MILWAUKEE (Legal Newsline) – Democrat District Attorney John Chisholm, whose compassion for criminal suspects fatally extended to Darrell Brooks, demonstrated much less care for “John Doe” Republicans whose homes his agents ransacked eight years ago.
Raiders under Chisholm’s direction stormed homes in three Wisconsin counties on Oct. 3, 2013, at night, with floodlights and bullhorns.
Targets included supporters of then Republican Gov. Scott Walker, who reformed collective bargaining during his first year in office. The following year, Walker battled a fierce recall election fueled by labor interests, and won.
Agents seized computers holding millions of documents and they seized telephones.
They grabbed personal property like bank statements, mail, and family photos. They advised their targets that telling their lawyers or anyone else about the raid would violate a secrecy order.
But Chisholm’s case collapsed after Eric O’Keefe of Spring Green, Wisc. violated the gag order.
O’Keefe, who had led the conservative group Wisconsin Club for Growth, contacted the Wall Street Journal, which printed the story.
In an interview with O’Keefe on Dec. 6, he said, “I blew it up. I was the only one on the record.”
A judge stayed the John Doe investigation pending review at the Wisconsin Supreme Court, which eventually closed the case and declared the targets innocent in 2015.
Justice Annette Ziegler specially concurred to say that she would have granted relief solely for raiding at night, if anyone had raised the issue.
Chisholm, who’s served as DA since 2007, pursued the case under a John Doe law allowing judges to authorize and supervise secret prosecutions.
In 2010, reserve judge Neal Nettesheim authorized an investigation of possible misuse of public resources in the office of the Milwaukee County executive.
In 2012, assistant district attorney David Robles petitioned to use information from the case in a second John Doe investigation. Robles attached an affidavit of investigator Robert Stelter about possible coordination between campaign committees and independent groups.
Chief District Judge Jeffrey Kremers assigned the petition to reserve judge Barbara Kluka of Kenosha County, who authorized an investigation.
Chisholm asked Republican Attorney General J.B. Van Hollen to get involved, but Van Hollen declined on May 31, 2013. He cited potential conflicts of interest and appearance of impropriety.
Van Hollen’s position didn’t mean much to Chisholm, who multiplied the matter by recruiting district attorneys from Columbia, Dane, Dodge, and Iowa counties.
They filed John Doe petitions and joined Chisholm in asking Kluka to appoint Francis Schmitz as special prosecutor.
On Aug. 23, Kluka appointed Schmitz at $130 an hour.
On Oct. 1, Kluka issued subpoenas, search warrants, and a secrecy order.
Supreme Court justices would later lack a judicial adjective for the breadth of her authority and would simply call it “amazing.”
On Oct. 3, agents raided five homes in Columbia, Dane, and Dodge counties.
Their identities have remained confidential in public record all along.
O’Keefe, who lives in Iowa County, said they didn’t raid him because they didn’t trust the Republican sheriff.
Three targets moved to quash the subpoenas, but the motions didn’t make news because Kluka kept them in her secret file.
She recused herself from the Milwaukee County investigation on Oct. 29, and Kremers assigned reserve judge Gregory Peterson of Eau Claire.
Kluka recused herself from investigations of the other counties a day later, and chief district judges assigned Peterson to them.
The Wall Street Journal reported the raids in November 2013.
”We shocked them frozen,” O’Keefe said. “I don’t want to give bragging quotes but I certainly changed the whole situation. I don’t know what would have happened if I hadn’t done what I did.”
He said prosecutor Schmitz moved to hold him in contempt for violating Kluka’s secrecy order but Peterson wouldn’t enforce the order.
In December, targets in Dane and Dodge County sued for return of property.
On Jan. 10, 2014, Peterson granted the motions to quash the subpoenas and the petitions to return property. He found the subpoenas didn’t show any violation of campaign law.
He also found statutes only prohibited coordination between campaigns and other groups for a political purpose.
“Without political purpose, coordination is not a crime,” Peterson wrote.
He found political purpose required express advocacy, and there was no evidence of express advocacy.
Prosecutor Schmitz moved to stay the order pending appeal, and Peterson granted it on Jan. 27.
Peterson ordered the state not to examine the property it seized.
Targets petitioned the Supreme Court to confirm Peterson’s ruling in February, and Schmitz petitioned appellate judges to vacate the ruling.
Targets petitioned the Supreme Court to bypass the appellate court for direct review of Schmitz’s appeal, and the Supreme Court granted it.
In June 2015, the Supreme Court found the law unconstitutionally broad and vague if it didn’t apply only to express advocacy.
Justice Michael Gableman quoted a precedent that such statutes provide practically unbridled discretion that might result in selective prosecution.
“The threat to free expression created by overbroad statutes is that, by potentially sweeping in constitutionally protected activity, individuals and groups may self censor out of fear of vindictive or selective prosecution,” Gableman wrote.
He found prosecutor Schmitz “appears unable to decide just how the unnamed movants have broken the law.”
He found Schmitz’s theories would require surrendering rights to the government and retaining attorneys before discussing salient political issues.
“In essence, under his theory, every candidate in every campaign in which an advocacy group participates, would get their own John Doe proceeding and their own special prosecutor to determine the extent of any coordination,” Gableman wrote.
“This is not and cannot be the law in a democracy.”
He found flaws in Kluka’s subpoenas and search warrants and he wrote, “Judges cannot simply assume that the prosecutor is always well intentioned.”
Gableman found the warrants came close to general warrants, “of the kind which in part provoked our forefathers to separate from the rule of empire.”
He found prosecutor Schmitz visited a perfect storm on innocent persons and those who dared to associate with them. He found it fortunate that prosecutor Schmitz chose targets with the will and means to fight.
He also found that brave individuals gave the Court an opportunity to endorse again the fundamental right to engage in political activity, “free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution.”
Dissenting Chief Justice Shirley Abrahamson poured water on his fiery opinion, calling it convoluted and overblown.
Abrahamson wrote that the majority adopted an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and the First Amendment.
She wrote that they delivered a blow to the law’s paramount objective of stimulating vigorous campaigns on a fair and equal basis.
Prosecutor Schmitz moved for reconsideration, and the Court denied it in December 2015.
Gableman wrote that prosecutor Schmitz phrased his argument very carefully.
“He asserts that there is evidence somewhere of coordination between a campaign committee and other organizations which happened to engage at some point in time in express advocacy,” Gableman wrote. “He does not affirmatively assert that any particular piece of express advocacy was the subject of specific cooperation.”
That ended prosecutor Schmitz’s job, but Chisholm and district attorneys of Dane and Iowa counties petitioned the U.S. Supreme Court for review.
“The United States Supreme Court denied certiorari on the third anniversary of the raids,” O’Keefe said.
O’Keefe disputed Chisholm’s credentials as bail reformer and voice for Black people.
“Milwaukee has always been a tough city for Blacks.” O’Keefe said. “The policy is to isolate them and ignore the hood.
“Milwaukee has always had assembly line justice.
“I’m not a tough on crime guy except for actual crimes. Chisholm keeps people in jail for trivial things and lets dangerous ones go.”