Wisconsin AG Seeks Sanctions Against ‘John Doe’ Prosecutors

By Michael J. Bologna

Wisconsin’s Attorney General has recommended contempt proceedings against nine special prosecutors and elections investigators, and attorney discipline for one of them, following a criminal probe of leaked documents from three secret “John Doe” investigations that targeted the political campaigns of Gov. Scott Walker (R-Wis.).

Republican Attorney General Brad Schimel approved a report Dec. 5 that catalogs an investigation into alleged misconduct by state attorneys and investigators. The investigation was spawned after a September 2016 story in The Guardian US that probed political coordination and fundraising activities between Walker’s campaigns and two dozen conservative advocacy organizations, including Wisconsin Club for Growth.

The article was noteworthy in that it relied on previously secret material, including 1,500 pages of leaked documents assembled by prosecutors during the course of three John Doe investigations. The Guardian article appeared just days before the U.S. Supreme Court was scheduled to review a petition for certiorari filed by the John Doe prosecutors, who objected to a ruling by the Wisconsin Supreme Court in July 2015 that shut down their probe. The high court ultimately declined to intervene in the matter (Chisholm v. Two Unnamed Petitioners, U.S., No. 15-1416, writ of certiorari denied, 10/3/16).

Schimel determined that the leak was a crime under multiple state statues and court-ordered directives, but he did not issue criminal charges. Schimel said his investigators were unable to determine how the allegedly criminal leak occurred or by whom.

Instead, Schimel recommended professional discipline against one attorney, and contempt proceedings against that attorney, aides to former John Doe special prosecutor Francis Schmitz, and other former attorneys and investigators with the Government Accountability Board (GAB), an ostensibly nonpartisan agency with authority over campaign finance, ethics and lobbying. At the end of 2015 Walker signed legislation eliminating the GAB and replacing it with a new Elections Commission and a separate Ethics Commission.

Politically-Motivated Prosecution

Schimel’s report accuses the investigators and prosecutors of operating a politically-motivated campaign that mishandled evidence and defied secrecy orders issued by various Wisconsin courts. The report asserts the group’s conduct created opportunities for a leak by someone with “sophisticated legal knowledge of the case” who “was motivated to try to influence the United States Supreme Court” as it considered the prosecutors’ petition for certiorari.

“As this report describes in detail, the systemic and pervasive mishandling of John Doe evidence likely resulted in circumstances allowing the Guardian leak in the first place, and now prevents prosecutors from proving criminal liability beyond a reasonable doubt,” Schimel wrote. “Moreover, DOJ is deeply concerned by what appears to have been the weaponization of GAB by partisans in furtherance of political goals, which permitted the vast collection of highly personal information from dozens of Wisconsin Republicans without even taking modest steps to secure this information.”

In line with that view, Schimel referred former GAB attorney Shane Falk to the Office of Lawyer Regulation for “knowing and repeated” violations of secrecy orders.

Schimel also recommended contempt proceedings against Falk, former special prosecutor Schmitz and Kevin Kennedy, GAB’s former general counsel. In addition, contempt proceedings were recommended for two other GAB employees, an Ethics Commission attorney, and three investigators working on the John Doe probes.

Jefferson Circuit Court Judge William Hue, acting as the “John Doe Judge,” issued an order Dec. 6 unsealing Schimel’s report. Hue said he would consider the remedies recommended by Schimel “in due course.”

“Completely Surprised”

Schmitz issued a statement saying he was “completely surprised” to learn about Schimel’s contempt recommendation. Schmitz said he had cooperated fully with the attorney general’s investigation.

Schmitz is a former federal prosecutor, who specialized in criminal and counter terrorism cases during his 30-year career with the U.S. Department of Justice. Schmitz is a Republican and has acknowledged he voted for Walker.

Wisconsin’s John Doe statute grants special prosecutors extraordinary powers to investigate certain crimes in secret under the direction of a judge. Prosecutors have the power to subpoena witnesses, collect testimony under oath and compel testimony from witnesses.

The initial John Doe investigation examined Walker aides during his tenure as Milwaukee County executive, resulting in six convictions for political misconduct.

The John Doe II probe examined purported illegal campaign coordination between the Walker campaign and conservative groups during the 2011 and 2012 recall elections. The Wisconsin Supreme Court ended the investigation in a 2015 opinion that said “the special prosecutor’s legal theory is unsupported in either reason or law,” and no criminal charges or civil complaints were ever filed.

In that opinion, the Wisconson Supreme Court said that warrants to gather evidence in the John Doe investigations were executed “in pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets’ homes.” The court said that:

  • The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing. Millions of documents, both in digital and paper copy, were subpoenaed and/or seized. Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. The special prosecutor obtained virtually every document possessed by the Unnamed Movants relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013). Such documents were subpoenaed and/or seized without regard to content or relevance to the alleged violations of Ch. 11. As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos.
Schimel’s report revealed a previously undisclosed John Doe III probe, described as a “secret investigation into a broad range of Wisconsin Republicans.” Schimel said his investigators found more than 500,000 emails connected to this John Doe III probe in the basement of the former GAB in unsecured boxes labeled “Shane Falk.”

 

Moral Relativity?

The report says that emails leaked to The Guardian came from a Relativity eDiscovery software database GAB maintained to store evidence collected through execution of search warrants. In January 2014, the then-John Doe Judge issued an order stating, “Property seized pursuant to search warrants shall not be examined by the State.”

In the hours and days after that order issued, the report says, Falk directed a GAB employee to download from Relativity various evidence that had been seized pursuant to search warrants. Falk’s actions directly contravened the court’s order, the report said.

The emails Falk directed others to download were the same ones leaked to The Guardian, the report said. Falk’s external hard drive was the only location where all of the leaked documents were collected in a single place, the report said, but the drive went missing without explanation and has not been recovered.

The report also says that, for unclear reasons, “GAB obtained and then held thousands of private emails from Wisconsin Republicans in several folders on their servers marked ‘Opposition Research.’” In one such folder were “over 150 personal emails between Senator Leah Vukmir and her daughter, including emails containing private medical information and other highly personal information,” the report said.

The report questioned the GAB’s political neutrality, citing a 2013 email in which Falk wrote, "[O]ur state is being run by corporations and billionaires … The cynic in me says the sheeple would still follow the propaganda even if they knew, but at least it would all be out there so that the influences on our politicians is clearly known.”

“Sheeple” is a portmanteau of “sheep” and “people.”

Prosecutor Misconduct

The report reaches several critical conclusions about misconduct by the prosecutors and investigators.

  •  The leak to The Guardian was a crime under various statutes including misconduct of public office, violation of a secrecy orders, theft, receiving stolen property, unauthorized access to data, and unauthorized release of records.
  •  The leaker was motivated by a desire to influence the U.S. Supreme Court.
  •  The leak did not come from the court system, district attorneys or special prosecutor Schmitz.
  •  The leak came from the former GAB.
  •  A partisan atmosphere within the GAB contributed to the leak.
  •  The GAB’s “mishandling of evidence created the opportunity for the leak of records.”
  •  And, the prosecution may still have records relating to the three investigations despite an order requiring that all such records be surrendered to the state Supreme Court.
The report states that Wisconsin DOJ will provide the court with the evidence necessary to refer Falk to attorney discipline authorities, and to initiate contempt proceedings against Falk and eight other individuals.

 

“A Hack Job”

The 88-page report is the latest chapter in a series of high-volume partisan political fights following Walker’s election in 2010, which ushered in Republican control of most levels of state government.

Against this backdrop, progressives characterized Schimel’s finding as political payback for the prosecutors’ investigation of Republicans’ aggressive campaign tactics.

“This report is a hack job,” Matthew Rothschild, executive director of the Wisconsin Democracy Campaign, told Bloomberg Law. “It is clear from reading the report that the Attorney General of Wisconsin is acting not as the chief law enforcement officer of the State of Wisconsin but as an attack dog for Scott Walker, the Republican Party of Wisconsin, and its allied groups.”

To contact the reporter on this story: Michael J. Bologna in Chicago at mbologna@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com

For More Information

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

 

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