Federal judge scolds John Doe prosecutors for ’emergency motion’

By M.D. Kittle | Wisconsin Watchdog


ORDER IN THE COURT: A federal judge in a Fourth Amendment lawsuit against John Doe prosecutors will maintain necessary documents from the case.

MADISON, Wis. – A Federal judge on Tuesday scolded prosecutors of Wisconsin’s infamous John Doe investigation for waiting until the last moment to file an “emergency motion” in a class action, Fourth Amendment lawsuit.

Chief Judge William M. Conley of the U.S. District Court’s Western District of Wisconsin took issue with the defendants’ delay, although he issued no penalties.

Conley said he will not allow the defendants to hold onto millions of documents seized in the politically driven investigation, but he would allow them to file necessary records with the court to maintain.

“The judge said they (the defendants) don’t get to keep all of the records in their possession, they don’t get to peruse them at will,” said Edward Greim, an attorney representing the John K. MacIver Institute for Public Policy in the federal lawsuit filed in August against Milwaukee County District Attorney John Chisholm, some of his assistants, and senior staff at the state Government Accountability Board.

“(T)he Defendants have actually sought authority to keep all of the Doe materials themselves and review them as they deem necessary to their defense — a direct challenge to the (State) Supreme Court’s order,” Greim wrote in a recent declaration to the court.

In early October, the U.S. Supreme Court declined to take up Chisholm’s petition to overturn the Wisconsin Supreme Court’s 2015 rulings declaring the secret John Doe investigation unconstitutional and ordering it shut down. Now prosecutors must return the documents and other property seized in their illegal investigation to scores of conservatives targeted. They don’t want to. The court has yet to weigh in on the disposition of millions of records.

The prosecutors will have to make formal requests for “evidence” they deem important in defending themselves should the MacIver lawsuit be allowed to continue.

Conley did allow the defendants to file a motion to dismiss within the next 30 days. He asked MacIver’s attorneys to defend their argument that John Doe judges are a court of limited, not general jurisdiction, an important distinction in judicial rights and functionality.

MacIver, a Madison-based free-market think tank, alleges “John Doe ringleaders” illegally seized the organization’s digital records during the so-called John Doe II probe into dozens of right-of-center groups and many more conservative individuals.

The lawsuit charges Chisholm, a Democrat, and his co-defendants violated the federal Stored Communications Act by “secretly requesting, obtaining, and cataloging millions of personal and politically sensitive emails, contact lists, calendar entries, and associated records from the MacIver Institute and dozens of similarly situated individuals and groups in an attempt to amass a staggering database of political intelligence.”

“Because of their secrecy, defendants denied us the opportunity to ask a court to review their seizures before the harm was done,” Brett Healy, president of the MacIver Institute, said in a statement in August. “Now, years after defendants unlawfully seized and cataloged millions of our sensitive documents, we ask the court to vindicate our rights under federal law.”

Chisholm’s secret probe has been described by critics as a partisan witch hunt, political opposition research through prosecution. The sweeping dragnet, which spread its tentacles well beyond the Badger State’s borders, has raised some alarming First and Fourth amendment questions.

Documents released in previous lawsuits challenging the probe show the prosecutors were clearly involved in a spying operation. One target told Wisconsin Watchdog in June 2015 the property seizures were akin to the tactics used by the National Security Agency’s domestic spying program.

“It was actually worse because (Milwaukee County prosecutors) were taking the body of emails and looking at actual data,” said the source, who asked not to be identified for fear of retribution from the prosecutors.

“The (documents) reveal just how far they went,” the source said. “These warrants reached well beyond what could be seen as real targets.”

Other defendants include Kevin Kennedy, former director of the now-defunct Government Accountability Board, John Doe special prosecutor Francis Schmitz and top investigators and prosecutors who worked the probe.

Brian Fraley, senior fellow at MacIver, was one of many conservatives who learned in December – by court order – that John Doe prosecutors had secretly tapped into his communications.

“Chisholm and the other defendants seized every email, contact, calendar entry, and every document in my account at the MacIver Institute — all without notice or review by a proper court,” Fraley said in a statement.

He said the Stored Communications Act exists to prevent exactly this “kind of abuse and to protect individuals and groups from rogue agents like Chisholm and Kennedy.”

“The law is ideologically neutral, as it should be. The fact that conservatives were the targets and victims here will bring no joy to liberals, for if agents of governments can ignore the law to target their ideological foes, no one is safe,” Fraley said.

The state Supreme Court in December ordered Schmitz to provide notices to people and organizations whose records were seized as part of the secret John Doe investigations. Schmitz sent out 159 notices, but sources say there could be many more.

Despite the court order, Schmitz has refused to disclose exactly what records were seized in the illegal investigation.

“The defendants understood that they were required to provide notice to the targets of their digital dragnet before seizing the records,” Greim, with Graves Garrett, LLC, the Kansas City-based law firm representing the MacIver Institute, said in August. The firm has extensively represented conservative activist Eric O’Keefe, who was one of the key targets in the probe. “Instead, Chisholm and the other defendants intentionally avoided the requirements of federal law and the scrutiny of a proper court in order to build their database of political intelligence as quickly as possible.”

Under the SCA, the prosecutors were required to provide notice to their targets or seek a warrant from a Wisconsin circuit court before seizing their electronic communications, the attorney said.

The law does allow such sweeping digital seizures with prior notice or without notice if the governmental entity obtains a proper search warrant.

But while the judge in the John Doe issued all kinds of subpoenas and warrants, the court is not considered a “court of general criminal jurisdiction,” MacIver argues in its lawsuit. That distinction, under the SCA, could prove problematic for the defendants.

“A John Doe judge is not the equivalent of a court, and a John Doe proceeding is not a proceeding in a court of record,” the lawsuit states.

Greim said the defendants’ legal counsel would not respond to requests to discuss discovery and document presentation even as they worked on their “emergency motion.” They appear to be playing the kind of delay games that have defined their defense of the unconstitutional John Doe investigation throughout the long and costly legal battle.

Counsel for one defendant “would not take calls placed on October 25 or October 26, and failed to return two voicemails left on those dates,” Greim wrote in the heavily redacted court filing. “No attorney for Defendants mentioned the impending late-Friday ‘emergency’ motion at any time.’”