Data Wonk

The Mysterious Silence of John Chisholm

His unwillingness to answer challenges to John Doe raises questions.

By - Sep 9th, 2015 02:49 pm
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John Chisholm. Photo by Grace Fuhr.

John Chisholm. Photo by Grace Fuhr.

The secrecy orders are one of the most controversial elements of the two John Doe investigations related to Scott Walker–the first of his Milwaukee County administration and the second as to whether his gubernatorial campaign coordinated with outside advocacy groups. The secrecy, has of course left the public at a disadvantage in trying to understand what is going on.

The public’s right to know is widely recognized as a value in a free society. Judge Neal Nettesheim’s order allowing records to be used in connection with Cindy Archer’s suit against five DA office employees lists several reasons for removing the secrecy order. One is to “explain to the public the context in which the civil proceedings were brought in relation to the John Doe investigation.”

Wisconsin Justice Shirley Abrahamson underlined the dangers of excessive secrecy in her dissent to the Wisconsin Supreme Court’s decision to shut down the second John Doe probe. “The court’s treatment of the John Doe material runs directly counter to the public’s longstanding and firmly established right to access judicial records,” she wrote.

Criticism of the secrecy orders has also been a mainstay of the attack on the John Doe investigations coming from the right side of the political spectrum.

These all reflect a recognition that public understanding is an important value in a free society and that, while secrecy may be necessary in a criminal investigation, there is at best a trade-off. The benefits of secrecy need to be balanced against the costs. Secrecy orders conflict with the American tradition of openness in government so they should be carefully tailored to fit the needs and periodically reexamined to see whether they are still justified.

From the viewpoint of the public’s right to know, Archer has performed a public service in bringing her suit. Information contained in the responses to her claims gives the public a view of both the rationale and execution of one of the search warrants for the first time. As my earlier column noted, many of the claims were false or exaggerated.

Secrecy allows speculation to run rampant. On the right, the theory that the investigations were a liberal effort to defeat Walker seem to have been accepted uncritically. On the left, the shut-down of the investigation and the order to destroy or return evidence is widely viewed as evidence of a cover-up.

From a public policy perspective, secrecy has played into the hands of those wishing to end all limits on the growing influence of money in elections. It has led to the overthrow of the Wisconsin law requiring that activity coordinated with campaigns be treated as a contribution to the campaign, and that in turn has put Wisconsin out of sync with federal law. It has also given impetus to the planned overthrow of the Government Accountability Board and its replacement with a much more partisan—and probably toothless—body.

In ordering the first John Doe investigation, Judge Nettesheim gave four reasons given for the secrecy order:

1) To prevent persons from collecting perjured testimony for any future trial,

2) To prevent those interested in thwarting the inquiry from tampering with prospective testimony or secreting evidence.

3) To render witnesses more free in their disclosures.

4) To prevent testimony which may be mistaken, untrue or irrelevant from becoming public.

The first three are aimed primarily at protecting the investigation. Without secrecy, subsequent witnesses might trim their testimony to fit the story from previous witnesses. The third reason suggests that witnesses may feel pressure from others. The two Wall Street Journal editorials excoriating Walker for rumors he had tried to settle with Milwaukee County District Attorney John Chisholm suggest this was a legitimate concern. However, now that the investigation has ended, the reasons for secrecy which support an ongoing investigation would no longer apply.

Judge Nettesheim’s fourth reason is aimed at protecting those members of the public who may have been drawn into the investigation. The fact that evidence is collected at their house or that they are interviewed does not prove they are guilty of a crime, but might be embarrassing or worse if word leaks out. Even if a particular person was indifferent to embarrassment, disclosing the questions from investigators might disclose who else is being investigated. On the Archer tape it is clear there is great interest in whether John Hiller, Walker’s campaign treasurer, was given an unfair advantage in the competition to rent office space to Milwaukee County.

The Cindy Archer pleadings originally named five employees of the Milwaukee DA office as defendants, including Chisholm, two of his assistant DAs, and two investigators with the office. (A recently amended pleading added an additional investigator.) Chisholm and his fellow prosecutors have different attorneys defending them than the investigators do and they seem to be pursuing different legal strategies: they consistently offer less information than the investigators.

For instance, in the response to the accusations made in Archer’s original pleadings, the investigators give far more information than the prosecutors. Most of the documents released, including the tape of the interview with Archer, were released by the investigators. They are also far more forthcoming when describing the investigation. An example is their response to Archer’s charge that the DA did nothing in response to the report that money was missing until Walker emerged as the leading candidate for governor.

Here is the whole response from the prosecutors: “Answering paragraph 62, admit the initial scope of the John Doe I investigation concerned the potential theft of money from a charitable fund reported by the staff of County Executive Scott Walker; deny each and every remaining allegation contained therein.” The investigators, by contrast go into considerable detail about events leading to the start of the investigation and include a copy of the petition for commencement of a John Doe proceeding and supporting affidavit, which include still more information on the difficulty in getting financial data on the charity.  

In another example, the investigators described why the investigation expanded from the original theft from a charity to four other prosecutions: Brian Pierick for possession of child pornography, Kelly Rindfleisch and Darlene Wink for campaign work on county time, and William Gardner for circumventing Wisconsin’s limit on political contributions.

Another divide between the prosecutors and the investigators shows up on the issue of discovery. The prosecutors oppose discovery; the investigators seem to welcome it. Following a conference which the judge summarized as allowing Archer to submit amended pleadings, the prosecutors’ lawyer sent a letter to the judge suggesting that the judge also stayed discovery. The investigators’ attorney responded that he did not hear the judge say anything about staying discovery.

Part of the difference may stem from the difference in the legal status of the two groups. The lawsuit targets both as individuals. In general public employees enjoy what is called “qualified immunity” so long as their actions are reasonable. In addition, prosecutors—but not investigators—enjoy “absolute immunity,” as do judges, so long as they are acting as prosecutors. This greatly simplifies the prosecutors’ defense if the court agrees that they were acting as prosecutors during the investigations.

The attractiveness of the absolute immunity defense for the prosecutors is easy to understand. Archer’s original pleadings included 165 points, most of which are impossible to test. For example, many of the charges seem to assert an ability to read Chisholm’s mind. The amended pleadings, just released as I write this, add another 60 points. It appears for every claim proved wrong—such as the claim that Archer was refused an attorney—her lawyers will add another two.

While understandable, the absolute immunity defense, if successful, does not serve the public interest in learning how the investigations were conducted. Critics are likely to accuse Chisholm of winning on a technicality. Thus winning on those terms plays into the hands of the investigation’s critics.

Consider the charge that the expansion of the investigations proves they were fishing expeditions. The investigators make a plausible case that investigation of one crime led to evidence of another, but the case is not proven one way or another. The question is whether in each case the investigators stumbled across potential violations or proactively searched them out.

One of the dangers of secrecy is that the guardians of the secrets can choose which secrets to make public and decide to release only those secrets that support their case. The Gableman decision is quite open about doing this, saying “we can interpret the secrecy order and modify it to the extent necessary for the public to understand our decision herein.” As Justice Abrahamson observes, “The majority opinion and Justice Prosser‘s concurrence decide that the secrecy order does not bind the justices of this court. The secrecy order, in their view, binds only the parties and the public.”

One cannot rule out that the investigators are doing just what the state Supreme Court did, selectively releasing information that serves their case. At least that is what the critics could charge if the Archer case is ended before the evidence is put to a trial. But the critics can go further and point to Chisholm’s unwillingness to share information, and ask: what is he hiding?

Categories: Data Wonk, Politics

13 thoughts on “Data Wonk: The Mysterious Silence of John Chisholm”

  1. Will says:

    This is top notch journalism. Does Bruce ever sleep?

  2. Jake formerly of the LP says:

    Chisholm’s whole act throughout this makes no sense. It’s like he doesn’t understand that PR and public perception is a factor here, and he allowed the RW oligarchs to selectively release items of the case without any consequences or blowback.

    It makes you wonder if he really understand that type of lowlifes he was investigating, and the fact that he didn’t seem to understand these people would use every trick and deception in the book (legal or otherwise) to try to stay out of jail makes me wonder about how sharp this guy really is. The fact that he was planning to charge Archer and then backed off is especially mysterious.

    Either Chisholm is a coward who doesn’t have the guts to charge big-name wrongdoers, or he’s horrible at PR and stupidly naïve as to how to play this case in public. He should have announced the day of the WMC 4’s decision that he was appealing the case to SCOTUS, (given that the SC-WI made up a new expansion of “free speech” election finance law in their decision, it’s obviously a case the SCOTUS should decide), and he wouldn’t look nearly as weak as he does today.

    If he’s not capable of taking this case all the way and going after ALL of the criminals, then Chisholm needs to step down and be replaced by someone who will stand up and go after the lawlessness of this GOP machine with all guns blazing, and to use all tactical communications with the public to keep the lies of Eric O’Keefe and Cindy Archer from being all we hear. Because that’s what it takes to beat these forces of evil, and bring these money-launderers to justice.

    Good article Bruce.

  3. wisconsin Conservative Digest says:

    Bruce, this is just more cap from you. You completely dismiss the fact that Cindy Archer has never done anything wrong and 25 of the Conservative groups that were aided by looking at emails, phone records, credit cards, etc were no where near involved with this election. Cindy Archer was knocked out of bed, in the nude, by Swat team with battering ram, lights all over the place, before dawn. answered the door nude cause the police were threatening to break it down, had to plead with them not to shoot her dogs, he roommate was detained, illegally, and should also sue. All of this will cost us enormous amounts of money that could be spent in helping stop Milwaukee’s crime wave.
    People who defend this kind of behavior when it should never have been allowed as 7 judges have now said, are dillusional, despicable.
    It has been shown that Shane Flack was a partisan in the GAB that was out to help Burke and kill Scott.
    The stories will all come out in court and in discovery and it is really scary what a police state that Chisholm developed here for no reason except to shut up 29 Conservative groups that have never done anything illegal. All of these court proceedings, lawsuits by these peoel will run into millions to the property tax payers.
    What convictions from this?? Rindflesch made some phone calls that she should not have done but throughout the state this has been done for decades. Reachers did this all through the ACT 10 fight., Wink wrote some letters on Journal blogs defending Scott. A guy whom Scott turned in was found to have child trash on his phone. Some guy who also had nothing to do with campaign made some campaign donations illegally. Wow, all this for millions of dollar and only to get even with Scott cause of Chisholm’s wife’s union.
    Pisspoor reporting by a Left wing hack. only people who think that this is good work are left wing hacks, who that if this had been done to them would have been crying forever and the Conservatives would have defended him fro this police state, ruining lots of lives costing them lots of money and for nothing. Bruce you are sullying your rep with this crap defending Chisholm kennedy, Landgraf, Falk and Schmitz who have lost in court at every turn. Waiting to see the crap that you write about these civil trials.

  4. Wisconsin Conservative Digest says:

    Also Buce, this was secret investigation supposedly, so who leaked al that stuff for Journal to write and how did Journal reporter get to the predawn raids to report on them? Secret? as to low lifes, what crap Bruce. Look at these groups, they are all dedicated citizens working for their beliefs just as the left groups that are honest like Sierra club etc are working for theirs.
    You are skating very close to the line on libel against some of these people and if you come close I will recommend that they slap you and Murphy with big fat lawsuits and find out who leaked this stuff to you guys. Thee discoveries on the archer suit will outline a real illegal, monstrous conspiracy to slander honest people who followed the laws and passed important legislation allowing us to spend money on kids instead of overpriced insurance polices and fat salaries for educrats.

  5. old baldy says:

    Other sources more credible than WCD have debunked the “pre-dawn raid” story. Maybe WCD should provide some proof..

  6. Shake S. Peer says:

    @WCD: Methinks thou doth protest too much whilst saying little.

  7. Dave says:

    “I will recommend that they slap you and Murphy with big fat lawsuits and find out who leaked this stuff to you guys.”

    Haha. Nothing like a grown ass man acting like a tough guy. Drop dead, WCD.

  8. Bill Sweeney says:

    Bruce, great article. Do you know what the timeline is with regarding appealing the State Supreme Court decision to the US Supreme Court? It is my impression that Schmitz believes that he has to ask the State Supreme Court to review their decision before an appeal to the US Supreme Court. I assume that is a required step as well as an altogether futile one. But how long does it take? I would think that the US Supreme Court would be very interested in this case considering their prior decisions on campaign finance and how important a topic it is in the current politicfal atmosphere.

  9. Nate says:

    Great analysis! Bruce is a top notch writer. Probably the best around when it comes to in-depth analysis of the John Doe investigations.

    Question, though: Wouldn’t Chisholm want/need to keep any prosecution plans and information close to the vest to avoid prejudice in the event an appeal to the SCOTUS allows him to continue the John Doe?

  10. wisconsin Conservative Digest says:

    Bruce is nothing but partisan hack 90% is wrong. Want the truth read Matt Kittle, Watchdog Reporter and Wall Street Journal. He who laughs last laughs best. Journal had done horrible job, even though they got all the leaks.

  11. old baldy says:

    wcd:

    At least Bruce gets 10% correct, as opposed to your 100% BS.

  12. Terry Ott says:

    Forgive me for not having the patience to read Bruce Thompson’s piece carefully all the way through. No doubt I’d learn some nuances and discover some “inside baseball” details that would add to what I have accumulated in an interminable viewing of this kabuki dance playing out.

    Help me out here. What is the rejoinder to someone who says, “That’s all you’ve got? That’s all you’ve come up with after all this time and effort? What exactly is so egregious that it commands all this attention and manpower to grind through it?”

    I utterly disagree with WCD’s characterization of Thompson as a “hack”. His many analytical essays on this site in the past could NOT be done by anyone with the limited capabilities and perceptions of a journalistic hack. Forget about that allegation; it is unsupported.

    But, that said, tell me what is incorrect in WCD’s commentary here: “Rindflesch made some phone calls that she should not have done but throughout the state this has been done for decades. … Wink wrote some letters on Journal blogs defending Scott. A guy whom Scott turned in was found to have child trash on his phone. Some guy who also had nothing to do with (sic) campaign made some campaign donations illegally.” And is he wrong to suggest: “… all this … to get even with Scott cause of Chisholm’s wife’s union.”

    What aspect of this disjointed “case” is an even moderately big deal even if proven true in the eyes of an impartial observer? Funding this legal epic as a taxpayer, why should I not be ticked off about it?

  13. Rich says:

    Terry, you should not be ticked off because people you elected and are supposed to hold to a high standard broke the law. “Rindflesch made some phone calls ON COUNTY TIME. … Wink wrote some letters on Journal blogs defending Scott ON COUNTY TIME. … Some guy who also had nothing to do with (sic) campaign made some campaign donations ILLEGALLY.” Emphasis words added just to make sure the pertinent points are noticed.

    How does your weak rebuttal of “but throughout the state this has been done for decades” make it any less wrong?

    I know I certainly don’t want people who are paid with my tax dollars working on things that aren’t pertinent to their jobs — especially dark money campaign coordination.

    “to get even with Scott cause of Chisholm’s wife’s union.”” Sigh. Believe what you want I guess. Just try to think back to where you first heard that suggested since I highly doubt it is an original thought.

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