"What a mess this court has wrought!" Wisconsin Supreme Court Justice Shirley Abrahamson declared in the latest chapter in the state's John Doe legal saga.
On Wednesday, the Wisconsin Supreme Court's majority contorted itself to find a new way to protect both Scott Walker and the Court's biggest supporters--not to mention itself--following its decision in July rewriting the state's limits on money in politics and ending the "John Doe" investigation into Walker's campaign coordinating with dark money groups.
Wednesday's ruling was supposed to be a straightforward decision on a motion to reconsider, in light of additional evidence that Walker and his allies had violated the campaign finance laws that the Court upheld in July.
The Court denied that motion, but then (in a lengthy unsigned opinion) went further, rewriting its July decision to fire the Republican Special Prosecutor who had led the investigation, Francis Schmitz, making it harder for him to challenge the justices' conflicts-of-interest by appealing the case to the U.S. Supreme Court.
Those conflicts arise from the fact that the same groups that coordinated with Walker's campaign were among the majority's biggest financial supporters, raising concerns under U.S. Supreme Court precedent about whether the justices should have heard the case at all.
"The miscalculation I made in this investigation was underestimating the power and influence special interest groups have in Wisconsin politics," said Schmitz, a retired U.S. Army colonel and former counter-terrorism prosecutor.
The bipartisan John Doe probe has become a rallying cry for national organizations looking to overturn limits on money in politics, and for years has been subject to a legal and media assault, funded in part by the same groups that bankrolled the election of the Wisconsin Supreme Court's conservative majority.
"My career in the military and as a federal prosecutor fighting violent criminals and terrorists did not fully prepare me for the tactics employed by these special interest groups," Schmitz said in a statement.
Conflicted Court Protects Its Biggest Supporters--and Itself
Wednesday's decision was "extraordinary," said Janine Geske, respected former Wisconsin Supreme Court justice who now teaches at Marquette Law School. "To somehow remove the lawyer representing one of the parties after the opinion [has been issued] is extraordinary," she told the Center for Media and Democracy.
"It puts the case in a very odd situation, removing counsel so he cannot file an appeal," Geske said, with no clarity for how other prosecutors might be able to intervene.
The Court's July opinion upheld a lower court decision holding that Schmitz had been lawfully appointed as Special Prosecutor in 2013. Justice Prosser, writing separately in concurrence, had taken the position that Schmitz' appointment was improper.
Yet after Schmitz asked the Court to reconsider its decision on grounds it had overlooked coordination of express advocacy, the majority instead revised its ruling to rescind his authority, and to block him from continuing to be involved in the case.
"The Special Prosecutor's authority to proceed would still be intact if he had not brought a motion for reconsideration," Justice Abrahamson pointed out in her dissent. "Does this make sense? Not to me."
The Court rewriting its decision and firing Schmitz might be viewed not only as the majority protecting their biggest financial supporters and Scott Walker, but also as an effort to protect themselves.
That's because the Court's four-justice majority was elected to the bench with at least $10 million in spending from precisely the same groups accused of coordinating with Walker, and precisely the same groups that were under investigation in the John Doe--namely, Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce.
By rescinding Schmitz' appointment as Special Prosecutor, it makes it much harder for him to challenge the justices' conflicts-of-interest before the U.S. Supreme Court.
Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce have been the dominant spenders on Wisconsin Supreme Court races in recent years, in most cases outspending the justices themselves. In 2011, the groups and their offshoots together spent $3.7 million supporting Justice David Prosser, five times as much as Prosser's own campaign, in an election decided by a mere 7,000 votes. Three years before, WMC's spending in support of Justice Michael Gableman had come in at five-and-a-half times what Gableman's own campaign spent, and WiCFG also surpassed the Gableman campaign's spending, in a race he won by 20,000 votes.
In other words, if it weren't for the millions spent by WiCFG and WMC, Justices Gableman and Prosser might not be on the bench at all. Schmitz specifically asked the two to step aside in light of this apparent conflict-of-interest but declined.
"This extraordinary action is, as far as I can determine, unprecedented and could have the effect of insulating the Court's decision from further review," said Susan Crawford, an attorney at Cullen Weston Pines & Bach.
The Wisconsin Supreme Court's majority might have reason to be scared about the prospects of a U.S. Supreme Court appeal. In the 2009 Caperton v. Massey decision, the nation's highest Court held that constitutional Due Process requires that judges recuse themselves in cases like this one.
When a donor "had a significant and disproportionate influence on the outcome" of a judge's election, and when an election was decided by a small number of votes, among other factors, the risk of "actual bias is sufficiently substantial that it ‘must be forbidden if the guarantee of due process is to be adequately implemented,'" the U.S. Supreme Court held.
Although the Wisconsin Supreme Court barred Schmitz from representing the state in further proceedings, it may not necessarily bar an appeal to the U.S. Supreme Court on Caperton grounds. If the justices should have recused in the first place and not heard the case at all, then a subsequent decision from those same justices canning the Special Prosecutor should have no merit.
But rescinding Schmitz' appointment means he would have to work on the appeal for free. As Special Prosecutor, Schmitz is compensated for his legal fees by the state of Wisconsin. Without that appointment, Schmitz would be working without pay, making it exceptionally difficult to mount a complicated U.S. Supreme Court appeal.
"The Court, in terminating the special prosecutor's appointment immediately, knew that its decision would compromise the ability of the special prosecutor--the sole party representing the prosecution—to seek review from the U.S. Supreme Court," Crawford said.
Court Defies even Its Own "Express Advocacy" Rationale
Prosecutors in the John Doe alleged that Walker's campaign had violated the state's campaign finance disclosure laws by asking donors to secretly funnel money to "independent" groups that don't disclose their donors, and then telling the groups how to spend those funds. The Walker administration then prioritized the policies favored by those secret donors, records obtained in the investigation showed.
In its highly controversial decision from July, the Court declared that electoral "issue ads" that stopped short of expressly saying "vote for" or "vote against" a candidate were outside of the scope of Wisconsin law. Therefore, Walker's campaign couldn't have violated any laws by coordinating with dark money groups on "issue ads," even if most viewers would understand the "issue ad" as designed to influence an election.
Only ads expressly advocating for the election or defeat of a candidate were subject to regulation, the opinion stated, and therefore only coordination between campaigns and express advocacy groups is illegal.
So when the Republican Special Prosecutor asked the Court to reconsider its July ruling because there was evidence that the Walker campaign had coordinated with groups engaged in express advocacy, you might think the Court would allow the investigation to proceed.
You would be wrong.
In Wednesday's unsigned decision, the Court's majority declared that Schmitz had not raised evidence of express advocacy coordination early enough in the proceedings--which is false--so the Court would not consider it now.
Dissenting from the majority ruling, Justice Abrahamson noted that "Unlawful coordination, not merely unlawful coordinated issue advocacy, has been the focus of the John Doe investigation from the very beginning." The August 10, 2012 petition to commence the John Doe, for example, "focuses on coordination, and is not limited to express or issue advocacy."
"I continue to believe that the investigation was justified," Schmitz said. "The voters of Wisconsin have a right to know the identity of large donors, corporate and individual, which coordinate with campaign committees."
(Even the Court's July decision was highly questionable. Schmitz pointed out that on the same day that the Wisconsin Supreme Court issued its decision declaring issue advocacy could not be regulated, the Third Circuit Court of Appeals noted that the U.S. Supreme Court has consistently held that disclosure requirements are not constitutionally limited to express advocacy, declaring "there is not a rigid barrier between express advocacy and so-called issue advocacy.")
Will Right-Wing Rhetoric Be Challenged?
The majority's "rationale simply seems invented to justify the pre-ordained desired result," Justice Abrahamson wrote in dissent.
With Schmitz off the case, it is unclear who can represent the prosecution moving forward. The Court previously denied motions by other members of the prosecution team to intervene in the case, even for the limited purpose of preserving evidence.
It is not clear who will implement the Court's mandate that prosecutors compile and catalogue all of the evidence gathered in the probe, and provide notice to each individual investigated in the case.
And, by blocking the other John Doe prosecutors from becoming parties to the case, it becomes more difficult for the prosecutors to defend themselves from the barrage of mysteriously-funded lawsuits filed by Wisconsin Club for Growth's Eric O'Keefe and other opponents of campaign finance limits. The majority suggested that prosecutors might be able to access some evidence but how and under what circumstances are unclear.
This is particularly important because the actual evidence in the court record appears to undermine many of the allegations made in those lawsuits--which, in turn, appear to echo dubious assertions from right-wing blogs rather than actual facts.
Even some Wisconsin Supreme Court justices have fallen for the right-wing rhetoric. Abrahamson's dissent noted that, in July, "The majority opinion and Justice Ziegler's concurrence to the majority opinion relied on facts that were not in the record, citing blogs and media reports as authoritative sources on how the search warrants were executed."
Both Gableman's majority opinion from July and Ziegler's concurrence relied on factually-challenged articles from the Franklin Center for Government and Public Integrity's "Wisconsin Watchdog" website, which produced literally hundreds of stories attacking the John Doe since 2013 but without routinely disclosing that it was launched and funded by Eric O'Keefe, WiCFG's director and the chief plaintiff in the lawsuits challenging the probe. Franklin Center's president until earlier this year, Jason Stverak, used to work for O'Keefe. Its Director of Special Projects, John Connors, is also president of Citizens for a Strong America, another group involved in the investigation and which was funded entirely by WiCFG. Connors also quietly left Franklin Center earlier this year.
The justices' unquestioning endorsement of right-wing bloggers' unsubstantiated claims about unconstitutional "pre-dawn, armed, paramilitary-style raids" were repeated in lawsuits by groups tied to the investigation--and subsequently undermined by actual evidence.
When former Walker aide Cindy Archer filed a federal lawsuit against prosecutors earlier this year, she claimed that the Wisconsin Supreme Court had "found" that prosecutors "subjected targets to 'paramilitary-style home invasions conducted in the pre-dawn hours' in retaliation for their free speech" (when in fact the Court hadn't "found" anything, but instead repeated unsubstantiated online rhetoric).
Those allegations fell apart after prosecutors released a recording of the 2011 search, which showed a cordial and professional investigation.
This matters, Abrahamson noted, because prosecutors are still being sued by the groups and individuals under investigation. The factual record in the John Doe case is necessary so prosecutors can mount a defense based on facts rather than the heated rhetoric advanced by the blogs and media outlets tied to the groups under investigation. But the prosecutors have been barred from intervening in the case.
The factual record can also help the public get a better sense of what was at stake in the decision--but the Court has gone out of its way to keep most filings secret.
"The general rule is that court filings are presumptively open for public inspection," Abrahamson wrote. "Placing filings under seal is the exception to the rule. In the face of virtually total secrecy of filings since July 16, 2015, the public cannot understand the basis for the four justices' decisions," noting that the sealings "raises significant First Amendment, state constitutional, statutory, and common law issues, and may be challenged as erroneous."
"Why the secrecy?," she asked.
This article has been updated to reflect that Mr. Stverak and Mr. Connors left the Franklin Center earlier this year, one-and-a-half years after Franklin began attacking the John Doe criminal investigation.