MacIver News Service | February 15, 2018
By M.D. Kittle
MADISON, Wis. – Earlier this month, newly appointed John Doe Judge Kendall M. Kelley effectively asked a room full of lawyers to tell him what his job is and what authority he has in dealing with the fallout of Wisconsin’s unconstitutional “John Doe II” investigation.
Is he even the right person to be dealing with these matters, Kelley, the latest in a long line of John Doe judges, asked.
He is, and he needs to get down to work, Attorney General Brad Schimel told the judge in a letter answering some of Kelley’s key questions.
The letter, sent Wednesday, also includes a startling revelation: John Doe agent Dropbox and email accounts on third-party servers containing secret, illegally seized John Doe records were still active, Schimel wrote, when he originally asked the John Doe court to initiate contempt of court charges against nine former government agents involved in the unconstitutional probe.
“The letter asked the John Doe Judge for remedial contempt; in other words, the John Doe Judge should order the individuals who created and own these accounts to close them and to ensure that no secret and/or sealed materials remain on Google or Dropbox servers,” Schimel states.
Attorneys and staff members at the disbanded Government Accountability Board were found to have used secret Gmail accounts in communicating with the Milwaukee County District Attorney’s Office – the GAB’s John Doe partner – in communicating about the secret investigation.
Following the release of the state Department of Justice’s bombshell report in December that found the GAB had badly mishandled the hundreds of thousands of documents related to the political John Doe II investigation, Schimel asked the John Doe court to refer Falk to the Office of Lawyer Regulation.
But Kelley’s first act was to give multiple “interested parties” – including the John Doe agents who conducted the abusive investigation – 60 days to tell him what they thought his job was. Schimel said DOJ originally referred the matter to the John Doe judge because “we believed that such a referral would be the most logical and appropriate …”
“Given the pending questions, however, concerning your authority and the related delay (to at least April 1, 2018, and beyond), I have decided to refer Shane Falk directly to OLR myself,” Schimel wrote.
The DOJ investigation found that an illegal leak of hundreds of John Doe documents to the liberal publication, The Guardian, very likely came from inside the GAB. Among other violations, the report found Falk, a highly partisan lead agent in the campaign finance investigation against conservatives, repeatedly violated a previous John Doe judge’s order.
With the investigation effectively first shut down in January 2014, the judge ordered John Doe agents to no longer collect or review the hundreds of emails, text messages, financial statements and other information they had illegally seized. Falk continued to ask his colleagues to save and print documents long after the judge issued the order, the DOJ investigation found.
“In this referral, we will attach emails derived from search warrants, along with a redacted version of the John Doe Judge’s Stay of Proceedings, dated January 27, 2014,” Schimel wrote. “This order and these emails may be used by the Department under the February 15, 2017, order from (former John Doe) Judge Wambach, which provides that the Department may ‘make use of such materials in their investigation and to the extent necessary for the performance of their duties as investigators and prosecutors.’”
In his letter, Schimel provides the judge information that “may short-circuit” any remaining concerns.
Kelley has the authority to act, Schimel said. He always has. It was given to the appointed John Doe judge by the state Supreme Court, after it ruled in 2015 that the investigation into dozens of conservative groups and Gov. Scott Walker’s campaign was unconstitutional and highly abusive.
The court also ordered the political investigation closed. Because it did, the John Doe statute, which was amended by the Legislature anyway, has “little bearing” on Kelley’s role in the case.
“In fact, the crimes alleged to have been investigated during the John Doe proceedings can no longer be the subject of a John Doe proceeding, and neither can the leak of secret materials from the John Doe proceeding,” the attorney general wrote.
At the hearing earlier this month, Kelley admitted that he had not had a chance to read the relevant material in the case.
But the Wisconsin Supreme Court answered Kelley’s question about his authority on Nov. 23, 2016, after a long legal battled played out, with the U.S. Supreme Court unanimously rejecting the John Doe prosecutors’ request that it review the state Supreme Court ruling.
The state Supreme Court ordered former John Doe prosecutor Francis Schmitz to collect the “evidence” obtained through the probe and file it with the court clerk. Schmitz, one of several John Doe agents facing possible contempt of court charges, “partially complied” with the court’s order and “delivered some material to the clerk,” according to the attorney general.
The state Supreme court declared there is a “need for a judge to remain in place over the John Doe II proceedings.” Said judge – now Kelley – is needed to “handle the wind-up of the John Doe II investigation pursuant to the directions of this court.”
And, the court ordered, the John Doe judge should “resolve future disputes about the matters related to the John Doe II investigation and proceedings,” including “disputes regarding the John Doe II evidence.”
The matters now before Kelley certainly are disputes regarding John Doe II evidence.
Schimel notes that Kelley’s predecessors issued several orders related to the evidence and the leak investigation, including search warrants.
“These (sealed) orders will help you understand what types of actions your predecessors took under the authorities granted by the November 2016 order,” Schimel wrote.
The attorney general asserts Kelley is the only person who can initiate contempt of court proceedings against Schmitz and eight other former John Doe agents because the Supreme Court directed such matters be taken up by the judge “in the first instance.” And the John Doe judge, according to Supreme Court precedent, has a “clear duty” to investigate possible violations of secrecy orders.
Above all, the targets of the abusive investigation, including people who had their homes raided before sunrise, just want their stuff back.
“It is our understanding that some individuals may want you to take action to return this property (or at least to provide access) to those victims of this illegal investigation,” Schimel wrote. “I strongly support this action, so long as special procedures are in place to ensure that the victims’ property (i.e. email accounts) are not disclosed to third parties.”
Schimel also recommends that the court unseal all orders, motions, and briefs in the John Doe files, as well as the former GAB and Milwaukee County District Attorney office Gmail accounts.
“Such an order will allow the public to see at last the full scope of the activities undertaken as part of this investigation,” the attorney general wrote.