Why Didn’t Chisholm Go After Democrats?

Republicans have for some time complained that Milwaukee County District Attorney John Chisholm is biased because his John Doe II probe has targeted the campaign of Gov. Scott Walker but hasn’t looked at violations by Democratic campaigns. As conservative talk radio host and Republican attack dog Charlie Sykes has charged, this is “a vindictive abuse of prosecutorial discretion by partisan investigators” in which “no liberal or Democrat organizations were targeted.”

This accusation is also central to the federal suit against Chisholm and his team of Doe prosecutors by Eric O’Keefe and the Wisconsin Club for Growth.  Chisholm, the brief notes, is a Democrat who “has been supported by unions in previous campaigns” and “as of April 2012, had given $2,200 exclusively to Democratic and liberal candidates, making him one of the top donors in the Milwaukee County Attorney’s Office.”

As for his staff, “as of April 2012, employees in Chisholm’s office had donated to Democratic over Republican candidates by roughly a 4 to 1 ratio…at least 43 (and possibly as many as 70) employees within Chisholm’s office signed the (Walker) recall petition, including at least one Deputy District Attorney, 19 Assistant District Attorneys, and members of the District Attorney’s Public Integrity Unit.”

Leaving aside the huge discrepancy between the 43 and 70 alleged recall signers, which raises questions about the research done for this brief, it’s clear Chisholm’s office leans to the left.  So does the DA only go after Democrats?

On the contrary, Chisholm prosecuted county supervisor Johnny Thomas, a Democrat who was as close as you could get to being the anointed candidate of his party for the job of city comptroller. His supporters included Mayor Tom Barrett, Democratic Rep. Gwen Moore, Democratic State Sen. Lena Taylor and Sachin Chheda, Milwaukee County Democratic Party Chair, who also happened to be Thomas’ campaign manager.

And according to Sykes, this, too, was an outrageous prosecution, “one of the most spectacularly botched investigations of a public official in memory” a clear case of “prosecutorial over-reach and poor judgment.” A jury found Thomas not guilty in about 90 minutes whereas the first John Doe probe of Walker’s administration resulted in six convictions. If anything, Chisholm looks tougher on the Democrat.

While there had long been complaints that former District Attorney E. Michael McCann was not an aggressive prosecutor, Chisholm established a Public Integrity Unit which successfully prosecuted Milwaukee County Supervisor Toni Clark, a Democrat and supporter of Barack Obama. She was convicted of a felony for filing a false campaign finance report. Chisholm’s office also helped prosecute Ald. Michael McGee, Jr. who was successfully convicted of bribery and extortion. McGee wasn’t a classic partisan, but leaned far left on most issues.

In a story for Milwaukee Magazine, Sheriff David Clarke described Chisholm as “a straight shooter” whose decisions aren’t driven by partisan motives. Many expected Chisholm to charge Walker in John Doe I during the recall campaign, which might have resulted in the governor’s defeat, but Chisholm didn’t. Democrats were angered that Chisholm couldn’t “pull the trigger.”

Indeed, it’s striking that in response to a federal suit against Chisholm and a threatened recall, we haven’t heard from any Democrats rushing to the DA’s defense.  Chisholm is simply not partisan enough for their liking.

Yet the federal lawsuit charges that Chisholm’s investigations are “Selected Based on Political Views and Associations.”  It’s marquee example is Jeff Fleming, who served as a volunteer spokesperson for Barrett’s campaign and then got a part-time job with the Milwaukee Department of City Development. Therefore, the brief suggests, Fleming may have been campaigning on city time.

Indeed, Republicans jumped all over this as soon as Fleming was hired, and Fleming says he was therefore all the more scrupulous about separating campaign and government work. But Orville Seymer the longtime activist with the Citizens for Responsible Government, made an open records request of Fleming’s emails. Seymer says he got “dozens of pages” of emails but couldn’t remember any flagrant item, or much of anything at all. Fleming, by contrast, remembers (quite angrily) every detail of the situation and says Seymer got thousands of emails, every email he had sent and received at the city.

Seymer and Chris Kliesmet have for years run CRG, helped run the recall effort that drove Milwaukee County Executive F. Thomas Ament out of office, and are very aggressive activists. If these emails had turned up anything on Fleming, they would have rushed to talk radio, the press and prosecutors.

The brief also points to the fact that Chisholm declined to prosecute a county employee named Chris Liebenthal, “who was caught engaging in ‘excessive political blogging’ for liberals from his taxpayer-funded computer.” Chisholm’s office decided to treat it as a personnel matter rather than a criminal matter,  which was “completely different from how they treated indistinguishable conduct” by Walker aides Darlene Wink and Kelly Rindfleisch,” the brief complains.

But Liebenthal, who was suspended for ten days for personal activities unrelated to work, didn’t do any blogging from a “tax supported computer” and wasn’t writing on behalf of or paid by any political party or political official. Indeed he was county employee who regularly blasted his ultimate boss, then County Executive Walker.

The brief also notes some cases of alleged infractions by Democrats referred to the Government Accountability Board, without any charges occurring, but the board of the GAB had a majority of members who were Republican-appointed judges. And what this has to do with Chisholm is never explained.

Finally, the idea that Chisholm should simply go out and investigate some Democratic campaigns in order to even the score is based on a misunderstanding of how prosecutors work. Kent Lovern, Chief Deputy District Attorney, agreed to explain how the office works, but declined to discuss the specifics of any cases.

Lovern says the office only responds to complaints from police or from citizens, with the “overwhelming majority” coming from police. “We really don’t investigate anything that’s not brought to us by a complaining citizen or police agency.”

In short, if the plaintiffs suing Chisholm feel there are Democratic offenders who need prosecution, they might make a complaint to the office.

The Public Integrity Unit, which is handling the John Doe, is a small part of the DA’s overall operations, and prosecutes police misconduct, attorney misconduct, significant financial crimes and government misconduct. As for how John Doe I led to John Doe II, Lovern won’t respond, but does offer this general guideline: “Sometimes in investigations there are times when additional evidence surfaces that takes the investigation in a different direction. That’s not unusual.”

The complaint that John Doe II is going overboard might have some merit. At the very least we know that Judge Gregory Peterson, who is overseeing the investigation, quashed some subpoenas, concluding prosecutors didn’t have probable cause to request the information they wanted.  But we also know an appeals court felt there were no grounds to shut down the investigation, and refused to do so.

In retrospect, the prosecution of Democrat Johnny Thomas looks questionable. We may some day look back at John Doe II and conclude the same. But there’s little evidence to support the idea that Chisholm is operating from partisan motives.

Indeed, Chisholm seems almost clueless as to the political realities he faces, which is why he has so angered the mostly Democratic black activists in Milwaukee who want to recall him from office. But those who charged that McCann was too passive and partisan should be happy: this prosecutor is aggressively going after members of both parties.

Clarification: this story originally offered an abbreviated account of what Chris Liebenthal was suspended for; I’ve expanded the item to provide more clarity.