MacIver News Service | January 10 , 2018
By M.D. Kittle
MADISON, Wis. – The Democrat who chairs the state’s Ethics Commission has publicly criticized portions of Republican Attorney General Brad Schimel’s bombshell report on Wisconsin’s infamous John Doe investigation.
But there are some points David Halbrooks and the attorney general seem to agree on: That the disbanded Government Accountability Board left the Ethics Commission with one big mess and that the special prosecutor of the so-called “John Doe II” has much to explain.
Schimel’s report on the 2016 leaks of hundreds of court-sealed John Doe documents to the liberal publication The Guardian found the leaks more than likely came from inside the GAB. It also took aim at the GAB and its successor, the Ethics Commission, for maintaining hundreds of thousands of John Doe-related records long after they were to have been turned over to the custody of the state Supreme Court. And the report detailed “dysfunctional record-keeping at the GAB” and lax security.
Halbrooks laid a good deal of the blame at the feet of Francis Schmitz, the former federal prosecutor and GAB investigator who was tapped by John Doe partners – the GAB and the Milwaukee County District Attorney’s office – to lead the secret political probe.
“All of the information that the Ethics Commission found should have been turned over per the Supreme Court order,” Halbrooks told MacIver News Service in a recent interview. “We don’t know what he took and what he left … He should have gone through the computer files and the filing cabinets in the basement.”“DOJ has discovered that not all John Doe material has been turned over to the Supreme Court by the Special Prosecutor,” Schimel’s report states. #wiright #wipolitics Click To Tweet
Halbrooks said Schmitz, a sworn agent of the John Doe investigation, had the authority to search the material to determine what needed to be removed from Ethics Commission storage. Instead, he left materials in the possession of a new agency that was legally prohibited from looking at the documents. And Ethics Commission staff were left to locate materials for state Department of Justice agents who, too, were limited in what they could examine.
Ethics staff agreed to assist DOJ agents in the search for documents only after the DOJ obtained “an order from the John Doe court that explicitly” granted permission, according to Schimel’s report.
The Republican-controlled Legislature has since asked the DOJ to expand its investigation into the unconstitutional John Doe probe.
“DOJ has discovered that not all John Doe material has been turned over to the Supreme Court by the Special Prosecutor,” Schimel’s report states.
While Schimel said he could not recommend charges at this time, he did ask the John Doe court to initiate contempt of court proceedings against Schmitz and eight other agents of the political investigation.
Schmitz has repeatedly declined to speak to MacIver News Service, but he has told other news organizations that he complied with all court orders on the transfer of John Doe documents.
In November 2016, more than four months after the Ethics Commission replaced the legislatively disbanded GAB, Schmitz told the state Supreme Court that he had finally complied with the court’s order requiring all John Doe “evidence” be turned over.
In 2015, the court declared unconstitutional the John Doe II investigation into dozens of conservative groups and Gov. Scott Walker’s campaign. The ruling ordered the millions of records seized be sent to the custody of the court.
Schimel’s report notes that Schmitz collected 17 boxes and three hard drives and submitted them “in an effort to comply with the Wisconsin Supreme Court’s order.” Schmitz told DOJ investigators that a file cabinet contained three or four drawers of documents.
“He collected the relevant documents and the electronic files and submitted them to the Supreme Court,” the report states. “When he left the GAB office, one box of documents was left in the file cabinet. He did not believe that the documents in this box were covered by the court order.”
Schmitz didn’t discuss any efforts to search for John Doe materials in the basement of the GAB building or on the former GAB servers, the report notes.
He told the court that computer servers containing digital records from the John Doe probe had been wiped clean.
The special prosecutor signed an affidavit stating that, to the best of his knowledge, he had complied with the court’s order. If he intentionally failed to do so or lied to the court, he could face penalties.
Some targets and others spied on in the John Doe investigations tell MacIver News Service that the things seized from them have yet to be returned.
“I didn’t get anything back. Who has it? Who has seen it? I have many of the same questions I had two years ago,” said a legislative staffer who in 2015 was notified by the special prosecutor that John Doe investigators had seized his digital records from 2009 and 2010.
Interestingly, he was not a state government employee at the time investigators sought subpoenas for his emails and other electronic communications.
The Government Accountability Board, the state’s former “nonpartisan” speech cop, proved to be more partisan than originally suspected, the state Department of Justice report found. For reasons that “perhaps may never be fully explained,” GAB held onto thousands of private emails from Wisconsin conservatives in several folders on their servers marked “Opposition Research.” The report’s findings validate what conservatives have long contended was nothing more than a witch-hunt into limited-government groups and the governor who was turning conservative ideas into public policy.
“Moreover, DOJ is deeply concerned by what appears to have been the weaponization of GAB by partisans in furtherance of political goals, which permitted the vast collection of highly personal information from dozens of Wisconsin Republicans without even taking modest steps to secure this information,” the report states.
The Ethics Commission charged that portions of Schimel’s report contained “omissions and inaccuracies” because of its characterizations of the agency’s security and storage practices. Commission members say the agency has improved security at the old GAB building. The Attorney General stands by the DOJ’s findings.
Schimel has said Ethics officials were slow to turn over John Doe documents, but Halbrooks said that both Ethics Commission staff and the DOJ were hamstrung by the GAB and John Doe secrecy orders.
Halbrooks said the Ethics Commission will continue to cooperate with the Department of Justice in its investigation into the John Doe. Cooperation, he said, is critical in answering questions about the conduct of John Doe actors.