On Wednesday, a Wisconsin judge unsealed an 88-page report on the state Department of Justice’s (WIDoJ) investigation into a leak of sealed evidence from the politically motivated “John Doe” investigation of Gov. Scott Walker, his supporters, and various conservative groups related to his recall election campaign.
Despite concluding a crime was committed during the John Doe proceedings, WIDoJ recommends no criminal charges. Instead, the report recommends that former Government Accountability Board (GAB) lawyer Shane Falk be referred to the state judiciary’s Office of Lawyer Regulation for discipline and that contempt proceedings be initiated against John Doe special prosecutor Francis Schmitz and former GAB employees for violating court orders during the John Doe proceedings.
Moreover, the WIDoJ investigation uncovered another previously secret investigation into the personal and political activities of Republicans and conservatives at the state and federal level, evidence from which was filed away as “opposition research.”
John Doe Means Secret Criminal Investigations
Wisconsin law provides for secret, so-called John Doe criminal investigations, overseen by a John Doe judge with the assistance of a district attorney. Ironically, this story begins with the “John Doe I” investigation Walker requested as Milwaukee County executive in 2010, based on a report of stolen public funds.
John Doe I resulted in six convictions. But within a month of Walker’s recall election victory over union-fueled opposition in June 2012, the district attorney received approval from the judge to expand the scope of the investigation into a probe of Walker’s campaign-finance practices.
The district attorney’s office then began consulting with GAB, then the agency charged with regulating campaign fundraising and spending. A GAB staff attorney wrongly advised the district attorney that the state’s campaign finance laws had been violated, based on the theory that conservative groups illegally coordinated their activities during the recall election.
This bad advice led to opening “John Doe II” proceedings. The abuses of the John Doe II investigation are well-documented, not least by the Wisconsin Supreme Court in its opinion shutting down the probe:
The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing. Millions of documents, both in digital and paper copy, were subpoenaed and/or seized. Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. The special prosecutor obtained virtually every document possessed by the Unnamed Movants relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013). Such documents were subpoenaed and/or seized without regard to content or relevance to the alleged violations ***. As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos.
Indeed, two “search warrants were executed at approximately 6:00 a.m. on October 3, 2013, in pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets’ homes.” The mishandling of this vast pool of personal and financial data ultimately became the focus of the WIDoJ investigation.
DA Continues Probe Despite Judge Order
For example, the John Doe II investigation should have effectively ended on January 10, 2014, when a judge quashed the subpoenas and warrants upon the motion of some John Doe targets, ruling they had not violated campaign finance laws. On January 27, 2014, the judge stayed the order pending appeal, but specifically ordered that the investigation team should not examine property and evidence seized.
The WIDoJ investigation found that Falk nevertheless ordered the compilation of records of donations to and from the Wisconsin Club For Growth, and compiling records from a database containing emails seized pursuant to search warrants. The special prosecutor learned of Falk’s activity and failed to order him to stop.
Moreover, a GAB specialist continued to access the database after a second order was entered in February 2014 broadly barring the review of any material obtained by any legal process. The special prosecutor did not halt this activity for days.
Next, when the Wisconsin Supreme Court formally ended the John Doe II investigation on July 16, 2015, “because the special prosecutor’s legal theory [was] unsupported in either reason or law,” it also “ordered that the special prosecutor and the district attorneys involved in this investigation must 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.”
An Attempt to Skew the U.S. Supreme Court
That did not happen, despite a detailed follow-up order specifying how it was to be accomplished. Instead, the prosecution team petitioned for review by the U.S. Supreme Court, which set the petition for consideration on September 26, 2016. Just 11 days before that conference, The Guardian published a leaked trove of documents from the John Doe II proceedings, including court filings, draft filings, and selected evidence prepared and kept by only some members of the prosecution team.
Analyzing the nature of the illegally leaked documents—as opposed to those kept secret—the WIDoJ report concludes that “the nature of the leaked court filings indicated an intent by someone – likely a lawyer – to respond directly to the Wisconsin Supreme Court’s decision.” Indeed, the report argues that “[o]nly someone with an intimate knowledge of the case and familiarity with the leaked documents would know which documents to leak that would correspond directly to the Wisconsin Supreme Court’s opinion.” WIDoJ believes “the leaked court filings show a specific intent to try to influence the United States Supreme Court as it was considering the pending petition for writ of certiorari in September 2016.”
The investigation also led WIDoJ to find that while all of the core prosecution team attorneys had access to the court filings, only former GAB members had access to certain leaked emails (some of which were involved in the prior violations of court orders). The report concludes:
[B]ased on the evidence collected, [WIDoJ] assesses with reasonable certainty that the hard drive of Shane Falk is the only place where all of the leaked documents *** were located. Yet despite executing a search warrant at the offices of the former GAB and conducting numerous witness interviews, no one could account for Falk’s missing hard drive, which remains missing and unaccounted for to this day.
You’re shocked that this key piece of evidence has gone missing, aren’t you? But it gets worse.
Sucking Up Personal Conversations for Oppo Research
Additional documents related to the John Doe II proceedings continued to be “found” periodically throughout the WIDoJ investigation. On May 23, 2017, one day prior to the scheduled interview of a former GAB attorney (and roughly six months after all evidence was supposed to be returned), WIDoJ learned of a large file cabinet containing John Doe documents in the basement of the Wisconsin Ethics Commission (one of two successor agencies to GAB after the Wisconsin legislature enacted a law disbanding GAB).
This last batch of documents included not only documents related to John Does I and II, but also evidence related to a previously unknown GAB investigation into members of the Republican Party of Wisconsin, which the WIDoJ dubs “John Doe III.”
Based on the commingled nature of the evidence discovered, WIDoJ believes that John Doe III, which apparently began as an investigation into whether state employees were campaigning on state time, became intertwined with John Does I and II and was based on the same unsupported legal theory as those investigations.
The WIDoJ report’s description of some of the John Doe III evidence is chilling:
[T]hree hard drives in particular contained nearly 500,000 unique emails (from Yahoo and Gmail accounts, for example) and other documents (email attachments, for example) totaling millions of pages. The hard drives included transcripts of Google Chat logs between several individuals, most of which were purely personal (and sometimes very private) conversations. GAB placed a large portion of these emails into several folders entitled, ‘Opposition Research’ or ‘Senate Opposition Research.’ [WIDoJ] has been unable to determine who labeled these emails as ‘Opposition Research,’ what the purpose of this label was, or how these emails were to be used in the future. However, [WIDoJ] is deeply concerned by what appears to have been the weaponizing of GAB by partisans in furtherance of political goals. Indeed, it is difficult to conceive why GAB needed any information from GoDaddy.com related to former Republican Senate Leadership Association Chairman Ed Gillespie or why staff attorneys wanted information held by Google for Leonard Leo, Executive Director of the Federalist Society.
Rogue Investigators Seize Info Of High-Level Republicans
The report identifies at least 35 people for whom John Doe III investigators obtained complete personal email accounts, chat and messenger logs, contact lists, and technical information. For example, the report notes: “investigators obtained, categorized, and maintained over 150 personal emails between [state] Senator Leah Vukmir and her daughter, including emails containing private medical information and other highly personal information. [WIDoJ] was unable to determine why investigators ever obtained, let alone saved and labeled, over 150 very private and very personal emails between a Senator and her child, or why investigators placed those emails in a folder named ‘Opposition Research.’“
Furthermore, as the references to Ed Gillespie and Leonard Leo make clear, those who merely communicated with the 35 targets also had their messages swept into the GAB dragnet. That list included Walker, Wisconsin Assembly Speaker Robin Vos, U.S. Sen. Ron Johnson, former U.S. Sen. Terrence Wall, former RNC chairman and President Trump chief of staff Reince Priebus, U.S. Rep. Sean Duffy, two other state senators, the state treasurer, Walker campaign chairman Joe Fadness, and various legislative staff members.
Although the WIDoJ report concludes that the leak of the sealed evidence was a crime, committed for the purpose of attempting to influence the U.S. Supreme Court, it ultimately could not recommend criminal charges be brought against anyone involved with the John Doe investigations scandal because of how scandalous the misconduct was.
In particular, the prosecution team, especially GAB, was ridiculously careless with the vast quantities of evidence they collected (when it wasn’t being filed away as opposition research). There was no designated custodian for the evidence. There was no central log of the evidence collected. The evidence was not stored in a central location.
Indeed, documents and hard drives were left unsecured on staffers’ desks. The digital evidence was spread among hard drives, network drives, Gmails, cloud-based databases, the Dropbox file-sharing service, and flash drives. Accordingly, the systematic mishandling of the evidence prevents prosecutors from affixing individual criminal guilt beyond a reasonable doubt.
One reason for this dysfunction was investigators’ paranoia that if they used state computer systems, Walker might discover what they were doing. Thanks to the WIDoJ report, the public now knows what they were doing. Perhaps the Wisconsin judicial system can provide some measure of discipline for those involved in this abusive, partisan persecution.