-- By Brendan Fischer and Mary Bottari
Two career prosecutors--one a Republican, one a Democrat--just called Scott Walker a liar, and not a single national newspaper took notice.
The comments came after Walker, an unannounced candidate for president, used an appearance on an Iowa radio show to publicly attack a bipartisan criminal investigation into his campaign as a "political witch hunt" with the aim of "trying to intimidate people."
The Special Prosecutor leading the probe, Francis Schmitz--a Republican who voted for Walker in 2012--fired back, stating, "these recent allegations are patently false."
"His description of the investigation as a 'political witch hunt' is offensive when he knows that the investigation was authorized by a bipartisan group of judges and is directed by a Republican Special Prosecutor appointed at the request of a bipartisan group of district attorneys," Schmitz said.
Milwaukee District Attorney John Chisholm, a Democrat whose office initiated the probe, added that, "Stripped of niceties, Mr. Schmitz is saying the governor is deliberately not telling the truth."
Then, the prosecutors threw down the gauntlet.
Schmitz called upon the Governor "to join me in seeking judicial approval" to release sealed documents "which would be responsive to the allegations that have been made." Chisholm agreed: "the truth is always a defense, so let’s get the truth out in a legal manner, not through lies, distortions and misrepresentations."
The public comments and challenge are remarkable from the usually-reserved career prosecutors, who until now have remained silent as their reputations have been dragged through the mud by Walker's allies.
The heated public exchange comes just as the Wisconsin Supreme Court is scheduled to take up a series of challenges to the probe, and as the U.S. Supreme Court considers granting an appeal of a federal lawsuit that the 7th Circuit rejected last year.
And, the comments follow a National Review magazine article published online April 20 that savaged Chisholm and decried the probe as "the use of law enforcement as a political instrument, as a weapon to attempt to undo election results, shame opponents, and ruin lives." Although the piece also repeated long-discredited allegations from Wisconsin's right-wing blogs, it was quickly picked up by the national right-wing echo chamber, including Fox News, Rush Limbaugh and the Wall Street Journal editorial board and trumpeted as a breakthrough "investigation."
Yet the National Review article doesn't even mention the Republican prosecutor leading the probe, Francis Schmitz, nor does it touch on the evidence of corruption that gave rise to the bipartisan investigation.
As former Milwaukee District Attorney E Michael McCann told the Center for Media and Democracy: "If you've got the facts on your side, fight on the facts. If you've got the law on your side, fight on the law. If you've got neither, fight the DA."
Serious Allegations of Corruption Involving Walker
The current criminal investigation into Walker involves serious allegations that the governor and his campaign disregarded the state's campaign finance laws during the 2012 recall elections.
Indeed, when Republican and Democratic District Attorneys petitioned for the investigation, Walker was already the highest-profile politician in modern Wisconsin history and a likely presidential contender. Launching a criminal investigation into the most powerful political figure in the state could not have been an easy choice: these career prosecutors initiated the probe because they believed there was a strong legal and evidentiary basis for doing so, under Wisconsin's long-standing campaign finance laws.
Republican prosecutors gathered evidence of Walker secretly raising millions of dollars for the supposedly "independent" nonprofit Wisconsin Club for Growth (WiCFG), with the express purpose of bypassing campaign finance disclosure laws. Talking points prepared for the governor advised him to "stress that donations to WiCFG are not disclosed," to call the group "his 501c4," and to tell donors "that you can accept corporate contributions and it is not reported."
And evidence suggests that Walker had a lot to hide.
There is the secret $700,000 donation to WiCFG from an out-of-state mining company, Gogebic Taconite, which at the time was pushing for an open-pit mine in Northern Wisconsin (and got it, after Walker won re-election).
And there's the undisclosed $1.5 million donation from billionaire John Menard, whose company Menard's Hardware was awarded $1.8 million in tax credits from the jobs agency Walker chairs, not to mention a drop-off in environmental law enforcement.
WiCFG spent at least $9.1 million during the recall elections, and funneled at least $10 million more to other politically-active groups like Wisconsin Manufacturers & Commerce, while reporting that it spent $0 on politics to the IRS.
Since the beginning, Walker and his allies have fought the probe not by denying coordination, but by claiming the rules don't apply to so-called "issue ads" that stop short of expressly telling viewers how to vote. But if the Walker campaign coordinated activities with third-party groups, state law is clear that the coordinated spending is not "independent," but legally considered an in-kind campaign contribution subject to reporting laws, regardless of whether it involved so-called "issue ads." The same is true in federal elections, under federal law.
In January of 2014, Judge Gregory Peterson--who had only recently been assigned the case--sided with arguments from Walker and WiCFG and quashed subpoenas issued in the probe, but just two weeks later stayed his own order, writing that the state's theory "is an arguable interpretation of the statutes" and asking that an appellate court resolve the dispute.
WiCFG and other Walker allies soon filed an array of lawsuits in state and federal court, and the probe has remained stalled ever since.
Republican-Led Investigation Supported by "Credible, Hard Evidence"
Although repeatedly portrayed as a "partisan witch hunt," the investigation involves five District Attorneys, from both the Republican and Democratic parties. It was authorized by both Republican and Democratic judges, including Judge James Daley, the GOP-backed candidate for Wisconsin Supreme Court earlier this year.
And it is led by Special Prosecutor Francis Schmitz.
Schmitz started his legal career as a clerk for federal judge John Coffey, a Reagan appointee who the Milwaukee Journal Sentinel described as "an unyielding conservative." Schmitz worked for years as a federal prosecutor, receiving two awards from the U.S. Department of Justice, including the prestigious "U.S. Attorney General's Award for Distinguished Service" from Republican Michael Mukasey. Schmitz was on George W. Bush's shortlist to be named the chief federal prosecutor in the state as U.S. attorney, and he served in the U.S. Army and in the U.S. Army Reserve, retiring with the rank of Colonel.
Wisconsin's Republican Attorney General, J.B. Van Hollen, was initially asked to lead the probe, but declined--not because he thought the investigation was legally suspect, but because of a possible conflict-of-interest, with Van Hollen acknowledging that “a campaign financing investigation… could foreseeably involve individuals with whom I have relationships.”
Van Hollen said the probe was better handled by the state's Government Accountability Board, which is a nonpartisan board of retired judges, from both parties, appointed by the governor and confirmed by the senate, and charged with interpreting and applying the state's campaign finance law. The Board unanimously approved its participation in the investigation. Its current Chair Gerald Nichol--a former Republican elected official--has stated that the Board does "not take investigations lightly" and launched the probe after being presented with "credible, hard evidence" the law had been violated.
The investigation has been conducted under the state's "John Doe" statute, a proceeding similar to a grand jury but overseen by a judge.
Former Milwaukee County District Attorney McCann, a Democrat who utilized the John Doe process to prosecute former State Senate Majority Leader Chuck Chvala (D-Madison) during the 2001-2002 Legislative Caucus Scandal, explained that"John Does" are particularly effective for investigating political corruption cases. The alternative is to impanel a grand jury of 17 citizens for months on end, a costly and burdensome process rarely used in Wisconsin.
Doug Haag, a career state prosecutor for 29 years, explained to the Center for Media and Democracy how the John Doe works. "It's the only vehicle other than a grand jury that allows a prosecutor to subpoena witnesses and compel testimony in the investigative stage," he said.
While grand juries were common before the 1970s they fell out of use in more recent years and the John Doe process is now used commonly for a variety of crimes. Haag is a "very strong supporter" of the John Doe law as currently constituted. "At this point it would be very cumbersome to impanel a grand jury when in fact you can get the same information with a single judge, compel testimony and protect the identity of witnesses before the John Doe," Haag said.
The John Doe statute allows for a judge to order that the investigation be conducted in secret, which applies not only to prosecutors, but also to the targets of the investigation. The duration of the gag orders raise First Amendment concerns, yet have long been part of the standard operating procedure for John Doe investigations, including political corruption investigations into both Democrats and Republicans.
Prosecutors argue that secrecy is needed to encourage cooperation by people reluctant to testify against powerful individuals, as well as to protect the reputation of the targets while the investigation is in a pre-charge state, since many John Does are closed without charges.
In commencing this John Doe probe, Republican prosecutors in Dodge (PDF) and Columbia (PDF) counties found "evidence that criminal violations" of the state's campaign finance laws had occurred and, like their Democratic counterparts, asked that the probe be conducted under a secrecy order, given that "the individuals involved in this investigation are well-placed political operatives closely tied with the current Governor of the State of Wisconsin."
Making the investigation public, they wrote in their court filings, "would generate substantial publicity," which could result in the destruction of evidence and damage reputations before criminal charges were filed. Yet soon after the first subpoenas were issued in the probe, Wisconsin Club for Growth director Eric O'Keefe spoke with the Wall Street Journal editorial board, and the investigation has been subject to selective leaks ever since.
With the case now before the Wisconsin Supreme Court, prosecutors are asking that more documents be unsealed, so the public can assess for themselves the PR campaign to call the bipartisan criminal probe a "political witch hunt." Yet the Court has so far declined to open up the documents, and Walker hasn't joined their call for transparency.
Milwaukee District Attorney's Long Record of Prosecuting Democrats
The current investigation grew out of an earlier John Doe probe into corruption in Walker's office when he was Milwaukee County Executive. Milwaukee County District Attorney Chisholm opened the first John Doe in 2010 after Walker's office stonewalled an investigation into the theft of money from a veteran's fund.
That probe, which was closed in 2013, eventually led to convictions of six former Walker aides and associates, on charges ranging from the embezzlement of veteran's funds, to child enticement, to illegal political campaigning on the public dime.
A second John Doe was opened in August of 2012, and soon spread to four other counties, thanks to a GOP-backed law requiring that campaign finance violations be prosecuted in the counties where defendants reside. Special Prosecutor Schmitz was appointed to lead the five-county effort and to limit the appearance of partisan bias.
Although "John Doe 2" is led by a Republican Special Prosecutor, involves Republican and Democratic prosecutors from across the state, and was approved by Republican judges, Walker's allies have nonetheless made Chisholm their target for the "political witch hunt" claims, since he is elected to office as a Democrat.
Outlets like Fox News and the National Review have repeated allegations from a "former staff prosecutor" that Chisholm's investigation into Walker--which started in 2010--was actually motivated by his public school teacher wife's dismay at Walker's anti-union Act 10 legislation, which was introduced in 2011. Yet the source for the claims, the "former staff prosecutor," was actually a former unpaid intern who worked just 5 1/2 months filling out grant applications and previously made drunken death threats to Chisholm and his family.
In reality, Chisholm does have a long record of prosecuting political corruption, but he almost exclusively has gone after fellow Democrats.
In 2010, for example, Chisholm used the John Doe process to prosecute Democratic Milwaukee County Supervisor Toni Clark on felony charges related to the personal use of $6,300 in campaign funds. Clark was sentenced to six months in jail, with work-release privileges, and three years' probation.
Scott Walker, who was Milwaukee County Executive at the time, didn't portray that investigation into a Democrat as a "political witch hunt," nor did he decry the charges as an example of the "criminalization of politics"--after all, Chisholm had thrown the book at her, pursuing felony charges against a county official who misused a few thousand in campaign funds. Instead, Walker said the case was "a reminder to all others in office that we must maintain the highest ethical standards."
In 2007, Chisholm worked with federal officials in a complicated John Doe case involving bribery and intimidation charges for Alderman Michael McGee, a Democrat. According to the Milwaukee Journal Sentinel, McGee was convicted by a federal jury and sentenced to 6 1/2 years in prison, and later pled no contest in state court to the felony of lying to an elections official and the misdemeanor of violating court orders related to the John Doe proceeding.
In 2012--at the same time that Chisholm was pursuing the John Doe investigation into Walker--the Milwaukee District Attorney was leading a broader John Doe investigation into corruption allegations in the Democrat-led Milwaukee County government.
Chisholm's office oversaw a sting operation aimed at Milwaukee County Supervisor Johnny Thomas, a Democrat described as a "rising star of the Board's left wing," and brought felony charges after Thomas accepted a $500 campaign contribution that was allegedly offered in exchange for promoting a company for a county contract. A Milwaukee jury acquitted Thomas of bribery and misconduct charges.
And following Walker's victory in the 2012 recall elections, court filings show that his opponent, Milwaukee Mayor Tom Barrett, was fined $20,000 for accepting PAC donations in excess of campaign finance limits.
All evidence suggests that Chisholm's office takes the rules governing ethics and political corruption very seriously, whether the violations are committed by a Democrat or a Republican.
"Pre-Dawn Raids" or Typical Search Warrant?
The National Review article devotes a lot of space to the execution of search warrants, which it describes as "armed" "pre-dawn raids."
The outlet makes the astounding claim that "these raids and subpoenas were often not based on traditional notions of probable cause but on mere suspicion, untethered to the law or evidence, and potentially violating the Fourth Amendment," but provides no evidence to back up the hyperbole.
In contrast, this October 2013 affidavit in support of subpoenas, which is publicly available, lays out the facts establishing the legally-required probable cause that the searches will produce documents relevant to the criminal campaign finance violations that were the subject of the John Doe.
"No judge will authorize a search warrant based on 'mere suspicion,'" Dane County Sheriff David Mahoney, a Democrat, explained to CMD.
"The statutes are very clear. To get a search warrant, you have to write out a complaint laying out probable cause that you will find evidence at that location. If you think the computers you are looking for are in the home based on intelligence you have gathered, you have to convince a judge. A lot of thought and detail goes into presenting this to a judge, because the evidence could later be thrown out if there was not a legitimate finding based on facts outlined in a complaint."
Although search warrants are issued by a judge, in response to a petition from a prosecutor, how the warrants are executed is left to law enforcement--so any critique of the John Doe "raids" is really a complaint about standard law enforcement practices, former prosecutors and law enforcement officers tell CMD. And nothing described by the National Review appeared out of the ordinary for executing search warrants to secure evidence that could be destroyed, they say.
Indeed, although targets of the Walker probe have challenged various aspects of the investigation in a barrage of well-funded lawsuits and legal maneuvers, they haven't legally challenged how the search warrants were executed, despite hyperbole in right-wing press.
"Law enforcement has two goals in executing a search warrant: the safety of all involved and to prevent the destruction of evidence," Mahoney said. "You don’t call ahead and let them know you are coming."
The first step when entering a home is to secure the premises and take control of the situation. "You get in, assess any dangers, secure the scene, and allow it to be searched," one former prosecutor said. "This is not a party invitation."
"Safety is always a concern," McCann told CMD. "Even a law-abiding person may have firearms, and they might wake up after you enter home, get startled, and grab for a weapon." Mahoney described an instance he had a gun drawn on him while executing a search warrant for a white-collar crime, and says that sheriff’s deputies regularly find weapons during searches.
Although the National Review leads with the claim that officers brought a battering ram to the home of one Walker aide, Mahoney says this is not out of the ordinary.
“You are required to knock and give people a reasonable time to open the door, but you are also required to execute the warrant with necessary force," he said. "So if they don’t open the door, you don’t leave a calling card and say ‘I’ll be back in an hour.’ If they are not home or not answering, you sometimes have to knock down the door.”
Otherwise, the targets of the search warrants can begin destroying evidence.
Likewise, when looking for documents, "you want the person on the premises," McCann says, "so you do it early in the morning, before they go to work, when they are most likely to be home." If the warrant is executed in winter, that means it is going to be dark.
This is not to say that the tactics used by police in executing search warrants are above criticism. But the way warrants were executed in the Walker investigation appeared to follow standard law enforcement practices, which should be the same whether the warrant is served in a low-income community of color or a white middle-class neighborhood.
As the Wisconsin Supreme Court gets ready to take up the John Doe this month, behind closed doors and without oral arguments, the prosecutors' challenge for full disclosure still awaits a response from the Governor.
Will Walker urge the court to release all records, to clear the air--and perhaps his name--or will he continue to cry "witch hunt" in hopes that Wisconsin's deeply-compromised Supreme Court will sweep the John Doe under the rug?
Read more about the criminal investigation in the Center for Media and Democracy's special report.
View some of the court documents below.