‘Retaliation’: Unsealed docs show John Doe prosecutors’ broad search tactics

Posted: Aug 23, 2014 1:17 AM
‘Retaliation’: Unsealed docs show John Doe prosecutors’ broad search tactics
Part 109 of 109 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Conservative targets of a Democrat-launched John Doe investigation have described the secret probe as a witch hunt.

That might not be a big enough descriptor, based on records released Friday by a federal appeals court as part of a massive document dump.

Attorneys for conservative activist Eric O’Keefe and the Wisconsin Club for Growth point to subpoenas requested by John Doe prosecutors that sought records from “at least eight phone companies” believed to serve the targets of the investigation. O”Keefe and the club have filed a civil rights lawsuit against John Doe prosecutors, alleging they violated conservatives’ First Amendment rights.

Photo by staugustinecriminallawyers

WIDE NET: Unsealed court documents released Friday shine light on the tactics used by prosecutors in a politically charged John Doe investigation. The broad digital searches raise serious questions about potential Fourth Amendment abuses.

Subpoenas also demanded the conservatives’ bank records “emails from every major private email provider” and other information in what some have described as a mini-NSA (National Security Agency) operation in Wisconsin.

“In fact, Defendants’ submissions confirm and expand upon the scope and intensity of retaliation previously demonstrated,” O’Keefe’s attorney wrote in documents ordered unsealed by the 7th Circuit U.S. Court of Appeals.

The documents raise serious concerns about the tactics of Milwaukee County District Attorney John Chisholm, two of his assistant DAs and others involved in the investigation targeting dozens of conservatives.

Chisholm, a Democrat, launched the court-sanctioned dragnet two years ago, and, according to court documents, with the help of the state Government Accountability Board, the probe was expanded to five counties. The John Doe proceeding compelled scores of witnesses to testify, and a gag order compelled them to keep their mouths shut or face jail time. Sources have described predawn “paramilitary-style” raids in which their possessions were rifled through and seized by law enforcement officers.

Prosecutors have operated the secret investigation under the legal theory that at least 29 conservative organizations may have illegally coordinated with Gov. Scott Walker’s campaign during Wisconsin’s partisan political recalls of 2011 and ’12. Two judges, including the federal judge presiding over the civil rights lawsuit, have said the prosecutors’ theory doesn’t hold water. The presiding John Doe judge quashed subpoenas issued in the raids because prosecutors failed to show evidence that a crime had been committed.

Court documents show the breadth of the prosecutors’ subpoena requests appear beyond broad.

They sought phone records for a year-and-a-half period, “which happened to be the most contentious period in political politics,” the conservatives note. It is important to point out that the prosecutors did not pursue the same tactics with left-leaning organizations who, too, pumped in tens of millions of dollars into Wisconsin’s recall elections, in what certainly appeared to be a well-coordinated effort.

Prosecutors sought “all call detail records including incoming and outgoing calls,” “billing name and information,” “subscriber name and information including any application for service,” and more, according to the conservatives’ court filing.

As was the case in Chisholm’s investigation into former Walker aide Kelly Rindfleisch, the prosecutors’ subpoena requests include all communications for the year-and-a-half period, allowing the prosecutors and their agents to “rummage through the private lives of numerous conservative activists across Wisconsin,” the attorney for O’Keefe and the club wrote.

And here’s the kicker: the request for emails was not limited to the period in question; the subpoenas request “all information stored in an account including (but not limited to) incoming and outgoing mail.”

“Thus, a target’s mail from well before those dates could be seized if it was simply ‘stored’ in the account during the relevant period, including in the deleted items folder,” the plaintiffs’ court document states.

“This could easily allow Defendants access to emails going back several years before 2011,” the document notes. Meaning before Scott Walker was in office, before he even ran for governor.

O’Keefe and the club assert the subpoena request “represents a virtually unlimited license to read targets’ emails and demonstrates that (the prosecutors) are interested in far more than coordination—they want to continue the ongoing wide-ranging and open-ended search commenced in 2010.”

Said search was launched by Chisholm’s office. That John Doe investigation, which is, to say the least, intricately connected to the probe into the conservative groups, ostensibly began with allegations of theft from a Milwaukee County veterans fund. It was, in fact, a staff member of then-Milwaukee County executive Scott Walker who tipped the DA’s office of to the discrepancy.

Conservatives claim Chisholm used that crime as a foot in the door to go after the digital and paper records of Walker’s staff members.

The probe officially ended in March 2013 with six convictions, including Rindfleisch’s conviction on a felony charge of misconduct in office. Four of the convictions had nothing to do with the original scope of the probe.

Rindfleisch is appealing her conviction, charging the prosecutors trampled her Fourth Amendment rights with general warrant-style searches of her data. Oral arguments in that case are set for next month.

The documents released Friday were filed before U.S. District Court Judge Rudolph Randa shut down the investigation in May through a preliminary injunction. In arguing for the injunction, O’Keefe and the club said that without court intervention, “these efforts (by the prosecutors) will never end, nor will their inevitable chilling effect on their targets’ exercise of fundamental First Amendment rights.”