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    John Doe (WI) Tag

    The Wisconsin anti-conservative investigation by local prosecutors targeting numerous conservative activists and groups has resulted in numerous legal cases. The investigation is a round-about attack on Gov. Scott Walker, seeking to damage him politically and freeze his supporters out of the political process. Most prominently, in a federal lawsuit two of the targets obtained a preliminary injunction shutting down the investigation as a violation of their constitutional rights. There also are claims for damages individually against the investigators. A separate lawsuit was filed in state court against the Wisconsin Government Accountability Board for its role. The investigation has become the poster child for government abuse of process against conservative activists, as George Will wrote:
    Last Tuesday, [Federal Judge] Randa halted the corruption being committed by people pretending to administer campaign regulations — regulations ostensibly enacted to prevent corruption or the appearance thereof. The prosecutors’ cynical manipulation of Wisconsin’s campaign laws is more than the mere appearance of corruption.
    There were two important developments this afternoon. In the first and most important development, the 7th Circuit Court of Appeals upheld, pending appeal, the preliminary injunction halting the investigation (full order embedded at bottom of post):

    The investigators in the "John Doe" proceeding against conservative activists in Wisconsin are appealing the federal District Court's injunction shutting down the investigation, as we previously detailed in numerous posts. That injunction is part of a lawsuit by Eric O'Keefe and the Wisconsin Club for Growth also seeking damages and other relief directly against the investigators, who are also local prosecutors, for violating the activists' constitutional rights. A separate lawsuit has been filed in state court against the Wisconsin Government Accountability Board. As part of the appeal in the federal case, yesterday the investigators filed a redacted copy of the original Petition for Commencement of John Doe Proceeding (full embed at bottom of post), detailing the reasons why the investigators sound the sweeping secrecy provisions of Wisconsin's John Doe procedure. Among the reasons was a cryptic and redacted reference to the targets of the probe having "well placed" ties to the blogoshpere (transcription via Wisconsin State Journal):
    “I believe it is reasonable to expect that any public filing about the existence of this investigation will generate substantial publicity, both from traditional (e.g., print and broadcast journalism) and non-traditional (e.g. Internet blog) information sources. This is because the individuals involved in this investigation are well-placed,” it reads. The rest of that sentence was blacked out and was not visible in public court records.
    Here's the relevant portion of the Petition (highlighting added, redaction in original):

    Wisconsin Petition for Commencement of John Doe Proceeding re blogosphere highlighted

    I think new media has arrived when the government is more afraid of the blogosphere than the blogosphere is of the government.

    UPDATES: Scott Walker: No way I’m throwing fellow conservatives under bus in “John Doe” probe. Also, late this afternoon a Judge practically laughed at the investigators' request for "clarification" of the injunction:
    “The order of this Court and that of the Seventh Circuit offers clear guidance as to the parameters of the injunction,” the federal judge said. “In the absence of any further information regarding the content and import of ‘discussions’ that may violate the Court’s clear directives, it is impossible for the Court to offer further clarification at this time.” A legal expert close to the John Doe proceedings said Randa is saying that Schmitz knows precisely what he can and cannot do. “Judge Randa is saying, ‘Look, guy, you know what this means and if you’re skulking around trying to do something you know you are not supposed to be doing you are risking contempt,’” said the source, who did not want to be identified due to his proximity to the John Doe proceedings. “And contempt is really a serious thing, especially against a prosecutor.”
    ------------------- The last time we wrote about the abusive "John Doe" investigation of conservative activists in Wisconsin, we were wondering whether Gov. Scott Walker would try to cut a prejudicial side deal with the investigators to have the probe dropped in exchange for some concessions including shutting out some key political activists, Dear Scott Walker: Don’t sell out conservative victims of “John Doe” abuses. Two developments directly related to the settlement. First, Walker issued what the Milwaukee Journal-Sentinel termed a "carefully worded" statement on the settlement controversy:
    The statement by Friends of Scott Walker was attributed simply to the campaign and not to any individual and appeared to deal only with the federal lawsuit, not the state investigation in which both the Club for Growth and Walker's campaign are targets. "Neither Governor Walker nor his campaign committee are parties to the federal lawsuit. This means they have no legal standing to reach a settlement or deal in their lawsuit," the statement reads in full. A spokeswoman for Walker did not respond to questions clarifying the statement.
    That is technically true, but doesn't address whether a deal was being cut between Walker and the investigators on the probe itself. The issue, according to the lawyer for the plaintiff in the federal lawsuit, was that through the settlement, the investigators were trying to coerce a punishment forbidden by the court's preliminary injunction, as reported by The Wisconsin State Journal:
    Thursday’s filing by David Rivkin, the attorney for O’Keefe and the group, was the latest twist in a complex legal battle over the investigation into Walker and conservative groups. In the filing, Rivkin said it appeared Schmitz was trying to “use the coercive power of the state to cut side-deals” that would violate his clients’ rights.
    (added) The motion by the investigators to clarify the injunction and the response by plaintiffs are embedded at the bottom of this post.  There is a fascinating exchange of letters between the lawyers, in which the plaintiff's lawyers allege the investigators are in violation of the preliminary injunction, to which the motion was directed. The plaintiffs' counsel responded in the court filing:

    We have been following the Wisconsin "John Doe" anti-conservative witch hunt for a long time. The short story is that Wisconsin investigators using secret "John Doe" state processes have been targeting conservatives in Wisconsin under the factually and legally frivolous theory that they illegally coordinated with Scott Walker's campaign. After certain of the targets sued in federal court alleging a violation of their constitutional rights, a federal judge sided with the targets and issued an injunction barring further investigation and ordering return of evidence seized.  The investigators are in a judicial head lock. The civil suit against the investigators -- who are local prosecutors by day -- continues into the discovery phase. Money damages and other relief are in play, and the hunters have become the hunted. Here are some prior posts: Now comes a disturbing report in The Wall Street Journal that Scott Walker might cut a deal letting the investigators out, Scott Walker's Friends:
    Wisconsin prosecutors have suffered a series of stunning legal defeats in recent months as they pursue a secret investigation of the conservative groups that helped Governor Scott Walker get elected. Those cases are shaping up as a major policy victory for free speech and political debate—unless a last-minute settlement rescues the prosecutors. We've learned that Steven Biskupic, who represents Friends of Scott Walker, has been negotiating with Wisconsin special prosecutor Francis Schmitz to settle the state's investigation. The understandable concern among the direct targets of the John Doe is that Mr. Biskupic will cut a deal that would exonerate Mr. Walker while wresting concessions from some of Mr. Walker's allies....

    Legal Insurrection readers are likely familiar with the harassment of Scott Walker supporters in Wisconsin. George Will addressed the issue with some follow up in his column this week...
    Wis. prosecutors abuse the law for partisan ends U.S. District Judge Rudolph T. Randa, revolted by the police-state arrogance of some elected prosecutors, has stopped a partisan abuse of law enforcement that was masquerading as political hygiene. Last Tuesday, Randa halted the corruption being committed by people pretending to administer campaign regulations — regulations ostensibly enacted to prevent corruption or the appearance thereof. The prosecutors’ cynical manipulation of Wisconsin’s campaign laws is more than the mere appearance of corruption. Eric O’Keefe’s refusal to be intimidated by lawless law enforcement officials produced Randa’s remarkably emphatic ruling against an especially egregious example of Democrats using government power to suppress conservatives’ political speech... As a director of Wisconsin Club for Growth, which advocates limited government, O’Keefe had participated in his state’s 2012 debate surrounding attempts by Democrats and state and national government-employee unions to recall Gov. Scott Walker (R) and some state senators. The recalls were intended as punishment for legislation limiting the unions’ collective bargaining rights. Walker prevailed. The Democratic prosecutors, however, seeking to cripple his 2014 reelection campaign and to damage him as a potential 2016 presidential aspirant, have resorted to a sinister Wisconsin process called a “John Doe investigation.” It has focused on the activities of O’Keefe and 28 other conservative individuals or organizations.
    Between this and the IRS harassment of Tea Party groups, progressives have shown the depths they will sink to when they can't win based on their ideas. Tactics they would decry as abuses of power if the situation was reversed come quite naturally to them when used against their opponents. WAJ adds:  I was honored to see O'Keefe at Anne's wedding this weekend (second from right, seated):

    In a post last night on the continuing legal saga of the Wisconsin anti-conervative "John Doe" probe, we noted that Appeals Ct stays injunction against Wisconsin “John Doe” anti-conservative probe
    Last night we noted Fed District Court enjoins Wisconsin “John Doe” anti-conservative investigation. Late this afternoon the U.S. Court of Appeals for the 7th Circuit issued a stay of the injunction, on procedural grounds which leave the District Court the opportunity to reinstate the injunction. The issue for the appeal was that a “Notice of Appeal” of certain court rulings had been filed prior to the injunction being issued.  Once a Notice of Appeal is filed, it moves the case automatically to the Court of Appeals and the District Court no longer has jurisdiction, unless certain exceptions are met. So the Court of Appeal basically said the District Court Judge didn’t have the case before him anymore, and couldn’t issue the injunction.
    That key exception would be if the District Court found the appeal to be frivolous. It just did, and reinstated the injunction in an Order issued today, which reads in part (full embed at bottom of post):

    Last night we noted Fed District Court enjoins Wisconsin “John Doe” anti-conservative investigation. Late this afternoon the U.S. Court of Appeals for the 7th Circuit issued a stay of the injunction, on procedural grounds which leave the District Court the opportunity to reinstate the injunction. The issue for the appeal was that a "Notice of Appeal" of certain court rulings had been filed prior to the injunction being issued.  Once a Notice of Appeal is filed, it moves the case automatically to the Court of Appeals and the District Court no longer has jurisdiction, unless certain exceptions are met. So the Court of Appeal basically said the District Court Judge didn't have the case before him anymore, and couldn't issue the injunction. The Milwaukee Journal Sentinel reports:
    After 24 hours of legal maneuvering in a politically charged investigation of Gov. Scott Walker and his allies, an appeals court late Wednesday handed prosecutors a victory, preventing for now the destruction of evidence from the case. The three-judge panel of the 7th Circuit Court of Appeals in Chicago stayed U.S. District Court Rudolph Randa's preliminary injunction from Tuesday stopping the John Doe investigation, saying he had overstepped his authority. The appeals court ruling also said Randa cannot order prosecutors to destroy evidence they have collected in the five-county probe.
    Here's the key part of the Appeals Court ruling:

    You can find background on the anti-conservative "John Doe" secret investigation in our prior posts. The gist of the investigation is to try to find unlawful coordination between Gov. Scott Walker's campaign and various conservative activist groups.  As part of the investigation, the subpoenas and secrecy provisions have effective frozen conservative activists out of the political process. Earlier today a federal court issued a preliminary injunction halting the investigation, as reported at Wisconsin Reporter,
    The John Doe investigation into conservatives is dead. In a monumental victory for targeted conservatives, Judge Rudolph Randa on Tuesday granted a preliminary injunction to stop the politically charged probe, ruling in favor of conservative activist Eric O’Keefe and his Wisconsin Club for growth. ’Keefe and the club in February filed a civil rights lawsuit against Milwaukee County District Attorney John Chisholm, two of his assistant DAs, John Doe Special Prosecutor Francis Schmitz, and a shadowy investigator contracted by the Government Accountability Board. “The Defendants must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation,” wrote Randa, federal judge for the U.S. District Court Eastern District of Wisconsin in Milwaukee. Randa  further ordered that the plaintiffs in the civil rights case “and others” are “hereby relieved of any and every duty under Wisconsin law to cooperate further with Defendants‘ investigation.” “Any attempt to obtain compliance by any Defendant or John Doe Judge Gregory Peterson is grounds for a contempt finding by this Court,” he ordered in the 26-page ruling.
    An interesting aspect of the ruling was the reliance on the Supreme Court's McCutcheon case, in holding that the investigation was an attempt to interfere with the targets first amendment rights:

    We previously covered the Wisconsin "John Doe" investigation of conservative activists, and the lawsuit brought by Eric O'Keefe: O'Keefe did file suit, and the defendants -- state and county investigators -- moved to dismiss. Right Wisconsin reports that the motions to dismiss were denied, so the lawsuit moves foward:
    Eric O’Keefe’s civil rights lawsuit against prosecutors in a Democrat-driven John Doe probe into conservative targets will go on after a federal judge on Tuesday thoroughly denied a motion to dismiss the litigation. Judge Rudolph Randa of the U.S. District Court Eastern District of Wisconsin in Milwaukee, pushed aside the argument by the prosecutors-turned-defendants that federal courts generally must abstain from taking up federal constitutional claims that involve or call into question ongoing state proceedings.
    The John Doe investigation, a multi-county secret probe into dozens of conservative groups, including conservative political activist O’Keefe and his Wisconsin Club for Growth, "does not fit into any of the categories" for abstention, the judge wrote in his decision. "It is an investigatory process, not an ongoing criminal prosecution case," Randa said.

    We previously wrote in detail about the “John Doe” investigation in Wisconsin targeting a wide range of conservative groups and Scott Walker supporters relating to the failed Democratic attempt to recall Walker.  See Secret probe of conservatives makes Wisconsin ground zero in First Amendment war for the details. We also noted the Big defeat for anti-conservative Wisconsin “John Doe” probe, when a judge recently quashed subpoenas. In a new development, Eric O'Keefe, one of the targets of the investigation, is demanding that the prosecutors end the probe or face a federal lawsuit (full media release embedded at bottom of post):
    Eric O’Keefe, who has been identified in media reports as a target of a secret “John Doe” investigation in Wisconsin, today demanded that state prosecutors end their action against him or face a federal civil rights action. O’Keefe is director of the Wisconsin Club for Growth, which was also targeted for alleged unlawful “coordination” with Governor Scott Walker’s campaign for fiscal reforms. “This investigation is political payback by elected prosecutors against conservative activists for their political successes in Wisconsin,” stated O’Keefe. “They are violating the constitutional rights of private citizens and must be held accountable.”

    We previously wrote in detail about the "John Doe" investigation in Wisconsin targeting a wide range of conservative groups and Scott Walker supporters relating to the failed Democratic attempt to recall Walker.[*]  See Secret probe of conservatives makes Wisconsin ground zero in First Amendment war for the details. Good news.  The subpoenas issued in the secret probe have been quashed in a secret court ruling uncovered by the Milwaukee Journal-Sentinel, Secret ruling deals major setback to John Doe probe into recall elections:
    Prosecutors in the John Doe investigation into spending and fundraising during the raucous Wisconsin recall elections were dealt a major procedural blow Friday, according to sources. The five-county investigation remains open, but subpoenas issued in the probe to conservative political groups supporting Gov. Scott Walker were quashed, sources familiar with the development said. The ruling — which is sealed — raises First Amendment concerns about the subpoenas. The Journal Sentinel has not turned up any Democratic candidates or liberal interest groups involved in the recall elections that have been contacted by John Doe prosecutors. "The John Doe is still open," said one individual familiar with the case. But other sources said Friday's ruling seriously undercuts the well-publicized probe, launched in the summer of 2012. Those familiar with the case said the decision was handed down by retired Appeals Court Judge Gregory A. Peterson, the presiding judge in the investigation who took over the case in November.

    [WAJ Intro: There are huge developments targeting conservatives and Scott Walker supporters in Wisconsin. I asked Matt Kittle of Wisconsin Reporter, who has written extensively about the so-called "John Doe" investigations, to explain the situation to Legal Insurrection readers because of the national implications, and he kindly agreed to do this guest post.] There’s a secret war being waged in Wisconsin, and the outcome could have national ramifications on free speech and the rule of law. As first reported by Wisconsin Reporter in late October, a Democrat-led, secret probe now nearly two years in the making has targeted dozens of conservative organizations on the ground in the Badger State. The so-called John Doe investigation, which one former Federal Elections Commission member said makes the “Alien and Sedition Act mild by comparison,” has raised serious questions of partisanship and prosecutorial abuse. A Nov. 18 Wall Street Journal opinion piece, headlined “Wisconsin Political Speech Raid,” reported at least three homes had been raided, and more than 100 subpoenas had been handed out – including one that demands “all records of income received, including fundraising information and the identity of persons contributing to the corporation.” What’s it all about?
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