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Federal judge hears oral arguments in John Doe related lawsuit (copy)

A federal judge Thursday granted a motion to dismiss a federal civil suit brought by a former aide to Gov. Scott Walker against investigators in the Milwaukee County District Attorney's office. 

In the lawsuit, filed in July 2015, Cindy Archer alleged that Milwaukee County District Attorney John Chisholm and five others “carried out a campaign of harassment and intimidation” and violated her constitutional rights during their investigation of several Scott Walker aides when he was Milwaukee County executive.

On Thursday, Judge Lynn Adelman rejected those claims, and allowed for some of the evidence in the John Doe probes to be preserved with his court. Archer's attorneys had asked for the court to bar Chisholm's investigators from having access to evidence in the John Doe probes.  Adelman rejected that request in part, allowing the investigators to file evidence from the second John Doe probe with his court clerk, but said the evidence will remain under seal and not be docketed. 

He noted that the order does not violate Wisconsin's Supreme Court order calling for the evidence to be collected and destroyed. 

"My order does no more than permit the defendants to provide copies of the relevant materials to the clerk of this court. It does not address the issue of access to the materials or whether the state Supreme Court or this court should decide that issue. Thus, the order does not in any way weaken the state court’s determination that the records should remain secret."

In his decision, Adelman struck down several charges of Archer and her attorney, including that the warrant executed in her home was improper. He outlined a timeline for the development of both John Doe investigations and noted how conservative advocacy groups, that were the target of those investigations, launched a "full blown campaign against the investigations and against the defendants," led by Eric O'Keefe at the Wisconsin Club for Growth.

"The subjects of the investigation... had significant resources and were willing to bring numerous lawsuits in an attempt to shut the investigation down," he wrote. "It is not an overstatement to say that the opponents of the investigation made it very difficult for the defendants to proceed."

He also noted that the warrant used to search Archer's home, which had been a central complaint in the case, was properly executed. It was issued by Judge Neal Nettesheim, who concluded investigators had probable cause to search Archer’s home.

“The plaintiff’s allegation of a lack of probable cause for the search of her home is contradicted by the warrant,” Adelman wrote.

He also emphasized several times throughout the order that the investigators, who, as law enforcement officers are public officials, and should be protected from "warrantless" lawsuits when they are acting appropriately in their professional capacity. He said the Archer suit provided a "textbook" case for granting immunity to them and noted the issue had particular salience in the case.  

"If public officials are subjected to unwarranted litigation, they may shade their decisions and refrain from exercising independent judgment and taking action when they believe it is justified," he wrote. 

Samuel Leib and Douglas Knott, attorneys at Leib Knott Gaynor LLC, who represented the Milwaukee County investigators, heralded the decision as a comprehensive summary of what has happened in the last few years in Wisconsin.

"His dismissal of this action embraces justice rather than rank ideology which has driven the various lawsuits against public servants of the highest order furthering the best interests of the citizens of Wisconsin. Although well funded, this lawsuit is meritless," they said in an e-mail Thursday. 

David Rivkin, an attorney at  BakerHostetler LLP in Washington, D.C., who represented Archer said he plans to appeal the decision.

"The district court's decision is wrong on the facts and the law, and we are confident that it will be reversed on appeal," he said in an email statement. "Cindy Archer deserves justice, and we will continue to fight against government officials who abuse their power for political ends."

Adelman also outlined key pieces of evidence Chisholm and appointed prosecutor Francis Schmitz used to make their case.  

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The evidence included:

– emails from Walker’s staff advising him to “[s]tress that donations to WiCFG are not disclosed” and to tell donors “that you can accept corporate donations and it is not reported;”

– a $1 million deposit into WiCFG from Stephen Cohen, founder of SAC Capital Advisers, shortly after Walker was scheduled to meet with an SAC representative;

– a March 2012 email from Walker to his fundraiser stating that “Bruce and Susie Kovner said that they want to give more” and 10 days later a $50,000 check from Bruce Kovner arrived in WiCFG’s account. The check’s memo line read “501c4-Walker;” and

– a 2012 email from Walker’s fundraiser to Walker regarding “meetings to make happen while in Sea Island . . . Paul Singer: Grab him.” A few months later, $250,000 was deposited into WiCFG’s account from Singer.

In summarizing the Doe investigation into the financing of Walker's recall campaign, Adelman also noted that the state Supreme Court ruling last year to shut down the probe "overturned years of precedent and practice in Wisconsin."

Milwaukee County District Attorney John Chisholm has petitioned the United States Supreme Court to take the case. There has been no response to that request yet. 

  

Katelyn Ferral is The Cap Times' public affairs and investigative reporter. She joined the paper in 2015 and previously covered the energy industry for the Pittsburgh Tribune Review. She's also covered state politics and government in North Carolina.