Making Sense of John Doe II

The ongoing John Doe probe into alleged illegal activities concerning Gov. Scott Walker’s recall election campaign is nothing if not complicated. Here’s an attempt to make it understandable.

The probe was launched in August 2012 by the Milwaukee County District Attorney’s Office, which in an earlier John Doe secured criminal convictions against six individuals, including three Walker aides from his days as county executive. John Doe II focuses on the interplay between political campaigns and their supporters during the recall elections.

Critics contend it is a baldly partisan attempt by Democrats to damage Walker and other Republicans. That spin hit a brick wall recently when the probe’s special prosecutor, Francis Schmitz, revealed that he voted for Walker in 2012.

John Doe probes, overseen by judges, allow prosecutors to gather evidence and compel testimony, usually in secret. Much of what is known about this probe’s scope and nature comes from breaches, both accidental and deliberate.

In the deliberate category are leaks to the editorial pages of the Wall Street Journal. Last November, the paper reported that subpoenas issued in the probe named 29 conservative groups, including Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce, the Republican Governors Association and Americans for Prosperity.

From this disclosure it was surmised, correctly, that John Doe II concerns the possible coordination of campaign activities between political players and outside interest groups.

Outside groups can legally spend however much they want to influence elections, so long as they act independently. But coordination between campaigns and outside groups has long been regarded as a no-no.

Former state Supreme Court Justice Jon Wilcox paid a fine for violating this rule in his 1997 campaign. And state Sen. Mike Ellis ended up not seeking reelection after being caught on tape discussing plans to work in concert with a third party, which would have been illegal.

Or would it?

The targets of John Doe II contend the law only applies if they expressly advocate the election or defeat of a given candidate. The prosecution says coordination is illegal whether or not this occurs.

This January, in another development leaked to the Wall Street Journal, presiding Judge Gregory A. Peterson sided with the targets. He quashed some previously issued subpoenas, saying it wasn’t clear that laws were broken.

In February, Wisconsin Club for Growth filed suit in federal court, alleging that the probe violated its constitutional rights to free speech and association. That led to another breach, in March, when a response brief by one of the defendants accidentally allowed clever viewers to see redacted portions.

Thus it came to light that Judge Peterson had rescinded part of his order, acknowledging that other courts might read the issues differently.

“As I see the dispute, it is a classic case of statutory interpretation,” Peterson wrote in what was supposed to remain a secret filing. “The state’s theory is not frivolous. In fact, it is an arguable interpretation of the statutes. I simply happen to disagree. An appellate court may indeed agree with the state.”

There are also three pending actions regarding John Doe II in state courts, including prosecutor Schmitz’s appeal of Peterson’s ruling. (The other two are challenges brought by the probe’s targets.) In April, an attorney representing Walker asked the Wisconsin Supreme Court to hear this appeal directly.

As it happens, the four conservative justices who compose the court’s majority have all received substantial “issue ad” support from Wisconsin Manufacturers & Commerce and Wisconsin Club for Growth.

Despite this conflict, these justices have ruled on past matters involving WMC and could again, if they so desire. In an apparent shot across their bow, Justice Ann Walsh Bradley, lamenting the court’s “weak recusal rules,” has pledged to step aside from at least one probe challenge — not because its targets helped elect her, but because her son works for the same firm as one of the attorneys involved.

Bill Lueders is the Money and Politics Project director at the Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org). The Center produces the project in partnership with MapLight.

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