By M.D. Kittle | Wisconsin Watchdog
MADISON, Wis. – Now that John Doe is legally dead, two targets of the politically driven investigation are calling for the rapid return of the possessions prosecutors illegally seized from them, and they want a criminal investigation into leaked documents from the court-sealed case.
Meanwhile, Wisconsin Attorney General Brad Schimel reportedly has expressed the leaks may have been the work of a hacker, according to a new court filing.
“Every copy or original, in whatever format, of documents or other items gathered in relation to the John Doe investigations must be returned to their original owners” by no later than Nov. 2, attorneys for two unnamed movants wrote in a motion for immediate supervised return of property. It was filed Friday afternoon.
The court filing asks that the current John Doe judge, David J. Wambach, “or a special master” appointed by the judge or the Supreme Court oversee the immediate return of all documents and other items retained in the so-called “John Doe II” investigation. They want partisan Milwaukee County District Attorney John Chisholm, his assistants and the former John Doe special prosecutor to keep their hands off of the 6 million-plus records they illegally seized in the unconstitutional probe.
“(T)he former special prosecutor and other members of the John Doe investigative team now have proven themselves unable to assure compliance with this Court’s orders as to disposition of materials they gathered. The leak itself demonstrates, at best, their inability to control disposition of those materials,” the motion states.
More so, the motion lays out why a criminal investigation is in order, and why there is strong evidence to suggest that last month’s leak to the liberal British newspaper, The Guardian. The publication and, subsequently, mainstream media in Wisconsin and nationally picked up on the 1,350 leaked documents in painting a narrative of an illicit “pay-to-play” system involving Republican Gov. Scott Walker and dozens of conservative issue advocacy groups.
Multiple courts, including the Wisconsin Supreme Court, however, have rejected the prosecutors’ theory alleging illegal coordination and campaign finance violations. The court in 2015 ruled the probe unconstitutional and ordered it shut down. The majority opinion declared that the special prosecutor perpetrated a “perfect storm of wrongs” on citizens who did nothing wrong.
Originally, the court ordered all of the seized records returned to their owners and copies destroyed. It held off on that order after Chisholm, the Democrat who launched the John Doe more than four years ago, petitioned the U.S. Supreme Court to review the state court’s ruling and overturn it. He and two other Democratic district attorneys argued that their campaign finance theory was correct and that should the U.S. Supreme Court toss out the ruling, the prosecutors would continue their political probe.
On Monday, Chisholm and his partners got a big fat no from the high court, which rejected the petition at its first opportunity.
Now that the matter has been legally resolved, the conservative targets are asking for an immediate criminal investigation into the disclosure of the documents that appeared in The Guardian.
Attorneys for the unnamed movants note that the state Supreme Court’s original orders on the return and destruction of materials taken in the John Doe probes “did not anticipate the illegal disclosure of documents to The Guardian that occurred or was revealed in September 2016.”
They note that the attorney general and Chisholm have acknowledged such disclosures constituted a crime.
“The Attorney General later has acknowledged in a private conversation the possibility of an outside hacker,” the filing states. “Regardless of the source or reason for the disclosures to The Guardian, those disclosures likely were contempt of this Court’s orders and in violation of orders entered by the John Doe judges who preceded Judge Wambach. The disclosures also constituted one or more state-law crimes.”
Schimel spokesman Johnny Koremenos said the Wisconsin Department of Justice does not comment on or discuss “specific details that could jeopardize a potential or ongoing investigation.” Although, it is not clear that there is an ongoing investigation being conducted.
The motion suggests a trail leads to prosecutors or individuals they worked with as the likely source of the leaked documents.
Those records disclosed in The Guardian include unsigned drafts of later filings by the John Doe prosecutors and some others “bearing handwritten marginalia likely added by an employee of the GAB, a John Doe prosecutor, or their agents.” The now-defunct state Government Accountability Board, or GAB, played a leading role in the John Doe.
The leaks also included some sealed records never provided to the unnamed movants and “metadata reveal that many of these documents were scanned in the Central time zone on the Friday afternoon before Memorial Day weekend 2016.”
“So there is a strong likelihood that the disclosure of at least some of those documents is attributable to one or more of the John Doe prosecutors or their agents,” the motion states. “For that reason, it would be inappropriate to allow one of the five district attorneys involved in the John Doe investigation to conduct the criminal investigation.”
Chisholm has not returned Wisconsin Watchdog’s dozens of requests for comment.
The conservatives add that the “privacy and reputations of innocent persons who were named in disclosed documents, or whose documents those were, have been damaged unfairly and unlawfully.”
The only exception to the portion of the motion that seeks the return of property would be the records retained by the U.S. District Court for the Easter District of Wisconsin. Liberal federal Judge Lynn Adelman had sought custody of related John Doe documents that could be used by prosecutors to defend themselves against a civil rights lawsuit. The movants say they will address that court separately.
Just what the state Supreme Court intends to do remains unclear five days after the U.S. Supreme Court decision. A spokesman for the Wisconsin court has said he can only reference what is in the John Doe case file. As of Friday, nothing in that file included the court’s next step.