The lead prosecutor in the halted John Doe probe into Gov. Scott Walker’s recall campaign had doubts about his legal theory in November 2013, a month after issuing nearly three dozen subpoenas and search warrants, according to documents filed Thursday in a related lawsuit.
But with the support of the retired judges who serve on the Government Accountability Board and the encouragement of GAB staff, former U.S. attorney Francis Schmitz continued to press the case that Walker’s campaign violated the state’s campaign finance laws by not reporting coordination with Wisconsin Club for Growth and other organizations.
In an interview Friday, Schmitz said he no longer has misgivings about the legal theory.
“I raised those issues with the GAB staff and convinced myself that we were following the correct course,” Schmitz said. “I still believe we were on sound legal footing.”
The heavily redacted documents were filed Thursday in an ongoing lawsuit against the GAB and director Kevin Kennedy by the Wisconsin Club for Growth and director Eric O’Keefe and were provided to the State Journal by the GAB’s lawyer. They include new information about the GAB’s deliberations related to the controversial investigation, which the state Supreme Court stopped in July after targets of the secretive probe challenged subpoenas that were issued in October 2013.
In a 4-2 decision, the court said campaigns can coordinate with outside groups engaging in so-called “issue advocacy” — which typically involves thinly veiled campaign ads — but didn’t address the prohibition on coordination with groups that pay for advertisements expressly advocating for the election or defeat of a candidate. Schmitz has asked the court to reconsider its decision.
On Friday, Walker signed into law changes to the state’s John Doe law that would prohibit using such probes to investigate campaign finance violations, corruption and other political crimes. On Wednesday, the Assembly passed a bill dismantling the GAB, though its future in the Senate remains uncertain.
Republicans have argued GAB staff overstepped their bounds in pushing the John Doe investigation, though the retired judges who serve on the GAB board have defended the agency.
In one email exchange in November 2013, GAB lawyer Shane Falk described a conversation with Schmitz in which Schmitz admitted he hadn’t read a key court decision at the heart of the investigation.
“Essentially, he was whining that I was beating him up too much and he is really trying to get up to speed on the law,” Falk wrote. “Bottom line, he is really questioning the validity of the case.”
Edward Greim, a lawyer representing Wisconsin Club for Growth and O’Keefe in their lawsuit brought in Waukesha County against the GAB, said the records show the nonpartisan elections and ethics agency was more involved in the investigation than it has previously disclosed.
“The GAB has claimed they are standing off on the side and are giving advice when it’s needed,” Greim said. “They’ve alternatively claimed they have a parallel civil investigation that happens to be running alongside. If you read these, there’s no way that either one of those stories can be true.”
Paul Schwarzenbart, a lawyer representing the GAB in the lawsuit, said agency lawyers, as experts in the area of campaign finance, provided the Milwaukee County District Attorney’s office and Schmitz advice on state campaign finance law.
“The emails reflect the give and take between the many lawyers involved in this case analyzing complex issues, which include internal GAB conversations and conversations with Mr. Schmitz,” Schwarzenbart said.
GAB minutes revealed
The court filing reveals for the first time minutes from the June 20, 2013, GAB meeting at which five retired judges unanimously authorized the GAB’s involvement in the John Doe investigation. The GAB was also considering a civil forfeiture case against the John Doe targets.
At the meeting, ethics and accountability division administrator Jonathan Becker advised that the penalties for the alleged violations could be in the “millions of dollars.”
After being presented with the evidence, GAB chairman Judge David Deininger “observed that it appears these are very blatant offenses by individuals that are usually pretty savvy and wondered why and how they could be so careless,” according to the minutes. Becker and Falk “offered arrogance and possible ignorance of the finer points in the law” as possible explanations.
At the August 2013 GAB meeting at which special prosecutor Francis Schmitz was introduced, Judge Thomas Cane asked Schmitz about his political background amid a concern “that the public perception will be that this investigation is a political witch hunt,” according to the minutes.
Schmitz responded that he joined the Republican Party when applying for a U.S. Attorney job in the early 2000s and “had minimal contacts with some party officials at that time, but nothing extensive. He indicated that he had not made campaign contributions and was not currently active in any political party.”
He has subsequently stated in court filings that he voted for Walker in the 2012 recall election.
As of March 2014, the John Doe investigation had cost $161,537, and was expected to cost an additional $454,000, according to minutes of a later meeting.
5 warrants, 29 subpoenas
One email describes five physical search warrants being served on Oct. 3, 2013, plus 17 subpoenas in the Madison area and 12 subpoenas served outside of Madison in places such as Milwaukee and Washington, D.C.
The documents show investigators obtained nearly 1.7 million emails.
Within a week of the warrants being served, lawyers for Wisconsin Club for Growth and O’Keefe complained to Schmitz that the tactics were “heavy-handed,” according to an email in which Schmitz described the conversation to Falk.
The filing includes Tweets in support of the 2011 protests over Walker’s collective bargaining changes for public workers from Nathan Judnic, a GAB attorney who was involved in the internal John Doe discussions. “Stand in solidarity. Kill the bill. Support public employees and their right to bargain. Rally @ Capitol @ noon Tues. and Wed,” read one.
Judnic was also referenced in the November 2013 email from Falk in which he described Schmitz’s uncertainties about the investigation, saying “WOW WOW WOW WOW WOW. Nate’s and my worst fears were just realized.”
In a December 2013 email exchange, Steve Biskupic, an attorney for Walker’s campaign, complained to Schmitz about the phrase “criminal scheme of … (redacted)” and that it didn’t include the word “alleged.” Previously released documents show that the redacted section referred to Walker.
Schmitz forwarded Biskupic’s email to Falk and said, “I could swear that we discussed this and were going to change it to alleged scheme, but I guess with all the back and forth we missed it.” Falk responded, “It is what it is (and is factually correct, albeit a legal conclusory argument) and I know others in this office would prefer that we state things much much stronger.”
GAB split on probe
At the GAB’s May 21, 2014, meeting, staff recommended taking steps to pursue a civil complaint against parties being investigated as part of the John Doe proceeding. Those parties’ names are redacted in the court filing.
At the same meeting, Judge Harold Froehlich, whom Walker appointed to the board in 2013 instead of reappointing Deininger, brought a list of 11 concerns with the GAB’s role. He argued the investigation should have ended in September 2013 when the board didn’t follow statutes in reauthorizing the investigation after 90 days. It did so on Sept. 25, 2013, 96 days after authorizing it.
The board voted 4-2 to continue its involvement, over objections by Froehlich and Judge Elsa Lamelas. The board also voted 3-2 at its July 21, 2014, meeting to continue the investigation, but because one member was absent, the motion failed. Then at its August 2014 meeting, the board passed a resolution 5-0 with one member absent to allow GAB staff to continue assisting parties to the related litigation, and to reconsider its investigation pending the outcome in the courts.
In January of this year, the board voted 6-0 to prepare a brief in the Supreme Court case stating that “at the time the investigation was authorized, the facts suggested coordination of express advocacy as well as coordination of issue advocacy, and that the board believed the law of campaign finance in the state of Wisconsin was that coordination with respect to either was prohibited.”