MADISON, Wis. – The state Department of Justice’s seizure of documents from the state Ethics Commission could present some legal problems for the special prosecutor of the political “John Doe II” investigation or agents of the now-defunct state Government Accountability Board, an attorney close to the situation tells Wisconsin Watchdog.
On Friday, the Milwaukee Journal Sentinel reported that the DOJ seized materials from the Ethics Commission earlier this month as part of its probe into a leak of court-sealed documents to liberal publication The Guardian U.S.
The disclosure comes one week after the Journal Sentinel reported state Justice Department investigators reviewed documents in the clerk’s office of the state Supreme Court.
The newspaper did not make clear precisely what was seized at the Ethics Commission office, but if those “materials” were documents from the unconstitutional probe into Gov. Scott Walker’s campaign and dozens of conservative groups, former John Doe prosecutor Francis Schmitz could have some questions to answer.
In November, Schmitz signed an affidavit Concerning John Doe II Evidence, noting that he had complied with a Supreme Court order demanding that he return documents and other items seized from John Doe targets and turn over evidentiary materials to the Supreme Court.
“To the best of my knowledge, I have received statements from all who have direct access to evidentiary materials as part of the prosecution team,” Schmitz wrote in the Nov. 2 affidavit. “In those statements, those individuals all state that they either turned over documents and electronic data and no longer possess same (or copies thereof), or never possessed documents and/or data (or copies thereof) obtained in the course of the investigation.”
The court in 2015 declared the campaign finance investigation unconstitutional and ordered it shut down. Schmitz’s position was deemed invalid from his entry as special prosecutor in 2013. He was given the last duties of making sure that illegally seized property was returned to its rightful owners, and that “evidence” or copies collected were surrendered from investigators and transferred to the custody of the court.
The now-defunct state Government Accountability Board (predecessor of the Ethics Commission), which assisted Milwaukee County prosecutors and Schmitz in the politically driven probe, should not have John Doe documents in its possession.
Edward Greim, attorney for some of the conservatives targeted in the probe, said that either Schmitz never obtained statements from everyone at the GAB who had access to the Doe documents, or “one or more staff failed to disclose that they had the documents.” Schmitz, as a special prosecutor with an office at the GAB, should have known everyone with access to John Doe materials and where those materials were, Greim said.
“Until we are able to see those statements we cannot know whether the materials that are being taken from the GAB (Ethics Commission) are all the materials the GAB had,” Greim said.
“At the very least, it raises real questions about the care and safe-keeping of documents and compliance with these orders of the Supreme Court,” the attorney added.
Schmitz did not return a request for comment.
Also in the November affidavit, the special prosecutor noted that he had not received statements from some individuals with “secondary” access, or authorized access to John Doe materials.
“Those individuals include several judges who served on the Government Accountability Board,” Schmitz said. “I will supplement this information when those additional statements are obtained with an additional filing with the court.”
Milwaukee County District Attorney John Chisholm, a highly partisan Democrat, launched John Doe II in August 2012. The probe was effectively an extension of the original John Doe investigation into the Milwaukee County Executive’s Office in 2010, when Walker was county executive and as the Republican was in the thick of his run for governor.
The first John Doe resulted in six convictions, four of which had nothing to do with the original scope of the probe – theft from a county veterans fund. Walker’s staff first brought that account discrepancy to the attention of the DA.
Chisholm, his assistants and the GAB developed a theory that merged express and issue advocacy in alleging that Walker’s campaign and the conservative groups engaged in illegal coordination. The theory was rejected by multiple courts, including the John Doe judge and, in July 2015, the state Supreme Court.
In the 4-2 opinion, the court said that Schmitz had engaged in a “perfect storm of wrongs” against citizens who did nothing wrong.
In the course of the probe, conservatives has their personal possessions seized in coordinated, predawn armed raids of their homes and offices. Prosecutors conducted a multi-year spying operation, grabbing up millions of documents through subpoenas of ISPs and other data providers. And they did it all under a gag order that forced targets and witnesses into secrecy on threat of hefty fines and jail times.
Late last year, Wisconsin Attorney General Brad Schimel agreed to investigate leaks to The Guardian. The 1,300-plus pages of cherry-picked information again fed on the prosecutors’ theme of some kind of criminal scheme perpetrated by Walker’s campaign and conservative allies. Schimel said he may open a grand jury to pursue the leaks.
Last week, the investigation led to the Supreme Court clerk’s office.
The Journal Sentinel reported that DOJ agents on Feb. 1 collected documents from the Ethics Commission.
“We plan to be over approximately 11 a.m. tomorrow morning to retrieve the materials as discussed,” then-Deputy Solicitor General Daniel Lennington wrote to top Ethics Commission officials on Jan. 31, according to emails released to the newspaper in an open records request.
A spokesman for the attorney general told Wisconsin Watchdog the office does not comment on ongoing investigations.
Greim said the fact that GAB could still have John Doe documents raises serious questions about the security of the documents seized in an unconstitutional investigation.
“Every person and every group that had personal, confidential information seized should receive back a copy of the record of what was seized,” said the attorney, whose Kansas City, Mo., firm represents conservative Eric O’Keefe and the Wisconsin Club for Growth. “People should be able to know what of their personal information is at risk.”
Read Wisconsin Watchdog’s series, Wisconsin’s Secret War here