The Case Against the Prosecutors

Abuses by John Doe Prosecutors

A. Constitutional infringements

(1) Speech and association:

The prosecutors do not contest that their conduct deprived victims of their First Amendment rights.

The First Amendment injury was immediate. The WI Club for Growth was also paralyzed. Its officials could not associate with its key supporters, and its funds were depleted. It could not engage in issue advocacy for fear of criminal sanction.

A district court found the victims “are likely to succeed on their claim that the defendants’ investigation violates their rights under the First Amendment, such that the investigation was commenced and conducted ‘without a reasonable expectation of obtaining a valid conviction.’”
The victims’ speech on the issues prevails over the prosecutors’ attempt to criminalize and suppress it, for three independent reasons. First, issue advocacy is absolutely protected by the First Amendment and cannot be constitutionally restricted. Second, even if the First Amendment does (in the abstract) allow restrictions on issue advocacy, such restrictions could not be constitutionally imposed under Wisconsin’s campaign-finance system because they would also ban vast swaths of indisputably protected speech and association, rendering the law unconstitutionally overbroad and vague. And third, even if Wisconsin law could be constitutionally applied to regulate issue-advocacy expenditures coordinated with a candidate for office, Defendants cannot identify any expenditure by Plaintiffs relevant to Walker’s recall election, much less one that was coordinated with him or his campaign.

(2) Privacy (home raids, broad subpoenas, and illegal confiscations):

Early on the morning of October 3, 2013, armed officers raided the homes of political activists across Wisconsin, including associates of the Club.
Among the materials seized were many of the Club’s records, which were in the possession of various associates. Defendant Nickel signed the affidavits for probable cause…. Also on October 3, the Club’s accountant and directors, including O’Keefe, received subpoenas demanding that they turn over the Club’s records from March 1, 2009, to the present. This included donor information, correspondence with their associates, and all financial materials.

The prosecutors informed the victims that they do not intend to respect First Amendment privilege in making use of the documents they seized.

 

B. Prosecutorial abuse

(1) GAB consent decree:

The prosecutors contacted GAB in August 2012 and shared with it materials discovered in their investigation. GAB staff members began assisting the prosecutors and continued to be privy to secret information. . . . GAB’s involvement violated its 2010 settlement agreement with the Club that it would not enforce parts of GAB Rule 1.28, which attempted to expand Wisconsin’s definition of express advocacy—and thereby the reach of its campaign-finance regime—to the Club’s issue advocacy.

(2) GAB’s hidden role in the investigation:

The prosecutors went to great lengths to hide GAB’s involvement in this matter, with GAB’s Executive Director Kevin Kennedy even filing an affidavit in the Wisconsin Court of Appeals testifying that the GAB was only a “third party” to the proceedings.
Chisholm did not inform Attorney General Van Hollen that GAB had been participating in the investigation since 2012. . . [and] Chisholm did not disclose to Doe Judge Kluka that GAB had been involved for at least a year or that the Board had appointed a special prosecutor (Francis Schmitz) for its investigation four days earlier.

(3) No basis for investigation:

The victims are likely to succeed on the merits because the facts show that victims targeted Wisconsin conservatives for harassment, threats, and abuse based on a pre-textual legal theory under which Defendants never had any hope of obtaining a valid conviction.
After years of investigation, the prosecutors have been unable to identify a single advertisement by the Club so much as referencing Governor Walker when he was a candidate. Under well-established law, the prosecutors could have had no reason at all to suspect that the Club was engaged in any impropriety.

(4) Pre-textual efforts to cover retaliatory conduct:

The stated purpose of the investigation was to identify the origin of $11,242.24 that went missing from the coffers of a local charity. But that was not the true purpose. The origin of the funds was never in doubt: they were donated by the Milwaukee County Executive’s Office.
Between May 5, 2010, and May 3, 2012, the prosecutors filed at least 18 petitions to formally enlarge the scope of the John Doe investigation, and each was granted. That amounts to a new formal inquiry every 5-1/2 weeks, on average, for two years.

In August 2012, Asst. DA David Robles petitioned to convene a second John Doe proceeding. The stated purpose of the proceeding was to investigate alleged coordination involving the Club, 28 other conservative social-welfare organizations, Gov. Scott Walker, and FOSW in 2011 and 2012.

In January 2013, Chisholm approached Wisconsin Attorney General J.B. Van Hollen with the ostensible concern that the investigation “was leading to subjects outside of [his] office’s prosecutorial jurisdiction.” This reason was a pretext, as the prosecutors had been investigating persons outside their jurisdiction for years and had even obtained at least one conviction of such a person.

Were there any lingering doubt as to the prosecutors’ true aims, their decision to target nearly all conservative activists in Wisconsin, the timing of investigatory actions to influence key political events, their leaking information to media sources to inflame public opinion, their disparate treatment of conduct by left-leaning activists, the severity of their methods, and their overall course of conduct over a period of nearly four years all evidence their retaliatory motive.

Almost immediately, the prosecutors broadened the investigation in an increasingly politicized direction until they had the entire Wisconsin conservative movement in their crosshairs (adding an unrelated “Gardner” investigation, targeting Walker employees immediately, investigating an alleged real-estate bid, investigating alleged sexual misconduct,  and investigating all organizations that supported the Budget Repair Bill).
The prosecutors timed raids to coincide with political events (including raiding Walker’s office the day before the 2010 gubernatorial election, and leaked details of the probe to the Milwaukee Journal Sentinel…).

The prosecutors contrived a series of pre-textual legal theories—including a non-existent prohibition on “coordinated fundraising” and restrictions on coordinated issue advocacy unrelated to the candidate with whom it was allegedly coordinated—to support their targeting and investigation of conservative activists.

 

The Prosecutor’s absurd legal theories to defend their abuses

A. Coordination of fundraising

The prosecutors argue that fundraising solicitations for the Club involving Governor Walker could evidence unlawful coordination.  The prosecutors have also briefed the Wisconsin Court of Appeals on a theory of “coordinated fundraising,”

First, while the prosecutors suggest (and argued vigorously in state court, that coordinated fundraising for the Club violates Wisconsin law, they fail to identify a single provision of Wisconsin law that would actually be violated.

Whatever legitimate interest the government may have in regulating coordinated expenditures, it has no interest at all in regulating contributions other than to candidates and parties, because such contributions present no direct risk of quid-pro-quo corruption. That was the point of Barland I, where the Seventh Circuit Federal Court struck down Wisconsin’s statute limiting aggregate annual contributions to political committees.

B. Coordination of Expenditures

(1) When the expenditures cover issue advocacy:


The prosecutors have failed to identify a single broadcast advertisement by the Club that so much as referenced Walker during the petition drive and special-election campaign.

District Judge Peterson concluded that there was no reason to believe any of the targets had violated Wisconsin law, which requires express advocacy for coordination between candidates and independent organizations to be illegal.

Long before the prosecutors commenced their investigation, they should have known from Buckley (1976) and WRTL (2007) that genuine issue advocacy (as opposed to paying a candidate’s bills) cannot be regulated as a campaign contribution.  The prosecutors’s cases are not to the contrary, with all but one concerning express advocacy or acknowledging that they do not address issue advocacy.

Whether or not a state could regulate coordinated issue advocacy under some other statutory scheme, this statutory scheme must be subject to the same limiting construction applied in Buckley and WRTL, excluding issue advocacy from its reach.

The district court also found that “… it is still unlawful to target the plaintiffs for engaging in vigorous advocacy that is beyond the state’s regulatory reach.” Analyzing various constitutional precedents, the court held that the prosecutors targeted the victims even though their advocacy was beyond the prosecutors’ reach.

While the First Amendment allows limited restrictions on campaign-related speech where necessary to guard against quid-pro-quo corruption, the Supreme Court held that speech on the issues, as opposed to speech advocating the election or defeat of a candidate, is categorically excluded from such regulation because such issue advocacy is not campaign-related speech. Accordingly, government has no compelling interest in restricting it.

(2) When expenditures are to third-parties:

The prosecutors suggest that issue advocacy by Wisconsin Manufacturers & Commerce (“WMC”) in 2012 could constitute illegal coordination between the Club for Growth and Friends of Scott Walker.  The prosecutors’ alleged evidence of coordination, however, is limited to transfers by the Club (which occurred in April and May 2012) and ad purchases by WMC; they fail to suggest that either the Club or WMC coordinated with Walker—or even with each other.

The prosecutors’ affidavits do no better, citing a December 2011 (i.e., before commencement of the Walker special-election campaign) phone conference involving 31 participants, including a single WMC representative and no representative of the Club, and a single follow-up email, also involving no Club representative.

(3) Where the other party is not a candidate:

The prosecutors’ purported evidence of illegal activity includes an April 28, 2011 email (nine months prior to commencement of the Walker special-election campaign) and the prosecutors argue that communications the Club made between February and November 2011, months prior to the recall when Walker was not campaigning, could evidence unlawful coordination.

The prosecutors argue that the Club’s donations to other 501(c)(4) organizations, without any evidence of candidate involvement, could evidence unlawful coordination. Indeed, to the extent they were related to elections at all, the Club’s communications expenditures focused on issues in the senate recall elections, not Walker’s.

The prosecutors have failed to identify a single broadcast advertisement by the Club that so much as referenced Walker during the petition drive and special-election campaign.

The victims are unaware of any reported decision involving alleged coordination between a candidate and a third party on expenditures not undertaken to influence voting in that candidate’s race. Yet, with most of the targeted advocacy available to the public on YouTube, the prosecutors do not identify any broadcast advertisements by the Club that could have had anything to do—however tenuous—with Walker’s recall election. The reason is simple: there are none.

 

Legal analysis of the Prosecutor’s efforts to avoid liabilities

A. Abstention Doctrines

(1) Younger:

On April 8, the district court rejected the prosecutors’ Younger abstention arguments on three grounds: (1) Younger abstention did not apply to Defendants’ secret criminal investigation because it was not a proceeding to which Younger applied…; (2) the John Doe proceedings did not afford Plaintiffs the opportunity to bring claims for First Amendment retaliation; and (3) The prosecutors’ complaint “easily satisfies” the Younger bad-faith exception by “precisely alleging that the defendants have used the John Doe proceeding as a pretext to target conservative groups across the state.” (p. 27)

After four years of investigation, the prosecutors do not argue that they have probable cause to bring criminal charges against any current target, including the victims. In fact, in the case of O’Keefe, Prosecutor Schmitz made a judicial admission that he has no evidence at all that O’Keefe has committed any crime.

(2) Pullman:

The district court rejected the prosecutors’ Pullman abstention arguments on two grounds: (1) state-court clarification of Wisconsin campaign-finance law would not dispose of the need to decide the prosecutors’ First Amendment retaliation claim, and (2) the district court chose to exercise its discretion not to abstain given the important First Amendment interests raised by the victims’ claims. (p. 27)

To prevail on appeal, the the prosecutors must not only prove that the district court erred as a matter of law in determining that Pullman abstention was unavailable, but that it abused its discretion in declining to abstain.  The prosecutors cannot hope to meet this burden.

(3) Burford:

The court rejected the prosecutors’ Burford abstention arguments on two grounds: (1)  The prosecutors chose not to defer to the GAB for their investigation and so “cannot argue that their investigation implicates an administrative or regulatory scheme,” and (2) abstention was inappropriate in light of the victims’ “important First Amendment rights.”

Not only is Burford abstention inappropriate, the prosecutors’ argument would, if accepted, eviscerate federal-court authority to provide remedies for unconstitutional campaign-finance statutes.

 

B. Immunity

The prosecutors immunity defenses fail because the victims have a clearly established right to be free from a secret criminal investigation targeting them and their associates for home raids, subpoenas, and other abuse that is motivated by a desire to retaliate against them for their First Amendment-protected advocacy.

(1) Sovereign Immunity:

The court rejected the the prosecutors’ and Schmitz’s sovereign-immunity arguments because the victims’ “complaint rather easily states a claim under Ex Parte Young” for prospective injunctive relief.

In response to the Appeals Court’s remand order, the district court ruled that the prosecutors’ sovereign-immunity appeals are frivolous and were nothing more than gamesmanship intended to capitalize on the district court’s decision to honor the prosecutors’ request to decide the motions to dismiss before a preliminary-injunction motion.

The Appeals Court held that the prosecutors’ sovereign-immunity appeals are frivolous and that “[t]he district court therefore had authority, notwithstanding the appeals, to issue an injunction.”

(2) Prosecutorial Immunity:

The court rejected the the prosecutors prosecutorial-immunity arguments because the Complaint alleged that the prosecutors’ wrongdoing occurred in the course of their investigative activities, and the court “has no way of knowing if the prosecutors are currently determining whether charges should be brought.”

Nor are the prosecutors entitled to prosecutorial immunity, in light of Plaintiffs’ plausible (and unchallenged) allegations that the prosecutors participated in the conception, supervision, and carrying out of an investigation that has never resulted in any probable-cause determination.
Prosecutorial immunity does not shield the the prosecutors or Schmitz from liability for the pre-prosecution investigatory conduct at issue in this case.

(3) Qualified Immunity:

The court rejected the prosecutors’ qualified-immunity defenses on two grounds: (1) The victims stated plausible constitutional violations by the prosecutors for targeting them on a pre-textual basis, and (2) “defendants cannot seriously argue that the right to express political opinions without fear of government retaliation is not clearly established.”

The court found that the the prosecutors’ qualified- and prosecutorial-immunity appeals were also frivolous.

To preserve an issue for appeal, a party must specifically and adequately present it, and it is not enough that “the ‘general issue’ was before the district court.” Asst. DA Nickel and Schmitz raised none of these arguments and have forfeited them all.

Courts should confirm the fact that this is not Soviet Russia: Career prosecutors and investigators should know better—or they shouldn’t be career prosecutors and investigators.

 

The right of all victims to seek damages from the Prosecutors

A. Suppression of speech rights

The victims filed a lawsuit on February 10, 2014, alleging six counts under Section 1983 of the Civil Rights Act, including First Amendment Retaliation, selective targeting, bad-faith abuse of law-enforcement proceedings with no expectation of obtaining a valid conviction, and violation of Plaintiffs’ First Amendment 26 privilege.

Defendant Schmitz represented to both the Wisconsin Supreme Court and Court of Appeals that “the investigation has not developed evidence suggesting that the [Club’s] officers and directors”—including O’Keefe—“were anything but figureheads.”

The victims’ loss of their First Amendment rights due to the prosecutors’ intimidation and abuse constitutes per se irreparable harm under Circuit precedent.

“Any deprivation under color of law that is likely to deter the exercise of free speech is actionable” if it is “an effective deterrent to the exercise of a fragile liberty,”… [citing Power and Blankenship v. Manchin].

Circuit precedent holds that any ongoing deprivation of First Amendment rights constitutes per se irreparable harm.

B. Personal liability

A state-court judge acknowledged that Defendant Landgraf “was behaving badly, probably for political reasons.”

For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.  A plaintiff can meet that standard by showing either that (1) “a closely analogous case establishes that the conduct is unconstitutional,” or (2) “the violation is so obvious that a reasonable officer would know that what he is doing violates the Constitution.” The rights at issue here are clearly established under both tests.