John Doe II Is Anything But Partisan

Over and over, supporters of Gov. Scott Walker have contended that the second John Doe probe is just a partisan “witch hunt.” But newly released court documents, made public with the consent of all parties to the investigation, provide information showing this is a bipartisan effort. They also offer a fascinating look at the role of Attorney General J.B Van Hollen and how he delayed the investigation, which apparently centers on alleged coordination between third party conservative funding groups and Walker’s gubernatorial campaign during the 2012 recall election.

Conservative attack dogs like talk radio’s Charlie Sykes have hammered the idea that this is a partisan investigation led by Democratic Milwaukee County District Attorney John Chisholm. But the court documents show that four other district attorneys are co-investigators in this effort: Jane Kohlwey of Columbia County, a Republican; Kurt Klomberg of Dodge County, a Republican; Larry Nelson of Iowa County, a Democrat; and Ismael Ozanne of Dane County, a Democrat.

Are we supposed to believe that Chisholm is some sort of svengali who was able to hypnotize these Republican DAs into joining a fraudulent investigation against the most powerful politician in the state, not to mention the formidable and well-funded conservative third party groups that are also being investigated? (Groups, it should also be noted, who seem to have the full support of the powerful Wall Street Journal in their efforts to demonize Chisholm and company).

On the contrary, these two Republican DAs would have to know they could kill their careers by signing onto a flimsy case that didn’t look likely to issue any charges. In the current, polarized environment in Wisconsin, it would be political suicide for them to sign on to any investigation that didn’t look very solid indeed.

And if this investigation was so blatantly partisan, why would they try to get a Republican Attorney General — Van Hollen — to lead it?

And if the case was so obviously suspect, why didn’t Van Hollen simply turn it down? Instead he took nearly five months to come to a decision.

And when he did finally decide against taking on the investigation, his reasons for doing so were fascinating. In his letter to Chisholm, Van Hollen indicated he might have a conflict of interest, given “the dynamic nature of a campaign financing investigation that could foreseeably involve individuals with whom I have relationships.” In short, some of the same folks working to help Walker in the recall election may have helped Van Hollen’s campaign in the past.

Van Hollen also suggested that since he was a partisan official, that might make his work suspect. He 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.”

But as Van Hollen surely knows, Republicans have for some time been attacking the GAB, accusing it of partisan bias, even though its creation was done through a bipartisan legislative effort and even though its board of retired judges has a majority of one with a Republican background.

The GAB also presented other problems as noted in a letter from the five DAs working on the investigation to Judge Barbara Kluka asking her to appoint a special prosecutor. “The Attorney General,” they write, “does not address the fact that — to the extent  this is a criminal investigation — the GAB is no substitute for a statewide criminal justice authority. Plain and simple the GAB lacks authority to criminally prosecute anyone.”

Moreover, they complain, the attorney general “also does not resolve the problem that caused Milwaukee prosecutors to refer the matter to him in the first instance. That is, the investigation was referred to avoid the fracturing of the investigation and prosecution across the offices of five local prosecutors.”

That has caused inefficiency and slowed down the investigation, they complain.

As a result, the prosecutors asked her to appoint a special prosecutor and suggested Francis Schmitz. Once again, the investigators were doing their best to avoid the appearance of partisanship. Schmitz is a thirty-year federal prosecutor who worked for 20 years as an assistant U.S. Attorney in the Milwaukee office and had been one of President George W. Bush’s final three recommended candidates to become the U.S. Attorney for Milwaukee. Schmitz wouldn’t have been on the list if Republicans believed he leaned Democratic.

The conservative Wisconsin Reporter quotes an unnamed source who claims Schmitz was chosen because they think “his anti-terror experience will intimidate. I don’t think it’s too much to say it is designed to terrify some people.”

That characterization was contradicted by a Republican-leaning observer of the Milwaukee U.S. Attorney’s office, who told me that Schmitz was something of a weakling who was unlikely to lead an aggressive investigation.

But Joe Wall, another assistant U.S. Attorney and colleague of Schmitz for many years, told the Wisconsin Reporter that the two of them worked together on a highly- complicated case putting in 20-hour days, which seems to belie the weakling image. On the other hand, Schmitz has no experience in election law or First Amendment issues, which are likely to be at issue in the John Doe probe.

In short, it’s anyone guess just how good a job Schmitz will do, but he’s clearly anything but a partisan Democrat.

As for Chisholm’s office, it’s worth remembering that the first John Doe probe convicted six people of crimes, including three staff members of Walker, from his time as Milwaukee County Executive, all charged with doing campaign work on government time. Tim Russell, former deputy chief of staff to Walker, pleaded guilty to stealing from a veterans fund, but also had regular phone contact with campaign operatives, helped publish a pro-Walker campaign blog and helped conduct opposition political research for Walker’s bid for governor.

Kelly Rindfleisch, another Walker aide, was sentenced to six months in jail for campaign fundraising at the courthouse and using a secret email system located 25 feet from Walker’s office. The system allowed staff to evade open records requests and leave no trail of their campaigning on county time. Darlene Wink, Walker’s constituent services coordinator, pleaded guilty to two misdemeanors for doing campaign work while on the county clock.

All of which suggests Walker tolerated staff who illegally campaigned on government time. Though Walker insisted he was not a target of the investigation, he hired two top-level criminal defense lawyers to represent him.

So one could imagine prosecutors continuing to look for evidence that Walker was breaking campaign laws. Just as Walker had an overlap between his county staff and gubernatorial campaign, in the recall election he had an overlap between his campaign and an independent third party group: R.J. Johnson was an adviser to both Walker’s campaign and the Wisconsin Club for Growth. One of the five counties included in the second probe is Columbia County, where Johnson lives.

As I’ve written previously, the prosecutions in John Doe I were quite similar to the legislative caucus investigation of 2002, which convicted five legislators and several staff members from both parties for campaigning on government time paid for by the taxpayers.

Conservatives have repeatedly questioned why the investigators haven’t looked at Democratic campaigns, ignoring the fact that the second probe arose out of the first. If prosecutors investigating Walker’s staff saw further evidence of wrong doing, were they supposed to hold off a probe until they found some Democrats to go after?

The Milwaukee Journal Sentinel has fallen for this conservative complaint, noting repeatedly in its stories that the newspaper “has not turned up any Democratic candidates or liberal interest groups involved in the recall elections that have been contacted by John Doe prosecutors.”

Now that the released documents show the investigators include two Republican prosecutors, the newspaper has stopped repeating this statement, for obvious reasons. When you look back at how they investigators have proceeded they have at every turn sought to make this a bipartisan investigation.

As to whether the investigation will succeed, that’s another question. The recent decision by the Wisconsin Court of Appeals refusing to kill the investigation means it will continue. But lawyers for the well-funded conservative groups fighting the investigation are likely to appeal this decision to the conservative-leaning Wisconsin Supreme Court, which could decide otherwise.

Meanwhile, retired Appeals Judge Gregory A. Peterson, who replaced Kluka as the judge overseeing the investigation, issued a ruling on January 10 which quashed subpoenas to conservative groups supporting Walker. Schmitz reportedly intends to appeal Peterson’s decision, which has seriously undercut the investigation.

Schmitz faces a formidable foe in Walker’s attorney, former Milwaukee U.S. Attorney Steven Biskupic, who was very aggressive running that office and oversaw numerous John Doe investigations of politicians. Biskupic knows exactly how these investigations are run, and will probe for every weak point.

As the Journal Sentinel has reported, Walker paid nearly $200,000 to Michael Best & Friedrich back when Biskupic worked for the firm, and has since spent more than $86,000 in 2013, which went to Biskupic’s new firm, headed by him and Michelle Jacobs.

All told, Walker has spent more than $700,000 on lawyers representing him in the two probes. Given the gazillions he is garnering in campaign funds, he will be able to continue paying these retainers. The conservative groups under the microscope are also spending heavily on attorneys.

Meanwhile they will continue to hammer the idea that they are victims of a partisan investigation, while leaking documents to the Wall Street Journal in an attempt to embarrass the investigators. I can’t ever recall the subjects of a John Doe probe so flagrantly defying it. Normally the investigators are the intimidators, but they are increasingly being put on the defensive. In such a climate it would have been difficult for Biskupic to prosecute the many Democratic politicians he did. By the reasoning of Walker’s defenders, Biskupic was simply a Republican partisan pursuing a witch hunt against Democrats.