Attorney General J.B. Van Hollen has declined to defend the Government Accountability Board in the latest “John Doe” legal challenge, citing among other things the “tenuous legal positions” taken by the agency in the investigation.
Assistant Deputy Attorney General Daniel Lennington said in a letter to the agency Friday that the Department of Justice has a conflict because it is representing John Doe judge Gregory Peterson in other challenges. In January, Peterson quashed subpoenas sought by John Doe prosecutor Francis Schmitz, saying he was not convinced that the campaign coordination under scrutiny is illegal.
Lennington said the agency could construct “conflict walls” around attorneys representing the GAB in the latest case, but it has chosen not to.
“In the Attorney General’s view, Judge Peterson’s order reflects a correct interpretation of the Wisconsin Statutes,” Lennington wrote. “We will not construct those walls to advance the tenuous legal positions asserted in the GAB’s prior filings.”
GAB spokesman Reid Magney said the agency has asked Gov. Scott Walker to hire a special counsel to defend the agency.
The agency had made a routine request for legal representation from the attorney general’s office after a Milwaukee-based group sued the GAB in U.S. District Court in Milwaukee Thursday.
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Citizens for Responsible Government Advocates filed a lawsuit seeking to block enforcement of any laws that would prevent it from coordinating with candidates or campaigns on so-called issue advocacy. Such coordination between Walker’s campaign and several conservative and Republican groups is at the heart of the John Doe investigation.
Prosecutors say such expenditures can be regulated and subject to reporting requirements and monetary limits when coordinated with a candidate or campaign.
Groups fighting the John Doe in court argue the U.S. Constitution protects their right to raise issues and coordinate with whomever they want so long as they do not advocate voting for or against a specific candidate.
The CRG lawsuit is before Judge Rudolph Randa, the same federal judge who ordered a halt to the John Doe investigation in May at the behest of one of the groups under investigation, Wisconsin Club for Growth.
That injunction was vacated last month by a three-judge panel of the 7th U.S. Circuit Court of Appeals, citing a lack of foundation for Randa’s decision that such coordinated speech is constitutionally protected.
The attorneys representing Citizens for Responsible Government are the same ones who represented Wisconsin Club for Growth.