Rogue agency defied judges to carry out partisan probe of Wisconsin conservatives

12/20/2014

Part 155 of 156 in the series Wisconsin's Secret War

CENTER OF CONTROVERSY: Documents show Kevin Kennedy’s Government Accountability Board, the agency charged with monitoring Wisconsin politics, operated an off-the-books probe of political opponents.  (2012 File Photo)

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Agents for the embattled state Government Accountability Board continued a zealous campaign finance investigation into dozens of conservative groups even after judges who preside over the board voted to shut it down, according to a previously sealed brief made public Friday.

The documents, from an updated complaint filed by conservative plaintiffs in a case against the GAB, appear to support claims that the campaign finance, ethics and election law regulator is a rogue agency. They also show that the GAB considered using the state’s John Doe law to investigate key state conservatives and even national figures, including Fox News’ Sean Hannity and WTMJ Milwaukee host Charlie Sykes.

Wisconsin Reporter also obtained some of its information from previous court documents that were supposed to have been redacted.

“What we have uncovered so far shows the Government Accountability Board, or at least its staff, being anything but ‘accountable,'” said Eddie Greim, attorney for plaintiffs in a lawsuit against the GAB. “For example, the public has learned for the first time, over GAB’s objections, that GAB set up a secret system of Gmail accounts for its staffers and the prosecutors who ran the John Doe.  We also know that GAB hoped its ‘illegal coordination’ theory could even extend to allow it to subpoena media figures like Charlie Sykes and Sean Hannity.”

A spokesman for the agency did not immediately return a request for comment.

Wisconsin’s unique John Doe procedure is much like a grand jury investigation, without the benefit of a jury of peers. A judge vested with extraordinary powers to compel witnesses to testify presides over the probes.

“GAB staff continued and continues to spend substantial time reviewing seized materials, conducting legal research, and writing and reviewing briefs on behalf of (John Doe special prosecutor Francis) Schmitz in ongoing state and federal challenges to the Doe,” court documents state.

Staff members engaged in the probe seem to have defied their own board. Documents show the board voted on July 21, 2014 refused to reauthorize the investigation, on a 3-2 vote.

Documents show the GAB staffers were preoccupied with their own legal exposure rather than whether those staffers were engaged in a lawful investigation. As late as May, they urged the board to continue to fund the agency’s probe because “terminating the investigation could undermine the position of the Board’s investigators in the civil case, exposing them, and potentially Board members to civil liability with no legal support.”

Waukesha County Circuit Court Judge Lee S. Dreyfus  allowed plaintiffs to file their brief with limited redactions, rather than
accepting GAB’s request for sweeping redactions. The order opened up portions of hundreds of GAB documents obtained through discovery in a lawsuit filed against the agency by political activist Eric O’Keefe and his Wisconsin Club for Growth.

The club is one of 29 conservative organizations targeted in the sweeping and secret probe, launched in August 2012 by Milwaukee County District Attorney John Chisholm, a Democrat. The GAB jumped in a short time later, according to court documents, and provided the services of contracted special investigators Dean Nickel and Schmitz. Schmitz subsequently was named special prosecutor of the multi-county probe.

Under state law, the agency’s board must meet “at least once every 90” days to review the progress of the investigation. The board must approve the reauthorization of the investigation or the probe is considered closed.

The GAB is not authorized under law to prosecute criminal investigations, such as John Doe probes.

GAB spokesman Reid Magney earlier this week told Wisconsin Reporter, “John Doe investigations are initiated by district attorneys and controlled by a judge, not the Government Accountability Board.”

Asked whether the board has reauthorized the probe, he declined to comment, citing confidentiality laws.

Technically, the GAB’s involvement in the investigation should have been terminated over a year ago.

According to documents, the GAB voted to authorize the probe on June 20, 2013 but did not vote to reauthorize until Sept. 25, 2013 – 97 days after the GAB’s investigation was officially launched.

GAB Judge Harold Froehlich extensively discussed the lapse at a board meeting in May 2014.

But the GAB, according to court documents, had been admitted as a party to the probe and assisting prosecutors 10 months prior to the board’s formal vote to begin its investigation.

The unsealed documents show GAB director and general counsel Kevin Kennedyand Jonathan Becker, administrator of the agency’s ethics division, involved the accountability board in the secret probe without the approval or even knowledge of the judges. Board members were not informed of the involvement until Dec. 18, 2012, some three months after Kennedy and crew jumped on board.

And it seems Kennedy and Becker misled the board about precisely when they had “learned” of the John Doe investigation, according to a Dec. 18, 2012 memorandum.

“Since the time of the October 23, 2012 Board meeting, staff has learned that the Milwaukee District Attorney has opened another John Doe investigation,” the memo states.

Documents show GAB staff members and DAs using private Gmail accounts to talk about the investigation. Still, leadership warned of the potential that any communications could be made public.

“(T)eam members should communicate with the understanding that their communications could become public or subject to discovery at some point,” according to documents from an August 2013 meeting.

Becker appears to have lead the effort in the search for a special prosecutor to preside over the multi-county investigation.

“(Milwaukee County Assistant DA) Bruce (Landgraf) and (Milwaukee County Assistant DA) David (Robles) still have no idea how this is funded. Jon [Becker] informed them that [two attorneys] will do it for $240 per hour, which is a significant reduction from their $325 per hour fees. Bruce mentioned that we really have to get someone for $100 per hour. He indicated that exhausting the special prosecutor fund for one case would have significant implications with the other DAs across the state,” states the minutes from closed session during the GAB’s June 20, 2013 meeting.

“Jon mentioned that perhaps the GAB could also retain the same person acting as special counsel as the GAB investigator and then supplement his or her pay with GAB funds …Would be limited to the investigation process though,” the minutes note, apparently in reference to Schmitz, who had been on the payroll as a special investigator.

Six days after that meeting, GAB staff got together with district attorneys in Columbia, Dane, Dodge, Iowa and Milwaukee Counties to discuss the initiation of a coordinated probe.

Schmitz was tapped as special prosecutor in August.

Communications between the Milwaukee County DA’s office and the GAB show the maneuvering involved to “prompt” presiding John Doe Judge Barbara Kluka to name Schmitz as special prosecutor.

“Judge Kluka, by her own motion can appoint the special prosecutor if one of the enumerated situations in the statute does not specifically apply,” the document states. Landgraf indicated that he and Robles had drafted a letter to Judge Kluka – from the DA’s in all 5 counties – explaining the appointment process in the statute. This will hopefully prompt Judge Kluka to issue an order appointing Fran (Schmitz) the SP.”

“TO DO: Landraf and Schmitz coordinate and schedule SP appointment lettersigning in Iowa, Dodge and Columbia counties and get it to Judge Kluka as soon as possible.”

Kluka complied, appointing Schmitz at the rate of $130 an hour. According to documents, the judge was not informed that Schmitz had already been working for the GAB as a special investigator.

The search warrants Kluka approved were used in the Oct. 3, 2013 predawn, paramilitary-style raids at the homes and offices of multiple conservative targets.

GAB “staff has spent considerable time reviewing and revising the supporting documentation for the search warrants and subpoenas to ensure consistency along with correct references to parties and documents,” states the minutes from closed session during the board’s October 2013 meeting.

As Wisconsin Reporter first reported, Kluka recused herself without explanation in late October 2013. Court documents show the judge did so on Oct. 29. The director of state courts than assigned Judge Gregory Peterson to the case. He promptly quashed several subpoenas because he said prosecutors had failed to show probable cause that a campaign finance crime had been committed.

Signing on in support of Schmitz motion to overturn Peterson’s decision, the GAB’s Kennedy, according to court documents, did not disclose his and the agency’s involvement in the John Doe. He called the GAB a “third party.”

Greim, the attorney for O’Keefe and the club, noted that the documents  show the GAB  recruited and paid for the John Doe special prosecutor, “paying rates higher than those allowed by law.”

“They did this despite the fact that GAB cannot pay for criminal prosecutions, and despite the John Doe Judge’s order that the prosecutor be paid in the regular way.  GAB knew this was wrong, because after reading our lawsuit, GAB asked special prosecutor Schmitz to re-do the time entries in his old invoices to make it appear that prosecutorial work was not being funded by the GAB.”

Wisconsin Reporter first raised that possibility in a recent story.

“And while all of this was unfolding, the GAB claimed in court filings that it was a “third party” to the Doe, and the special prosecutor, who knew otherwise, allowed GAB to make these misrepresentations,” Greim added.

“Driven by its zeal to prosecute the targets of the Doe, an entity borne of noble intentions transformed itself into a crude caricature of openness, ethics, and accountability in government,” the attorney said. “We will continue to uncover the full story behind the GAB’s misuse of taxpayer dollars to fund this misconceived investigation.”

Part of 156 in the series Wisconsin's Secret War

1. Sources: Secret probe targeting conservatives is abuse of prosecutorial powers
2. Scary! Phantom prosecutor in Dems’ war on conservatives disappears inside courthouse
3. EXCLUSIVE: Judge in Democrat-led John Doe probe recuses herself
4. Democrats’ ‘intelligence-gathering’ spreads in Wisconsin
5. Democrats tap anti-terror expert to head secret probe of Wisconsin conservatives
6. Sheriff Clarke: John Doe case shows Milwaukee DA is ‘weaponized for political purposes’
7. Clarke: John Doe into conservatives ‘unbridled,’ ‘dangerous’ and ‘tainted’
8. Sources: New judge named in Democrat-led secret probe
9. Vendetta justice? Criticism growing about John Doe prosecutor Bruce Landgraf
10. Will Wisconsin’s own ‘Miserable’ inspector jail conservative activist for speaking out about Dem probe?
11. Conservative targets bring in big guns to Democrat-led John Doe fight
12. ‘Dangerous’ game: Former FEC official blasts Democrats’ secret investigation of conservative groups
13. Center for Media and Democracy: Liberals are morally superior
14. Wisconsin Dems suddenly support political investigations
15. WI Republican attorney general to represent judges in Democrat-led John Doe probe
16. Republicans speak out about silent John Doe targeting conservatives
17. Biggest secret in John Doe may be just how judges and special prosecutors are selected
18. WSJ: John Doe judge deals body blow to secret probe targeting conservatives
19. Vos: Wait until John Doe in ‘rearview mirror’ before revisiting law
20. Lawsuits looming in Wisconsin’s crumbling John Doe probe?
21. Conservative to Democrat prosecutors: Shut down secret political probe or face civil rights lawsuit
22. John Doe target O’Keefe taking on IRS, too
23. Lawmaker: Wisconsin’s John Doe like Christie’s ‘Bridgegate’
24. Target files civil rights lawsuit against Wisconsin’s John Doe prosecutors
25. Disparate treatment: Civil rights lawsuit claims conservative speech trampled
26. Liberal group looking to take Wisconsin’s John Doe national
27. John Doe judge: ‘Results of the John Doe speak for themselves’
28. John Doe special prosecutor appeals judge’s ruling quashing subpoenas
29. John Doe prosecutor pushed for brain-damaged man’s conviction in ATF debacle
30. Conservatives counterpunch John Doe prosecutors’ move to stall injunction
31. Shadowy John Doe investigator invokes federalism in civil rights lawsuit
32. John Doe prosecutors wanted higher-priced lawyers, source says
33. Secret agent Dean Nickel’s defense: ‘Dean Nickel is not responsible’
34. D’oh! John Doe prosecutors claim secrecy protection – after filing secret documents
35. Recusal in John Doe case raises questions of fairness, purpose
36. Absolute immunity makes it tough to prosecute the prosecutors of John Doe
37. Poll suggests Dems’ big ‘secret’ weapon against Walker is backfiring
38. ‘Easy target': Kelly Rindfleisch breaks silence about John Doe probe
39. SCOTUS ruling on campaign finance shows abuse of John Doe, targets say
40. Nobody will say what John Doe’s shadow man did, but taxpayers are paying his legal bill
41. Judge denies John Doe prosecutors’ move to dismiss civil rights suit
42. Civil rights expert: John Doe law is ‘un-American,’ like something from ‘Nazi Germany’
43. Target: John Doe prosecutors making up campaign law as they go along
44. John Doe, as it is being used, must go, WI senator says
45. John Doe target says prosecutors latest move another delay tactic
46. John Doe prosecutors sound defensive in latest court filings
47. Federal judge denies John Doe prosecutors’ motion to stall civil rights case
48. Media coalition asks judge to open sealed John Doe documents
49. Are John Doe prosecutors sweating out federal judge’s decision?
50. John Doe is dead: Judge stops WI prosecutors’ probe into conservatives
51. This is what the Fourth Amendment looks like?
52. What’s next for now-defunct John Doe probe?
53. Appeals court stalls judge’s order halting John Doe probe
54. Federal judge’s ruling could open up sealed John Doe records
55. Federal judge orders John Doe probe shut down again
56. Lawmakers call for review of GAB’s secret John Doe activities, funds
57. Lawyers, lawyers everywhere and other dispatches from John Doe Land
58. Secret’s out: The world is beginning to learn more about WI’s John Doe
59. Still their little secret? Questions remain on John Doe gag order
60. Appeals Court declares portions of Wisconsin campaign finance law unconstitutional
61. John Doe prosecutors suddenly support opening sealed court records
62. Expert: It’s as if GAB decided ‘Citizens United didn’t exist’
63. John Doe prosecutors voice phony outrage, legal source says
64. GAB still reviewing court ruling declaring WI campaign finance law unconstitutional
65. State Farm still doesn’t want to cover John Doe prosecutor’s legal bills
66. For the Walker-hating left, John Doe is ‘Mission Accomplished’
67. Sources: No urgency in WI Supreme Court on John Doe
68. Would Walker settlement with John Doe prosecutors be a deal with the devil?
69. Contempt questions surround reported John Doe deal talks
70. Walker’s John Doe response raises more questions than answers
71. Sources: Attorney General passes on defending GAB in John Doe cases
72. Attorney to judge: Don’t let John Doe prosecutor ‘moot’ injunction
73. John Doe targets sue Wisconsin’s Government Accountability Board
74. Federal judge says his order halting John Doe probe should be clear to prosecutor
75. John Doe special prosecutor’s bill still shrouded in secrecy
76. ‘Are these kind of armed pre-dawn raids standard operating procedure?’
77. John Doe special prosecutor obeys judge’s order
78. ‘Never-ending’ John Doe never ended, WSJ reports
79. Appeals court upholds judge’s order shutting down John Doe probe
80. O’Keefe keeps collecting big wins in John Doe lawsuit
81. John Doe I judge says he’s not responsible for John Doe II
82. Will taxpayers have to pay for frivolity of John Doe prosecutors?
83. John Doe prosecutors jump back into the dark?
84. What about those prosecutors? Questions surround other John Doe DAs
85. Humiliated in court, WI Dems take their anti-conservative John Doe probe to the media
86. Federal judge blasts John Doe prosecutors – again – as he denies records release
87. Right on cue: Document dump fuels anti-Walker donation drive
88. Wall Street Journal points out ‘disgrace’ of mainstream John Doe reporting
89. Expert: John Doe raids raise ‘troubling’ Fourth Amendment questions
90. Kelly Rindfleisch tells conservatives, ‘Don’t back down’
91. Mainstream media forced to walk back Walker ‘criminal scheme’ narrative
92. John Doe prosecutors engaged in premature justification, conservatives say
93. Is John Doe probe a case of a mini NSA in Wisconsin?
94. AG opinion means accountability board’s John Doe secrets are safe — for now
95. Senator asks attorney general to compel GAB to open up its books
96. GAB now playing secrets in state John Doe lawsuit
97. Will John Doe prosecutors launch lengthy probe against Trek Bicycle?
98. John Doe prosecutors engaged in war of words — lots and lots of words
99. Judge denies conservatives’ request to add GAB to civil rights lawsuit
100. Oral arguments set in John Doe prosecutors’ appeal
101. In John Doe Land, the left doesn’t illegally coordinate
102. John Doe document blitz must have broken mainstream media’s heart
103. Senator: Looks like accountability board is hiding something
104. Kelly Rindfleisch appeal to test validity of John Doe digital searches
105. Conservatives in John Doe battle know disclosure comes with a heavy price
106. Appeals court orders release of some John Doe documents
107. Taxpayers on the hook up to $25,000 for GAB’s legal maneuvers
108. Overheated media erroneously bring back Walker ‘criminal scheme’ theme
109. ‘Retaliation': Docs show state prosecutors launched mini-NSA probe of WI conservatives
110. John Doe prosecutors take desperate, unethical slap
111. Walker ‘smoking gun’ story has tiny glaring flaw
112. Wisconsin prosecutors aim to shut down conservatives
113. Conservatives appeal to common sense in John Doe appeals case
114. Conservatives say ‘incorrect disclosure’ of John Doe docs no ‘tiny error’
115. First Amendment big guns back targets of John Doe probe
116. Was John Doe judge a rubber stamp?
117. $25,000 and counting: WI taxpayers’ bill so far to defend GAB and its ‘monster’
118. Another blow for Wisconsin’s restrictive campaign finance law
119. Wisconsin prosecutors appeal for protection from blowback in partisan probe
120. Is John Doe story colored with a bit of ‘Macbeth?’
121. GAB director says agency just following the law in John Doe probe
122. Kelly Rindfleisch: Where are the tears for the kids the Milwaukee school system failed?
123. Rindfleisch attorney: Appeals court can protect the Fourth Amendment in Digital Age
124. Source: Wisconsin Supreme Court doesn’t want political heat of John Doe case
125. Appeals court reverses John Doe injunction, but Wisconsin’s secret war far from over
126. A whistleblower’s story: Taking on a ‘hyper-partisan’ district attorney
127. Conservative O’Keefe seeks investigation into John Chisholm and his John Doe
128. Who’s paying the bill? Report casts questions on GAB and John Doe payments
129. Target of secret John Doe probe is fighting back and speaking out
130. The day John Doe rushed through the door
131. Rindfleisch: ‘Rape’ not too strong a word for how violated John Doe targets feel
132. Conservative group asks court to stop John Doe ‘constitutional injury’
133. Conservatives to appeals court: ‘You don’t know Doe’
134. Armed and growing: Milwaukee County DA beefs up his ‘police force’
135. Federal judge stops John Doe prosecutors from bothering conservative group
136. Wisconsin Supreme Court takes another pass on John Doe case
137. No surprise: Bice buries the lead, Walker follows the law
138. Federalism v. individual rights: A conversation with Eric O’Keefe
139. Report: No district attorney will investigate District Attorney John Chisholm
140. Appeals court denies request to rehear John Doe civil rights case
141. Voters say ‘yes’ to Walker, ‘no’ to John Doe, law expert says
142. Vos: There will be reforms to John Doe, GAB
143. GAB, Milwaukee County DA bail on key provision behind war on conservatives
144. John Doe lawsuit could be headed to U.S. Supreme Court
145. Kelly Rindfleisch will fight on in Fourth Amendment case
146. John Doe froze conservative speech, targets say
147. Conservatives to court: Open up records on GAB’s role in John Doe
148. Did the GAB doctor documents to cover their tracks in John Doe?
149. Wisconsin’s Van Hollen says goodbye to AG post, John Doe
150. Rindfleisch appeals to Supreme Court in John Doe Fourth Amendment abuse case
151. Audit: GAB has failed to follow the law
152. Wisconsin Supreme Court to take up John Doe complaints
153. ‘R word’ surfaces in wake of state Supreme Court taking up John Doe challenges
154. GAB won’t say whether it has reauthorized its role in John Doe probe
155. Rogue agency defied judges to carry out partisan probe of Wisconsin conservatives
156. ‘Outside the … law’: Lawmakers call for investigation of GAB

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