Appeals court orders release of some John Doe documents

M.D. Kittle
Aug 21, 2014 4:05 PM
Appeals court orders release of some John Doe documents
Part 107 of 106 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — A ruling by the 7th Circuit U.S. Court of Appeals maintaining some documents under seal and opening up others for public consumption is a “vindication” of conservatives’ charges of prosecutorial abuse in Wisconsin’s politically charged John Doe investigation, according to an attorney for targets of the probe.

The appeals court on Thursday granted in large part motions by conservative activist Eric O’Keefe and Wisconsin Club for Growth to seal several documents involved in the case, while denying the sealing of others. In all, the court has granted the unsealing of some two dozen document, while keeping 10 completely or partially sealed.

“We have always said the public has right to know about the abuse of conduct by the defendants in this case, and we are gratified by the court’s decision today that will allow the public to have better understanding of what’s happened,” Andrew Grossman, an attorney for O’Keefe and the club, told Wisconsin Reporter.

Watchdog file photo

‘VINDICATION’: The 7th Circuit U.S. Court of Appeals on Thursday ordered to seal some documents and release others in the civil rights lawsuit involving Wisconsin’s politically charged John Doe investigation.

The court’s decision was swift.

Earlier this week, the conservatives, again, asked that the 7th Circuit seal four affidavits filed by the prosecutors-turned-defendants, as well as a “handful of related documents relying on them.”

They argued, 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.

It appears the court granted the plaintiffs’ request on all four affidavits, and all but one of five remaining documents under seal. A source familiar with the case tells Wisconsin Reporter the document involves a Club for Growth donor who has allowed his name to go into the sealed record in order to testify about the harassment and retribution he has faced as a result of the secret investigation.

Wisconsin Report asked Grossman about the matter, but the attorney said, as of Thursday afternoon, that information remained under seal and he couldn’t identify the donor.

The court didn’t set a timeline for the release of the unsealed court documents; the records could be made public as soon as late Thursday afternoon.

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.

The 7th Circuit has dealt expeditiously with the issues before it since taking the case.

In May, U.S. District Court Judge Rudolph Randa shut down the investigation, launched in late summer 2012 by Milwaukee County District Attorney John Chisholm, a Democrat. Randa also denied the motion of prosecutors-turned-defendants — including Chisholm, two of his assistant DAs, John Doe special prosecutor Francis Schmitz, and a contracted investigator — to dismiss the civil rights lawsuit filed against them.

The prosecutors immediately appealed to the 7th Circuit.

The appeals court previously issued the release of hundreds of pages of court documents in the case, in which a media coalition had sought to intervene to unseal the John Doe records. A member of that coalition didn’t immediately return Wisconsin Reporter’s request for comment.

Grossman said the court’s ruling Wednesday vindicates the conservatives’ claims their First Amendment rights have been injured, abuses that include attacks on their political speech and association rights.

The lawsuit, filed in February, claims Chisholm and crew, in their multi-county investigation into dozens of conservative organizations, and only conservative organizations, was nothing more than a partisan witch hunt, retaliation for the right’s big policy victories in recent years.

As spelled out in previous court documents, the prosecutors have been operating under a legal theory the conservative groups may have illegally coordinated with the campaign of Republican Gov. Scott Walker during Wisconsin’s partisan recall elections.

Earlier this summer, mainstream media headlines screamed of a “criminal scheme” led by Walker, verbiage included in the court documents previously unsealed. In short order, Schmitz’s attorney released a statement asserting Walker wasn’t a target of the investigation.

Sources say documents slated to be released will clear up that confusion.

Sources also tell Wisconsin Reporter the court-ordered documents dump will for the first time open up briefings by O’Keefe and the club that will more clearly explain conservatives’ charges of prosecutorial abuse.

The 7th Circuit also granted some of the prosecutors’ motions to seal certain documents, including Schmitz’s concurrence with most of the conservatives’ motions.

And the court granted the prosecutors’ request to file redacted versions of their court filings in the public record.

“Appellants shall file by August 26, 2014, new versions of their redacted briefs that exclude only the information this court has now permitted to remain under seal,” the ruling states.

“The parties may raise any arguments regarding the sealed documents at oral argument” in the appeal, slated for Sept. 9.