Judge Orders End to Investigation of Wisconsin Governor's Recall Campaign
By Dee J. Hall
U.S. District Judge Rudolph Randa on Tuesday ordered a halt to the John Doe investigation that targeted the recall campaign of Gov. Scott Walker and "all or nearly all right-of-center groups and individuals in Wisconsin who have engaged in issue advocacy from 2010 to the present."
In issuing his preliminary injunction, Randa sided with Wisconsin Club for Growth, finding the John Doe probe into alleged illegal campaign coordination is hampering the group's constitutionally protected right to free speech.
The Milwaukee-based judge ordered prosecutors to "cease all activities related to the investigation, return all property seized in the investigation from any individual or organization and permanently destroy all copies of information and other materials obtained through the investigation."
Randa's granting of a preliminary injunction Tuesday also revealed new details about the secret investigation, which has been the subject of both intentional and inadvertent leaks in recent months. The ruling confirmed that Walker's recall campaign is a prime target of the five-county probe launched in 2012.
Observers said the ruling could have "huge" implications for the application of Wisconsin's campaign finance laws and the power of state prosecutors.
Randa ordered that Wisconsin Club for Growth, board member Eric O'Keefe and any others under investigation "are hereby relieved of any and every duty under Wisconsin law to cooperate further with defendants' investigation."
The order bars John Doe prosecutor Francis Schmitz, Milwaukee County District Attorney John Chisholm, two assistant Milwaukee County district attorneys, Bruce Landgraf and David Robles, and John Doe investigator Dean Nickel from continuing the investigation.
Any attempt to force Wisconsin Club for Growth to comply with the investigation at this time, Randa ruled, "is grounds for a contempt finding by this court."
Donald Downs, a UW-Madison professor of journalism, law and political science, called the decision a "very strong opinion" about "free speech in a free society."
Downs said recent U.S. Supreme Court decisions limiting the power of government to regulate political speech may make it difficult for prosecutors to appeal Randa's ruling.
"I was sort of surprised by the strength of it," Downs said. "The case has basically been closed against them (prosecutors)."
Downs added that it is unusual to have a federal judge halt the work of state prosecutors, calling it "pretty strong medicine." Voice and email messages left with attorneys for Club for Growth were not immediately returned Tuesday night. A woman answering the phone for O'Keefe said he didn't wish to comment.
Attorney Randall Crocker of Milwaukee said he and his client, Schmitz, would review their options in light of Randa's decision.
Crocker said Schmitz's activities have been lawful and aimed at "protection of the integrity of Wisconsin elections."
The John Doe prosecutors had filed an emergency request late Monday with the 7th Circuit U.S. Court of Appeals, asking it to block Randa from ruling on Club for Growth's request for a preliminary injunction.
The prosecutors have argued that Randa lacks the jurisdiction to intervene in the state probe and that they are immune from the various challenges raised and monetary compensation sought by O'Keefe and Club for Growth.
"This emergency motion arises out of a matter of significant public interest and consequence for the state of Wisconsin," the prosecutors said. "(O'Keefe and Club for Growth) have asked the district court to preempt lawful state 'John Doe' proceedings and exonerate them from any obligation to comply with Wisconsin's campaign finance rules."
Allowing Randa to halt the investigation, they argued, "would be to destroy evidence of crimes and effectively restrain the state of Wisconsin from enforcement of its laws."
Milwaukee attorney Michael Maistelman, who has represented numerous federal and state elected officials, said Randa's ruling could have "long-term repercussions" for the independence of state prosecutors.
"For the federal judicial branch to halt an investigation conducted by a constitutionally elected executive (district attorney) is huge," Maistelman said.
But Randa said the preliminary injunction was needed because the investigation was blocking Club for Growth and other "right-leaning organizations" from participating in the 2014 legislative session and election cycle.
He found that the investigation has "dramatically impaired" the constitutionally protected right of Club for Growth and O'Keefe to engage in issue advocacy.
Issue advocacy groups do not have to report the source of their funding and are not subject to contribution limits so long as they do not expressly advocate the defeat or election of any candidate.
Prosecutors have been investigating whether such groups coordinated their efforts with political campaigns during the 2011 and 2012 recalls, which they contend would turn them into undisclosed and thus illegal campaign contributions.
But Randa wasn't buying it. The judge said the U.S. Supreme Court considers such issue advocacy "pure First Amendment speech" that is "not subject to regulation."
New details revealed
Randa's order confirmed that one of Walker's campaign advisers, R.J. Johnson, has been under investigation for allegedly controlling a "hub" of issue-ad groups in 2011 and 2012 in coordination with Friends of Scott Walker.
The judge said O'Keefe and Club for Growth deny they were coordinating with the Walker campaign. Even if they were, Randa wrote, that does not transform the activity into so-called express advocacy, which is regulated.
Randa's ruling also contains dramatic new details about the investigation, including the raid by "armed officers" of the homes of Johnson -- an adviser to both Walker's campaign and Club for Growth -- and another Club for Growth adviser, Deborah Jordahl, on Oct. 3.
"Sheriff deputy vehicles used bright floodlights to illuminate the targets' homes," the judge wrote. "Deputies executed the search warrants ... while their targets were restrained under police supervision and denied the ability to contact their lawyers."
According to Randa, the prosecutors argued that the targets were engaged in a "wide-ranging scheme" to raise undisclosed funds to be funneled through several organizations working in concert with various candidate committees to beat recall attempts against Walker and state senators. The judge revealed that prosecutors considered Club for Growth the "hub" through which Johnson would coordinate fundraising and issue ads by groups including Citizens for a Strong America, Wisconsin Right to Life and United Sportsmen of Wisconsin.
Randa said his decision was about "the limits that government can place on First Amendment political speech." He wrote that the U.S. Supreme Court, in the recent McCutcheon decision tossing out aggregate limits on campaign contributions, found that government can only regulate political activities as they relate to the potential for corruption.
"O'Keefe and the Club obviously agree with Governor Walker's policies, but coordinated ads in favor of those policies carry no risk of corruption because the Club's interests are already aligned with Walker and other conservative politicians," Randa wrote. "Such ads are meant to educate the electorate, not curry favor with corruptible candidates."
Wrote Randa: "The plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect."
State Journal reporters Mary Spicuzza and Matthew DeFour contributed to this report.
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