David Michael Miller
Break out the paper shredder and grab that can of lighter fluid: The Wisconsin Supreme Court has not only shut down the John Doe probe into alleged illegal campaign activity involving Gov. Scott Walker and outside groups, it has ordered prosecutors to destroy the underlying records.
The court’s 4-2 ruling, released July 16, concludes that the theory of wrongdoing at the heart of the investigation is “unsupported in either reason or law.” It directs the special prosecutors and district attorneys involved to return all seized materials and “permanently destroy all copies of information and other materials obtained through the investigation.”
Written by Justice Michael Gableman on behalf of the court’s conservative majority, the decision states that this directive is “consistent with our decision and the order entered by Reserve Judge [Gregory] Peterson” in an earlier ruling. Actually, it isn’t. Peterson’s ruling, which he put on hold pending further court review, called for records to be returned, but not for copies to be destroyed.
It was a different jurist, federal Judge Rudolph Randa of Milwaukee, who ordered records destroyed, using language the Wisconsin Supreme Court adopted word for word. The court’s call, coming on the heels of an aborted legislative effort to gut the state’s open records law, is highly unusual. Courts regularly order case files sealed, but the records are still preserved.
“In my experience, I can’t think of a time when a judge has ordered things to be destroyed,” says Susan Steingass, a former Dane County judge, State Bar of Wisconsin president and emeritus UW law professor. She assumes the court wants to keep people from seeing what is in the files. “I don’t know why else you would do it.”
Dane County Judge William Foust, a former district attorney, was also unable to think of any occasion, prior to Randa’s ruling, in which a court has ordered records destroyed. He notes that case files are ordinarily preserved pending appellate review.
But Stephen Hurley, a local defense attorney and legal expert, says the case at hand presents an unusual circumstance: a probe stopped before any charges were filed. He thinks it could be argued that destroying records is “in keeping with the John Doe secrecy order.”
Last week’s ruling could yet face a legal challenge to the U.S. Supreme Court, perhaps over alleged conflicts. All four justices who voted to shut down the probe — Gableman, Annette Ziegler, Patience Roggensack and David Prosser — received significant help getting elected from two of the probe’s named targets.
Wisconsin Manufacturers & Commerce and Wisconsin Club for Growth spent $8.3 million on “issue ads” in support of the justices’ candidacies. The U.S. Supreme Court has previously ruled that a West Virginia justice should have recused himself from a matter involving a major outside campaign supporter.
Tara Malloy, senior counsel with the Campaign Legal Center in Washington, D.C., says the fact that Wisconsin justices rejected recusal requests “raises a legitimate issue of potential conflict of interest.” However, she adds, “given how much material is under seal and redacted, it is difficult for me to assess the gravity of the allegations or the likelihood of success of an appeal.”
The difficulty of proving the gravity of the allegations would likely be greater if the material now under seal is permanently destroyed.
Francis Schmitz, the John Doe’s special prosecutor, declined to comment on the call for records destruction, saying he was still reviewing the ruling. He did not respond to a question about when the court-ordered records destruction might begin. John Chisholm, the Milwaukee County district attorney who launched the investigations, did not respond to a request for comment.
In a statement in April, prompted by Walker’s assertion that the probe’s prosecutors were engaged in a “political witch hunt,” Schmitz, a self-described Republican, declared: “I invite the governor to join me in seeking judicial approval to lawfully release information now under seal which would be responsive to the allegations that have been made. Such information, when lawfully released, will show that these recent allegations are patently false.” Chisholm agreed, calling for “the release of all the relevant information.”
Launched in 2012, the John Doe probe involved Schmitz and district attorneys in five counties, operating under judicial oversight. It used subpoenas and search warrants to obtain records, some of which became public.
The released records show Walker and others engaged in campaign coordination of the sort that’s been punished in the past. And even Judge Peterson, who put the probe on hold, called the prosecution’s position an “arguable interpretation of the statutes.”
Scot Ross, executive director of One Wisconsin Now, a liberal advocacy group, chided the Supreme Court for reasserting Randa’s order to destroy case files, saying “he’s overturned more often than a skid-row mattress.” He says the court’s conservative majority wants the records destroyed “to protect Scott Walker and his Republican money machine that also financed these justices having their seats on the court.”
But Rick Esenberg, president and general counsel of the conservative Wisconsin Institute for Law & Liberty, defends the call for the records’ destruction, saying “if the government improperly took something that you are entitled to keep private, then it ought not be able to continue to violate your rights by making and keeping copies.”
Worse still would be releasing these records to the press, in defense of what has been determined to be an unlawful probe. Such an outcome, Esenberg says, “would be inconsistent with John Doe secrecy which is claimed to protect the innocent. We now know that there was no basis to investigate these people — they were innocent of any lawbreaking.” So, Esenberg argues, the rationale for secrecy is stronger than ever.
In the aftermath of the ruling, Wisconsin Club for Growth director Eric O’Keefe has called for Chisholm to be removed from office and others involved in the probe to be disciplined. It is not clear whether this will be harder or easier to accomplish if the underlying records are destroyed.
