First Amendment for Whom? Press Fights for Access to Scott Walker John Doe Docs

The public may be on the cusp of learning more about the two "John Doe" investigations into Scott Walker, his associates, and groups that spent millions to get him elected.

On May 21, the Wisconsin judge in the now-closed 2010-2013 "John Doe I" investigation into Walker's County Executive during his 2010 run for governor ordered the release of all records gathered in the probe that pertain to county business. That probe resulted in six convictions for Walker aides and associates, including for political fundraising on the taxpayer's dime. Now, the decision about what records to release rests with Walker's successor as County Executive, Chris Abele.

Also on May 21, a coalition of media groups filed a brief asking a federal court to unseal documents in Wisconsin's ongoing "John Doe II," the criminal probe into allegedly illegal coordination between political campaigns like Walker's and non-profit groups like Wisconsin Club for Growth that spent millions during the state's 2011-2012 recall elections.

A “John Doe” is similar to a grand jury investigation, but in front of a judge rather than a jury, and conducted under strict secrecy orders. Media organizations and transparen sued in both cases to open the documents to the public.

First Amendment Right of Deep-Pocketed Donors vs. First Amendment Rights for the Rest of Us

In the federal suit, the fight for the release of court documents introduces a new First Amendment ripple in a case that already implicates First Amendment concerns.

WCFG and its director Eric O'Keefe filed the federal suit asking the court to stop the John Doe on First Amendment grounds, arguing that the investigation into WCFG's alleged criminal campaign finance violations amounts to an attack on their First Amendment "right" to anonymously spend millions of dollars influencing elections and to purportedly coordinate with political candidates without limitation.

Yet the media groups seeking to unseal documents argue that there are other First Amendment concerns at stake: the right of the public to oversee the actions of the judicial and executive branches.

"It is undisputed that the public has a First Amendment right of access to 'any documents' upon which the Court may rely 'in making its decisions,'” the media groups noted in their May 21 brief, citing U.S. Supreme Court precedent.

However, WCFG is arguing that the public should be deprived of its First Amendment right of access, and that the hundreds of pages of evidence that led both Republican and Democratic prosecutors to suspect WCFG of wrongdoing should be kept secret -- thereby preventing the public from assessing WCFG's claim that the investigation is a "partisan witch hunt."

The "partisan witch hunt" claim has been peddled in conjunction with the selective leak of secret information to favor WCFG and other groups under investigation, and they now seek to deny the public access to information that would show the perspective of prosecutors on why the activities under investigation could be criminal.

Bill Lueders, president of the Freedom of Information Council of Wisconsin (one of the groups that sued for the record release), says that "the people of Wisconsin deserve to get a full picture of the issues being litigated."

WCFG has a friend in the judge hearing the case, Judge Rudolph Randa, a George H.W. Bush appointee and a member of the Milwaukee Federalist Society's Board of Advisors. Earlier this month, Judge Randa not only halted the probe on grounds that it violated WCFG's First Amendment rights, but also, incredibly, ordered the destruction of evidence (which the Seventh Circuit quickly blocked). With an appeal of his ruling pending, Judge Randa will now decide whether to unseal all documents filed in the case, a move that both the media groups and prosecutors support, or, to undergo the selective release that WCFG has requested.

It presents an interesting contrast: the First Amendment rights of a handful of millionaires and deep-pocketed donors, versus the broader public's First Amendment right to know.

Chris Abele Has Responsibility to Release John Doe I Documents

The judge who oversaw the first John Doe probe, Judge Neal Nettesheim, sided with the public's right to know in a May 21 decision unsealing public records from the 2010-2013 investigation.

That probe closed in 2013 after the convictions of six Walker aides and associates, as well as the discovery of a secret wi-fi system inside Walker's County Executive office used by Walker and his associates to conduct campaign and county business. Now that the investigation is over, Judge Nettesheim ruled, county records should be returned to the County Executive office and made available to the public -- as the documents would have been available under the open records law before they were seized in the John Doe.

Earlier this year, thousands of John Doe I emails from top Walker aide Kelly Rindfleisch were unsealed as part of her appeal of her conviction. That document dump resulted in national press, and revealed top Walker associates passing around ugly racist jokes, showing disdain for the poor, and conducting campaign activity on the taxpayer dime. The documents also undermined many of Walker's public statements about his knowledge of illegal conduct.

The next set of emails slated for release could be even more significant. They are expected to include more emails from Walker himself and his top associates, including many more emails sent over the secret wi-fi system set up in Walker's County Executive office.

Judge Nettesheim didn't immediately make the records from Walker's office available to the public. He is returning the documents to Milwaukee County; it is now up to current Milwaukee County Executive Chris Abele to release the records in response to open records requests.

Abele's office seems hesitant to take responsibility for the documents. His lawyers first asked Judge Nettesheim to appoint a special master to sort the documents, and now his office says they'll need time to examine and redact the materials. The Milwaukee Journal Sentinel editorial board are demanding he get a move on and release the documents to the public.

Lueders is hopeful that Abele's office won't prolong the process through appeals, or assert that the records fall under exceptions to the open records law.

"The [Freedom of Information] Council is optimistic that County Executive Abele will do the right thing and make these public records public," Lueders said.

"As with the earlier batch of records that was released, it bodes well for our state that our traditions of open government trump the concerns that some people have about looking bad."

Judge Nettesheim: John Doe I Was "Above the Partisan Fray"

In his decision unsealing the John Doe I documents, Judge Nettesheim -- a former circuit judge from conservative Waukesha County who also sat on the Court of Appeals -- addressed the claims from Wisconsin Club for Growth and others that both John Doe investigations amounted to a "taxpayer-funded, opposition research campaign" led by Democrats to attack Republicans.

The Milwaukee Journal Sentinel reports:

He said the Doe heard testimony from "hundreds of witnesses" and considered thousands of documents.

"My goal was to try to keep the proceeding above the partisan fray. I'll leave it to others" to decide if that was accomplished, he said.

Nettesheim also addressed the tactics used by O'Keefe and WCFG to stop the John Doe II probe, where they have attacked prosecutors and sued in federal court to stop the state investigation. He subtly criticized the attacks on prosecutors, calling it "chilling and disturbing," as well as Judge Randa's order to destroy evidence.

"If Judge Randa's ruling had been directed at me," Nettesheim said, "we might have been shredding public documents."

See more of the Center for Media and Democracy's reporting on the John Doe campaign finance probe here.