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http://watchdog.org/113658/judge-investigation-democrat/

$775,000 and rising — Wisconsin taxpayers’ bill to defend John Doe prosecutors

By M.D. Kittle | Wisconsin Reporter - March 4, 2015

MADISON, Wis. — Taxpayers conservatively have spent north of $775,000 defending the prosecutors of a politically charged John Doe investigation driven on a legal theory that even the prosecutors have rejected.

The state, as of Monday, had paid $368,654.60 for the legal defense of Francis Schmitz, the special prosecutor for the multi-county John Doe probe into dozens of conservative organizations and Gov. Scott Walker’s campaign, according to information obtained by Wisconsin Reporter through an open records request.

Taxpayers are on the hook for another $407,643.58 in attorney fees to defend Milwaukee County District Attorney John Chisholm, the Democrat who launched the probe in late summer 2012, two of his assistant DAs and a special investigator contracted by the state Government Accountability Board.

“That’s an awful lot of taxpayer dollars to advance a legal theory that the state itself has already repudiated,” said Andrew M. Grossman, an attorney for political activist Eric O’Keefe and his Wisconsin Club for Growth, one of 29 conservative groups targeted in the campaign finance probe.

The expenditures were released by Walker’s legal counsel, who, under state law, is in charge of handling the legal bills of the same people who for the past few years have gone after Walker’s campaign and the Republican governor’s conservative allies. Costs reflect only money spent defending the prosecutors in federal court.

O’Keefe and the club in February 2014 sued Schmitz, Chisholm, his assistant DAs, David Robles and Bruce Landgraf, and the GAB’s Dean Nickel in federal court after presiding John Doe judge quashed several subpoenas the month before because the prosecutors had failed to show probable cause that a campaign finance crime had been committed.

The conservatives allege prosecutors grossly violated their First Amendment rights through a partisan witch hunt, political retaliation for conservative successes under Walker.

A federal judge last June issued an injunction against prosecutors, shutting down the probe, and allowed the lawsuit to move forward. O’Keefe and the club are seeking damages not only in the prosecutors’ official capacity as state agents, but in a personal capacity — meaning the defendants would have to pay out of their personal finances.

The U.S. Court of Appeals last fall overturned the lower court’s injunction and dismissed the federal lawsuit, arguing the matter should be settled in the state court system.

O’Keefe and the club in January appealed to the U.S. Supreme Court, asserting the case of premeditated prosecutorial abuse is precisely the kind of constitutional abuse case federal courts should take up.

Not long after the conservatives filed with the U.S. Supreme Court, U.S. District Court Judge Charles N. Clevert Jr. issued a final declaratory judgment and permanent injunction against the GAB and Chisholm, partners in the John Doe probe. The order speaks directly to Wisconsin Right to Life, Inc. v. Barland, and the appeals court ruling on it in May that says portions of Wisconsin’s campaign finance law related to issue advocacy were unconstitutional.

The judge’s declaratory judgment, however, specifically references the John Doe probe and bans the GAB from enforcing the illegal statute and Chisholm from criminally investigating individuals using the section of law.

Chisholm and the Government Accountability Board each signed off on that order, agreeing they would not pursue the probe based on the unconstitutional law. And the GAB in August voted to shut down its John Doe investigation, integrally tied to the probe conducted by Schmitz and Chisholm and crew.

Yet, the prosecutors continue to defend in state and federal court their legal theory that the conservative groups illegally coordinated with Walker’s campaign during Wisconsin’s partisan recall season basically because they all shared the same limited government, free-market principles.

That theory and the validity of the John Doe investigation is about to be tested before the state Supreme Court.

Wisconsin’s unique John Doe procedure is similar to a grand jury investigation, without a jury of peers. A single judge is vested with extraordinary power to compel witnesses to testify in determining whether a crime has been committed. The probes have included a gag order, and those subject to it can go to jail if they say anything publicly about the investigations.

Chisholm could not be reached for comment Tuesday at his Milwaukee office. Schmitz’s attorney, Randall Crocker, did not return a call seeking comment.

For now, the probe remains on hold, but O’Keefe and other conservative targets say the damage already has been done. They say the cloud of an investigation hanging over them for the past two and a half years has kept donors on the sidelines and paralyzed their ability to engage in political speech. And for the conservatives who had their homes raided before sunrise like they were drug dealers or gang members, the costs are more intangible.

Once source tells Wisconsin Reporter that $775,000 doesn’t begin to cover the actual costs to taxpayers, including the time and resources that could have been spent on investigating and prosecuting real crimes against people and property.”

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