Wisconsin ‘John Doe’ Investigation’s Closure Serves As Cautionary Tale

Erik Telford President, Franklin Center
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Since 2010, the Milwaukee County Attorney General has been waging a secret war against presidential candidate and current Governor of Wisconsin Scott Walker, conservative activists, and Republican donors. This month the secret war finally ended when the Wisconsin State Supreme Court ruled that the “John Doe” investigations being carried out by the Attorney General “employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing,” violating their rights to free political speech.

Watchdog.org’s M.D. Kittle has written over two hundred stories related to the John Doe investigations. These investigations are intended to be an independent, investigatory tool to determine whether a crime has been committed and if so, by whom. Unlike normal criminal investigations, which need probable cause in order to be initiated, John Doe investigations are used to establish probable cause in and of itself, giving law enforcement powers not otherwise available to them. In Wisconsin, law enforcement and special prosecutors took advantage of these special powers to secretly ruin the lives of several ordinary, law abiding citizens, who happened to espouse conservative beliefs.

Pre-dawn, paramilitary style raids were executed on the homes of targets of the John Doe investigation in an attempt to gather incriminating evidence — the same kind of raids used to apprehend drug dealers and murders. In one case Watchdog.org reported on, the target wasn’t home when heavily-armed police executed a raid, but the target’s 16-year old son was, and he was detained and denied the ability to contact his school, a lawyer, or even his parents while police rifled through the house.

The secret investigations began in May 2010 as a probe into reports of a possible theft of a veterans fund in the Milwaukee County Executive’s office. At the time, Republican Gov. Scott Walker served as county executive in Milwaukee. District Attorney John Chisholm, a Democrat, used that financial discrepancy (even though it was reported to the DA’s office by Walker himself) to launch a secret, full scale, and politically charged John Doe investigation into Scott Walker’s former aides, associates, and allies during his gubernatorial campaign.

The investigations lasted five years, during which prosecutors from Milwaukee County used their special John Doe privileges to tap the email and text message communications of conservative activists. At least17 people were targeted and had 19 months worth of communications examined by the DA’s office. Dozens of conservative organizations were also investigated, with some even having their  bank records seized. In today’s day and age, having someone reading private text messages and emails can be just as invasive and traumatic as a government agent digging through personal belongings in your home.

Remember we’re not talking about the NSA here; this was the Milwaukee County District Attorney’s office coordinating this investigation and secretly spying on people. Remember: all this spying was done merely to establish probable cause. The DA’s office had no probable cause that any sorts of laws were being violated to begin with, and still chose to investigate these individuals and organizations.

The initial John Doe investigation from 2010 led to the conviction of six people on charges related to theft from the veterans fund and misconduct in office. At least one of those arrested, Kelly Rindfleisch, may have legitimate Fourth Amendment violation concern, and she has asked the U.S. Supreme Court to take up her case. Rindfleisch, who worked on former Republican candidate for lieutenant governor Brett Davis’ campaign, was sentenced to 6 months in prison for responding to a campaign email while at her government job. She was not specifically under investigation when she was picked up in the John Doe dragnet.

That the investigation continued regarding potential campaign finance violations, even after the individuals responsible for the missing veteran funds were apprehended, is a disturbing example of an overzealous and partisan prosecutor using John Doe rules to investigate his fantasies of widespread malfeasance on the part of conservative activists.

The John Doe investigations continued until May 2014 when a federal judge issued an injunction, halting the probe. When Wisconsin State Supreme Court judge Michael Gableman ruled in favor of the unnamed plaintiffs in the case against the Milwaukee County DA, the investigation was officially closed, with no arrests related to campaign finance violations being made. The court upheld the plaintiffs rights to freedom of speech, specifically political speech, without fear of retribution by the state — which is all the John Doe investigation was ever about.

Despite the end of the investigations, the damage has been done. Numerous individuals and organizations have had personal information seized and investigated, some without even knowing they were under investigation. Some have even been subject to traumatic raids and encounters with armed law enforcement because of the investigation. The Wisconsin Supreme Court ruling was no doubt a big win for liberty and free speech, but Wisconsin and other states with John Doe provisions should reexamine those laws considering the amount of power they give politically-appointed prosecutors to ruin innocent people’s lives.