Bruce Murphy
Murphy’s Law

John Doe Supported by Many Republicans

Supreme Court candidate James Daley was among many GOP judges and prosecutors involved in alleged "partisan witch hunt."

By - Apr 2nd, 2015 12:24 pm
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James Daley

James Daley

There is a fascinating subplot to the race for Supreme Court between challenger James Daley and incumbent Justice Ann Walsh Bradley. And that is that Daley supported the John Doe investigation of alleged illegal campaign coordination between Gov. Scott Walker and third party advocacy groups like Wisconsin Manufacturers and Commerce and the Wisconsin Club for Growth.

Keep in mind that Daley is running as a conservative, has blasted Bradley as a liberal, and is the Republican Party candidate in all but name: he accepted a $7,000 donation in-kind help from the party, has appeared at GOP events and used the party to circulate his petitions. Daley was first appointed to the circuit court bench by Republican Gov. Tommy Thompson. Yet he is involved in the investigation that has been condemned by many Republicans, and is a key reason they want to overhaul the Government Accountability Board, which supported the Doe investigation.

The heart of the investigation is what had always been the law: that any coordination between a candidate’s campaign and independent third party groups is illegal. And in his recent debate with Bradley, Daley affirmed “several times” that this is the law, as Wispolitics.com reported.

“It’s illegal for candidates to coordinate in any way with those groups,” Daley said. “The law is clear, you cannot do it.” In which case an investigation of such illegal activity would be warranted.

Daley also said he is actually a defendant in the Doe suit due to his role as chief judge for the 5th Circuit, which includes Dane, Rock, Green and Lafayette counties.

This adds another Republican-leaning official to many others involved in the John Doe investigation. That includes special prosecutor Francis Schmitz, who was one of Republican President George W. Bush’s three recommended candidates to become the U.S. Attorney for Milwaukee and who has disclosed that he voted for Walker in the recall election and was once a member of the Republican Party.

That also includes two Republican district attorneys helping in the investigation, Jane Kohlwey of Columbia County and Kurt Klomberg of Dodge County, a Republican.

Besides Daley, three other chief judges were involved, as recent court filings revealed: One is Buffalo and Pepin counties circuit court Judge James Duvall, who has a Democratic history and was appointed chief judge of the state’s 7th judicial district back when the Wisconsin Supreme Court had a liberal majority. But the other two have a Republican history: Milwaukee County circuit court Judge Jeffrey Kremers, chief judge of the state’s 1st District, who was first appointed to bench by Tommy Thompson and made chief judge of the 1st district in 2008, after the Supreme Court changed to a conservative majority; and Wood County circuit court Judge Gregory J. Potter, appointed to the bench by Republican Gov. Scott McCallum, and appointed chief judge of the state’s 6th District by the Supreme Court in 2012.

Indeed, the number of people involved or asked to be involved by Schmitz and/or Milwaukee County’s Democratic DA John Chisholm, who first initiated the investigation, is quite wide-ranging. For instance, they asked Republican Attorney General J.B.Van Hollen to head up the investigation. Did he turn down the offer, suggesting it was legally suspect? On the contrary, he considered the request for nearly five months, then turned it down, citing a possible conflict of interest, given that “a campaign financing investigation… could foreseeably involve individuals with whom I have relationships.”

Van Hollen suggested Chisholm and company consider working with the state Government Accountability Board, which “as a non-partisan entity…may inspire more public confidence than an investigation led by partisan officials.”

So the Doe investigation team did just that, asking for the GAB to get involved, and it agreed to do so. Which added other Republicans to the team. The members of the board, all former judges, at that time included three holdovers from the Doyle era: Thomas Barland, a former GOP legislator who was appointed a judge by Republican Gov. Warren KnowlesThomas Cane, appointed to judgeships by both Democratic Gov. Pat Lucey and Republican Gov. Lee Dreyfus; and Michael Brennan, first appointed to the bench by Lucey.  Three others, all appointed by Walker, included David Dieinger, first appointed to the bench by Gov. Thompson; Gerald C. Nichol, who served two terms as a Republican District Attorney in Dane County; and retired judge Timothy Vocke, who once served as a Democratic DA in Vilas County.

So a board which included three appointees of Walker and three holdovers, two of whom had gotten judgeship appointments from Republican governors, approved joining the John Doe investigation against Walker. It seems likely that Walker’s appointee Deininger favored the investigation, because Walker later decided not to reappoint him.

It should be noted that Eric O’Keefe, the litigious head of the Wisconsin Club for Growth, whose group is also being investigated in the John Doe, has sued the GAB and its executive director, Kevin Kennedy, arguing that Kennedy had somehow continued the Doe investigation after board authorization was given. But there are several problems with that charge. First, it concedes that the board originally okayed the investigation. Second, it suggests that Kennedy was trying to do an end-run around his board. Kennedy is the consummate Capitol insider, who has worked for the GAB and its forerunner state elections board, since 1979. The elections board was always equally divided between Democrats and Republicans while the GAB has leaned Republican from the beginning, and Kennedy has survived all these years by keeping his board members happy. Finally, the GAB has hired lawyers who are vigorously contesting O’Keefe’s claim.

All of which leaves us with a long list of Republicans who thought the Doe investigation had enough merit to support it. In the debate with Bradley, Daley tried to distance himself from it, saying his only role was administrative in assigning the case to a judge and had no role in approving the probe. But assigning a judge means paying for the judge’s time, which can be quite costly. If Daley thought the Doe was unjustified legally, he wouldn’t have assigned the judge.

The reality is that the law, as interpreted by the U.S. Supreme Court, has long held that coordination between campaigns and independent groups is not allowed, as Urban Milwaukee contributor Bruce Thompson has explained. In that sense, there was nothing controversial about the Doe probe, it was investigating alleged activities that, as Daley has noted, would clearly be illegal. Moreover, it was initiated as an outgrowth of John Doe I, which resulted in the conviction of six people, including three of Walker’s staff members at Milwaukee County.

O’Keefe has had some success challenging the investigation’s legality, notably with Judge Rudolph Randa, but his decision certainly appears at odds with U.S. Supreme Court opinions (and Randa has been repeatedly overturned by the U.S. Court of Appeals). And Randa’s ruling is in any event a new way of looking at the law in Wisconsin. Up until O’Keefe’s recent legal challenges, the consensus in Wisconsin was that coordination was not allowed, which is why so many Republicans enlisted to help didn’t oppose the Doe.

O’Keefe has also argued the manner in which the John Doe has been conducted has been outrageously aggressive. Perhaps, but the exact details are still largely a secret and O’Keefe’s claims would be disputed by Chisholm and company if that issue went to court. And this still doesn’t address the large cast of Republicans who supported the probe.

The reality is the dispute over the Doe isn’t so much between Democrats and Republicans as it is between older GOP members and the more radical new Republicans of the Robin Vos-Scott Walker era, who control the entire state and see no reason to compromise on any issue.

Finally, there is the curious role of the Milwaukee Journal Sentinel in this controversy. Reporter Jason Stein covered the Daley-Bradley debate and didn’t write one word about the revelations from Daley, skipping an obvious scoop.  The debate, moreover was preceded by a story in Isthmus by longtime JS reporter, Marie Rohde, which quotes Daley about his involvement in the Doe probe, which her former newspaper also didn’t follow up on.

Yet Wispolitics.com did cover what Daley had to say. This is an online publication whose chief investor was a Republican and which makes its money by seeking subscribers among lobbyists, legislators and politicos in both parties. Its economic model depends on covering things in as bipartisan a manner as possible. The Journal Sentinel, by contrast, mainly serves a four county area, three of which are heavily Republican: Waukesha, Ozaukee and Washington counties. Has the paper decided its readers might stop subscribing if they hear too much about the Doe? Your guess is as good as mine.

Update 11:15 a.m. April 3: I’ve now heard from a source close to the Daley campaign that, as chief judge for the state’s 5th Circuit, Daley was asked to appoint Dane County Judge Juan Colas to the Doe team, and did so. Colas does appear in this legal document related to the Doe.

Categories: Murphy's Law, Politics

11 thoughts on “Murphy’s Law: John Doe Supported by Many Republicans”

  1. Rich says:

    But assigning a judge means paying for the judge’s time, which can be quite costly. If Daley thought the Doe was unjustified legally, he wouldn’t have assigned the judge

    Please clarify…As written, this smells of a due process violation. To “not assign a judge” (and presumably not assign yourself) is equal to a summary dismissal of the case — Of course, at the appeals level, a court can decide to not hear a case (and not give an opinion as to why; SCOTUS does all the time), but I don’t think that comes at the stage of the administrative action by a chief judge (or clerk or computer or whatever).

    I presume the “and not appoint yourself” part to be true based on this:

    Daley also said he is actually a defendant in the Doe suit due to his role as chief judge for the 5th Circuit, which includes Dane, Rock, Green and Lafayette counties.

    And finally, it is probably that same conflict of interest statement why the Conservatives would push for Daley to be on the court. With him on the bench, it sets up a virtually automatic recusal and now the court can’t rule, letting the lower court decisions (currently blocking Doe) stand…Issue solved with another bought-and-paid for judge that we didn’t coordinate with (except we paid for ads putting his name in people’s minds and paid for ads that smear the other candidate)

  2. PMD says:

    I don’t know if it’s just lazy reporting or a concerted effort to position everything as a simple partisan battle, but this happens a lot. It was common to see the ongoing controversy over RFRA legislation as progressives versus Evangelical Christians, but the fact is many GOP politicians and Republican business leaders spoke out against the legislation in Indiana and Arkansas. The media doesn’t have a liberal bias. It has a bias towards presenting everything in a simplistic, often inaccurate manner because that probably makes for an easier sell.

  3. Bill Sweeney says:

    Among many other factors, one irony in this dispute is how the extreme wing of the Republican party focuses like a laser on the issue of Voter ID because they believe that this could affect the integrity of our elections, when in fact the issue here of big time money being funneled to conservative groups so they can coordinate with Governor Walker’s campaign without, wink, wink, specifically stating to vote for Walker is a much greater threat to the integrity of our election process. So it is consistent for those more traditional Republicans who deplore the Tammany Hall, Daley Machine type interference of democratic regimes with clean elections to be in favor of this John Doe investigation. Forgive me as I don’t believe in this as sound ethics, but the temptation of turning the tables is too great: If they have done nothing to hide, they have nothing to fear.

    On another note, do you Bruce, or does anyone else know, what would happen if, miracle of miracles, the 4 Supreme Court Justices would suddenly look in the mirror and say, ‘ya know, this is the same issue that was at play in our elections so we really have to recuse ourselves.’ There has to be some kind of appeal process, so would it go to some other court?

  4. Bill Kurtz says:

    The comment on “traditional Republicans” is accurate. Unfortunately the current batch of Republicans combine the ideological zeal of what they thought Ronald Reagan was with the win-at-any-cost ethics of Richard Nixon. Plus, single-issue groups seem to tell their flocks that anything that might help the GOP is acceptable, because Republicans must win by any means necessary.

  5. PJ says:

    Was Daley’s support given to the first John Doe investigation that was initiated by Walker himself or the present John Doe investigation which has been deemed by sitting legal authorities to be superfluous?

  6. Paul says:

    Bruce, I had to stop reading when you stated that the GAB is 5 to 1 Republican. Just because Walker approved their appointment doesn’t make them Republican.

  7. witransplant says:

    Just one inaccuracy – James Duvall is not the Iowa County Circuit Judge. That would be William D. Dyke. See http://wicourts.gov/courts/circuit/judges.htm

  8. PMD says:

    Paul is anyone even slightly to the left of say Ted Cruz just a silly RINO?

  9. Bruce Murphy says:

    Witransplant, you’re right, Duvall is circuit court judge for Buffalo and Pepin counties, I corrected this.

  10. This is confusing, as it does not break down along partisan lines.

    Is it possible that there are principles at work here?

    I know, it sounds bizarre, but this used to happen in the movies.

  11. Whatever happened to ringing the door bell? Using battering rams is gutless and idiotic.

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