The Many Errors of Brad Schimel

In his initial brief defending Wisconsin’s gerrymandered legislative districts before a federal court panel, Wisconsin Attorney General Brad Schimel asserted that the Republican advantage entirely stemmed from the state’s geography, from Democrats clustering in cities. This is the type of claim that lends itself to quantification.

In the 2008 election, if Democrats had won exactly half the statewide vote, they would have won 48 of the 99 Assembly districts, by my calculation—a three seat Republican advantage. In the 2012 election, post-gerrymander redistricting, winning half the vote would have given Democrats 39 districts—a 21-seat Republican advantage. Thus, it could reasonably be argued that geography accounted 3 of the 21-seat Republican advantage in 2012.

In other words, Schimel’s claim was not entirely false. Rather it was 14 percent true—3 of 21 districts—and 86 percent false—18 out of 21 districts. Readers of Schimel’s recent report on the documents leaked from a John Doe probe of alleged collusion between Gov. Scott Walker’s campaign and independent third party groups would be wise to keep that 14-to-86, truth-to-falsehood ratio in mind.

While the report fails to prove who leaked material from the investigation to the Guardian, it succeeds in making numerous political points in passing. If there were any doubt that the Wisconsin Department of Justice has become a Republican instrument, this report would settle the issue.

Consider this claim, in footnote 10:

Although DOJ did not announce its visit to the Supreme Court, and was otherwise inconspicuous, the visit was reported by Journal-Sentinel Reporter Daniel Bice, whose wife works in the same office space. DOJ has undertaken no action to determine why a member the court staff would have reported this visit.

This was immediately challenged by Journal Sentinel Editor George Stanley and Bice who tweeted:

Yikes! @BradSchimel got it very wrong about me and my wife Sonya K. Bice in his John Doe report. When I wrote about his visit to the Supreme Court in Feb 2017, Sonya no longer worked there. She left the high court on Nove. 1, 2015. She was working in Milwaukee throughout 2017.

Checking on Sonya Bice’s employment would seem a simple matter of calling the Supreme Court office. The failure to do so is consistent with the view that Schimel exists in a right-wing bubble.

Next consider this statement (in footnote 9):

During this visit, the Clerk also notified DOJ that just before their visit, Justice Shirley Abrahamson inspected the John Doe II evidence. DOJ did not interview Justice Abrahamson with respect to this report as to why she needed to review any evidence being maintained by the Clerk …

Why did Schimel’s DOJ not ask Abrahamson the purpose of her inspection? Doing so would seem a common courtesy, particularly before implying that there was something suspicious about her actions. The DOJ’s sloppiness that leaks through both the treatment of Justice Abrahamson and the accusation against Sonya Bice betrays an unprofessional rush to judgment driven by an eagerness to settle scores.

Schimel claims to have discovered a third investigation, which he dubs “Doe III,” but offers no evidence for its existence. He does show there was an effort by state investigators to identify public employees who did campaign work on government time, but that is nothing new. Two of the six convictions arising from Doe I were for campaigning on the taxpayer dollar and the entire legislative “caucus scandal” of 2001, which resulted in numerous convictions, involved campaigning on state time.

Then there is this quite strange paragraph:

Because the attorneys for GAB (none of whom were experienced criminal prosecutors) prejudged the evidence and what it meant, they had difficulty accepting that their interpretation of the law was wrong.

This paragraph seems to assume that “experienced criminal prosecutors” can better interpret campaign law than attorneys who have spent their careers interpreting campaign law. While Schimel does not spell out the GAB attorneys’ supposedly wrong interpretation, it’s likely the interpretation that the US Supreme Court has expressed since its Buckley decision in 1976. If so, it is understandable that the attorneys would have difficulty accepting the novel theory adopted by four of the Wisconsin Supreme Court justices, which ignored decades of precedent.

The Schimel report lists 218 subpoenas and search warrants issued during the Doe investigations, presumably to show the probe was over broad. However, the report gives no indication that the DOJ read the investigators’ request to the judge explaining the need for the information or the judge’s response. Without viewing the reasoning behind the request, it is impossible to make any informed judgment about these requests.

One doesn’t need to be an experienced prosecutor—just follow the news–to know that one tool prosecutors use in white-collar crime investigations is to collect emails. Often, particularly if a critical email was erased, prosecutors then collect additional emails, particularly from people who were on the same email thread and may have saved the missing email. This process is often enormously inefficient because the relevant emails may be embedded among many others that were completely irrelevant to the investigation. The inefficiency expands still more if the same computer was used for personal, government, and campaign-related business.

Schimel claims to be an experienced prosecutor. Yet he expresses shock that the investigations followed what appear to have been common investigator practices.

Schimel’s list of 218 subpoenas and warrants is organized haphazardly. It offers no information on context other than a name, date, and sometimes the email provider. By sorting the list chronologically, I estimate that 73 of these were issued as part of the Doe I investigation related to the Walker Milwaukee County administration. The other 145 came after the start of Doe II of coordination between the Walker campaign and outside groups.

Schimel waxes particularly indignant about emails collected from state Sen. Leah Vukmir’s account. The only mention of Vukmir on Schimel’s list of subpoenas and warrants is this:

185. 2011-06-15 Warrant Maelstrom Leah Vukmir Hoisington, Josh

Based on the date, this was issued as part of Doe I, the investigation of Walker’s Milwaukee County Executive Office which resulted in six convictions. Josh Hoisington was a legislative aide, suggesting that this was Vukmir’s legislative office email account. It appears from Schimel’s report that it was also used for personal communications. Without information from the warrant, the reason for the request is pure speculation—perhaps it was to find one or more emails that were deleted from another computer.

Why, of the 218 subpoenas and warrants, did Schimel single out Vukmir’s? Based on the reaction to this report from the Republican base it will certainly help Vukmir in her primary race against Kevin Nicholson for the Republican nomination for US Senate.

Here are some final observations:

• While the Journal Sentinel coverage of the report has been quite good in most ways, it strikes me as too credulous, too ready to accept its assertions as true.
• The report recommends that seven people face contempt proceedings, referring to a letter that has not yet been made public. It is hard to see how such proceedings would satisfy basic standards of fairness unless the defendants are able to access the information in the files. Yet in a report at Wispolitics, DOJ spokesman Johnny Koremenos says that DOJ “would oppose that request” for access to the files.
• Brad Schimel has developed into the most partisan Attorney General of either party in recent memory, remaking the DOJ into an instrument of the Republican Party. Is this what he wishes to be known for?
• The use of secrecy in the John Doe investigations desperately needs to be rethought. At this point the John Doe secrecy chiefly serves those, like the Supreme Court majority and the DOJ who want to control information in order to spin only their version of events.
• In the case of witnesses, the secrecy orders are probably “screamingly unconstitutional,” in the words of one federal judge, and therefore unenforceable. This has the ironic effect of ceding control to those with a political agenda, who are most willing to defy the (probably unenforceable) secrecy order. Compare the widely-circulated but untrue accounts of the Doe investigation with news reports of Robert Mueller’s current investigation of Russian election interference, in which witnesses know they are free to talk to the press.
• Finally, I continue to be shocked by the lack of concern by the majority of our Supreme Court as to whether the state’s highest court deserves the respect of the state’s citizens.