Data Wonk

About Those John Doe “Paramilitary Raids”

Are right-wing accounts of the Doe investigation fictional?

By - Aug 10th, 2015 11:23 am
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Eric O’Keefe

Eric O’Keefe

Ever since several editorials appeared in the Wall Street Journal, conservative media have promoted a standard model for how the John Doe of Gov. Scott Walker and conservative advocacy groups was conducted. The investigation searches were typically described as “para-military style,” involving shouting, threats, and the denial of common courtesies. They also typically described the lead investigator refusing a request for a lawyer and failing to read the poor victim their Miranda decision rights.

Here is how the National Review article described the search of Cindy Archer’s Madison home (Wisconsin’s Shame: ‘I Thought It Was a Home Invasion’):

The officer or agent in charge demanded that Cindy sit on the couch, but she wanted to get up and get a cup of coffee. “I told him this was my house and I could do what I wanted.” Wrong thing to say. “This made the agent in charge furious. He towered over me with his finger in my face and yelled like a drill sergeant that I either do it his way or he would handcuff me.”……. They wouldn’t let her speak to a lawyer. …the police searched her house, making a mess, and — according to Cindy — leaving her “dead mother’s belongings strewn across the basement floor in a most disrespectful way.

The same article also describes two other searches very similarly, again claiming that those residents — who are unnamed — weren’t allowed to contact a lawyer.

Here is how George Will describes the searches (A liberal DA’s cynical use of Wisconsin’s “John Doe” process may cost Scott Walker the election):

The early-morning paramilitary-style raids on citizens’ homes were conducted by law-enforcement officers, sometimes wearing bulletproof vests and lugging battering rams, pounding on doors and issuing threats. Spouses were separated as the police seized computers, including those of children still in pajamas. Clothes drawers, including the children’s, were ransacked, cell phones were confiscated, and the citizens were told it would be a crime to tell anyone of the raids.

Here is a very similar description from the National Review’s editor, repeating many of the same claims, including that the subjects weren’t allowed to contact an attorney: Politicized Prosecution Run Amok in Wisconsin). There are scads of others but the similarities between ostensibly different searches suggest they all stem from the same source.

The right-wing blog Watchdog.org has published numerous similar stories. It does name a source, Eric O’Keefe, of the Wisconsin Club for Growth and the lead plaintiff in its lawsuit against the investigation. He claimed to have interviewed many of the subjects of the searches. It appears that O’Keefe himself was not present at any of the searches. Certainly he cannot be considered an unbiased source.

These search stories have been accepted uncritically by much of the right despite any corroborating evidence. From a legal perspective they would be considered hearsay. They also lack the scholarly imperative of using primary sources. Because of the various secrecy orders there has been no way to check them—at least until recently.

Yet even without any way to check them, these tales lack credibility. All have the same elements: including a brutish investigator who shouts, issues threats, gives gratuitous orders, and ignores common courtesies. Most significantly, these searches are conducted illegally, refusing requests for a lawyer and not bothering to read the warrant or the Miranda warning.

There are least two reasons to doubt this description. Such behavior would likely be counter-productive in gaining the cooperation of the person being interviewed. Perhaps even more importantly it would make any testimony inadmissible in court. I would suggest that the thugs who populate these tales are incompetent investigators.

By contrast, effective investigators work to build empathy. They sympathize with how uncomfortable the situation must be for the person being interviewed. They try to make the situation as unthreatening as possible. They are dangerous precisely because they avoid acting like the brutish investigator in the stories and instead enlist the help of the people being  interviewed. Only later does the interviewee realize he or she may have said too much.

Which investigator actually conducted the searches, the thug portrayed in the right-wing media or the one I suggest would be more effective? The recent release of documents from Archer’s lawsuit against members of the Milwaukee DA’s office for the first time offers a primary source for what transpired in one of the searches.

Let’s start with the story Archer’s attorneys offer in her filing:

  • “When Archer opened the door, officers and others flooded in, throwing the warrant at her without giving her an opportunity to read it.”
  • “They attempted to seize her partner’s computer and cell phone despite having no authority in the warrant to seize her possessions.”
  • “Archer reached for her cigarettes, and the officers screamed at her and forbade her from leaving the residence, even for a brief period to smoke a cigarette.”
  • “No one informed her that she had a constitutional right to remain silent and the right to an attorney.”
  • “They left items Archer inherited from her mother strewn about the basement floor after emptying a cabinet. They left messes in other cabinets.”

In other words, the complaint offers a story totally consistent with the tales published in the right-wing media.

But as part of their defense against Archer’s lawsuit, two Milwaukee DA employees submitted an audio tape made during the search. The interviewer on the tape, Aaron Weiss of the Milwaukee DA’s office, bears no no similarity to the thuggish investigator profiled in the complaint or the National Review article.

There is no shouting or threats. After some small talk Weiss suggests she “grab a seat and I will read you this warrant,” which he proceeds to do in a clear but hardly threatening voice. He reads the secrecy order, which clearly makes an exception for her lawyer. He summarizes what will happen next and that she is not under arrest and will be free to go about her business at the end.

When Archer asks to step outside to smoke a cigarette, Weiss agrees, but says he has to accompany her—suggesting that might be overkill, but “cops are trained to be paranoid.” He explains that her computers and cell phone will be returned as soon as possible but he can’t predict exactly when. He offers the comment that the situation must be uncomfortable for her. After some consideration, he agrees to a request that he not take Archer’s partner’s cell phone. There is considerable small talk which seems aimed at putting her at ease.

When she suggests they sit on the couch, he responds, “I would like to show you papers and it would be easier at the table.” He adds “you will be given a receipt for everything we take.”

After a bit more small talk, Weiss says “I would like to read you your rights.” He proceeds to do so including that anything she says can be used against her, that she has a right to a lawyer, and has the right to end the conversation at any time. At the end of the reading he asks whether, considering her rights, she wants to proceed. She agrees and the interview starts.

The Weiss on the tape is not that mythical thug and as a result is probably far more effective in eliciting possibly damaging testimony. For instance, at one point, Weiss leads Archer to express her frustration that Walker kept pushing her to do extra calculations for John Hiller, who was both Walker’s treasurer and trying to win a contract to rent office space to the county. “Walker wanted me to get Hiller off his back,” Archer says. This bothered her because it interfered with her other work and it seemed to favor one competitor over others: “Scott was giving him the benefit of the doubt.”

What explains the huge discrepancy between the events as recorded on tape and the description in both Archer’s complaint and the National Review article? Is it possible Archer suffered a total memory loss, perhaps due to the inherent trauma of the event, forgetting important details like the reading of the warrant and of her Miranda rights and somehow recalling that Weiss shouted at her? That seems implausible. The gap between asserted and actual events is just too great to be explained by simple memory loss.

In recent years, there have been a number of cases where news stories that appeared in respectable publications were later exposed as works of fiction. I believe this is a similar case.

There is striking similarity between all the accounts that have appeared in the conservative media even when they describe ostensibly different events. Although most of the descriptions are sourced anonymously, two sources do appear repeatedly: Eric O’Keefe when it comes to the claims in the conservative media and attorney David Rivkin when it comes to the claims in the briefs. Rivkin was O’Keefe’s lawyer throughout the challenges to the second John Doe investigation, and is listed as co-counsel on Archer’s complaint. O’Keefe and Rivkin are the most likely authors of this fiction.

This suggests the likely source of the errors in the Archer complaint is not Archer but Rivkin, who needed to insert them to make the complaint consistent with tales promoted by him and O’Keefe.

This would explain another mystery. The violations of due process alleged in the tales were so great that if proven true they would have likely been sufficient to shut down the investigation. There would have been no need to invent a new right: the right of independent groups to coordinate with a candidate. Yet, as Justices Annette Ziegler and Shirley Abrahamson both noted, there has been no complaint of this due process violation. Such a complaint would have required the courts to make a factual determination, likely exposing the claims as untrue.

The success of Rivkin and O’Keefe in convincing much of the conservative world that their tales are facts, despite the lack of corroborating evidence, is remarkable. It will be interesting to see how they explain away the evidence on the tape.

Categories: Data Wonk, Politics

34 thoughts on “Data Wonk: About Those John Doe “Paramilitary Raids””

  1. Dave says:

    Bob Dohnal must be devastated.

  2. AG says:

    I wasn’t actually that surprised to find contradictions. Given the nature of this event and how traumatic it is to have your home searched unannounced early in the morning, it is more than plausible. They’ve shown that peoples memories are astoundingly innacurate in traumatic situations.

    I’m more concerned with some of the other info on those tapes released. The right wing radio circuit has pointed out, quite alarmingly, that they were right about the John Doe being wide net fishing expeditions. They pretty much admit that on the tapes.

    I do not support the decision that has now apparently allowed third party groups to do more planning with candidates… but I also recognize the dangers these John Doe investigations have regarding our personal freedoms. The ends does not justify the means and the means in this case really scare me.

  3. PMD says:

    Contradictions or blatant and intentional distortions? I guess how one answers that depends on their politics. Where you see contradictions I see outright lies from her. And at one point it was determined that Walker “likely committed a felony.” There have also been 6 convictions. That doesn’t seem like a fishing expedition.

  4. wisconsin Conservative Digest says:

    Bruce as usual in his description of anything involving Walker invokes his hatred ahead of his journalistic integrity. All of the tape reveals something much different and the first minutes of the raid are not taped.
    Consider this that you are in shower, 6 armed swat team members, before dawn, bang on your door, shove their way inside while you are naked, then worried they will kill your dog, they make all kinds of threats, ransack your house for 4 hours hold your roomie hostage, illegally, do not let you contact your lawyer and then ruin your career and life. Why?? She wrote act 10. no charges have ever been filed or stated against her. The judge just gave out blanket search warrants without any chance of them to make their case. This is what KGB and Gestapo did. We will see discovery over the next few months bring out, with this is all out before you accept the fact that this is not traumatic for any sane person and an obvious political vendetta that worked, shut down 29 Conservative organizations still afraid to talk and they did nothing. 7 judges have said that, only 2 opposed. Shirley abrahamson is Walker hater.

  5. Bruce Thompson says:

    WCD,
    I am surprised at your claim that this column was anti-Walker. This column was not about Walker. It was about whether the multiple stories published in media like National Review must be considered fiction.

  6. Dave says:

    Someone should really check on WCD’s welfare. The amount of delusion required to post that load of am radio diarrhea could be construed as a danger to one’s self and others.

  7. PMD says:

    If she has such a credible story, why only take it to friendly right-wing media outlets?

  8. Scott says:

    No one ever will succeed in having any conservative admit to hyperbole and histrionics in light of contradictory evidence.

    It’s not mere distortion and dishonesty we are dealing with here. It’s advanced and pervasive Delusional Disorder.

    Conservatism is a mental disorder.

  9. TF says:

    “they make all kinds of threats, ransack your house for 4 hours hold your roomie hostage, illegally, do not let you contact your lawyer and then ruin your career and life. Why?? She wrote act 10. no charges have ever been filed or stated against her.”

    Have you listened to the tape? And no, it wasn’t edited, do you think Nettesheim would have allowed that? And if you think he’s in on some big Commie conspiracy, that’s just ludicrous. What on earth would he have to gain? And about Act 10, John Doe 1 was started long before Scott Walker was elected governor.

  10. PMD says:

    Don’t some claim liberalism is a mental disorder? Let’s stay above the belt. This is anecdotal but for the conservatives I know, the problem is media myopia. They either only get their news from conservative outlets (talk radio, Fox News) or they believe only conservative outlets tell the truth. The rest are part of the lamestream media, a media that’s part of a grand anti-conservative conspiracy. When that’s the case, your entire worldview is clouded. Everything printed in the Wall St. Journal or National Review is gospel and confirmation of everything they already believe.

  11. Michael Leon says:

    Republicans are discovering the Fourth Amendment.

    Yes, investigations should be difficult and no one’s home and person should be easily violated. Hence, the warrant signed off by a judge.

    As for the John Doe probes in general. They too are overseen by a judge though the charge in a John Doe probe is to determine if and by whom crimes may have been committed, by statute. See http://docs.legis.wisconsin.gov/statutes/statutes/968/26 .

    Cindy Archer lied. And as you note, no due process violations are even alleged.

    The thing about Republicans … they lie.

  12. AG says:

    The John Doe proceeding was not designed to be a free for all to check every nook and cranny in people’s lives on the hunt for crimes. I want all crimes and criminals caught and prosecuted but not at the expense of our personal freedoms. In this case, the John Doe was started when Walker’s people turned in a staffer for embezzling money from a charity and it then went on for years looking into areas that were not related at all. At minimum, I believe a new John Doe must be started when a new potential crime is uncovered. By doing so, each investigation must stand on it’s own merits in order to proceed.

    In addition, there should be reasonable time limits and harsher controls and punishments for any information leaked. The fact that the audio was released actually broke the law (I’m not saying that b/c it hurt Cindy Archer, it’s just based on the letter of the law:

    “Subject to s. 971.23, if the proceeding is secret, the record of the proceeding and the testimony taken shall not be open to inspection by anyone except the district attorney unless it is used by the prosecution at the preliminary hearing or the trial of the accused and then only to the extent that it is so used.”

    Without some tighter controls, these John Doe proceedings are scary in how intrusive and far reaching they can be. The only control is one judge who may have an agenda of their own (I’m not saying any judge in these cases did, but the door is open to it happening).

  13. PMD says:

    Wasn’t it O’Keefe who was leaking info to the Wall Street Journal? So you’re saying he should have been punished?

    Also, hasn’t new information shown that the John Doe didn’t start when Walker’s staff turned in an employee? And that Walker’s office was actually accused of obstruction? http://www.jsonline.com/news/statepolitics/scott-walkers-office-obstructed-probe-of-veterans-money-investigators-say-b99548783z1-320380981.html

  14. Bruce Thompson says:

    AG, I don’t follow talk radio. Are they saying the National Review lying is justified in lying because the investigation was a fishing issue?

  15. Wisconsin Conservative Digest says:

    What has happened on these raid is well documented by National Review, WSJ, Matt Kittle. They were meant to do one thing, traumatize and shut down the local Conservative groups from working during the Recall campaign. Chisholm has this as his vendetta, spending my property tax money to get even for act 10. Cindy archer only wrote Act 10, had nothing to do with campaigns.

  16. PMD says:

    And when pesky little things like facts and audio recordings contradict partisan sources like National Review and the WSJ, just ignore them, right WCD?

  17. Al Lindro says:

    AG, I fully support your second post here. From the outset it’s been pretty veclear the Doe investigation was the product of political and/or personal hostility toward Scott Walker, and that venom was fueling it’s long and pointless multi-year journey. When, in violation of the very provisions of the law (as I understand it), the essence of the Doe proceedings were leaked and it no longer WAS a “John Doe” investigation anymore … became sympathetic toward Walker’s aides.

    Whatever happened after that is less relevant than the points listed above; moreover, when the forces opposing Walker demonstrated they believed the ends justified their means … they completely lost credibility in my view and should have been stopped in their tracks and disciplined, including being fired.

  18. al Lindro says:

    Typos, sorry. “veclear” is “clear”, and “it’s” is “its”.

  19. PMD says:

    Again, the person who leaked information was Eric O’Keefe right? A fierce critic of the John Doe.

    Also, what is the evidence that it was all about disliking Walker? If all you’ve got is talk radio, National Review, and the Wall Street Journal, well, that amounts to exactly nothing.

  20. Frank Galvan says:

    That first rush of hot air that you felt came from the puncturing of Cindy’s lawsuit.
    All of the subsequent rushes of hot air came from WCD; as per usual.

  21. AG says:

    @PMD: Anyone who leaks info in a John Doe should be held accountable, even if O’Keefe was doing it because there was already a flow of info leaking out and he wanted to protect “his side” by leaking info in defense.

    @BT: No, there was no justification for any lying. I admittedly went off topic a little bit. Although I’m not convinced she’s lying… There’s no recordings from when they first showed up so I can’t hold the released tapes as irrefutable evidence that she was lying. The best I can say for sure is that her memories of that day are clouded. Anything more is conjecture.

    @Al Lindro: Glad we’re on the same page. The idea of the ends justifying the means has been coming up often lately. It’s a slippery slope to some dark places if we accept that argument.

    I do have a few theories of my own that could be negative towards Walker’s office… but I haven’t seen enough evidence to say it’s anything other than guessing. Maybe after we see more leaks I can make a better decision.

  22. PMD says:

    It sure seems like she’s lying. She wrote something for an extremely sympathetic and partisan source, and there’s evidence now that directly contradicts what she wrote. The “cloudy memory” defense doesn’t hold much water.

    If there were not 6 convictions here, if Walker’s office hadn’t been accused of obstructing an investigation, if no one ever said it appeared that Walker likely committed a felony in office, then I could sympathize with contentions that this was just a reckless fishing expedition. But there were 6 convictions. Walker’s office was accused of obstructing the investigation. It was suggested that he likely committed a felony in office.

  23. Wisconsin Conservative Digest says:

    according to the dopey Lefties onthis site that they should be happy that the swt teams strom their homes in pre dawn gestapo type attack, foce them to coem to door naked, not wllow them to call an attoorney and if they defend themslevs like Erice they should be jailed. What country are we in. I would not doubt that Bruce and the Scott haters heare beleive they should be taken out onlawn and jsut executed casue they were invovled in aCt 10.

  24. PMD says:

    WCD: “not wllow them to call an attoorney”

    Reality: “Again, however, Weiss is recorded specifically issuing a Miranda warning to Archer and letting her know that she could have a lawyer present if she wanted. Archer was also told she could stop answering questions at any time.

    “Realizing you have these rights, are you willing to talk with me now?” Weiss asked.

    “Yes,” Archer said.

    So you are a liar too WCD. Facts always get in the way don’t they?

  25. AG says:

    “If there were not 6 convictions here” *the original embezzling, fundraising using public resources, campaigning on public time

    “if Walker’s office hadn’t been accused of obstructing an investigation” *People accuse others of things all the time. I need the facts to back up the accusations. If the original investigation is about embezzling and the DA starts asking for all kinds of emails not related… is that proper? Is that really obstructing? I see no prosecutions or legal recourse that says it was.

    “if no one ever said it appeared that Walker likely committed a felony in office” *If we based our opinions on accusations we’re in trouble. Do you see half the things “Dave” accuses walker of? Do you see half the things conservatives accuse lefties of?

    “then I could sympathize with contentions that this was just a reckless fishing expedition. But there were 6 convictions. Walker’s office was accused of obstructing the investigation. It was suggested that he likely committed a felony in office.” *The investigations lasted years, cost the taxpayers hundreds of thousands of dollars, innocent people had their names and careers ruined for the sake of the “secret” investigation and all we have to show for it is a couple of minor prosecutions?

    Like I said, I want the law upheld and crimes caught and criminals punished… but this situation still screams to me that things went too far for too little to gain and the costs were too high to do it. That’s why it’s credible to me to think that Cindy’s story is plausible in how she felt it went down. I just can’t see someone outright lying about this knowing tapes existed… It seems far fetched.

    Thus, I believe her account is wrong (obviously… just listen to the tapes) but that doesn’t change how she may remember it.

  26. AG says:

    Hmmm… sorry, that last post was much harder to read than I had planned.

  27. PMD says:

    People often do strange things AG. Look at what those legislators in Michigan did to try and hide an affair. But it’s not just what she said but who she said it to. Maybe she didn’t think the tapes would be released, who knows. But I have a hard time believing she didn’t intentionally distort things to make herself seem like a victim to a sympathetic publication.

    Maybe it was too costly in the end, but if a prosecutor has a legitimate reason to believe a crime was committed, should they say “gee this could take a long time to resolve and lawyer’s fees will get expensive, so I’m going to ignore the suspected crimes?” Hindsight is 20/20.

  28. AG says:

    On the tapes released Weiss is recorded admitting that they were “casting a pretty wide net” (not an exact quote). That doesn’t show me that there was any hindsight needed and they knew what they were doing at the time they were doing it.

  29. PMD says:

    Now we’re getting into cherry picking audiotapes to support what we already believe. That one quote hardly proves the entire endeavor was a reckless fishing expedition. But we’re quibbling. Whether she intentionally distorted or not, I think we both agree her tale turned out to be false.

  30. Bruce Thompson says:

    AG and PMD
    If you want to see the DA’s explanation of why the investigation kept expanding, it comes not from Chisholm but from two DA employees in their response to Archer’s lawsuit: https://www.documentcloud.org/documents/2189993-archer-john-doe-filing.html
    Scroll down to their response to Archer’s points number 62 (why the investigation turned into a John Doe that netted Russell) and 65 (4 examples of why the investigation expanded further).

  31. PMD says:

    Thank you Bruce. That makes for interesting reading, and I think it clearly and adequately refutes the claim that this was just a reckless fishing expedition.

    So Nardelli was the initial source of information about the missing funds, and that led investigators to Walker’s office, which obstructed the investigation. That doesn’t exactly align with what Walker has said. One could say he blatantly lied on this.

  32. Wisconsin Conservative Digest says:

    John doe did not catch Russell or the tother two involved with the vet theft, Walker/Nardelli turned them in.
    Then Chisholm went onto large fishing expedition to see if hey could find something on Walker and no luck. They spent 5 years investigation Walker spending million of my property tax dollars instead of trying to find crooks. Notice that it is not even talked about during the presidential race cause nothing is there.
    Funny listening to the whiners as after 10 years they have not been able to find anything on Walker, the most investigated governor in history. Still the whiners talk about this cause they have been getting beat by him and hey cannot stop crying. Ho, ho, ho. I wish I could record it could use it in hog calling conttest.

  33. PMD says:

    There are 17 candidates and there’s been one debate WCD. If Walker continues to be a front runner, you can bet it will be brought up. And the lengths you go to defend him, I hope you are at least getting paid to be a lap dog.

  34. Winston says:

    WCD stick to your guns, you look the fool. At what point will you stop forgiving your criminal allies and acknowledge the truth?

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