The Curious Case of Brad Schimel

The latest chapter in the ongoing saga of the John Doe investigation of Scott Walker and his associates involves the question of whether to preserve the documents from the investigations. The prosecutors have asked for this, both because they are appealing the case to the U.S. Supreme Court, and because they face civil suits claiming wrongdoing by them. If would be difficult for them to defend themselves if the documentation of their prosecution was destroyed.

It’s hardly surprising that Eric O’Keefe, who has been a driving force in the suits against the prosecutors, would want this evidence destroyed. But he has now been joined via an Amicus Curiae (“friend of the court”) brief from Wisconsin’s Attorney General Brad Schimel. Why has the AG joined the fray?

Recall that there were two “John Doe” investigations. The first looked into events related to Walkers’ County Executive office and resulted in six convictions. Cindy Archer, Walker’s budget director, was among those investigated but was not charged.

“John Doe II,” as it’s been called, grew out of Doe I, but was separate. It started when Doe I turned up evidence that outside, supposedly independent, groups (including O’Keefe’s Wisconsin Club for Growth) coordinated their efforts with Walker and his campaign committee during the 2012 recall election. A four-justice majority of the Wisconsin Supreme Court ruled the Doe II investigation must be shut down, and the prosecutors of Doe II, led by Milwaukee County District Attorney John Chisholm, seek to appeal this decision to the U.S. Supreme Court. They therefore are also asking a federal court to allow the Doe documents to be preserved.

O’Keefe’s lawyer David Rivkin is representing Archer in her suit against Chisholm claiming he violated her civil rights. Rivkin and Archer’s other attorneys have filed a brief objecting to the request to preserve the Doe documents. The brief puts heavy emphasis on the Anti-Injunction Act,  passed in 1793, which states that:

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

Schimel’s brief also objects to preserving the documents, but uses a different argument, an appeal to “comity.” This principle states that federal courts should refrain from interfering with ongoing state legal processes or investigations.

The rationale behind both the comity and the anti-injunction act is to let state lawsuits run their course without interference. It is also meant to prevent individuals from venue shopping: if the state courts don’t give what one wants, look to the federal courts. It is also meant to prevent doubling down, attacking public officials in both state and federal courts.

A recent example of an egregious violation of both is a federal lawsuit brought by O’Keefe and the #Wisconsin Club for Growth# against Chisholm and several of his staff. It was part of O’Keefe’s scorched-earth campaign against Chisholm. O’Keefe’s attorneys, led by Rivkin, convinced federal Judge Rudolph Randa to issue an injunction stopping the investigation and ordering that all evidence collected be returned or destroyed.

On appeal, Randa was reversed by a panel of the 7th Circuit Court of Appeals. This reversal stands because appeals against this order to the full 7th Circuit and the US Supreme Court were rejected. In reversing Randa, the 7th Circuit stated:

A federal district judge issued an injunction that blocks the State of Wisconsin from conducting a judicially supervised criminal investigation into the question whether certain persons have violated the state’s campaign finance laws. The court did this despite … the Anti-Injunction Act (which)… embodies a fundamental principle of federalism: state courts are free to conduct their own litigation, without ongoing supervision by federal judges … The scope given to state litigation is especially great in the realm of criminal investigations and prosecutions… principles of equity, comity, and federalism … counsel against a federal role here.

Thus, Rivkin’s argument was thrown out. Now he has switched to the other side of the argument, with no worry he might look hypocritical, and has become a born-again advocate of comity. His brief for Archer argues for a vastly expanded interpretation that would allow the destruction of evidence that might be needed to resolve a case before the federal court.

As for Schimel, his brief marks his first appearance in the Doe II case.  The Wisconsin Department of Justice was perfectly comfortable when a federal judge (Randa) blocked the state investigation in the O’Keefe case. Instead, it took the 7th Circuit to protect Wisconsin’s right to run its own investigation. The Department of Justice’s “core sovereign interest in protecting the comity and respect owed to the Wisconsin judiciary,” as Schimel’s brief puts it, appears to depend less on protecting the Wisconsin judiciary then on whose political interests are served. Schimel, too, seems unworried his department might look hypocritical.

Both Schimel and Rivkin argue the federal court’s protection of the Doe documents is not needed. Schimel, for example, argues that “the Wisconsin Supreme Court … specifically left open the possibility that some circumstances might warrant the court releasing the documents for use in other litigation.”

But notice the squishiness of this language. The Wisconsin Supreme Court did not commit to making these documents available, only that it might do so. The documents “could also potentially be available for use in related civil proceedings, if there is a request and a determination that such use is proper under the circumstances,” the court ruled.

Given the hostility for the prosecutors evident throughout the majority’s decision and expressed in the separate concurrences of some its members, it is reasonable to doubt the court would respond fairly to a request for information. Consider these remarkable sentences from the decision:

It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them.

Like O’Keefe, Archer brought her lawsuit against Chisholm and several of his staff based on Section 1983 of the US law. Section 1983 dates from 1871 and states:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress …

Since the start of Doe II, numerous accounts have appeared in the right-wing media alleging abuses of procedure in the process of conducting search warrants, particularly at people’s homes. The fact that no court has examined the evidence behind these claims did not stop members of the Wisconsin Supreme Court from repeating them as true.

Of these searches, Archer’s is the only one in which evidence has been made available. When her claims of abuse were contradicted by evidence, including the search warrant and an audio tape of the search of her house, her original complaint had to be withdrawn and replaced.

Special Prosecutor Francis Schmitz has said that audio tapes of all other searches conducted will also prove they were done legally. None of the other searches has so far been litigated. If the evidence was destroyed or otherwise unavailable, it would be much harder for federal courts to resolve such lawsuits fairly.

The argument made by Schimel and Rivkin turns comity into a one-way street. Under it, federal courts would be constrained from interfering with state legal processes but state court would be free to interfere with federal courts. The Wisconsin Supreme Court would be free to destroy or refuse to release evidence that might be needed by the federal court in order to resolve claims by Archer and others impacted by the John Doe investigation.

Is there a rule of thumb to help decide when federal courts may step into state cases? Here is what a unanimous US Supreme Court said about the “Younger” case and how it defined when federal courts should defer to state courts:

Younger exemplifies one class of cases in which federal court abstention is required: When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution. This Court has extended Younger abstention to particular state civil proceedings that are akin to criminal prosecutions … or that implicate a State’s interest in enforcing the orders and judgments of its courts. We have cautioned, however, that federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant, and should not “refus[e] to decide a case in deference to the States.”

Circumstances fitting within the Younger doctrine, we have stressed, are “exceptional”; they include, … “state criminal prosecutions,” “civil enforcement proceedings,” and “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.”

…the general rule governs: “[T]he pendency of an action in [a] state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.”

The above quotes are from a 2013 case called Sprint Communications, Inc v Jacobs. In his argument to Judge Randa in the O’Keefe case, Rivkin quoted extensively from Sprint. In his argument on the Archer case, Rivkin never mentions Sprint.

As the 7th Circuit noted, comity is particularly “great in the realm of criminal investigations and prosecutions.” But both investigations have ended, Doe I voluntarily and Doe II by order of the Wisconsin Supreme Court  Comparing the Randa injunction to one that was upheld, the 7th Circuit wrote, “That injunction had been issued when no state prosecution was pending; that’s the right time for federal courts to determine the validity of state campaign regulations.”

No article about hypocrisy would be complete without noting how the Wisconsin Supreme Court went rogue with its decision ignoring a whole series of rulings by the US Supreme Court. As the 7th Circuit Court discusses in its O’Keefe decision, the US Supreme Court has never said that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups. Yet this was the basis for the Wisconsin Supreme’s decision to shut down Doe II.

Schimel’s memo seems to demand the federal district court choose between the US and Wisconsin Supreme Court. Certainly the documents possessed by Chisholm and his team were seized illegally, if one believes the Wisconsin Supreme Court that coordination of issue advocacy groups and candidates cannot be regulated, but there is great room for doubt about this conclusion, given the ruling by the 7th Circuit Court and past U.S. Supreme Court rulings.

One can agree or disagree with those rulings or note they can be confusing or contradictory or that the court often makes policy in the guise of interpreting the Constitution. But intellectual dishonesty arises when one misrepresents what the court said by quoting only those parts that seem to support one’s agenda. Rivkin and the four justice Wisconsin Supreme Court majority are all guilty of that dishonest practice. And now we can add Schimel to that list.