Secrecy and the John Doe Probe

The question of secrecy has plagued the two John Doe investigations related to Scott Walker from the start. With the refusal of the US Supreme Court to examine the Wisconsin Supreme Court’s decision to shut down the investigations, perhaps it is appropriate to examine whether such a level of secrecy serves the public interest.

During the first of the investigations, commonly called Doe I, of activities of the Walker Milwaukee County Executive office. Neal Nettesheim, the retired judge overseeing the investigation, listed four reasons for secrecy:

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 search warrant itself included the following language: “By order of the court, pursuant to a secrecy order that applies to this proceeding, you are hereby commanded and ordered not to disclose to anyone, other than your own attorney, the contents of this search warrant and/or the fact that you have received this search warrant, violation of this secrecy order is punishable as contempt of court.”

As Nettesheim notes, secrecy has several aims ranging from preventing coordination among witnesses to protecting the reputation of people caught up in the investigation. Wisconsin John Doe investigations are often compared to a federal grand jury investigation.

Although the secrecy order was likely similar to other John Doe investigations, it was a gift to those wanting to derail the investigation. First, because it lacked an expiration mechanism, it seemed excessive. A 7th Circuit Appeals Court Judge, Frank Easterbrook, described it in passing as “screamingly unconstitutional.” At least one witness brought a suit, which was resolved when Judge Nettesheim lifted the secrecy order on him.

Second, it allowed opponents of the investigations to accuse those running the investigation of leaking information. For example, Cindy Archer’s complaint against members of the Milwaukee DA office charged that they “directly and indirectly leaked information about their investigation to reporters to smear the reputations of Walker aides and associates and to influence the debate about collective-bargaining reforms and, later, the recall efforts and special elections.”

To support this charge, she pointed to a communication from then-Milwaukee Journal Sentinel reporter Steve Schultz asking whether she was a target of the John Doe investigation. She also claims that she, “within moments of the investigators’ entrance into the house, noticed a reporter taking notes in a notebook on the sidewalk in front of her house.“

It should be noted that Archer offered no direct evidence of this charge. If a reporter showed up—and Archer turns out to be an unreliable witness as to what actually happened during the search of her Madison home—another possible explanation is a tip from a neighbor.

At the time, it appeared that most of the Journal Sentinel’s reporting was based on Judge Nettesheim’s postings whenever he approved an expansion of the investigation. Archer seems to acknowledge this but calls the criminal complaints “overbroad,” containing “information concerning Walker even though that information had no bearing on the alleged criminal activity and did not remotely demonstrate the guilt of the accused.” Unfortunately it is not possible to verify this charge, since the case has since been sealed by Judge Nettesheim.

Third, the secrecy order created an opportunity for opponents of the investigations to leak stories with little fear of contradiction. A series of stories appeared in the right-wing press, including the editorial page of the Wall Street Journal, the National Review, and the right-wing Wisconsin Watchdog blog. Several made it clear that Wisconsin Club for Growth chairman Eric O’Keefe and other participants in the activities being investigated were the sources for the stories.

That these claims were fiction became clear when Milwaukee investigators released details of the Archer search in response to her suit against them. As a result of the contradictions between her claims and an audio recording and other records, her description of the search had to be completely rewritten.

Despite this, these claims were widely accepted by members of the right wing, including Justices of the state Supreme Court. Justice Annette Ziegler’s opinion repeats several of them, linking for support to two articles on the Wisconsin Watchdog blog and three from the National Review (which have since disappeared). One would expect a conscientious judge, who enjoy powers not available to ordinary citizens, to verify claims before repeating them. This seems amateurish and contrary to the rules of Civil Procedure, which the Supreme Court is tasked with enforcing.

Fourth, opponents of the investigation latched on to the secrecy orders as a way to avoid releasing the evidence unearthed by the investigation. No one was more enthusiastic about secrecy than the Wisconsin Supreme Court. Justice Shirley Abrahamson took note of this: “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.”

The advantage of selective release of information was, perhaps inadvertently, noted by then-Justice David Prosser when he prefaced his concurrence by stating that, “full adherence to these secrecy orders in their original breadth is impossible because full adherence would mean that the court could not acknowledge what the John Doe is about or discuss fully the numerous issues bearing on the scope, conduct, and propriety of the investigation.”

The state Supreme Court turned its control of information into a tool to sabotage the district attorney’s appeal to the US Supreme Court by denying their request to share information with lawyers and printers who specialize in appeals to the US Supreme Court. In an echo of the state Supreme Court’s use of secrecy to sabotage the investigation, one attorney alleges that the current John Doe judge has denied a request to communicate essential information to their attorneys. Presumably this is David Wambach, a former assistant Wisconsin Attorney General, who was appointed by Walker to the Jefferson County bench.

What happens now to the information collected on coordination between Gov. Walker and various outside groups? If the state Supreme Court has its way, the evidence will be destroyed or at least put under the control of the court. If the latter, there is no reason to expect the court to treat it impartially.

It should be noted that despite the US Supreme Court’s refusal to consider the appeal, federal courts have an interest in protecting the information. Ironically this results from two suits brought by opponents of the investigations.

The first is Archer’s appeal to the 7th Circuit of Appeals of the dismissal of her suit against several prosecutors and investigators in the Milwaukee DA office. While it basically deals with a search as part of Doe I, her attorneys somewhat mysteriously included assertions about Doe II in their briefs. The second is the MacIver Institute’s suit alleging violation of the federal law on electronic communications.

There is also the possibility of additional cases in the future. If there is any truth behind the claims about the conduct of searches made in the right-wing media, the subjects of these searches would have grounds for suits against those carrying out the searches. The ability of the federal courts to conduct fair trials would be problematic if the state Supreme Court’s orders to destroy the evidence were allowed to take effect.

Will the federal courts order the release of the evidence? Earlier the 7th Circuit Court of Appeals rejected a request from the Reporters Committee for Freedom of the Press, among others, in part not to interfere with a state investigation. With the investigation over, perhaps it is time for advocates of open records to try again.