By Stuart Taylor, Jr., AMERICAN MEDIA INSTITUTE
MILWAUKEE (Legal Newsline) - Milwaukee County District Attorney John Chisholm faces a deadline of Oct. 12 to decide whether to appoint a special prosecutor to investigate his own conduct.
Whatever Chisholm decides will complicate the re-election bid of Republican Gov. Scott Walker, who is locked in a tenacious battle with Democrat Mary Burke. The carefully written, eight-page petition for a special prosecutor was filed by Eric O’Keefe, a free market activist at the center of Chisholm’s criminal probe of Walker and 29 allied conservative groups.
O'Keefe filed his petition on Sept. 26 and made it public on Monday. It alleges that there is evidence that Chisholm has criminally abused his powers for partisan, personal and financial gain. If Chisholm fails to respond by O'Keefe's deadline, Wisconsin's "John Doe" law appears to allow O'Keefe - or any other Wisconsinite - to petition any judge or district attorney in the five counties covered by Chisholm's criminal investigation to appoint an independent prosecutor.
Thus would the so-called John Doe law - usually a potent weapon for district attorneys to use for good or ill - allow any of dozens of judges or DA's to help O'Keefe or any of his allies turn against Chisholm the same legal machinery that Chisholm has used against Walker, O'Keefe and their conservative allies.
They and conservative groups in Wisconsin have been the subject of what O'Keefe and others call a political vendetta by Chisholm and other prosecutors. The investigation hinges on Chisholm's theory - rejected by two judges - that conservative groups and Walker broke state campaign finance laws by engaging in "illegal coordination.”
Chisholm and other prosecutors have failed to bring any charges against Walker, O’Keefe or any Wisconsin group under this legal theory. Nevertheless, the prosecutors ordered predawn raids on conservative activists' homes; secured “gag orders” barring investigative targets from speaking out; hit them with subpoenas for documents, computers, and more; and seized phone and email records.
This has caused great expense to the targets, both in legal costs and even more by putting them under what they say is a bogus legal cloud that has paralyzed their ability to raise and spend campaign funds.
The investigation has been stalled since January by Wisconsin Judge Gregory Peterson. Chisholm is appealing. And now O'Keefe has opened a new front in the Left-Right legal and political wars that have ravaged Wisconsin with special ferocity since Walker broke the power of the public sector unions in 2011.
O'Keefe called on Chisholm - an elected Democrat - to appoint a special prosecutor to investigate himself "for Misconduct in Public Office and related offenses," including abuse of prosecutorial power to score political points for his party and for personal gain.
The O'Keefe petition adds that if Chisholm fails to act within two weeks, "I intend to seek alternative means to pursue justice," citing laws that would allow a judge, a DA, the state's attorney general or the governor himself to put Chisholm under investigation.
The petition, complete with detailed legal citations, is dated Sept. 26 and addressed to Chisholm, Wisconsin Attorney General J.B. Van Hollen and Chief Judge Jeffrey Kremers of the Milwaukee County Circuit Court.
It is based largely on allegations by whistleblower Michael Lutz that Chisholm expressed extreme political and personal bias against Gov. Walker in private comments to Lutz in early 2011, in Chisholm's office.
At the time, Chisholm was running a then-secret, but ever-growing, criminal investigation of Walker and his staff, later expanded to include Walker's political allies, including O'Keefe, who runs the Wisconsin Club for Growth.
Lutz, a much-decorated former Milwaukee police officer, was then an aide to Chisholm, who Lutz says was a personal friend.
At this writing, neither Chisholm nor his lawyer, Samuel Leib, has responded to an emailed request from this reporter for comment on the O'Keefe petition.
Meanwhile, 22 days after publication by this reporter on Sept. 9 of most of the then-anonymous whistleblower's allegations (others were published on Sept. 19), Chisholm and Leib have issued only vague, general denials. Neither has specifically denied any of Lutz's detailed specifics.
Nor has Chisholm or anyone else suggested a plausible motive for Lutz to lie about Chisholm. Indeed, Lutz says that telling the truth about the powerful DA has cost him dearly, ruining his criminal defense practice.
Lutz's whistleblowing has also subjected him to an accusation - by Chisholm's lawyer Leib (not Chisholm personally) and Milwaukee Journal Sentinel columnist Daniel Bice - of making a "death threat" last year against Chisholm and his family. Lutz’s intemperate words do not appear to be a death threat under Wisconsin law, under which a real death threat is a crime, and the supposed victim, the District Attorney Chisholm, neither prosecuted nor reported Lutz to other authorities. Indeed, Lutz says, he and Chisholm laughed about it the following day.
The so-called "John Doe" investigations by Chisholm, Special Prosecutor Francis Schmitz and others of Walker, O'Keefe and others - currently for an alleged "criminal scheme" to violate campaign finance laws by "illegal coordination" – were effectively suspended when Judge Peterson ruled that the conduct alleged by the prosecutors appeared to be legal. The investigations were also held in May to violate the U.S. Constitution's First Amendment by U.S. District Court Judge Rudolph Randa, who also agreed with Peterson that the investigation had no basis in Wisconsin law.
The Randa decision, in a lawsuit brought by O’Keefe, was set aside on Sept. 24, on federalism grounds, by three federal appeals court judges. They ruled that O'Keefe's claims should be left to Wisconsin's courts.
Judge Peterson’s decision is now being appealed by Chisholm and his colleagues, in one of four cases about the investigations that are bouncing around the Wisconsin courts.
Among Lutz's allegations, now cited in O'Keefe's complaint, are that in early 2011:
-Chisholm told Lutz that his wife, Colleen Chisholm, a teachers union shop steward, had joined public demonstrations against Walker and had been angry, anguished, and frequently in tears about his union-curbing legislation, which was adopted in March 2011 after a titanic battle;
-While detailing his wife's complaints about Walker, Chisholm said that he "felt it was his personal duty to stop Walker from treating people like this." (Chisholm had no power to stop Walker from doing anything other than by using his prosecutorial powers.);
-Chisholm, whom Lutz said he had long admired as a friend and a mentor, had become "hyper partisan" during the battle over public-sector unions, as had many of Chisholm's unionized staff, some of whom posted anti-Walker symbols and acted "like an anti-Walker cabal."; and
-Chisholm barred Lutz from appearing in a campaign commercial for Wisconsin Supreme Court Justice David Prosser, a conservative Republican, who was facing a 2012 recall effort. Chisholm told Lutz that "he didn't want Prosser to decide on" a challenge to Walker's legislation and that Chisholm wanted "to stay as far away from these Republicans as he can."
This reporter has repeatedly asked Chisholm and Leib by email for specific responses to these and all other Lutz allegations, receiving no response other than an initial general denial.
Indeed, at this writing Chisholm and Leib have failed to respond at all to a list of more than 30 questions emailed to them on Sept. 26, in which this reporter sought individual responses to each specific allegation by Lutz.
Schmitz, who has since last year been the titular head of the sweeping criminal investigation that Chisholm launched in 2012 into the campaign practices of Walker and allied conservative groups, has similarly failed to respond to a Sept. 26 email from this reporter seeking comment on Lutz's allegations against Chisholm.
Lutz also told this reporter that he had anonymously tipped Milwaukee Journal Sentinel reporter Don Walker, in an April 11, 2012, email, about Colleen Chisholm's union position, her attendance at anti-Walker protests and being "very opinionated about her hate for the Gov."
The newspaper never reported anything about Colleen Chisholm's union position or personal opinions until after this reporter's Sept. 9 article did.
The O'Keefe petition begins:
"Wisconsin law prohibits a district attorney from using the powers and privileges of his office for the financial benefit of himself, his immediate family members, or an organization with which his immediate family members are associated; from using those powers and privileges to obtain an unlawful advantage for third parties-such as political candidates and recall committees; from using information obtained through his official functions for those illegitimate purposes; and from allowing his office to become de facto campaign grounds. Recently, credible factual reports suggest that you may have done all these things." And more, the letter claims.
Among the detailed grounds for investigation of Chisholm claimed by O'Keefe are "[t]o determine whether and the extent to which you exercised the privileges of your office to:
-"Obtain a private benefit for you, your wife, and [her union] in violation of Wisconsin Statutes §§ 946.12(2), (3); 19.45(2), (5), by targeting Scott Walker and supporters of his policies in an effort to provide financial benefits and services to a labor union where your wife is an agent.";
-"Obtain a dishonest advantage for the Committee to Recall Scott Walker, his special-election opponent Tom Barrett, and his current gubernatorial opponent Mary Burke, in violation of Wisconsin Statutes §§ 946.12(3), 19.45(5), by targeting Walker and supporters of his policies for the purpose of aiding the recall, special election, and now general-election efforts.";
-"Use the information you obtained through the John Doe investigation to identify further avenues to attack Walker and his allies as well as disclosing the information to aid the recall, special-election, and now general-election campaigns of Walker's opponents.";
-"Fail to prohibit - and evidently encouraged - entry of a public building within your control by persons for the purpose of making or receiving a contribution… by allowing your subordinates to campaign in favor of the Committee to Recall Scott Walker and his special-election opponent Tom Barrett in the Office of the Milwaukee County District Attorney."; and
-"Violate[d] Wisconsin conspiracy laws by working with others [including prosecutors in Chisholm's office] to violate these statutes."
Stuart Taylor, Jr. is a Washington writer and Brookings nonresident fellow who was commissioned to write this article the American Media Institute.