The long legal battle over a contentious political investigation into Gov. Scott Walker’s recall campaign is now in the hands of the U.S. Supreme Court.
Three Wisconsin prosecutors on Thursday filed an appeal of the state Supreme Court’s decision to halt the so-called John Doe II probe, a matter that has sharply divided conservatives who believe in unfettered political speech and liberals who lament an erosion of the public’s ability to know who is influencing elections.
Critics of the state Supreme Court decision say Justices Michael Gableman and David Prosser should have recused themselves from the decision because the same groups under investigation helped elect them. They also say the decision went beyond prior U.S. Supreme Court rulings on coordination and campaign finance laws.
The filing marks the beginning of the next — and possibly final — chapter in a high-stakes political and legal battle that has played out over the past six years mostly in secretive court proceedings.
Dane County District Attorney Ismael Ozanne, one of the three prosecutors involved, confirmed the case had been filed, but said he was awaiting word that the filing had been received before he could disclose the arguments being made.
“We’re still trying to operate under the orders of the court,” Ozanne said, referring to a controversial secrecy order imposed by a John Doe judge in 2013. “Some may not, but we are.”
The appeal document is expected to be filed both in its entirety and in a redacted format in keeping with the secrecy order’s intent to shield the names of those being investigated from public view.
Various leaks of court documents and other records over the years have lifted much of the veil, revealing Walker was the primary focus of the investigation, along with advisers R.J. Johnson, Keith Gilkes, Kelly Rindfleisch and Wisconsin Club for Growth director Eric O’Keefe, who has divulged many of the details of the probe publicly in defiance of the secrecy order.
central to case
The case involves coordination between Walker’s campaign and supposedly independent groups, based initially on evidence gathered at the tail end of a previous John Doe investigation into Walker’s Milwaukee County office that resulted in six convictions of aides and associates, including Rindfleisch.
In the so-called John Doe II, a special prosecutor alleged in court documents that Walker helped raise millions of dollars for the Wisconsin Club for Growth, which in turn distributed it to so-called issue advocacy groups that ran thinly veiled political ads to protect Walker and Republican senators during the 2011 and 2012 recall elections.
The Government Accountability Board previously held that groups coordinating with a campaign committee must register as part of that committee and disclose their contributions, which would be subject to state campaign finance limits. The Wisconsin Club for Growth is a tax-exempt social welfare group that doesn’t disclose its donors and is limited in how much it can be involved in political activity.
Evidence collected during the probe found large contributions to the club, including a $700,000 contribution from Gogebic Taconite, which was lobbying for changes in state law to build a large iron mine in northern Wisconsin.
A special prosecutor, appointed by a John Doe judge at the urging of the Government Accountability Board and five district attorneys from both parties, executed dozens of search warrants and subpoenas in September 2013.
That prompted the subjects of the investigation to fight back in court saying their activities were protected First Amendment free speech.
In January 2014, a judge overseeing the probe reversed a previous judge’s decision to grant the warrants, quashing the evidence collected and halting the probe.
The Wisconsin Supreme Court affirmed that decision last July, saying the underlying legal theory was invalid. It later removed the special prosecutor from the case and ordered all evidence be turned over to it for safe keeping. The two Republican district attorneys who were part of the original probe also stepped back from the case.
The petition for Supreme Court review was filed by three Democratic district attorneys — Ozanne, Iowa County’s Larry Nelson and Milwaukee County’s John Chisholm, whose office led the first John Doe and who brought the second John Doe to the Department of Justice. Former Attorney General J.B. Van Hollen referred the case to the GAB.
The investigation was conducted under the state’s former John Doe law, which allowed the court to order documents be kept under seal and parties involved in the case be barred from speaking about it publicly.
Those under investigation have argued that the gag order deprived them of their First Amendment right to free speech.
Walker and the Legislature changed the John Doe law last fall so that it can no longer be used to investigate alleged political crimes.
1 percent accepted
The U.S. Supreme Court, which currently has a vacancy, had not received and docketed the filing as of Thursday afternoon, a court spokeswoman said.
The court receives between 7,000 and 8,000 applications a year and agrees to hear oral arguments in about 1 percent of them. The court typically acts within six weeks of an application being filed on whether to grant a review. Four of the justices must agree to hear a case.
After that the process can take up to three months as the parties file briefs.
If the court locks 4-4 on a decision then a lower court ruling stands without setting a federal precedent.
President Barack Obama has submitted a nominee to replace former Justice Antonin Scalia, who died in February, but the Republican-controlled Senate has refused to consider the nomination before the November election.