Walker’s Sweet Revenge Against John Doe Prosecutors

The situation just keeps getting more grim for Milwaukee County District Attorney John Chisholm. Chisholm is a key player in the second John Doe investigation that appears to be targeting Gov. Scott Walker, among others, but conservatives are gradually backing the DA into a very uncomfortable corner. They are organizing a recall effort against him, and have a launched a federal suit against him, hiring a high-paid, top DC lawyer to go after Chisholm and company.

So Chisholm needs representation, and guess who gets to pick his attorney? That would be the governor, who approves outside counsel in such cases. Of course Walker has an obvious bias in this case, so he has appointed his Chief Legal Counsel Brian Hagedorn to make these decisions and has erected a “Chinese Wall” between these two so that only Hagedorn makes the decisions.

At this point I can imagine Democrats fuming that this is an outrage, and Republicans chortling at the delicious irony of the governor’s lawyer getting to decide which attorney Chisholm gets to represent him.

Oh, and Hagedorn also gets to decide how much Chisholm’s lawyer gets paid. The hourly pay will be $175 an hour, which Walker’s Press Secretary Tom Evenson says is the standard rate for outside counsel, except when it isn’t. The governor has in the past approved $300 an hour.

Oh, and Hagedorn also gets to set a cap on the total amount paid to the attorney. That is another way that the Walker administration may be able to control how much representation Chisholm and company receive.

The federal suit was filed by the Wisconsin Club for Growth and the group’s treasurer, Eric O’Keefe, who argue that the John Doe probe violates their rights to free speech, free assembly and equal protection under the law. O’Keefe, as I’ve written, is by himself a formidable foe for Chisholm.

O’Keefe has connections to the Koch Brothers and a host of conservative activists and groups in the nation, and has chosen David Rivkin Jr. to litigate the case. Rivkin has a resume that goes on forever: He represented 26 states that challenged the constitutionality of Medicare revisions under the Affordable Care Act  (Obamacare), was the lead attorney assisting with the liquidation of Bernie Madoff‘s investment company, has represented former Defense Secretary Donald Rumsfeld, helped former President George H.W. Bush develop his deregulation plans, and served in the administration of President Ronald Reagan.

Rivkin has also co-authored an endless list of columns for the Wall Street Journal, New York Times, the Washington Post and other publications. You’ll find entire archives of his columns for National Review and for The National Interest and an archive of his appearances on c-span.

O’Keefe and Rivkin are suing Chisholm and two assistant DAs working on the John Doe, Bruce Landgraf and David Robles, as well as their privately contracted investigator Dean Nickel, and attorney Francis Schmitz, a former assistant U.S. Attorney who is serving as lead prosecutor, and retired appeals court judge Gregory Peterson, who is overseeing the probe.

Interestingly, the suit does not name the two Republicans also working on the probe, district attorneys Jane Kohlwey of Columbia County and Kurt Klomberg of Dodge County.

Normally, the Attorney General of Wisconsin, J.B. Van Hollen, would handle defending Chisholm and company. But Van Hollen has opted to defend Judge Peterson, who may be the least convinced as to the merits of John Doe II. Peterson has already made a ruling quashing some of the subpoenas issued by the prosecutors. So Van Hollen has decided he can only represent Peterson. “The representation of others would be inconsistent with our obligations to represent Judge Peterson,” says Dana Brueck, Van Hollen’s spokesperson.

So that means everyone else gets outside counsel appointed by the administration of Scott Walker, one of the subjects of the investigation. Ah, but Walker wrote a letter to Hagedorn, his chief counsel, declaring that the governor will “erect a Chinese wall preventing me from any consultation or participation in appointing representation…With this delegation, I affirm that I will have no knowledge or decision-making authority in this matter, and further trust you to act in accordance with the state public interest in appointing counsel.”

Well, that’s a relief.

Though Hagedorn is handling this behind his Chinese wall, my questions to him were answered by Tom Evenson, press secretary for the governor’s office. As to the hourly pay for the outside attorneys, Evenson says, “absent special circumstances, the standard rate for special counsel contracts is $175 per hour.  We have gone above that in a few cases—including redistricting, a UW copyright case, and the defense of Act 10.  But the standard rate is $175 per hour.”

Liberal Madison-bases attorney Lester Pines scoffs at the $175 hourly rate. “That was reasonable 10 years ago when Jim Doyle was the Governor,” he says. The $300 paid to attorneys handling Republican concerns like Act 10 and redistricting, he adds, “appears to be what the Walker administration believes is a reasonable hourly rate.”

Hagedorn chose Milwaukee attorney Samuel Leib to defend Chisholm, Landgraf and Robles, Madison attorney Patrick Fiedler to represent Nickels, and Milwaukee attorney Randall Crocker to represent Schmitz.

Hagedorn has also set a cap on how much each attorney can be paid before the clock stops running. Leib can get up to $75,000 defending Chisholm and his two assistant DAs and Fiedler gets up to $25,000 to defend Nickels. But Crocker gets up to $75,000 to defend Schmitz.

As it happens, Schmitz is the one person with a Republican pedigree in this group: he was one of President George W. Bush’s final three recommended candidates to become the U.S. Attorney for Milwaukee. Schmitz, I could imagine, might appreciate a much higher cap on what he can pay his attorney.

As for Leib, who is defending Chisholm and the assistant DAs, his career has largely involved medical care cases including malpractice.  “In addition, he has represented governmental entities and subdivisions on personal injury and civil rights claims on the state and federal levels,” his bio says. How often has he appeared in federal courts? I received no answer to my email query to Leib. We’ll see whether he’s any match for the fabled Mr. Rivkin.

But Pines, a frequent critic of Republicans, says Lieb “is a very experienced trial lawyer who appears to have all of the requisite qualifications to defend such a lawsuit. I would have no reason to think he would do anything less than an outstanding job.”

Needless to say, few Democrats will buy this idea of a Chinese wall between Walker and his chief attorney. Republicans, by contrast, will point out that Walker is following the law.

Given Peterson’s ruling quashing the subpoenas, and given the distraction of the federal suit against them, I think the chances of Chisholm and company succeeding with this John Doe probe are slim. So Walker could have taken the high ground here and asked the Attorney General to appoint outside counsel in this case. It would have still left this in a Republican’s hands yet would have shown Walker was doing his best to be above board on this issue.

It may be that voters won’t care about this. But it does seem to hand an issue to Democrat gubernatorial candidate Mary Burke. Walker might have avoided this, but I suspect the chance to have his office dictate what kind of defense Chisholm gets was an opportunity for revenge the governor couldn’t resist.

Short Take

In response to my column quoting an insider saying Gov. Walker had staff with personal laptops and private gmail accounts, Milwaukee Journal Sentinel reporter Jason Stein followed up with a story questioning Evenson as to whether Walker had a secret email system in the governor’s office, as was true in his county executive office. Evenson said no, but “didn’t directly answer whether aides in the governor’s office frequently used private email accounts to communicate on sensitive topics outside of the state official system,” Stein reported.

Meanwhile, the AP did a story which reported that just two months after law enforcement officials raided the home of Walker aide Cindy Archer, “Gov. Scott Walker began requiring his top agency officials and staff members to sign a pledge that they wouldn’t do illegal campaign work while on state time.”

As my story noted, it was not long after the raid on Archer that Walker’s staff, according to an insider, were told to stop using private email and use their cell phones instead so there was no written record.