Brad Schimel Strikes Out Again
His 11-month investigation of John Doe leaks yields no charges but lots of anger.
Brad Schimel has embarrassed himself. Again.
Back in January 2016 his office investigated allegations of a voter fraud conspiracy by the controversial right-wing hit man James O’Keefe and concluded there was no evidence of “any violations” of the law. But after O’Keefe threatened to go after Schimel for his decision, the attorney general, the state’s top legal officer, chickened out and announced that the investigation his office had said was completed was actually… still continuing. That was seven months ago and the re-investigation has yet to be completed.
Now he’s done it again. Back in September 2016, the British paper the Guardian published documents from a now-defunct John Doe investigation which embarrassed Republican Gov. Scott Walker, exposing how his campaign colluded with supposedly independent groups like Wisconsin Club for Growth. Walker’s longtime advisor R.J. Johnson, who held positions both with the Walker campaign and Club for Growth, suggested Schimel should investigate who leaked the documents, but the Attorney General didn’t seem eager to do so, as the Journal Sentinel’s Patrick Marley reported.
But after being pushed by the conservative Watchdog.org on the issue, Schimel began to talk tougher. By late October he was asking the Wisconsin Supreme Court to appoint a court official to investigate the leaks, but the court wanted no part of it and turned him down. But Republican legislators passed a special law authorizing Schimel to investigate in December 2016, and the AG duly went to work.
In short Schimel had nothing. You might think he would leave it there. Instead he issued an 89-page-report filled with angry opinions and unproven assertions. He lists nine individuals he suggests should be charged with contempt of court, led by former John Doe special prosecutor Francis Schmitz and former Government Accountability Board (GAB) executive Kevin Kennedy. But Schimel offers no evidence for why they should be so charged while saying he will be sending a letter to the John Doe judge about this.
That’s right, the state’s top legal official publicly shames these nine people without ever proving they are guilty of contempt of court.
Schimel also recommends that former GAB staffer Shane Falk be referred to the state Office of Lawyer Regulation for discipline, because it was his hard drive that likely contained the leaked documents, but Schimel admits he cannot prove Falk leaked them.
That’s all Schimel has. The rest of 88-page-report is a rant apparently intended to shame members of the GAB and convince us the John Doe probe was outrageous. Thus he complains about how “broad” the probe was and lists 218 examples of search warrants and subpoenas to make this point. But if search warrants or subpoenas were issued, they were approved by judges and obviously legal and only wrong in the mind of Brad Schimel.
Schimel also provides a list of 35 people who GAB staff investigated and compiled significant information on. He offers no evidence to believe there wasn’t probable cause for these investigations. But worse, the vast majority of these names have never been publicly revealed, and never would have, as the Doe probe was halted nearly three years ago. Their names are now known — and suspicion cast on them — only because Schimel chose to release this reckless report.
Schimel claims the GAB was involved in another John Doe probe, and announces: “For ease of reference, this report will identify this previously unknown investigation as ‘John Doe III.’”
That remarkable claim would be quite newsworthy if true. But he provides no evidence a third Doe probe — which would have required approval from a judge — existed. Instead he reports that GAB prosecutors believed some “state employees were campaigning on state time” and may have helped Republican candidates in the 2010 and 2012 election and had compiled files on this. But under the law the GAB was supposed to investigate election law violations. Schimel instead leaps to the bizarre conclusion that the GAB had launched a third Doe probe.
Schimel certainly provides reason to believe the GAB was careless in how it handled the Doe case files, but that’s not a crime, and may partly reflect confusion caused by the disbanding of the GAB and its replacement by two different offices, the state Ethics Commission and Elections Commission.
Schimel goes into great detail describing the alleged lack of security in the GAB office, without comparing this to the security of any other state office, or discussing what it might have cost taxpayers to make the building more secure. For instance, “GAB did not install security cameras in its office space or the storage area.” Do the ethics and elections commissions now have security cameras? Schimel doesn’t say.
The problem with this lack of security, we are supposed to conclude, is that it was easy for documents to be leaked to the Guardian. But I would invite readers to read the Guardian story and decide whether that was so bad: the story documents how Walker’s campaign colluded with the Club for Growth to evade laws which restricted direct donations by corporations and limited the amount individuals could donate. Surely any citizen who cares about democracy would invite such transparency.
Ah, but the leak of these documents was expressly forbidden by the state Supreme Court and was illegal. True, but so was the leak of information by anyone being investigated in the Doe probe. And yet Schimel has refused to investigate Club for Growth leader Eric O’Keefe, who leaked information to the press and admitted he violated a court-issued secrecy order “in some form every day”.
Whatever their reasons for leaking information to the media (both O’Keefe and the person leaking to the Guardian no doubt thought they were doing the right thing), both were acting illegally. For Schimel to prosecute one and not the other shows an unwillingness to enforce the law equally.
But during the entire time the Doe probe was conducted, the law in Wisconsin as it was then understood (and as it continues to be interpreted in most states in America) was that such collusion was illegal. Indeed the Doe probe was a bipartisan investigation conducted by special prosecutor Schmitz, a longtime Republican who voted for Walker in the 2012 recall election, included two Republican district attorneys helping in the investigation and involved work by four judges, three of whom had Republican backgrounds.
Schimel concludes the “GAB attorneys did not act in a detached and professional manner” and “had prejudged the guilt of Governor Walker, Wisconsin Republicans, and related organizations that they were investigating.” Certainly that appears to be true of Falk, but it would hardly be surprising if lawyers involved in prosecuting what they believed to be a crime would hold strong opinions, just as the attorneys defending Club for Growth held strong opinions to the contrary.
And frankly, none of this matters, given that the GAB was disbanded back in June 2016, and none of the things Schimel complains about violated the law. As attorney general, his job is to prosecute crimes and interpret the law when needed. Instead we get pages and pages of partisan fulminating that will lead to no prosecutions and no changes in how the law is interpreted. All very heated and quite irrelevant, with a cost to taxpayers that has yet to be tabulated. I requested that information from Schimel’s office and have gotten no reply.
If you think stories like this are important, become a member of Urban Milwaukee and help support real independent journalism. Plus you get some cool added benefits, all detailed here.