By Stuart Taylor, Jr., American Media Institute
MILWAUKEE (Legal Newsline) - Milwaukee County Sheriff David A. Clarke Jr. has accused District Attorney John Chisholm, a fellow Democrat, of "abuse of prosecutorial power" in the relentless criminal investigation of Republican Wisconsin Gov. Scott Walker and 29 conservative groups.
Clarke's forceful public criticism is of Chisholm and the so-called "John Doe" investigation that Chisholm has pursued since 2010 against Walker, his staff and virtually every conservative advocacy group in the state.
Clarke, who has been sheriff since 2002 and is running for re-election on Tuesday as the Democratic nominee, has been elected and re-elected with heavy support both from fellow African-Americans and from conservatives.
Clarke said that he agreed with a petition seeking appointment of a special prosecutor to investigate Chisholm. The petition was filed on Sept. 26 by a major Chisholm target, conservative fundraiser Eric O'Keefe.
While Clarke and Chisholm are both Democrats, the iconoclastic sheriff has often clashed with the more liberal Democrats who dominate Milwaukee politics, including Chisholm.
"This will go down as one of the ugliest chapters in Wisconsin political history” Clarke told this reporter. "This is a witch-hunt by a hyper-partisan prosecutor's office … to go after political adversaries they disagree with.”
Clarke said Chisholm has been evasive responding to whistleblower Michael Lutz's allegations that Chisholm had exuded improper personal and political bias against Walker in a private conversation in March 2011. Chisholm "didn't answer the questions," Clarke said, referring to an Oct. 8 letter in which Chisholm urged Milwaukee Chief Judge Jeffrey Kremers to reject O'Keefe's petition, which had relied heavily on the questions raised by Lutz's allegations.
He said he had regarded Chisholm as a "standup guy" years ago when, as a police captain, Clarke worked with then-Assistant District Attorney Chisholm on gun cases.
But as he learned about the nature of the Chisholm’s investigation of the Wisconsin Democratic Party's political rivals, Clarke said, "I was appalled by some of the stuff that had gone on in the John Doe investigation, and that image I had of Chisholm as a person of unquestioned integrity started unraveling."
The investigation started in 2010 based on a report by then-Milwaukee County Executive Walker's staff that reported a minor theft from a charity fund.
Soon, Clarke said, "It became, 'Let's see what we can find,' without any allegation. When you get prosecutors abusing their power, they can take out anyone. I'm a Democrat, but what if he says, 'Let's go get Clarke?’ They can ruin your life."
Clarke stressed what he said had been politically motivated leaks by Chisholm's office of confidential information about the John Doe investigation to embarrass Republicans including Walker.
"John said his office didn't originate the leaks," Clarke said." Who else would have leaked it? They're the only ones who had the information. I'm surprised as well that John Chisholm never displayed any concern or disgust that there were leaks coming out of… his own staff."
Indeed, Clarke added, "You would think he'd shut the investigation down," it's so tainted.
Chisholm and his lawyer, Samuel Leib, have not responded to an emailed request for comment.
More generally, Clarke complained, while Chisholm was a good, tough prosecutor before becoming district attorney, he has since "turned more liberal" and soft on crime. "I don't recognize him," Clarke said. "He became ‘part of that revolving-door justice system that's had terrible effects on minority communities.’"
Clarke described himself as a "conservative Democrat, strong on national defense, strong on safe streets. I believe the Constitution protects individuals not groups. I believe in limited government and I believe in the powers of the states."
His calls for citizens to have guns for self-defense have made him something of a hero to many on the Republican right.
After four years of investigation, Chisholm and his fellow prosecutors have ordered predawn raids by armed officers on the homes of conservative activists; seized their documents, computers and cell phones while their children were getting dressed for school; subpoenaed hundreds of thousands of documents from dozens of conservative groups; routinely obtained gag orders barring targets and witnesses from revealing what has been done to them; won a few minor convictions but failed to find evidence sufficient to charge Walker, indeed any prominent conservative, with any crime.
The issue currently at the heart of the investigation is whether the collaboration of conservative issue-ad groups with Walker's campaign in a 2012 recall election violated Wisconsin's campaign finance laws against "illegal coordination," as Chisholm has suggested.
Chisholm's conservative targets say that their conduct complied with Wisconsin law, was protected by the First Amendment and was indistinguishable from the conduct routinely engaged in by Democratic candidates, groups and unions.
Both a state and a federal judge have ruled that none of the conduct under investigation appears to have been illegal. Those decisions are on appeal.
Chisholm, who launched the probe of Walker in 2010 and has staffed it with own his assistants, has conducted it since last year in conjunction with Special Prosecutor Francis Schmitz, now the titular head of the investigation, and the state's Government Accountability Board.
Chisholm's Oct. 8 letter stressed that Schmitz is not a Democrat and the GAB is required by law to be nonpartisan.
Clarke's view that Chisholm was a good prosecutor who became "hyper-partisan" is strikingly similar to that of the whistleblower Lutz, the former Chisholm subordinate and decorated former police officer who has accused Chisholm of privately exuding strong personal and political bias against Walker.
“I admired him greatly,” as a friend and a mentor, Lutz has told this reporter, explaining that he was very friendly with both John and Colleen Chisholm because her brother had been Lutz's police partner and best friend.
But during the bitter partisan battle in the winter of 2011 over Walker's successful push to break the power of the state's public-sector unions, Lutz said, "it was surprising how almost hyper-partisan he became."
During a private meeting in Walker's office in March 2011, according to Lutz, when he was serving as an unpaid "public interest special prosecutor," Chisholm ordered him to reject a request by Republican Wisconsin Supreme Court Justice David Prosser that Lutz tape a pre-election video praising a Prosser decision that Lutz admired as good for police.
Chisholm's reasons, as recalled by Lutz, were blatantly political: “He didn’t want Prosser to decide on” the inevitable legal challenge to Walker’s union-curbing legislation and he "wanted to stay as far away from these Republicans as he can.”
Chisholm also said, according to Lutz, that his wife Colleen, a teachers union shop steward, had been so angry and upset by Walker's union-curbing as to be repeatedly moved to tears; that she had joined union demonstrations against Walker; and - most important - that Chisholm “felt it was his personal duty to stop Walker from treating people like this.”
At the same time, Lutz added, many of Chisholm’s unionized staff acted “like an anti-Walker cabal,” with some posting blue fists as anti-Walker symbols on office walls.
Lutz's reward "for telling the truth," he has said, was that the Milwaukee Journal Sentinel hunted him down; exposed him as this reporter's source despite his fear of retaliation and despite his prior role as a source for Journal Sentinel reporters; and dishonestly smeared him as a dangerous drunk with a troubled past.
In particular, the newspaper has repeatedly accused Lutz of making a drunken "death threat" in 2013 against Chisholm and his family.
This despite the facts that Chisholm himself has never claimed publicly that Lutz threatened him; that Lutz has dismissed the "death threat" allegation as a gross distortion of an angry but well-intentioned phone message intended to prevent a suicide; and that the much-decorated former cop, who earned a law degree after being disabled by a gunshot wound, has many admirers in the police department.
Clarke, under whom Lutz worked years ago when Clarke was a Milwaukee police captain, described him on Tuesday as "respected by peers as an active officer" who was "committed to public safety."
Clarke added that "the Milwaukee Journal Sentinel, having a dog in this fight, went in typical fashion to smear Lutz's reputation." He called the newspaper "a wholly-owned subsidiary and a propaganda machine for the Democratic Party in Milwaukee."
Partisan bias, Clarke implied, may also explain why the Journal Sentinel appears determined to obscure that Chisholm has never specifically denied any of Lutz's allegations about their March 2011 meeting.
Chisholm's most recent non-denials came in his nine-page Oct. 8 letter to Judge Jeffrey Kremers, which was made public on Oct. 25. It rejected in detail various allegations by O'Keefe and his lawyers of criminal abuses of prosecutorial power - without mentioning Lutz or his allegations.
Rather, in apparent allusions to O'Keefe's heavy reliance on those allegations, Chisholm wrote:
"Supposed 'new' information is now offered in the form of statements by persons who have no personal knowledge of which they speak…
"Plain and simple, words like 'Act 10' or 'union' and phrases like 'stop Walker' have never been uttered by me or anyone else in the course of any investigation.
"Those who know my wife know she is not inclined to tears or emotional distress. She is a strong woman with political views of her own, views that play no role in any decision I make as prosecutor."
While many readers might infer that Chisholm's letter contradicted Lutz's allegations, in fact, as Clarke noted, it was carefully drafted to avoid denying a single one of them.
Chisholm's statement that his wife "is not inclined to tears" did not deny that he told Lutz that she was repeatedly moved to tears by Walker's Act 10. Nor did Chisholm deny, or even mention, his wife's alleged "hate for the gov.," her alleged role in union demonstrations against Walker, or even her role as a teachers union shop steward.
Still more striking is Chisholm's use of the phrase "in the course of any investigation" to qualify his assertion that he had never said anything like "stop Walker."
Because Chisholm's alleged private comments to Lutz were clearly not made "in the course of any investigation," Chisholm's letter did not deny them.
This omission is consistent with the DA's previous non-denials.
When this reporter sought comment in a Sept. 5 email about Lutz's allegations, the only response came from Samuel Leib, Chisholm’s personal lawyer. He called them a “baseless character assault” that “is inaccurate in a number of critical ways," adding that “John Chisholm’s integrity is beyond reproach."
Leib provided no specifics. He also ignored this reporter's follow-up email the same day requesting that he "identify specifically each of the 'number of ways' in which you contend the passage that I sent you is inaccurate."
Chisholm and Leib have also ignored an Oct. 3 email from this reporter containing 37 questions about Lutz's allegations.
The closest that Chisholm appears to have come to denying Lutz's specific allegations may have been on Sept. 10, when Jason Stein of the Milwaukee Sentinel reported that "in a brief interview, Chisholm denied making those comments."
But the article did not disclose what Chisholm had been asked, by whom, what had been his response, and which (if any) "comments" he specifically denied making.
So far as the public record discloses, the newspaper has never pressed Chisholm for a more specific response to Lutz's allegations.
Nor is there any public-record evidence that the Journal Sentinel has ever pressed Chisholm for access to the recording of the 2013 phone message in which - the newspaper has repeatedly claimed, based on a vague allegation by Leib - Lutz made a "death threat" against Chisholm and his family.
Neither Chisholm nor the Journal Sentinel has ever suggested a motive for Lutz to lie. He says that his motive has been to protect the freedom of speech - including his own First Amendment right to speak out in favor of Justice Prosser - by telling the truth about the political agenda driving Chisholm.
“I don’t like what Chisholm has done," Lutz told this reporter, "in regard to political speech that he disagrees with."
Sheriff Clarke doesn't like it either. And when he heard Lutz detailing his allegations of prosecutorial bias in recent radio interviews, "I asked myself, 'What's in it for Mike Lutz to do this? He did it anonymously.' I don't see Mike having any agenda here."