Conservatives say ‘incorrect disclosure’ of John Doe docs no ‘tiny error’

Posted: Sep 03, 2014 9:36 AM
Conservatives say ‘incorrect disclosure’ of John Doe docs no ‘tiny error’
Part 115 of 114 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – It has been described as a “tiny error” with a “big impact.”

Some conservative targets of the not-so-secret John Doe investigation say there was nothing “tiny” about last month’s “incorrect disclosure” of court filings that was supposed to remain sealed, and they believe the unauthorized release was no honest mistake.

As Wisconsin Reporter first reported on Aug. 22, the 7th Circuit U.S. Court of Appeals erroneously released sealed documents in the federal civil rights lawsuit against Milwaukee County prosecutors.

That mistake led to a breathless story by the Milwaukee Journal Sentinel, headlined “Walker wanted funds funneled to Wisconsin Club for Growth,” among similar screaming headlines from mainstream media outlets.

An official from the 7th Circuit told Wisconsin Reporter on Tuesday the document should have been sealed, and the appeals court is trying to correct the matter.

“This is a very important case, and we are trying to correct that tiny error that has a big impact,” said the official, who declined to provide his name.

Watchdog file photo

OOPS: Court officials say the unauthorized release of sealed documents in a federal lawsuit involving prosecutors of a secret investigation was probably a ‘technical errors.’ Conservative targets of the probe assert the document release was no mistake.

But a source familiar with the case said officials with the 7th Circuit have told him the U.S. District Court for the Eastern District of Wisconsin, in Milwaukee, where the original documents were housed, “screwed up somehow.”

“The people we have spoken with at the 7th Circuit have been very understanding and apologetic. At least they sound heartily embarrassed. I don’t get the sense that there was any mendacity involved” on their end, said the source, who spoke on condition of anonymity due to his proximity to the case.

The 7th Circuit quickly removed the unauthorized documents from the hundreds of pages of John Doe-related documents the court ordered released. But the damage was done.

Katherene Maxwell, manager of the clerks office at the district court, believes the problem could have been a “technical mistake.” She said the office was alerted to the unauthorized release about an hour after the 7th Circuit posted the files online. Maxwell said there was a “lot of confusion” about page numbers and pagination, and the “theory” is that some of the page numbers were shifted.

The district office didn’t unseal any documents, Maxwell said, adding that she doesn’t know what the 7th Circuit’s process is for publishing such records. Asked if there was any malice intended as some have claimed, Maxwell replied, “Absolutely not.”

The office manager says she doesn’t believe there will be an investigation into the matter, however.

The 7th Circuit official wouldn’t say whether the appeals court would look into the error. An official with the Administrative Office of the United States Courts did not return a call seeking comment.

The source close to the civil rights litigation said he would be shocked if the 7th Circuit and the district court did not launch their own investigations, if only for the sake of internal integrity.

“At the very least, I would think they want to ensure this never happens again,” the source said.

What has raised eyebrows in particular is the speed at which the state’s largest news outlets picked up on the narrow band of unauthorized records from a file of some 1,300 pages of court documents.

The Journal Sentinel seized — and blazingly fast — on the opened-up documents filed by the prosecutors.

“Gov. Scott Walker prodded outside groups and individuals to funnel millions of dollars into Wisconsin Club for Growth — a pro-Walker group directed by his campaign adviser — during the recall elections in 2011 and 2012,” the newspaper’s lead proclaimed.

What many news outlets didn’t bother to mention or buried deep in their stories is the fact the information is based on prosecutorial claims that have been thwarted by two federal judges who have found the John Doe’s subpoenas have failed to show evidence of a crime.

The 7th Circuit, which is hearing the John Doe prosecutors’ appeal seeking to dismiss the federal lawsuit against them, quickly removed the unauthorized documents. But the damage was done.

Sources with knowledge of the case told Wisconsin Reporter the clerical error exposed conservative donors and political strategy and damaged their associational and political speech rights.

Conservatives assert the release of the sealed documents, filed in federal court by John Doe prosecutors, was tantamount to the kind of First Amendment abuses political activist Eric O’Keefe and the Wisconsin Club for Growth allege prosecutors committed during the years-long secret investigation into dozens of conservative groups.

O’Keefe and the club have filed a civil rights lawsuit against the prosecutors of the probe, led by Milwaukee County District Attorney John Chisholm, a Democrat, and John Doe special prosecutor Francis Schmitz. In May, U.S. District Court Judge Rudolph Randa denied the prosecutors’ motions to dismiss the lawsuit, and issued a preliminary injunction shutting down the investigation. Randa concurred with the presiding John Doe judge that Chisholm and crew failed to show probable cause the conservatives committed campaign finance violations, based on the prosecutors’ theory that conservative groups, such as the club, may have illegally coordinated with Walker during Wisconsin’s partisan recall elections.

Jon Cassidy, reporter for, Wisconsin Reporter’s national news parent organization, in a column last week raised several questions about the rapidity of the Journal Sentinel’s rapid-fire publication of a story based on the erroneously released documents.

As Cassidy noted, the story posted online by 5:40 p.m. Aug. 22, a little more than an hour after the court file was made public.

“That timeline would mean the reporters somehow learned the document was available, downloaded it, skimmed through all 1,300 pages, isolated one key 24-page document starting with page 1091, checked out its accusations that Gov. Scott Walker had engaged in a quid pro quo, got editorial approval to publish a serious charge like that, got multiple comments, drafted a full-length article and then got it past the editors, all in less than an hour and 10 minutes,” he wrote.

Multiple conservative sources have also found the timeline more than curious.

An editor with a daily newspaper tells Wisconsin Reporter searchable records systems do make the process of isolating information much faster, and that reporters don’t have to read through every document. But reporters still need to know what they’re looking for, otherwise key word searches are just a notch above the proverbial needle in a haystack.

For now, the 7th Circuit has issued precise orders attempting to clean up the “incorrect disclosure” mess. The appeals court Friday laid out a precise list of documents that must remain under seal and instructed attorneys to work together to make sure the correct documents are kept out of the public eye.