It’s time for some tribunal, somewhere, to seize the reins and return the materials and make sure we don’t have any more leaks like the Guardian leak – Attorney Edward Greim

MacIver News Service | April 6, 2018

By M.D. Kittle

MADISON, Wis. – The Brown County judge tapped to preside over the aftermath of Wisconsin’s infamous John Doe investigation should now have plenty of opinions about the scope of his authority.

Judge Kendall M. Kelley, the latest adjudicator to take the reins of an unwieldy and unprecedented case, in early February asked all “interested parties” to file briefs explaining what they believe the judge is empowered to do – or what he can’t do – in deciding John Doe-related questions before him. Kelley gave them 60 days to do so.

Most of the parties filed briefs by Monday’s deadline, according to Edward Greim, whose Kansas City-based law firm, Graves Garrett LLC, represents Eric O’Keefe and the Wisconsin Club for Growth. O’Keefe was among dozens of conservative targets, subjects, and witnesses caught up in the abusive political probe.

“Of course, several of the parties have approached the Wisconsin Supreme Court seeking guidance,” Greim said. “The Wisconsin Supreme Court could materially advance the situation by explaining precisely what authority the John Doe judge has and what he can do. We’re hopeful the court will take up our motion and issue direction on that.”

Kelley’s office did not return a call this week seeking comment.

On Feb. 1, Kelley began what could be an involved legal process that, in part, will determine whether nine agents of the politically motivated “John Doe II” investigation will be held in contempt of court – as recommended by Wisconsin Attorney General Brad Schimel.

The judge stunned conservative victims of the unconstitutional probe when he said he wasn’t sure what he can and cannot do in presiding over a body of cases (within the John Doe II controversy) that are under court seal.

“The authority of the John Doe judge must be resolved before any actions are contemplated,” Kelley said.

He asked interested parties – including John Doe prosecutors, government bureaucrats, and the people they harassed and intimidated for years – to answer in legal briefs questions on the authority of the John Doe court and the other principal players in the case. He gave them two months to file their responses.

It was yet another delay of justice for citizens who have waited nearly three years for the return of the millions of electronic records illegally seized from them.

“I think the underlying issue is that every court recognizes what the prosecutors and the (former) Government Accountability Board did was wrong. Everyone realizes it was done under a cloak of secrecy and it was a massive overreach,” Greim said. “What the courts seem unwilling to do is see this through to its conclusion. Every court suggests that someone else finish this. It’s time for some tribunal, somewhere, to seize the reins and return the materials and make sure we don’t have any more leaks like the Guardian leak.”

In July 2015, the conservative-led state Supreme Court declared unconstitutional the so-called “John Doe II” campaign finance investigation, ordering it shut down. The majority opinion stated the probe’s special prosecutor perpetrated a “perfect storm of wrongs” against innocent people who had legally engaged in the political process.

The John Doe may be dead, but its legal shadows linger on. Most notably, the state Department of Justice report in early December that found hundreds of cherry-picked John Doe documents leaked to liberal publication the Guardian appear to have come from inside the state Government Accountability Board. The GAB, Wisconsin’s former political speech cop, was disbanded by the Legislature in 2015 following revelations about the agency’s leading role in the abusive John Doe – launched in 2012 by Milwaukee County District Attorney John Chisholm, a highly partisan Democrat.

Schimel’s report found that GAB agents, special prosecutor Francis Schmitz, and Milwaukee County DA prosecutors and investigators mishandled the documents that they illegally seized from scores of conservative citizens and others who were indirectly swept up in the probe. Some private emails, including some from state Sen. Leah Vukmir (R-Brookfield), were contained in folders titled, “Opposition Research,” and important files related to the investigation have gone missing.

Schimel, a Republican, did not file charges but recommended the John Doe judge initiate contempt of court charges against some of the John Doe agents. The attorney general also recommended the John Doe judge refer former GAB attorney Shane Falk to the Office of Lawyer Regulation for possible discipline. Falk, a highly partisan lead agent in the campaign finance investigation repeatedly violated a previous John Doe judge’s order, according to Schimel’s report.

In a letter to Kelley following February’s hearing, Schimel said the state Department of Justice originally referred the matter to the John Doe judge because “we believed that such a referral would be the most logical and appropriate …”

“Given the pending questions, however, concerning your authority and the related delay (to at least April 1, 2018, and beyond), I have decided to refer Shane Falk directly to OLR myself,” Schimel wrote.

Schimel’s letter also includes a startling revelation: John Doe agents’ Dropbox and email accounts on third-party servers containing secret, illegally seized John Doe records were still active, Schimel wrote, when he originally asked the John Doe court to initiate contempt of court charges against nine former government agents involved in the unconstitutional probe.

“The letter asked the John Doe Judge for remedial contempt; in other words, the John Doe Judge should order the individuals who created and own these accounts to close them and to ensure that no secret and/or sealed materials remain on Google or Dropbox servers,” Schimel wrote.

It appears the accounts remain open.

“There’s no excuse for these accounts to still be set up. There’s no excuse for anyone trying to hide the ball about what they have and what has happened,” Greim said. “There’s no excuse for any effort to try to dump further evidence out into the domain to further harm these subjects and witnesses.”

Schimel has argued that Kelley has the full authority to deal with the matters before the John Doe court.

Greim said the brief on behalf of his clients, O’Keefe and Wisconsin Club for Growth, advises the judge of the guidance request before the Supreme Court.

“In any case, any gag order placed on anyone targeted by the prosecutors, any of the materials still being held, those two things are intolerable and both of those things need to be unwound,” the attorney said.

It looks like there will be another delay, however. Former Milwaukee County Assistant District Attorney David Robles, a particularly partisan player in the John Doe investigations, sought and received an extension. He was granted 15 additional days, according to Greim.

“Almost two months after our appearance before the John Doe judge, Mr. Robles now has an attorney appear and ask for an extension,” Greim said.

Critics of the John Doe investigators have accused them of constantly attempting to delay the legal process to, among other things, financially bleed the people they investigated for so long.

M.D. Kittle is an Investigative Reporter with the MacIver Institute. This article appears courtesy of the MacIver Institute.