Was John Doe judge a rubber stamp?

M.D. Kittle
Sep 04, 2014 1:32 PM
Was John Doe judge a rubber stamp?
Part 116 of 116 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Newly released court documents raise old concerns that Judge Barbara A. Kluka, the original presiding judge in a politically charged John Doe investigation into conservatives, was nothing more than a rubber stamp for prosecutors on the hunt for Gov. Scott Walker and friends.

“Judge Kluka provided no meaningful oversight over this John Doe proceeding,” wrote attorneys for conservative targets of the Democrat-launched probe in arguments before the 7th Circuit U.S. Court of Appeals.

Watchdog file photo

SUBPOENA MILL: Judge Barbara A. Kluka seems to have reviewed hundreds of documents leading to the approval of subpoenas and warrants in a secret investigation into conservatives, prompting a charge by critics that the process was nothing more than a ‘subpoena mill.’

The 144-page brief, filed last week in front of Tuesday’s oral arguments before the appeals court, lays out the arguments of political activist Eric O’Keefe and the Wisconsin Club for Growth, plaintiffs in a civil rights lawsuit against the investigation’s prosecutors. They ask that the 7th Circuit uphold U.S. District Court Judge Rudolph Randa’s preliminary injunction that shut down the secret John Doe probe into dozens of conservative groups, and support Randa’s denial of the prosecutors’ motions to dismiss the federal lawsuit.

In making their case that the probe is nothing more than a partisan witch hunt, O’Keefe’s attorneys point to Kluka’s rapid handling of the piles of legal documents, some quite complex, as she went about the business of approving scores of subpoenas and search warrants for what some sources have described as predawn, “paramilitary-style” raids on the homes of several targets.

“(P)ublic records indicate that she approved every petition, subpoena, and search warrant sought in the case, and purportedly reviewed hundreds of pages of affidavits and evidence, in just one day’s worth of work,” the brief states.

And then, suddenly, the judge was gone.

“Despite presiding over aspects of the secret criminal investigation for over a year, Judge Kluka immediately recused herself for an unexplained ‘conflict,’” the brief notes.

Wisconsin Reporter first broke the story on Oct. 30, 2013, that Kluka had stepped aside. Her departure occurred a short time after conservative targets began challenging the investigation and its raids in court.

Contacted by Wisconsin Reporter at her Kenosha home at the time, Kluka declined comment.

“I cannot tell you anything. There is a secrecy order and I will abide by it,” she said.

Kluka could not be reached for comment Thursday.

Rick Esenberg, president and general counsel of Wisconsin Institute for Law & Liberty, is dubious about prosecutorial claims of thorough judicial review of the documents.

“Some people are really, really, quick studies, but it seems unlikely,” Esenberg wryly said. “It seems like a tall order to me.”

He likened the speed of Kluka’s review to the Milwaukee Journal’s blazingly fast find of a couple dozen pages of documents by prosecutors within 1,300 pages of court-released documents and then turning out a detailed story asserting that “Gov. Scott Walker prodded outside groups and individuals to funnel millions of dollars into Wisconsin Club for Growth” within an hour’s time.

Multiple conservative sources have found the timeline of the publication more than curious.

University of Wisconsin Law School professor David Schultz said judges are tasked with routinely reviewing hundreds of pages of material, but the speed of the review depends on the content of the documents.

“Several hundred pages of very close reading is one thing. Several hundred pages of formulistic information is another matter,” he said.

What about the review of subpoenas and warrants that opened the door for investigators to root through the personal possessions of investigation targets?

Schultz said some parts of petitions, affidavits and search warrants are “just sort of boiler plate” and don’t require much review.

“But there are some parts that are very important, like search warrants where a judge needs to assess the statements of facts to see if there’s probable cause,” the law professor said.

A source close to the federal lawsuit said he doesn’t see anything necessarily “nefarious” about Kluka’s rapid review of the subpoena and warrant requests. The John Doe process, after all, has been described as a “subpoena mill,” in which judges don’t have a lot of discretion over the documents. A request comes in, a subpoena goes out.

But that notion defies the prosecutors’ contention that the John Doe investigation was “blessed by a judge who operated in good faith and looked over every document carefully,” said the source, who asked not to be identified due to his proximity to the case.

“If you look at the way the procedure was carried out, it doesn’t support (the prosecutors’) points. The judge was in a signature role,” the source said.

He said Kluka’s unexplained recusal, too, raises some questions.

“We don’t know if there was any type of impropriety there, but at the same time we still don’t know why she ultimately recused herself, either,” the source said. “Why didn’t she do that when she was approving the subpoenas?”

Perhaps those questions will be answered through discovery, should the civil rights lawsuit be allowed to move forward.