As defined by Wis. Stat. section 968.26, John Doe investigations are “intended as independent, investigatory tools to ascertain whether a crime has been committed and, if so, by whom.” These special investigations exercise broad legislative power and employ abusive probing tactics such as extravagant search and seizures and imposing strict secrecy orders on its targets. These tactics, allowed by John Doe probes as exceptions to due process, threaten the basic civil liberties promised to all citizens of Wisconsin.
Since May 2010, Milwaukee County District Attorney John Chisholm has carried out two John Doe investigations into the political activity of current Milwaukee Governor Scott Walker along his rise to governorship. While the first investigation ended March 2013, Chisholm effectively launched John Doe II in August 2012 as a means to continue his probe of Walker’s campaign.
Chisholm’s repeated investigations have only targeted conservative political figures and organizations, thus giving rise to speculation about the political, as well as personal, motivation behind the probes. Chisholm, along with prosecutors from four other counties, are employing these private investigations to raid the homes of conservative activists, tap their phone records and email accounts, and compel testimony–all in secret. Victims of the investigations–including those not under suspicion–are prohibited from disclosing any state actions against them, even to their families, employers, or friends. Documents revealed in court show the state’s Government Accountability Board (GAB) has used the secret investigation for four years to stop political activism by conservative groups.
Today the abusive investigative tactics allowed by John Doe proceedings continue to violate the rights of its targets, who are not allowed to defend themselves in court, a right made inherent by both the Constitution of the Wisconsin, as well as the United States.
While Scott Walker served as Milwaukee County Executive, he started Operation Freedom, a charity event for military personnel, veterans, and their families that included free admission to the Milwaukee County Zoo for a day.
In 2007, the financials for the event were administered by the Military Order of the Purple Heart (MOPH)
Darlene Wink, a county executive employee who monitored Operation Freedom finances, identifies an apparent shortfall of roughly $11,000 in the fund from the 2007 event.
She alerts Tom Nardelli, Walker’s Chief of Staff at the time.
The County Executive’s office turns asks for an investigation into the missing funds.
The case is turned over to Milwaukee County District Attorney, John Chisholm.
April 23: Milwaukee County District Attorney’s Office Chief Investigator David Budde interviews Thomas Nardelli, Chief of Staff to Milwaukee County Executive Scott Walker.
In the interview, Nardelli concludes that Kevin Kavanagh stole $11,242.24 from the Operation Freedom veteran’s fund. This interview occurred over one year before the John Doe investigation commenced.
April 24: Scott Walker announces his campaign for governor of Wisconsin.
This will be his second run for Governor. He also ran in 2006, but withdrew to give former Congressman, Mark Green, a clear path in his attempt to unseat former Governor, Jim Doyle. He didn’t succeed.
January 10: City of Milwaukee awards Jeff Fleming a no-bid contract paying $75 an hour for up to 15 hours a week of work. Fleming has appeared publicly for Mayor Tom Barrett in a campaign role.
He will clock in and out to perform work for the city and for Barrett, allowing him to say that he is off the clock whenever caught doing campaign work at the office.
January 21: The United States Supreme Court rules in Citizens United v. Federal Election Commission; prohibits regulations barring corporations from making independent express advocacy expenditures in elections.
The court explained that the “right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it,” and that the “First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.”
March 24: The Wisconsin Government Accountability Board (GAB) approves a new rule GAB 1.28 to regulate issue ads.
GAB approved the rule the previous year and submitted it to the state legislature according to state administrative procedure, but requested that it be returned pending the outcome of Citizens United. GAB believed that the ruling on disclosure regulations in Citizens United paved the way for the rule and thus voted 6-0 to approve it a second time. The rule redefines the line between issue advertising and express advocacy, providing that an ad constitutes express advocacy if it (1) refers to the personal qualities, character, or fitness of that candidate, (2) supports or condemns that candidate’s position or stance on issues, or (3) supports or condemns that candidate’s public record. In the press statement, Kevin J. Kennedy, director and general counsel of GAB, states that the purpose of the rule is to require donor disclosures where an independent ad is “for all intents and purposes” a political ad for or against a candidate. The regulation is subject to review and possible blockage by the legislature.
May 5: Assistant District Attorney Bruce Landgraf calls for the authority to undergo a John Doe investigation into the missing funds.
Prosecutors in the Milwaukee County District Attorney’s office begin John Doe I. According to the subsequent criminal complaint against Timothy Russell, the purpose of the investigation was to follow up on the $11,000 in donations intended for Operation Freedom, but it is not clear why the case is not commenced until over a year after the Nardelli/Budde interview. The closing petition nearly three years later indicates that the scope of the investigation was enlarged “from time to time” as more evidence was collected. Daniel Bice of the Milwaukee Journal Sentinel will later draw connections between the timing of the John Doe investigation and reports in his newspaper that Darlene Wink was posting online comments on the Journal’s website while on the county clock. Former Appeals Court Judge Neal Nettisheim authorized the investigation. Nettisheim will oversee John Doe I until its conclusion. The case number is 10JD000007 in Milwaukee County, apparently indicating that it is the seventh John Doe matter in the county in 2010.
May 10: GAB formally initiates an investigation into William Gardner based upon a complaint by his former girlfriend, alleging that he had asked her to make a campaign contribution on his behalf and with his reimbursement.
The venue for this matter is Washington County because Gardner is a resident of Hartford, but in the same month, GAB “consulted with Milwaukee County Assistant District Attorney Bruce J. Landgraf” and the investigation was thereafter conducted under the auspices of the ongoing Milwaukee County John Doe investigation. The connection between the Gardner misconduct and the veterans’ fund has not been clarified.
May 13: Darlene Wink admits to posting political comments on MJS blog during work hours.
Wink resigns the same day.
May 18: Investigation expanded to include William Gardner’s campaign contributions.
That same day, Gardner contacted the GAB and agreed to cooperate.
September 14: Scott Walker wins primary election for governor race.
He beats former Wisconsin Congressman, Mark Neumann by 20 points.
September 22: Republican Party of Wisconsin files complaint that Service Employees International Union, media and Milwaukee City supervisors are coordinating against Walker.
This was followed up by a union employee discussing unions coordinating with county board members to command local media coverage of the campaigns. There was never an investigation looking into the complaint.
November 1: JD expanded to include county staffers, Rindfleisch, Nardelli, McLaughlin and Moore.
A search warrant is executed on the County Executives office. The search is undergone on the eve of the Wisconsin state gubernatorial election.
November 2: Scott Walker wins Wisconsin gubernatorial election, with 52% of the vote; Tom Barrett was his closest opponent with 46% of the vote.
Republicans win control of all branches of the Wisconsin state government for the first time since 1998.
February 11: Governor Walker introduces Act 10, a state law aimed at collective bargaining reform for public employees.
Under the bill, government employees would pay a share of their health care and retirement costs. It gave employees the option to not belong to a union and pay dues.
February 14: Union protests over Act 10 begin in Madison.
Thousands protested outside and inside the state Capitol. At one point, estimates of the crowd size was 100,000.
March 11: Governor Walker signs Act 10 into Wisconsin state law.
The Legislature passed the bill without the fourteen Senators who had fled to Illinois.
July 11: Reports surface that Shelly Moore, a challenger in the 2011 Senate recalls, has offices housed with We Are Wisconsin offices.
There was no investigation launched into the allegations. The Republican Party of Wisconsin had earlier filed a complaint against Moore, a public school teacher, for using school equipment to work on her campaign.
November 15: Walker recall effort is launched.
The organizers manage to gather enough signatures to get a recall election.
November 19: Committee to Recall Scott Walker coordinates with We Are Wisconsin, United Wisconsin, and Democrat Party of Wisconsin on event.
The recall committee was formed by leading Union and Democratic social welfare organizations members.
January 5: Tim Russell and Kevin Kavanaugh charged.
These were the only charges related to the original investigation into the missing funds. Russell eventually served two years in prison for embezzlement. Kavanaugh was sentenced to two years but was released after one due to poor health.
January 26: Kelly Rindfleisch and Darlene Wink are charged.
Rindfleisch is charged with four felonies and Wink is charged with two misdemeanor counts. Wink plead guilty to the two misdemeanor counts as part of plea deal. Rindfleisch plead guilty to one felony count also under a plea deal. As part of the same deal, she was allowed to file an appeal based on motions denied by the judge.
May 8: Walker wins recall primary election with 96.88% of Republican vote.
Tom Barrett (D) wins with 58.1% of Democratic vote.
May 12: A complaint was filed with the GAB alleging that the AFL-CIO violated rules by sending mail outside of membership.
Express advocacy by a union or association can only be sent to their members without any disclosure. Once again, the allegations weren’t investigated.
May 30: Democratic Party of Wisconsin puts out press release saying Walker admitted being under criminal investigation.
This was done within a week of the recall election and was blatantly false.
June 5: Walker wins recall election with 53.08% of vote.
Tom Barrett (D) is the runner-up with 46.28%. Walker becomes first governor in state history to survive recall.
June 18: David Robles, Assistant DA under Chisholm, makes open records request for communications between Governor’s office and DA.
This was done to with no disclosure that he worked for the DA. His request was denied.
August 10: Chisholm petitions for JD II.
He based the request on the theory that the Walker campaign had engaged in coordination with social welfare groups making independent expenditures during the recall elections.
August 12: John Doe I Judge, Neal Nettesheim OK’s rolling JD I documents over to JD II.
JD 1 had previously been expanded 18 times. Essentially, there was only one investigation that had been proceeding for over 2 years and would continue for another year before being shut down by the courts.
September 5: John Doe II is launched.
Then Chief Justice Shirley Abrahamson appoints retired judge, Barbara Kluka as the John Doe Judge. Chisholm began investigating targets all over the state and the country, far out of his Milwaukee County jurisdiction.
September 5: Kluka files secrecy order.
Under the John Doe laws in Wisconsin, the judge can issue an order that prohibits all individuals involved from revealing any information about the investigation. The purpose of this was to protect anyone being investigated from being implicated in any crime before/if charges are brought. In this case, information was leaked to the press implicating those involved but not allowing them to respond to allegations.
September 12: Subpoenas are served for email and phone records of targets.
This was done without the knowledge of the targets because of the secrecy order. They remained unaware of it until the information was revealed in O’Keefe v Schmitz.
September 12: The Milwaukee Journal Sentinel reports Democrats and unions coordinating attack on Walker for O’Donnell Park.
A thirteen year-old boy was killed when a concrete panel fell from a parking garage owned by the county. Democrats tried to implicate Walker’s deferred maintenance was the cause of the death. It was determined fairly quickly that the panel had been installed wrong 15 years before when the structure was built.
September 12: AFL-CIO report shows lobbying payments to Center for Media and Democracy (not registered to lobby).
All lobbyists are required to file with the GAB. This was not investigated by the GAB.
November 12: The Federal Election Commission (FEC) fined the Professional Fire Fighters of Wisconsin and 11 former board members $58,000 for knowingly and willfully violating campaign laws and regulations.
State prosecutors show no interest whatsoever in investigating the incident for state law violations and no prosecutions are brought.
December 12: Subpoenas served for bank records of targets.
Again, this was done without the knowledge of the targets and didn’t become known until O’Keefe v Schmitz.
December 12: GAB board informed of involvement in JD II
GAB staff had been involved in the second John Doe for four months before they informed the board of the investigation. The board had been admitted as a party to JD II without their knowledge.
February 19: Three unnamed petitioners take suit to Supreme Court.
The targets had filed a suit challenging the legality of one judge and one prosecutor heading up John Doe investigations in five separate counties. The suit had been denied by a lower court.
March 2: First John Doe is closed.
No more charges were filed against anyone. JD II had already been in play for seven months.
June 20: GAB issues resolution to commence an investigation.
Again, GAB staff had already been participating (against Wisconsin statutes) in the investigation for 10 months.
June 26: GAB meets with 5 DA’s to go over cases.
Chisholm and GAB staff convinced district attorneys from Columbia, Dane, Iowa and Dodge counties to launch John Doe investigations and then to advocate for a special prosecutor to oversee the investigations. This was the extent of their involvement. Only the Milwaukee County DA’s office continued to be deeply involved.
August 21: Kluka commences JD in four other counties w/secrecy order.
There is a question before the Wisconsin Supreme Court challenging the authority of one judge to oversee John Doe investigations in multiple counties.
August 22: Francis Schmitz is appointed special prosecutor in the investigation.
Schmitz is a veteran federal prosecutor of 30 years, a retired colonel in the U.S. Army, and one-time finalist for U.S. attorney in Milwaukee. He also served in the U.S. Department of Justice’s counterterrorism operations.
September 18: GAB investigation closed.
The GAB Board is required to vote to continue an investigation. They neglected to do so, but didn’t actually close it until several months later. They dated the closure based on the date it should have been renewed and wasn’t.
September 30: Judge Kluka signs a search warrant for the home of Richard and Valerie Johnson, according to an affidavit by investigator Dean Nickel, which is broadly worded and covers anything remotely related to the recall elections.
The document cites possible violations of Wisconsin Statues 11.27(1), 11.26(2)(a), 11.61(1)(b), 939.31, and 939.05, especially Filing a False Campaign Report or Statement, and Conspiracy to File a False Campaign Report or Statement. The warrant has technical errors, such as being prepared for Dane County and describing property in Dodge County.
October 3: Three search warrants are served on private residences from 6 to 6:30 a.m., sunrise being just before 7 a.m.
Raids involved armed sheriff’s deputies with flak vests, with bright lights aimed at the houses, multiple vehicles, and at least one person from the Milwaukee DA’s office. Targets were not allowed to call attorneys. The searches took about 2.5 hours, took computers and phones of all family members, and paper files and materials that appeared political. In at least one case, no inventory of items seized was left. Shortly after, Schmitz tells Todd Graves, attorney for WCFG, “We could have raided O’Keefe’s house.”
October 23: Retired Kenosha County Circuit Judge Barbara Kluka recuses herself from the investigation, postponing the case indefinitely.
An explanation for her recusal is never given.
October 25: Motions filed to quash subpoenas (O’Keefe, WCFG, and 4 other recipients).
These are the motions that will result in the John Doe judge invalidating the subpeonas and creating the first hurdle to the investigation.
October 31: Reports indicate that John Doe II is enlarged to five counties, including Columbia and Iowa counties.
Three subpoenas are issued. Law enforcement officials seize electronic devices and papers in both Columbia and Dane counties. An anonymous source familiar with the investigation is quoted saying, “I was told basically that (Gov. Scott) Walker is too powerful; they want to bring him down.” Another anonymous source is quoted by MJS as saying Landgraf has been investigating “all over the place.”
November 13: Gregory Petersen appointed new judge for John Doe II investigation, though his identity was kept secret at the time.
Peterson was a Deputy Chief Judge of the Wisconsin Court of Appeals until his retirement in 2012.
November 14: Three unidentified petitioners file motions in Court of Appeals District 4 to halt investigation.
This was the challenge to the authority of one judge and one special prosecutor overseeing John Doe investigations in multiple counties.
November 22: Court of Appeals District 4 denies motion to stop investigation.
However, the judges ordered prosecutors to respond to the questions of the legal authority to assign one judge and one special prosecutor to multiple John Doe investigations and the scope of the secrecy orders.
November 22: Lisa Graves (Center for Media and Democracy) admits liberals do same thing GOP is under investigation for in John Doe probes.
Graves, via conference call with reporters, offered as rationale: “But the left is morally superior in its motives.”
January 10: Judge Petersen quashes several subpoenas, rules their issuance was “improper” and “do not show probably cause that the moving parties committed any violations of the campaign finance laws.”
Wall Street Journal editorial board states that the ruling shows the prosecution “essentially invested without evidence the possibility of criminal behavior to justify their subpoenas and their thuggish tactics.”
January 15: David Rivkin, O’Keefe’s attorney, sends letter to prosecution calling for an end to the investigation, threatens civil rights lawsuit on behalf of the targets.
As expected, the prosecutors refused to end the investigation.
January 30: Madison-based Court of Appeals, District IV rejects 3 petitioners suit and refuses to move case to Supreme Court.
That ruling resulted in the investigation being allowed to continue.
February 10: O’Keefe files federal civil rights lawsuit against special prosecutor Schmitz, presiding judge Petersen and top prosecutors in Milwaukee County District Attorney’s office, including DA John Chisholm.
The lawsuit stated that the investigation was used as an instrument to shut down conservative speech and therefore violated the targets’ First Amendment rights.
February 10: O’Keefe files motion for preliminary injunction to stop investigation.
The lawsuit and the motion are assigned to Judge Rudolph Randa (U.S. District Court Eastern District of Wisconsin).
February 21: Prosecuting Attorney Schmitz files petition against Judge Petersen’s decision on subpoenas.
This is a very unusual move for a prosecutor to appeal a judge’s ruling. However, John Doe investigations don’t follow the same process as a normal appeal.
April 2: Supreme Court rules 5-4 in McCutcheon v. FEC, striking down limits on federal campaign contributions.
In O’Keefe v Schmitz, the plaintiffs contended that the theory of the prosecutors was that when an organization coordinates an expenditure with a candidate’s campaign committee, that organization then becomes a sub-committee of the campaign and is restricted to all the same limits as the campaign. This theory, as in McCutcheon, would limit First Amendment speech and would be unconstitutional.
April 8: Judge Randa denies defense’s motion to drop the investigation.
“It is an investigatory process, not an ongoing criminal prosecution case,” he said.
May 1: Judge Randa rejects prosecutors’ motion to stall civil rights case.
Randa had harsh words for the prosecutors in his order, stating, “The defendants now attempt to derail this ruling by appealing the Court’s decision and moving to stay pending appeal,”
May 6: Judge Randa grants preliminary injunction to stop the John Doe II probe.
The injunction prohibits all activities related to the investigation, forces Defendants to return all property seized, and permanently destroy all copies of information obtained through the investigation.
May 14: Seventh Circuit U.S. Court of Appeals declares unconstitutional portions of state campaign finance laws and GAB regulation on issue advertising.
The statutes the court declared unconstitutional were the same statutes the prosecutors were basing their theory of the crime on.
May 30: O’Keefe files a lawsuit against GAB.
According to the lawsuit, the GAB has “exceeded its statutory authority and evaded its statutory obligations by pursuing and funding a far-reaching criminal investigation into virtually every conservative-leaning group in Wisconsin.”
June 9: Seventh Circuit U.S. Court of Appeals upholds Randa’s injunction on the investigation, rules lower court did have authority issue preliminary injunction.
June 9: WSJ reveals John Doe I never ended, “enlarged no fewer than 18 times over two and a half years.”
July 21: GAB vote fails on reauthorizing investigation.
August 19: GAB officially shuts down probe.
September 2: O’Keefe et al file appellate brief.
September 2: Former FEC members file amicus brief in support of O’Keefe.
September 9: Oral arguments in seventh circuit.
September 10: American Media Institute story from anonymous source (Mike Lutz) on DA vendetta.
September 24: Seventh circuit reverses injunction on investigation, affirms Chisholm et al immunity and dismisses lawsuit.
October 7: CRG files motion for preliminary injunction to keep GAB from enforcing unconstitutional law.
October 8: O’Keefe files petition to have seventh circuit hear appeal.
November 4: CRG and GAB file joint motion stipulating that injunction on WI law will remain in place.
November 4: Walker re-elected to another 4-year term.
November 5: CRG files lawsuit with WI Supreme Court for injunction against GAB et al
December 16: The Wisconsin Supreme Court announces it will hear the John Doe cases April 2014.
January 21: The question of constitutional violations in the John Doe investigation is appealed to the United States Supreme Court in O’Keefe v. Chisholm.
January 30: Clevert issues permanent injunction on GAB enforcing issue advocacy regulations.
March 16: Wisconsin Supreme Court declines to review Rindfleisch's Fourth Amendment Appeal.
The court voted 6-0 not to review the case, with Justice Prosser not voting.
May 18: The US Supreme Court declines to review the O'Keefe v Chisholm case.
The court had initially made no decision which increased the chances of review. In the end, it was declined without comment.
June 15: Rindfleisch appeals to the US Supreme Court.
The question in front of the court is much law enforcement can search digital records before the Fourth Amendment is violated. The contention is that when all digital records are seized it is the equivalent of a general search warrant which is in violation of the Fourth Amendment.
July 1: Cindy Archer files lawsuit against John Chisholm and investigators.
Archer’s lawsuit is based on First and Fourth Amendment violations.
July 16: Wisconsin Supreme Court Shuts Down the John Doe Probe in a 4-6 ruling.
Justice Michael Gableman, writing for the majority opinion, stated that “the special prosecutor’s legal theory is unsupported in either reason or law.” The ruling had harsh words for the conduct of the prosecutors, especially on the early morning raids on private homes.
July 17: Erwin Chemerinsky, Arthur F. McEvoy, Glenn Harlan Reynolds, Stephen A. Salzburg Amicus Brief in support of Rindfleisch petition
The brief states about Rindfleisch, “She has been treated far worse than Aaron Burr; who even after plotting to decapitate the United States government and split off most of its territory to create his own empire, was permitted to keep his conspiratorial correspondence forever secret…”
September 2: Archer files an amended complaint
The complaint provides additional detail about the day in September 2011 when investigators raided her Madison home.
October 5: US Supreme Court declines to take Rindfleisch case
Rindfleisch states that she continues to fight to have the precedent reversed even though it will not affect her status.
October 21: Legislature passes John Doe reform
The bill limits the use of John Doe investigations to certain crimes and only allows secrecy orders to be issued to the investigating and prosecuting parties, not the targets.