified … against whom criminal charges are not brought.”

Conservative sources assert the multi-county John Doe is bereft of integrity. Randa and the John Doe’s presiding judge, former state Appeals Court Judge Gregory Peterson, each ruled the probe, or at least search warrants issued in it, has failed to show probable cause that a campaign finance crime had been committed.

“Notably, the affidavits do not identify a single expenditure by Plaintiffs relating to Governor Walker’s recall election, much less one coordinated with Walker — the alleged conduct that Defendants argue justified their investigation,” Rivkin wrote.

Prosecutors resisted opening up the John Doe records filed in the lawsuit until earlier this summer, when, having “seen their once-secret investigation publicly pilloried … Defendants reversed their prior position,” Rivkin added.

O’Keefe and the club have asked that many of the records be open for public review. They say “(e)xcessive secrecy” surrounding the investigation has “frustrated the public’s right to be informed of the activities of its government and elected representatives.”

“The result has been, until quite recently, to keep the public in the dark regarding a massive abuse of governmental power by officials wielding criminal law to intimidate activists and silence political speech,” the plaintiffs argue.

Still, they assert there are reasonable limits on what information should be unsealed.

Also weighing in are two other targets of the John Doe identified only in court documents as “Unnamed Intervenors.” They ask the court to continue to seal all of the documents. They want to prevent their private affairs from being made public through forced disclosure.

The intervenors argue the investigation is akin to a grand jury proceeding, that the media had no presumptive right of access to materials obtained in such a proceeding, and that disclosure of any additional materials would compound the “victimization and harassment of the innocent.”

Left-leaning critics of the Club for Growth’s civil rights lawsuit have scoffed at claims of speech and associational privileges by the conservative targets. To many liberals, the conservative groups are part of the right’s “dark money” special interests trying to play games with campaign finance laws.

Never mind that the Constitution has protected the rights of anonymous speech since its ratification. The Supreme Court, as Rivkin points out in the legal filing, “has long recognized that compelled disclosure of political affiliations and activities can impose just as substantial a burden on First Amendment rights as can direction regulation.”

“Courts have recognized a First Amendment ‘privilege’ against disclosures that will result in (1) harassment, membership withdrawal, or discouragement of new members, or (2) other consequences which objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights,” the attorney wrote.

The left has benefited from such court protection. A U.S. Court of Appeals in Washington, D.C., in 2003, blocked public disclosure of internal documents and communications of a labor union and political party. In its arguments, the court ruled disclosure would intrude on the “privacy of association and belief guaranteed by the First Amendment, as well as seriously interfere with internal group operations and effectiveness.”

It would also “directly frustrate the organizations’ ability to pursue their political goals effectively by revealing to their opponents activities, strategies and tactics that (they) have pursued in subsequent elections and will likely follow in the future,” the court wrote.

But some conservatives have charged that taxpayer-funded  “opposition research” is precisely what the Milwaukee County prosecutors had in mind all along.

Chisholm and Schmitz repeatedly have declined comment on anything involving the John Doe investigation.

O’Keefe and the club argue that disclosure of their internal documents would not only “chill the association of speech of the Club and its associates,” but it would “lead other parties to reasonably fear that a politically-motivated investigation …will result in the forced public disclosure of their internal documents and communications.”