U.S. Supreme Court declines to hear John Doe appeal

U.S. Supreme Court

J. SCOTT APPLEWHITE, THE ASSOCIATED PRESS

The U.S. Supreme Court on Monday rejected an appeal by three Democratic district attorneys seeking to revive a criminal investigation into Gov. Scott Walker’s recall campaign — effectively ending the legal wrangling over the four-year-old probe.

The decision marks a major victory for Walker and his Republican allies, who mounted a vigorous challenge to the secretive, so-called John Doe II investigation that involved investigators issuing dozens of subpoenas and seizing equipment and millions of documents from those under investigation.

In a statement Monday, Walker said the U.S. Supreme Court, Wisconsin Supreme Court and other judges have all reached the same conclusion — “that this investigation by prosecutors was without merit and thus must be ended.”

“I applaud the individuals and organizations who fought for and successfully defended their First Amendment rights against political opponents who wanted to silence them,” Walker said.

Eric O’Keefe, president of the Wisconsin Club for Growth, the tax-exempt organization at the center of Walker’s political operation to stave off the 2011 and 2012 recalls, called the case “a politically motivated attack and a criminal investigation in search of a theory.”

He told a conservative radio host Monday that Milwaukee County District Attorney John Chisholm, whose office launched the investigation in August 2012, should be removed from office.

“We call upon the prosecutors to admit their wrongdoing and close their files,” O’Keefe said in a statement. “They should end their desperate rear-guard action, surrender these unlawfully seized materials, and submit to the lawful authority of the court system.”

In a joint statement, the three district attorneys who appealed the case — Chisholm, Dane County’s Ismael Ozanne and Iowa County’s Larry Nelson — said they were disappointed by the decision.

“The state Supreme Court decision, left intact by today’s order, prohibits Wisconsin citizens from enacting laws requiring the full disclosure of disguised contributions to a candidate, i.e., monies expended by third parties at the direction of a candidate for the benefit of that candidate’s election,” they said.

“We are proud to have taken this fight as far as the law would allow and we look forward to the day when Wisconsin adopts a more enlightened view of the need for transparency in campaign finance.”

The decision to deny a hearing on the case was one of hundreds the nation’s highest court issued Monday, the first day of its new term. It does not include an indication of how the justices voted or any written explanation for the decision.

The court has been operating with eight members since conservative Justice Antonin Scalia’s death in February because Republicans have refused to hold hearings on President Barack Obama’s nominee.

Brendan Fischer, a lawyer for the Washington-based Campaign Legal Center, emphasized that the Supreme Court’s decision not to grant a hearing in the case does not mean it endorses the activities under investigation.

“Given the split on the U.S. Supreme Court, it is perhaps not surprising that the justices declined to wade into this politically charged, highly complex case,” Fischer said.

The case has slowly worked its way through the state and federal court systems since Milwaukee County prosecutors asked to open the investigation in August 2012, a little more than two months after Walker survived a recall sparked by his gutting of public sector collective bargaining, known as Act 10.

Attorney General Brad Schimel, in a statement Monday, said the high court’s decision officially ends the case and prosecutors have 30 days to turn over all evidence seized in the investigation.

“The people of Wisconsin and the John Doe targets are now finally allowed to put this unfortunate chapter behind them,” Schimel said.

Earlier John Doe probe

Investigators in an earlier John Doe probe into Walker’s Milwaukee County executive office had uncovered evidence of potential coordination between Walker’s campaign and the Wisconsin Club for Growth, a supposedly independent group that could engage in so-called issue advocacy but not support or oppose political candidates as its primary focus.

Chisholm, a Democrat, presented the evidence to then-Attorney General J.B. Van Hollen, a Republican, who declined to lead the investigation citing a potential conflict of interest and possible perception of bias. He recommended forwarding the case to the Government Accountability Board, then the state’s nonpartisan campaign and ethics agency.

The GAB’s panel of retired judges opened its own investigation into potential campaign finance violations in June 2013.

A parallel John Doe investigation was opened by four other district attorneys, including two Republicans, who along with Chisholm consolidated the cases under special prosecutor Francis Schmitz, who said he had voted for Walker in the recall.

Schmitz served dozens of subpoenas in October 2013 to local and national conservative groups, but the groups successfully challenged them in court. The John Doe judge who authorized the subpoenas stepped down because of an unknown conflict and was replaced by Judge Gregory Peterson, who disagreed with investigators and quashed the subpoenas in January 2014.

Schmitz appealed that decision to the Wisconsin Supreme Court, which halted the investigation in July 2015. It removed Schmitz from the case last December and ordered all evidence be turned over to it while the case remained under appeal.

Chisholm, Ozanne and Nelson appealed the state court’s decision to the U.S. Supreme Court in April.

Walker raised money

In recent weeks the case generated national interest after a British newspaper reported on leaked documents from the case.

Bits and pieces of the investigation had previously come to light, but the leaked documents provided the clearest picture yet of Walker’s political operation leading up to and during the 2011 and 2012 recall campaigns.

The records showed Walker had raised millions of dollars for the Wisconsin Club for Growth, which his top political adviser, R.J. Johnson, was using to coordinate advertising, messaging, get-out-the-vote efforts and other campaign operations to help Walker and Republican senators win.

Such coordination, previously banned under state election rules, formed the crux of the investigators’ legal theory. But the Wisconsin Supreme Court ruled that the activity is protected speech under the First Amendment.

The state Legislature formally legalized such coordination last year as part of a major rewrite of campaign finance law.

Conservative pushback against the investigation also led the Legislature to dismantle the Government Accountability Board and revert back to two bipartisan Ethics and Elections commissions. It also amended the state’s John Doe law so that it can no longer be used to investigate suspected violations of campaign and ethics laws.

The prosecutors appealed the Wisconsin Supreme Court’s decision, saying it broke with federal court decisions that had upheld the ability to regulate coordinated activity between candidates and independent groups. Such groups can raise unlimited donations and hide the identity of their donors, and prosecutors raised concerns about the potential for quid-pro-quo political corruption.

The case revealed a few examples where wealthy donors, including corporations that are banned from giving to candidates, gave hundreds of thousands of dollars to the Club and later stood to benefit from legislation Walker and the Republican Legislature passed. Such laws included one retroactively protecting the lead paint industry from litigation and another changing the state’s mining regulations.

Conflict of interest alleged

The prosecutors also asked the Supreme Court to review the case because two of the conservative Wisconsin justices in the 4-2 majority had direct ties to those under investigation.

Records revealed Walker telling Republican operative Karl Rove that Johnson and the Wisconsin Club for Growth were instrumental in electing Michael Gableman and re-electing David Prosser to the state court.

UC-Irvine law professor Rick Hasen said the odds are always against the Supreme Court hearing a case given how many petitions it receives.

He said he thought the U.S. Supreme Court should have taken issue with Gableman and Prosser not recusing themselves, though it’s possible they didn’t see the prosecutors as having the same due process rights as private citizens.

“A short-handed court split ideologically 4-4 may have been especially reluctant to delve into this politically sensitive case,” Hasen said. “Still the question of judicial recusal of judges who directly benefited from the Club for Growth’s campaign activities merited review.”

In response to the leaked documents, Democrats have called on Ozanne to open an investigation into Walker. They cited among several concerns previous provisions in the state ethics law that prohibited politicians from raising money for nonprofit groups with which they were associated. The law has since been changed to allow such fundraising.

Other than the joint statement, Ozanne has not responded to questions.

Johnson, in a Facebook post Monday, noted the Supreme Court decision came three years to the day after armed police officers came to his home in the early hours to execute a search warrant. He said his legal defense has cost $1 million.

“While prosecutors were experts in conflating time frames and parsing our communications to tell a twisted and false story, they had to convince people who actually understood the law that something illegal was done,” Johnson wrote. “And they never had a case.”

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Matthew DeFour covers state government and politics for the Wisconsin State Journal.