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home : news : state news May 24, 2016

2/20/2014 3:45:00 PM
O'Keefe follows through, files lawsuit in John Doe probe
Targets of John Doe call probe payback for their political successes

Richard Moore
Investigative Reporter

In the topsy-turvy world of Wisconsin’s John Doe probes and politics, the world went topsy again this week after going turvy last week after going topsy before that.

Prosecutors in five counties are in the middle of a second John Doe probe related to Gov. Scott Walker since before he took office in 2011, and this one has been all over the board. 

Specifically, the prosecutors are looking into whether illegal coordination occurred between the campaign of an unnamed candidate and certain nonprofit organizations – in other words, between Gov. Scott Walker’s recall campaign and various conservative groups.

Among the probe’s targets is Wisconsin Club for Growth and its director, Eric O’Keefe. O’Keefe says the investigation is political payback for conservative activism, and, earlier this month, he called for prosecutors to end their action  or face a federal civil rights lawsuit.

This week he followed through on his pledge and filed the lawsuit against the John Doe prosecutors in federal court.

The lawsuit, filed by a team led by David B. Rivkin, Jr., of BakerHostetler attorneys, argues that Milwaukee County prosecutors have abused their authority  by retaliating against the club’s political activism in support of Walker’s collective bargaining reforms as embodied in the 2011 budget repair bill.

“Milwaukee County district attorney John Chisholm and his staff have spent the past four years prying into the affairs of Scott Walker, his associates, and his supporters in a series of John Doe proceedings that observers have derided as a ‘political witch hunt’ and a ‘fishing expedition,’” the club alleged in a statement announcing the lawsuit.

According to the group, specific claims stem from what it calls prosecutors’ actions – including harassment and threats of criminal prosecution – which they contend are intended to chill conservatives’ First Amendment right to speak out on political issues. 

The suit asks the United States Court for the Eastern District of Wisconsin to enter an injunction blocking the John Doe investigation immediately. It also seeks monetary damages against the prosecutors for their violations of O’Keefe’s and the Club’s First Amendment rights.

“This investigation is political payback against conservative activists for their political successes in Wisconsin,” O'Keefe said. “But we will not let them silence us.”


The complaint

In the much redacted complaint, the plaintiffs lay out a scenario in which the left is attempting to shut down conservative speech.

“Many with left-leaning views have opposed the involvement of independent interest groups like WCFG in election speech,” the complaint states. “This opposition escalated considerably after the Supreme Court decided Citizens United v. Federal Election Commission, 558 U.S. 310, in January 2010, which struck down regulations barring corporations from making independent express advocacy expenditures in elections as violative of the First Amendment.”

Around this time, the complaint continues, left-leaning advocates began to devise ways to undermine the Citizens United decision. In so doing, the groups allegedly redefined such campaign-finance terms as “coordination” beyond their original scope as an alternative  way to prevent independent organizations from participating in elections. 

“Another campaign finance concept recommended for redefinition was the distinction between ‘issue’ advocacy and ‘express’ advocacy,” the complaint states. “Left-leaning advocates have also spent considerable time and efforts theorizing of ways to expose the names of donors to social welfare organizations in order to allow them to become the targets of reprisals. This has led to scandals including those in the federal government, as IRS agents have been accused of illegally leaking the names of Republican and conservative donors around the 2012 presidential election.”

Part of this comprehensive effort by the left was the “persistent” four-year investigation by the Milwaukee County district attorney’s office under the guidance of John Chisholm, Bruce Landgraf, and David Robles, the complaint continues. The probe grew into an ongoing audit of the Walker campaign, and was political in nature, the complaint charges.

“The leader of the Office was at all relevant times and is District Attorney John Chisholm, who won that seat as a Democratic Party candidate and has been supported by unions in previous campaigns, including in the most recent race to hold his DA position, during which he received support from, among others, the AFL-CIO,” the complaint states. “... Altogether, as of April 2012, employees in Chisholm’s office had donated to Democratic over Republican candidates by roughly a 4 to 1 ratio. During the 2011-2012 campaign to recall Scott Walker, at least 43 (and possibly as many as 70) employees within Chisholm’s office signed the recall petition, including at least one Deputy District Attorney, 19 Assistant District Attorneys, and members of the District Attorney’s Public Integrity Unit.”

The John Doe probe was little more than a campaign ploy, the complaint asserts.

“Upon information and belief, the Milwaukee County Attorney’s Office decided to use a John Doe proceeding to investigate the Milwaukee County Executive’s Office as a means of influencing the 2010 election in which Scott Walker was a candidate for Governor,” the complaint states.

The complaint accuses the district attorney’s office of using a probe into discrepancies in military appreciation funds – a probe referred to the district attorney’s office by Walker’s staff – to expand an investigation into Walker’s employees more generally and to broaden the scope.

From there, the complaint alleges, the investigation sprawled into variously unconnected inquiries, such as a finance-campaign complaint against William Gardner, then of Washington County and a railroad owner. The prosecution had to be in Washington County, but the investigation was brought under the John Doe umbrella, the complaint asserts.

“The Gardner allegations were unrelated to the Operation Freedom funds, and there would be no basis for drawing a connection between the issues under investigation – unless it was already established that the investigation was aimed at individuals or groups that support Walker, who was the sole common denominator,” the complaint states. “On information and belief, the purpose was to lend credibility to requests before the John Doe judge to expand the investigation further into Walker, his associates, his campaign, and his supporters.”

Gardner agreed to cooperate with authorities, the complaint observes, and eventually turned over the information that would be used in the criminal complaint against him. 

“A John Doe proceeding was unnecessary to obtain his conviction, but served as a pretext to allow Chisholm and Landgraf’s (sic) continue their unlawful fishing expedition into Walker’s affairs,” the complaint asserts.

From there, the plaintiffs charge, the investigation quickly expanded to other employees within Walker’s office, and into an accusation of bid-rigging – all in an attempt then to influence the recall election, as the probe had by now dragged on well past the 2010 elections.

“Along with allowing prosecutors ongoing access to Walker-related files, the investigation provided an avenue for them to engage in intimidating behavior and harassment to achieve the goals of their politically motivated quest,” the complaint states. 

Among other things, according to the complaint, prosecutors arrested the owner of a Harley Davidson dealership for refusing to turn over credit card numbers used for certain purchases from his dealership on a specific date. 

The dealership did not – and could not legally – maintain records of the credit card numbers of specific customers and had no way of obtaining the information, the complaint asserted, but the dealer offered to provide basic information that he was legally allowed to retain.

“In fact, such information is protected by Wisconsin and federal law, and it would be illegal for (the) dealership to maintain records of credit card numbers or obtain them from other sources,” the complaint stated. 

The dealer was finally released, the complaint asserts, only after he agreed to drive five hours to testify before the John Doe judge, who obtained the basic information the dealer had initially offered. The dealer has subsequently sued the prosecutor.


Double standard?

Meanwhile, similar activity on the left goes uninvestigated and unprosecuted, the complaint maintains.

“In spring 2010, the Milwaukee County District Attorney’s Office declined to prosecute a county employee named Christopher Liebenthal, who was caught engaging in ‘excessive political blogging’ for liberals from his taxpayer-funded computer,” the complaint states. “The District Attorney’s Office recognized that ‘Mr. Liebenthal’s actions constitute an extreme example,’ but stated that it would prefer to see the situation handled as a personnel matter rather than a criminal matter. The decision by Defendants Chisholm and Landgraf to treat this conduct as a personnel matter is completely different from how they treated indistinguishable conduct by (several Walker county employees). Each was charged criminally on multiple counts, and (one) was sentenced to jail time for similar conduct treated as a ‘personnel’ matter in Liebenthal’s case.”

The complaint also cites a $69,500 expenditure to the Center for Media and Democracy by the AFL-CIO for “political activities and lobbying,” with the stated purpose of “support of state legislative advocacy.” 

“But according to GAB’s records, the Center for Media and Democracy, which is a 501(c)(3), was not a registered lobbyist at the relevant time period, and top staffers of the group were not registered as individual lobbyists,” the complaint states. “Lobbying without the proper registration violates Wisconsin state law, but the Defendants did not investigate this appearance of impropriety.”

What’s more, the complaint states, in November 2013, the CDM hosted a conference call between reporters and its director Lisa Graves, whom the plaintiffs alleged is well connected with Democratic Party members in Madison, Milwaukee, and statewide. 

“One reporter asked about the investigation and whether the same activity being investigated had occurred among liberal and Democratic groups,” the complaint states. “Graves’s response indicated that such activity did occur, but was distinguishable, she said, because ‘they’re advancing not just an ideological agenda but an agenda that helps advance the bottom line of their corporate interests. That’s quite a distinct difference from some of the funders in the progressive universe.’”


CDM responds

For its part, the CDM disputes the accuracy of the complaint about it, saying O’Keefe and Wisconsin Club for Growth filed false claims in federal court.

“Eric O’Keefe and WCFG have misled a federal court with false claims about CMD in their effort to thwart a criminal investigation into their activities during the 2011-2012 recall elections in Wisconsin,” Graves said. “The legal complaint of O’Keefe/WCFG demonstrates a reckless disregard for the truth and defames our investigative watchdog group. Their claim of selective prosecution, which suggests that CMD should be subject to criminal prosecution, is injurious and based on manufactured falsehoods.”

Graves says she believes CMD has been targeted as part of an effort to discredit the organization and what she called its thoroughly documented investigative reporting about O’Keefe and WCFG, Citizens for a Strong America, David Koch’s Americans for Prosperity and other groups.

Contrary to claims the group spent tens of thousands of dollars lobbying in Wisconsin in 2013, the group said in a statement CMD received a donation to support its research regarding lobbying by corporations and others. The group does not lobby Wisconsin legislators about Wisconsin bills, does not engage in electioneering, does not run TV ads, and does not engage in any of the activities reportedly under investigation, CMD maintained.

As for the conference call, Graves says she was never asked about any John Doe investigation on the call, and made no reference to any criminal investigation, or to any electoral coordination by non-profit groups. 

What’s more, CDM said, the claim Graves is well-connected within the Democratic Party is another false assertion they say is designed to paint her as a party apparatchik. Graves says she is not active in the Democratic Party and has made small donations to two Democratic candidates in the past four years.

“I hope the court will consider imposing Rule 11 penalties against the attorneys for making false claims,” Graves said.

For his part, O’Keefe and his attorneys say the investigation is calculated to chill protected speech. 

“Plaintiff Eric O’Keefe’s nationwide political activities were debilitated, and he will continue to remain on the sidelines in Wisconsin until the investigations end,” the complaint states. “Plaintiff WCFG has been sidelined entirely and has ceased all First Amendment protected activity.”

Richard Moore may be reached at richardmoore.gov@gmail.com

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