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

Chris AbeleThe 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.


So, two problems here: I'm curious: as a civil libertarian, it's my sense that property the government confiscates during an illegal search should be returned to its rightful owner. Are you guys seriously suggesting that everything the government confiscates -- no matter the circumstance -- should become the public's property? I can't imagine that's the standard you want to live by. Second, the first John Doe did not conclude with convictions of six Walker aides. Check the facts here:

<p>Despite claims by "," the public record unequivocally shows that six Walker aides or associates were convicted as a result of the first John Doe investigation, which we have documented on SourceWatch:</p> <h3>6 People Indicted, 15 Felony Indictments, 6 Sentenced</h3> <div class="center"> <div class="floatnone"><a class="image" href=""><img alt="Indictees.jpg" src="" style="height:238px; width:700px"></a></div> </div> <p>&nbsp;</p> <ul> <li><strong>Timothy Russell</strong> (former top aide, holding over eight positions including deputy chief of staff, to then Milwaukee County Executive Scott Walker): charged with 2 felonies, and one misdemeanor related to embezzlement of veterans funds. <a class="external text" href="" rel="nofollow">Read the criminal complaint here</a>. Russell was sentenced to "two years in prison and five years on probation for stealing more than $21,000 from a veterans organization Walker named him to lead."<sup><a href="">[30]</a></sup></li> </ul> <ul> <li><strong>Brian Pierick</strong> (boyfriend of Timothy Russell): charged with 2 felonies, including child enticement and exposing sex organ and pubic area. <a class="external text" href="" rel="nofollow">Read the criminal complaint here</a>. In February 2013 Pierick was sentenced to 50 hours of community service and a $2,100 fine after pleading guilty to a lesser charge.<sup><a href="">[31]</a></sup></li> </ul> <ul> <li><strong>Kevin Kavanaugh</strong> (appointed by Walker as county veterans official): charged with 5 felonies related to embezzlement of veterans funds. <a class="external text" href="" rel="nofollow">Read the criminal complaint here</a>. Kavanaugh was convicted by jury and was sentenced on December 7th, 2012 to two years in prison and two years of extended supervision.<sup><a href="">[32]</a></sup><sup><a href="">[33]</a></sup></li> </ul> <ul> <li><strong>Kelly Rindfleisch</strong> (former top aide to then Milwaukee County Executive Scott Walker): charged with 4 felonies relating to political fundraising while on the county payroll. <a class="external text" href="" rel="nofollow">Read the criminal complaint here</a>. Her trial was set to begin the week of October 15, 2012 in Milwaukee County Court. On Monday, October 8, 2012 Rindfleisch’s lawyers subpoenaed the Governor to testify in her trial. The next day, news broke that Rindfleisch had reached a plea deal with Milwaukee prosecutors. News reports indicate that she will plead guilty to one felony count of misconduct in office in an attempt to avoid jail time.<sup><a href="">[34]</a></sup> Rindfleisch was in particular jeopardy, because she had been implicated in similar activities in the past and was granted immunity in an earlier “caucus scandal,” which resulted in sentences of jail time for more than one Wisconsin legislator and the disbanding of partisan political caucuses in the state legislature in 2001. Rindfleisch is scheduled to be in court on Thursday, October 11 for a judge to decide on the plea deal. The trial is cancelled, so Walker will no longer have to testify.<sup><a href="">[34]</a></sup> The plea deal can be accessed <a class="external text" href="" rel="nofollow">here</a>. She entered the guilty plea and was convicted of one of the felony counts. On November 19, 2012 she was sentenced to six months in jail and three years of probation on a single felony count of misconduct in office.<sup><a href="">[35]</a></sup><sup><a href="">[36]</a></sup></li> </ul> <ul> <li><strong>Darlene Wink</strong> (former aide to then Milwaukee County Executive Scott Walker): pleaded guilty to 2 unclassified misdemeanors as part of a plea deal that she made with the prosecutors related to political fundraising while on the county payroll. <a class="external text" href="" rel="nofollow">Read the complaint here</a>. Her sentencing hearing has been delayed several times to ensure her full cooperation in other investigations. <sup><a href="">[37]</a></sup> In January 2013 Wink was sentenced to a year's probation, 50 hours of community service and $1,000 in fines.<sup><a href="">[38]</a></sup></li> </ul> <ul> <li><strong>William Gardner</strong> (President and CEO of Wisconsin &amp; Southern Railroad): pleaded guilty to 2 felony charges relating to campaign finance violations <a class="external text" href="" rel="nofollow">read the criminal complaint here</a>. Gardner pleaded guilty to felony violations of Wisconsin campaign law in April of 2011. Gardner tried to convince prosecutors that his $60,000 in illegal contributions, which he funneled through staff and girlfriends, was an innocent mistake, except he had done the same thing the previous year.<sup><a href="">[39]</a></sup> Gardner was sentenced to 2 years probation and 50 hours of community service. <sup><a href="">[40]</a></sup></li> </ul>

If public employees salaries are posted on line then why not all of the documents concerning the probe.