New John Doe Judge Wants To Know What He’s Empowered To Do

MacIver News Service | February 1, 2018

By M.D. Kittle

GREEN BAY, Wis. – The newly appointed judge who could decide whether agents of Wisconsin’s infamous John Doe investigation should be punished for their conduct wants to know what his authority is – where it begins and where it ends.

“The authority of the John Doe judge must be resolved before any actions are contemplated,” Kelley said.

It’s an interesting predicament for newly named John Doe Judge Kendall M. Kelley, the latest judge to take the reins of an unwieldy and unprecedented case that was supposed to have been settled by the state Supreme Court in 2015.

On Thursday, the Brown County Circuit Court Judge began what could be an involved legal process that, in part, will determine whether nine agents of the politically motivated “John Doe II” investigation will be held in contempt of court – as recommended by Wisconsin Attorney General Brad Schimel.

Kelley told a courtroom full of attorneys, John Doe prosecutors, government bureaucrats, and at least one target of the unconstitutional probe that the point of Thursday’s hearing was “very limited in purpose.” First and foremost, he wants to know what he can and cannot do in presiding over a body of cases (within the John Doe II controversy) that are under court seal.

“The authority of the John Doe judge must be resolved before any actions are contemplated,” Kelley said.

He asked the interested parties assembled in the courtroom – and present via telephone – to answer in legal briefs three categories of questions on the authority of the John Doe court and the other principle players in the case. If they confine their briefs to the questions he raised, Kelley said the attorneys’ contributions “will be appreciated.” If they don’t, the briefs will not be considered.

The judge’s questions were broad and, in some respects, may be difficult to answer.

What is the legal status of the John Doe investigation? he said. The Wisconsin Supreme Court in 2015 ruled the secret campaign finance probe into dozens of conservative groups and Gov. Scott Walker’s campaign was unconstitutional and ordered it shut down. It took the further step of ruling that the position of the special prosecutor (Francis Schmitz) was invalid since its inception. Yet, Schmitz was ordered by the court to collect volumes of John Doe records and turn them over to the custody of the Supreme Court.

“What is the independent authority of a John Doe judge after a case has been completely resolved by the Wisconsin Supreme Court?” Kelley asked.

Legal Shadows

The John Doe may be dead, but its legal shadows linger on. Most notably, the state Department of Justice report in early December that found hundreds of John Doe documents leaked to liberal publication the Guardian appear to have come from inside the state Government Accountability Board. The GAB, Wisconsin’s former political speech cop, was disbanded by the Legislature in 2016 following revelations about the agency’s leading role in the abusive John Doe – launched in 2012 by Milwaukee County District Attorney John Chisholm, a highly partisan Democrat.

“What if any authority does the Legislature have to attempt…to intervene in closed investigations?” the judge asked, an important question with legislators looking to form a bicameral committee to investigate the John Doe.

The DOJ report found that GAB agents, Schmitz, and Milwaukee County DA prosecutors and investigators mishandled the documents that they illegally seized from scores of conservative citizens and others who were indirectly swept up in the probe. Some private emails were contained in folders titled, “Opposition Research,” and important files related to the investigation have gone missing.

Attorney General Brad Schimel, a Republican, did not file charges but recommended the John Doe judge initiate contempt of court charges against some of the John Doe agents.

But Kelley wants to know, who apart from the Wisconsin Supreme Court has authority to take any action on a largely sealed investigation? What authority does the attorney general’s office have in pursuing investigations like the probe the state Legislature has instructed the AG begin in the wake of the findings in the leak case?

“What if any authority does the Legislature have to attempt, through the attorney general’s office, to intervene in closed investigations?” the judge asked. “In writing the legislation, did the Legislature contemplate its own intervention?”

It’s an even more important question now that lawmakers are looking to form a bicameral legislative committee to investigate the John Doe and compel agents to testify under oath.

And Kelley wants to know what laws apply to the John Doe investigation. The Legislature in 2015 reformed Wisconsin’s unique John Doe procedure, first and foremost prohibiting such secret investigations into alleged political crimes. The reforms also lifted the veil of secrecy from John Doe targets. In “John Doe II,” targets and witnesses faced hefty fines and jail time if they spoke publicly – or to anyone, really – about the investigation. The gag orders were in place even as targets’ homes were subjected to predawn, armed raids.

Are the John Doe matters before Kelley bound by the new law? The old? A combination?

And, overarchingly, Kelley asked, “What legal authority can be offered to draw any conclusion other than the Wisconsin Supreme Court ended the investigations under either statute?”

Kelley gave the interested parties, including the Attorney General’s office, 60 days to file their briefs with the court.

While he said he had not reviewed any of the John Doe documents under seal, it was clear Kelley had extensively read the Supreme Court’s 4-2 ruling declaring the John Doe unconstitutional. The judge described the decision as a “legal, thoughtful, clear” opinion. He pointed to the concerns raised in two concurring opinions that “correctly” laid out the legal abuses in the John Doe probe. He said the Legislature used “proper authority to extensively modify” the John Doe statute to limit any “future abuses” under the statute.

“In short, while the wound for many may have been substantial, remedies apparently have been taken from all sources to heal those wounds,” Kelley said.

Chisholm and Schmitz declined to comment following the proceedings. Recently retired Milwaukee County District Attorney David Robles, a key and, sources say, particularly partisan force in the investigation, also declined to answer MacIver News Service’s request for comment.

Eric O’Keefe, a conservative activist who was targeted in the John Doe, said while he was surprised by Kelley asking the various parties to offer their thoughts on the John Doe judge’s job, it was sought with “an abundance of fairness.”

“I’m in the unusual position of having fought hard to close down the John Doe and now wanting some work done by somebody on behalf of the taxpayers of Wisconsin to get some justice because of the abuses that happened,” said O’Keefe, a director of the Wisconsin Club for Growth, which, like so many other conservative groups was spied on by the John Doe agents.

He said it was “creepy” sitting so close in the courtroom to the men who tried to destroy him and others.

“I would like to see some justice for the people who attacked us under color of law. Today may be the beginning of that process,” O’Keefe said.

“They conducted an investigation that was illegal from its inception. Its motive was political. Its purpose was political. Its tactics violated the constitution of the United States and the constitution of the state of Wisconsin,” O’Keefe said.

“Our actions at the Wisconsin Club for Growth have always been legal. It didn’t depend on some recent Supreme Court decision to make it legal,” he continued. “The raids on the family homes of people with no criminal record, in the dark, have never been proper, legal or constitutional in Wisconsin.”

“I would like to see some justice for the people who attacked us under color of law. Today may be the beginning of that process.”