MacIver News Service | July 31, 2017
By M.D. Kittle
[Madison, Wis...] Some guys just can't walk away.
Kevin Kennedy apparently is one of those guys.
Wisconsin's longest-serving free speech cop retired more than a year ago, on the verge of being unceremoniously shown the door. But the man who presided over the collapse of the state Government Accountability Board, in the wake of arguably Wisconsin's most infamous political investigation, likes to reminisce about the good old days.
Kennedy waxes nostalgic for a simpler time when, with the help of the now-defunct GAB, law enforcement agents could storm into the private homes of citizens at the break of dawn in pursuit of campaign finance law violations. He seems to long for the return of years-long spying operations from partisan prosecutors and "ethics" attorneys, collecting mountains of personal information ultimately used as opposition research by their friends on the political left.
And he seems to lament that multiple courts put an end to an unconstitutional investigation into just about every right-of-center organization in the state - an investigation deploying a "screamingly unconstitutional" tool that froze conservative speech and destroyed the lives of innocent people.
Kennedy shared his sob story of bureaucratic love and loss in December with an organization and people the career government administrator has often found succor - the innocuous-sounding Council on Governmental Ethics Laws, or COGEL. The acronym kind of sounds like cudgel, and that's a more fitting descriptor for a government regulator cabal efforting to reset the First Amendment in its likeness.
In a presentation befitting a man who seems to be carrying a heavy martyr complex, Kennedy, according to multiple sources, broke down the fall of the GAB in 2015-16, when the Republican-controlled state Legislature put an end to the ruse that was the "nonpartisan" accountability board.
"A View to a Kill: A Behind-the Scenes Look at the Demise of the GAB" was Kennedy's chance to tell his sympathetic audience all about the ills of free-market speech and share some details about the years-long John Doe probe his agency helped lead.
That last bit of sharing not only showed incredibly poor judgment on the part of Mr. Kennedy, it could land him in serious legal trouble, according to an attorney who represented one of the targets of the Doe.
Bound by John Doe
Kennedy rolled out a PowerPoint presentation during his Tuesday, Dec. 13 morning chat with old speech cop pal and event moderator Michael Sullivan, director of the Massachusetts Office of Campaign and Political Finance, according to multiple sources with knowledge of the New Orleans conference. Sources confirm that, unlike many of the COGEL conference presentations, there is no public record of Kennedy's session. There are a few surviving photos and tweets on Twitter, government employee notes obtained by MacIver News Service, and the COGEL agenda description.
A source familiar with the situation said Kennedy showed the audience a copy of a Sept. 14, 2016 story from liberal British news publication, the Guardian, that included hundreds of pages of leaked documents from the court-sealed John Doe case.
"He put it on a projector PowerPoint with the (Guardian's) website address and told everybody to go and look at it," said the source, who asked not to be identified for fear of retaliation.
The Guardian story triggered a state Department of Justice criminal investigation to uncover whether those legally bound to protect the John Doe documents from public view broke the law.
Kevin Kennedy, it would seem, is one of the legally bound.
While he is no longer employed by the Wisconsin Ethics Commission, the successor of the Government Accountability Board, the GAB's former executive director and general counsel was a direct party in the administration of the John Doe investigation. Kennedy and his agents worked hand in hand with investigators and prosecutors of the Democrat-led Milwaukee County District Attorney's office, his board authorized the agency's role in the Doe, and the GAB's former contracted John Doe investigator was hand-picked to serve as the probe's special prosecutor.
Refresher: Wisconsin's John Doe procedure was established before statehood, and has long been used as a secret investigatory process to determine whether a crime may been committed. The secrecy surrounding the investigations was designed to protect the reputations of those being investigated, should no charges ever come from the probe. Unlike its legal cousin, the grand jury, the John Doe is presided over by a judge with extraordinary power to compel witnesses to testify, not a jury of peers. It is not an adversarial process. John Doe judges work closely with prosecutors to make sure they have what they need to determine whether to bring charges forward. And, unlike a grand jury, targets in a John Doe procedure can't step out of the closed proceedings and declare their innocence. Doing so could land them in jail or heavily fined.
That is the threat that dozens of conservatives lived under for years, even as some had their homes raided, their private possessions rooted through, and their reputations ripped apart in state and national news publications.
But the John Doe law, reformed by the Legislature in 2015 to prohibit secret political probes, also demands secrecy from the officers of the Doe.
While the state Supreme Court in 2015 declared unconstitutional the John Doe investigation into 29 conservative groups and ordered the probe shut down, the legal secrecy order remains in effect for officers of the investigation.
That would include Kennedy, according to Madison defense attorney Dean Strang.
"I think that from what I know and the notes that I saw, he probably did violate the John Doe confidentiality requirements. It seems to me that is a real concern, that he was disclosing information that by statute can't be disclosed in that setting or by that person. That's how it struck me," said Strang, who represents one of the unnamed movants in the state lawsuit that brought down the Doe.
John Doe statute states a secrecy order "may only apply to the judge, a district attorney or other prosecuting attorney who participates in a proceeding under this section, law enforcement personnel admitted to a proceeding under this section," etc. The Government Accountability Board and staff were admitted to the John Doe investigation, "a decision made by the (Milwaukee County) district attorney and the John Doe judge..." Kennedy wrote in response - or nonresponse - to a previous open records request by state Sen. Rep. Dave Craig (R-Town of Vernon), who was a state representative at the time.
The John Doe law lays out that anyone (prohibited from doing so) who "intentionally discloses the contents of any oral, electronic or wire communication obtained by authority under (the statute), except as therein provided," is guilty of a Class H felony.
Kennedy also was bound by confidentiality language written into the law that created the now-defunct GAB over which he mourns. He and his staff members during the John Doe on many occasions told reporters that they could be in serious trouble if they said anything publicly about a John Doe investigation, or the agency's own probes. The GAB often declined comment on the John Doe investigation, citing the confidentiality clause.
"Were I to respond, I could be charged with a felony and face nine months in jail, a $10,000 fine or both," GAB spokesman Reid Magney told Wisconsin Watchdog during the John Doe legal battles. That provision in the main doesn't go away, even after a court closes out an investigation. That's what plenty of citizens caught up in the investigations over the years have been told.
It's not clear whether Kennedy would get a pass because he no longer is an employee of the GAB or its successor. Strang and other legal experts couldn't be certain.
Officials involved in the probe also are prohibited from disclosure under the orders of various courts.
'I Don't Remember'
Attempts to reach Kennedy, including at his Madison home and through several colleagues, were unsuccessful. Two top officials from the Ethics Commission said they did not know how to reach Kennedy. One of the commission staffers, David Buerger, is the current staff counsel who worked for Kennedy for years as an elections specialist in the old GAB.
Contacted by MacIver News Service Friday, Buerger acknowledged that he attended Kennedy's presentation. But he had a heck of a time remembering what his old boss said.
"I don't remember off the top of my head what his presentation included," Buerger said.
He claims he doesn't remember Kennedy showing the Guardian story and some of the accompanying leaked documents to the audience. He doesn't remember, as the source with knowledge of the event wrote down in his notes, Kennedy saying that what those records really showed was Gov. Scott Walker and public officials (and the activists who agree with their limited-government policy goals) "groveling before rich and powerful men for political support of their agenda."
Walker's campaign officially was one of the 29 conservative groups swept up in the probe, but the quest clearly was to get the successful Republican governor.
Kennedy, according to the source, also compared Walker and the subjects of the Doe to "poor people we have run across in the French Quarter begging for food and sleeping in the street."
"What does it say about our democracy that the people who make our decisions are supplicating sycophants," Kennedy was heard saying in his COGEL discussion. "Like our treatment of people we see on the streets, the public tends not to solve the problem."
Of course, Buerger could always refer to his notes to jog his memory. He took a few pages during Kennedy's session, including a line on the "John Doe II investigation," and "Guardian & O'Keefe releases of documents," according to records obtained by MacIver News Service. The O'Keefe in question presumably is Eric O'Keefe, a political activist targeted in the campaign finance dragnet who, along with other conservatives, lost much in fighting back against the politically driven probe.
Perhaps Kennedy would explain that he released nothing that wasn't already publicly consumed from the Guardian coverage, and in the wave of publications that reprinted the court documents.
If all of that is true, Strang said Kennedy still did not display "great judgment."
"This is someone who was formerly the executive director of what was supposed to be an apolitical oversight agency engaging in a very charged political speech that I think would cause fair-minded people to wonder whether he took an apolitical position in the past and whether the same sort of charged viewpoint may persist in the staff who carried over into the successor agency (the Ethics Commission)," the attorney said. "I understand Kevin Kennedy is a private citizen. I'm talking about judgment here and fidelity to a past role."
As they say in politics, the optics aren't real good. The former director of the "nonpartisan" accountability board publicly bashing the people targeted in the John Doe after years of claims he and his agency were not engaged in a partisan witch-hunt. The same "good government" guy the left has long gushed over is praising the reporting and discussing the leaked information from the Guardian, even as the state Department of Justice is collecting evidence and reportedly conducting interviews with former GAB staff about the same said leaks.
As MacIver News first reported, the ethics commission has to ask the governor's office to provide outside counsel to represent staff members in DOJ investigative interviews.
Sen. Tom Tiffany sought and obtained hundreds of pages of Ethics Commission documents related to the COGEL event through a state opens records request.
The Hazelhurst Republican said it's clear that Kennedy has "no remorse" for the abusive First Amendment investigation he helped push.
"My understanding, if he's releasing information in regards to the John Doe, he would be breaking the law," Tiffany said, adding that, "I'm very anxious to know the opinion of the (state) Department of Justice in regards to that."
"It's time for Kevin Kennedy to reveal who is leaking to the Guardian because I think he knows who it is," Tiffany said.
And what of Buerger and Ethics Commission administrator Brian Bell, who also attended Kennedy's presentation? Did they have a legal obligation to report this apparent breach of the John Doe confidentiality orders?
Well, they claim they don't remember much of what Kennedy said.
"I don't remember specifically what he showed in speaking about the Guardian (story) and I really am not as familiar with the restrictions of the John Doe other than what has been publicly reported," Bell said. At the time of Kennedy's chat, Bell said he was dealing with commission concerns and wasn't paying attention to much of it.
"None of the commission or staff are, to my understanding, covered by any of the secrecy orders related to the John Doe. I believe that was limited to the members of the GAB," he said.
What about the innocent people Kennedy, the GAB, the special prosecutor and the Milwaukee County District Attorney's office hounded - the ones who were told by law enforcement that they, their spouses, their children, could face steep penalties if they talked about the John Doe?
You'll forgive them if they have little sympathy for Kevin Kennedy and the "demise of the GAB."