MacIver News Service

By M.D. Kittle

MADISON, Wis. – It would seem the overreaching agents behind Wisconsin’s infamous John Doe investigation refused to take no for an answer, according to a recent report by the state Department of Justice and documents reviewed by MacIver News Service.

The 90-page DOJ report released earlier this month makes it clear that staffers at the former state Government Accountability Board defied court orders to stop collecting and reviewing “evidence” illegally obtained in their unconstitutional probe. The “nonpartisan” political speech regulator – and its successor, the Wisconsin Ethics Commission – held on to John Doe records long after the state Supreme Court ordered the secret probe shut down and all related documents turned over to the custody of the court.

Former GAB agents take issue with the DOJ’s assertion that accountability board attorneys engaged in a separate probe, a parallel investigation using records obtained in the massive political spying operation that secretly grabbed up millions of records and digital communications. “John Doe III,” the descriptor given to the broader third wave of the secret investigation, was solely a GAB ethics probe, former accountability board staffers claim.

Attorney General Brad Schimel, a Republican, said such a characterization is “entirely false.”

In a response issued this week, Schimel noted the GAB used documents seized by the Democrat-led Milwaukee County District Attorney’s office in the original “John Doe I,” which was rolled into the “John Doe II” secret probe into dozens of conservative groups and Gov. Scott Walker’s campaign.

“As explained fully in the report, ‘John Doe III’ was simply a shorthand description by the report. And all of these materials were co-mingled and mishandled, creating circumstances leading to the leak,” Schimel wrote in his response.

As Schimel points out, prosecutors had already looked into potential violations and found no crimes had been committed. But the politically motivated GAB wasn’t finished.

“Although GAB apparently labeled this investigation as ‘2012-01 State time campaigning,’ GAB did not maintain this evidence separate from other cases, and did, in fact, comingle this evidence with the John Doe II investigation, which was labeled as ‘GAB investigation, 2013-02 Confidential,’” Schimel wrote.

“Shockingly, ‘John Doe III’ was not the only investigation evidence comingled …,” the AG’s response continues. “In fact, ‘John Doe III’ was just the tip of the iceberg of old evidence and allegations maintained by GAB for future use against Wisconsin politicians.”

The Department of Justice report found that GAB agents grossly mishandled John Doe documents and failed to properly secure the sensitive materials.

John Doe investigators had a “chain of evidence” problem, too.

In a May 2014 memo to the retired judges who presided over the Government Accountability Board, then-GAB director Kevin Kennedy and staff labored over what evidence investigators could use, and what they were prohibited from using. GAB agents were scrambling in the wake of the John Doe judge’s ruling earlier in the year that found investigators had not shown probable cause that campaign finance crimes had been committed by conservative groups. The judge quashed several subpoenas used to seize tons of records.

Multiple courts would find that John Doe prosecutors didn’t have a leg to stand on, including the state Supreme Court, which in July 2015 declared the probe unconstitutional.

At the time of the memo, Kennedy and his underlings were still confident that their theory of illegal campaign coordination between conservative groups and the Walker campaign would ultimately prevail. With their prosecutor pals failing to find criminal violations, the GAB agents pressed on in the hopes of hitting Republicans with civil violations.

“Access to the evidence is and will continue to be a huge hurdle – the main obstacle, and a necessary predicate to bringing any civil action is to obtain permission from” John Doe judges “to use evidence obtained through” the investigations, the Kennedy memo states.

Even the Democrat-led Milwaukee County District Attorney’s office, the GAB’s investigation partner, expressed concerns about the use of John Doe documents. Assistant District Attorney Bruce Landgraf in an email to John Doe investigators noted internal questions about “whether or not a prosecutor has the right to unfettered use of secret John Doe evidence outside of a criminal proceeding.”

Shane Falk, the GAB’s lead attorney on the John Doe probe, responded that the question had been a concern from the beginning.

“…(I)f we know that the Judge is unlikely to allow use of records, or it will take too much time to release them publicly, or that any immunity may negate potential civil claims,” Falk wrote to Landgraf. But Falk knew then that the John Doe judge wasn’t likely to allow illegally seized records to be used.

Here is where Falk looks for an end-around.

“Can we solve the records problem by just issuing new subpoenas from the GAB based on the information gleaned from the JD investigation? Just thinking,” he wrote to Milwaukee County Assistant DA David Robles. Again, the John Doe judge months before had quashed John Doe subpoenas.

Anyway, the short answer was no. Such emails illustrate the kind of scheming that went on to keep the abusive probe alive.

Falk, who maintained thousands of John Doe documents on an external hard drive until he left the agency in August 2014 (the hard drive has since gone missing), appears to have disobeyed the John Doe judge’s orders several times.

Days after the court order, Falk directed staffer Molly Naggappala to log into the investigation’s account with an offsite data storage site where the millions of documents were stored (at taxpayer expense). He told Naggappala to print off emails seized from search warrants.

“Can you print out everything that you pulled out of Relativity [the data storage program] and previously sent us? Then give a copy to Nate [Judnic] and one to me. Pretty please?” Naggappala complied, according to the Attorney General’s investigative report. It was a “direct violation” of the judge’s cease and desist order.

Francis Schmitz, the special prosecutor, didn’t order Falk to “stand down,” and Falk and other GAB staff continued to access the documents in defiance of the court order. Schmitz eventually intervened and directed GAB staffers to the judge’s order.

The documents Falk sought were the “very emails … that were leaked to the Guardian newspaper,” the DOJ report states.

It was previously reported that John Doe investigators used Gmail accounts disconnected from the state electronic communications system when sharing investigation information and ideas.

“As has been firmly established in the public record for several years now, the GAB’s tactics were well-documented and chronicled (and even now more so),” Schimel’s office wrote in a statement released Wednesday. “The Attorney General is committed to open government, especially when he can shine a light on these abusive, harassing, and partisan tactics of the former GAB, which lead to that agency’s dissolution by the Legislature.”

This article appears courtesy of the MacIver Institute.