Readers may remember news coverage over the past few years about Wisconsin’s infamous “John Doe” investigations. In the first half of this decade, these secret probes—assembled by the Milwaukee County District Attorney and later involving Wisconsin’s ironically-named Government Accountability Board—targeted the activities of certain conservative groups. Those groups, their supporters, and some officeholders all had one thing in common: they vocally supported Governor Scott Walker’s policy agenda and, in the eyes of the local press and other left-leaning politicians and activists, played a decisive role in preserving Walker’s reforms when they were tested through various local candidate elections that many observers treated as proxy votes on Walker’s program.
The probes seized millions of emails, bank records, hard copy documents, and other materials through a combination of electronic search warrants, subpoenas, and raids. Under Wisconsin’s John Doe statutes, most of this occurred in secret before a single judge who did not sit as a court of law. But it all began to unravel in October 2013. That’s when the prosecutors’ armed raids of homes and offices in Wisconsin, and their service of document subpoenas across the country, alerted dozens of targets and witnesses that the conservative half of the political spectrum was under coordinated attack.
That was the beginning of the end. Determined litigation in the Wisconsin state courts froze the John Doe investigations in early 2014. The Wisconsin Supreme Court ultimately terminated them in the summer of 2015. In reaction, the Wisconsin legislature passed sweeping reforms of its campaign finance and criminal laws, eliminating the Government Accountability Board, changing John Doe rules, and fixing secrecy laws so that they restrained the prosecutors, not the targets. But was the “John Doe” of yore really extinct?
A report by Wisconsin Attorney General Brad Schimel, unsealed by yet another John Doe Judge on December 6, 2017, seems to conclude that the John Doe was just in hibernation. Schimel’s report followed an investigation he initiated when, in September 2016, the British Guardian published approximately 1,400 pages of seized witness emails and draft court filings prepared by the prosecution team. The disclosure was made shortly before a conference at which U.S. Supreme Court justices were to take up the prosecution team’s cert petition—their attempt to revive their John Doe investigation after their 2015 loss in the Wisconsin Supreme Court. Some of the leaked pages appeared to have been scanned in May of 2016, shortly before a previous conference at which the cert petition was to be taken up before extensions and delays pushed the justices’ consideration to their September “long conference.” Because of the timing and contents of the disclosures, suspicion immediately focused on the prosecution team, including lawyers on the recently-defunct Government Accountability Board who’d worked hand in glove with the prosecutors and who presumably were closely following the Supreme Court’s conference schedule.
Schimel conducted dozens of interviews and ultimately executed at least one search warrant on the Government Accountability Board’s successor organization, which still had its ancestor’s files. He ultimately found that when the Wisconsin Supreme Court ended the John Doe proceedings, Special Prosecutor Fran Schmitz had not in fact turned over all seized evidence to the Supreme Court Clerk. A trove of evidence remained at the Government Accountability Board offices. Further, Schimel found that security and chain of custody procedures were lax, so that it was impossible to tell who had accessed the seized evidence during years of appellate litigation over the Does. (Indeed, in some cases, it was not even possible to trace seized evidence to a particular search warrant or subpoena.) For its part, the GAB appeared to have lost a critical drive that had contained evidence GAB staff lawyers considered “gold.” Schimel concluded that because of this, there remains no way to guarantee that future leaks of improperly seized emails will not occur. Further, he reported that he plans to file a motion for contempt of court against nine members of the prosecution team before the new John Doe Judge.
Meanwhile, litigation is now unfolding on several fronts. The MacIver Institute, a Wisconsin think tank, brought a claim against the prosecution team under the Stored Communications Act, arguing that a John Doe Judge is not a court of general criminal jurisdiction, rendering the seizures of millions of emails in John Doe I and II unlawful. That matter has been argued in the Seventh Circuit after MacIver’s case was dismissed in the district court. At stake is MacIver’s request that all of the seized material be gathered and returned to the hundreds who had their emails seized. Other witnesses may petition other courts, including the Wisconsin Supreme Court, for return of evidence. And finally, new individuals who only learned of the investigation due to Schimel’s report may be weighing their own claims against the prosecution team. Stay tuned.