The Intimidation Game

by Kimberley Strassel

  The first tip that GAB was in on the Doe probe came via one of the search warrants, which revealed that they had been executed based on the request of Dean Nickel, who had worked as an investigator at GAB. Documents would later show that GAB’s board had in fact voted to officially investigate “illegal coordination” among the groups in June 2013—just as Chisholm was gearing up to hire Schmitz and issue subpoenas. But e-mails would also show that GAB staff, including GAB director Kevin Kennedy, had been working for at least ten months prior with the DA’s office to target and intimidate the twenty-nine conservative groups. To this day it is unclear if GAB’s board knew about this earlier staff work or had given approval.

  Schmitz and the GAB folk certainly seemed to feel a bond. There’s an e-mail on November 27, 2013, from GAB staff counsel Shane Falk to special prosecutor Schmitz. This was about two months after the subpoenas came out, and just after news broke of them. Falk tells Schmitz to “stay strong” in his efforts to take down Walker allies. “Remember, in brief, this was a bastardization of politics and our state is being run by corporations and billionaires,” he wrote. “That isn’t democracy to say the least, but due to how they do this dark money, the populace never gets to know.” This was a pretty good insight into how the average GAB bureaucrat thinks.

  “The cynic in me says the sheeple would still follow the propaganda even if they knew, but at least it would all be out there so that the influences on our politicians is clearly known,” continued Falk. By “the sheeple,” Falk meant Wisconsin voters.

  Documents show that GAB staff was almost fervent in its desire to bring down Walker allies, and at one point contemplated serving subpoenas or warrants on conservative TV and radio talk show hosts. Notes from a September 2013 meeting refer to a “discussion raised by David regarding media exemption and identifying what the standards are before Sykes/Hannity coordinate with [Friends of Scott Walker] and Walker.” The “David” here appeared to be David Robles, an assistant DA in Chisholm’s office. Sykes is a reference to influential Milwaukee radio host Charlie Sykes. Hannity is Fox News’s well-known conservative host Sean Hannity. The conversation suggests that prosecutors were also suggesting some form of illegal “coordination” with the Walker campaign. The notes also includes “to-do” assignments for Robles and Schmitz and Falk—meaning that they, or representatives, were presumably all at the meeting.

  Other documents showed that investigators were considering sending Sykes and Hannity subpoenas or warrants. The episode illustrated to what an extraordinary degree GAB and prosecutors had run off the rails. Some campaign finance laws are debatable. But few protections are stronger under the Constitution than the First Amendment’s protection of a free press. And yet the Wisconsin speech police were thinking about hauling in Sean Hannity.

  * * *

  GAB didn’t just have friends in low places, like the Milwaukee DA’s office; it had friends in very, very high places. Long after the Doe scandal tapered off, new e-mails showed that GAB’s Kennedy was in frequent contact with none other than Lois Lerner.

  The e-mails show that Kennedy and Lerner talked about all sorts of things, from the need for more donor disclosure to the recall election. In one July 2011 e-mail, Kennedy complains to Lerner, “The Legislature has killed our corporate disclosure rules.” Sources also told the Wall Street Journal that in 2012 and 2013, Wisconsin investigators requested that the federal tax agency give it information about one of the conservative groups it was investigating. It is unclear if the IRS honored that request, but it is notable that prosecutors felt comfortable asking in the first place. Left-wing activist groups provided a further nexus between the two operations. In October 2014, the Center for Media and Democracy filed a complaint with the IRS against the Wisconsin Club for Growth, claiming it was violating its nonprofit status. Its evidence was Doe-related material.

  Kennedy and Lerner appeared to be personal friends as well as professional contacts. They even fit in face-to-face working sessions. One of those was in late January 2012, when Lerner suggested they work “two nights in a row.” That was about a week or so before the IRS shipped off its enormous tranche of interrogatories to conservative groups around the country. It’s also around the time when Wisconsin prosecutors were siphoning up information to prepare for the official opening of their second John Doe, in September of that year. Did Kennedy and Lerner work together on these topics? We still don’t know.

  GAB had also played a cameo role in the harassment of Engelbrecht. The letter that Maryland Democratic representative Elijah Cummings sent to the Texas group cited GAB’s criticisms of True the Vote. TTV had played a role in reviewing some of the petitions to recall Walker. GAB had been accused of a lackadaisical approach to verifying signatures. Yet when outside groups attempted to do some verification, GAB thwarted them at every step. Obama counsel Bob Bauer praised GAB for taking “swift action in the aftermath of [True the Vote’s] involvement in the June recall elections.”

  Obama, the IRS, GAB, Wisconsin prosecutors, CMD, Dick Durbin, Color of Change, the SEC, the FEC, Bruce Freed, Common Cause, Media Matters. O’Keefe for his part says the question “isn’t who else is in on such a large and coordinated campaign. The question is, who isn’t?”

  * * *

  Chisholm’s office undoubtedly hoped to get a conviction. But the John Doe investigation had more immediate partisan goals—all focused on the near-term Walker reelection.

  One goal was (again) to obtain a list of donors. One subpoena revealingly contained a demand for “all records of income received, including fundraising information and the identity of persons contributing to the corporation.” The prosecutors wanted donor names, even though these are protected by law. The left had already started donor harassment during the recall, with liberal groups publishing the names of Walker contributors and urging national boycotts. They wanted a larger roster.

  The other goal was to help Mary Burke, Mr. Walker’s opponent in the 2014 reelection. Burke just happened to announce her candidacy for the governorship a few days after the Schmitz subpoenas hit their targets. The documents inspired panic among independent groups, which in turn served to put the entire Wisconsin conservative ecosphere on ice. The groups’ fund-raising plummeted, even as their legal bills piled up.

  Not that anyone had an appetite for advertising and giving prosecutors more ammunition. “They had absolutely unlimited resources,” Wisconsin Manufacturers and Commerce president Kurt Bauer would later tell the Wall Street Journal. “And I think part of the goal all along was to chill our fundraising and keep us off the airwaves. So the money and time we had to spend defending ourselves was money and time that we couldn’t spend toward issue advocacy.”

  The separate gift to Burke was the public leak of the new probe, which happened only a few weeks after the subpoenas. Conservatives had been told they’d go to jail if they breathed word of the investigation. And yet word of the probe ended up in the column of a prominent Milwaukee Journal Sentinel reporter, known for his Democratic sources. Burke immediately made the probe part of her campaign against Walker.

  That was a bit much for O’Keefe. The conservative had decided with that first call to his wife that he was going to violate the gag. “I think I violated it in some form every day,” he remembers, somewhat proudly. But he hadn’t gone public yet. His hesitation speaks to just how corrosive and corrupting to democracy a John Doe investigation is. O’Keefe was willing to go to jail over the gag. But there were twenty-eight other organizations that had varying responses to the subpoenas, and one big response was fear. A lot of them preferred to keep this quiet, not antagonize the prosecutors, hope it blew over. Some of those who didn’t want publicity were named in O’Keefe’s subpoena. If he outed himself, they’d be outed too, and they’d be unhappy. He was under pressure to stay quiet.

  “But I wanted the fight now,” says O’Keefe. “I wanted it on me, not wait to have my kids deal with the fallout one day.” He talked it over with his children and wife, w
ho asked if she could bail him out if he was arrested. The penalty for violating the gag was a $10,000 fine and a year in jail. He said no. And then, using the connections of a friend, he ended up sitting down with the Wall Street Journal.

  O’Keefe told the Journal’s editorial page what had happened, and then he waited. He didn’t know if the paper would take his story seriously—whether it would even bother writing anything. Two weeks later, the Wall Street Journal blew the lid off the story. It ran through the Doe, the subpoenas, the groups under fire—and it excoriated the whole exercise. It also quoted O’Keefe. He’d publicly and brazenly defied the gag. His phone started ringing off the hook.

  Chapter 20

  Fight Club

  O’Keefe didn’t just go public. He directed his attorneys to fight the subpoenas. The result was that he almost immediately proved just how political and out of bounds the investigation was. Within three months, a Wisconsin state judge had quashed several of the subpoenas as improper, bluntly writing that they “do not show probable cause that the moving parties committed any violations of the campaign finance laws.”

  The judge was Gregory A. Peterson, who had landed the duty of overseeing the second John Doe case. From the sound of his January 10 opinion, he wasn’t impressed. He outright rejected the theory of “illegal coordination,” explaining that there was simply no evidence that independent groups had expressly called for the election of Walker, or the defeat of his opponent. “Without political purposes, coordination is not a crime,” he wrote.

  O’Keefe also went on offense. He got in touch with conservative Washington powerhouse lawyer David Rivkin. Rivkin was born in the Soviet Union and emigrated to the United States in his teens. His time living under lawless communists gave him an additional love for the Constitution and the rule of law. “I don’t have to guess at what might happen to this country if more things like Wisconsin happen,” Rivkin told me. “I’ve already seen what that’s like. I know.”

  The O’Keefe case was a new challenge. Rivkin’s not a First Amendment lawyer. He made his name as an authority on separation of powers, with a special focus on national security and war powers. He defended former defense secretary Donald Rumsfeld in a case over the detention of José Padilla as an unlawful combatant. He was behind former House Speaker John Boehner’s lawsuit against Obama for exceeding his constitutional powers with Obamacare revisions. But Rivkin was intrigued by what sounded like an extraordinary abuse of state authority. He met with O’Keefe, and took the case.

  Five days after Peterson’s opinion, Rivkin issued a press release explaining that he had a new client, and that he’d written to prosecutors to inform them that their secret, grand juryless investigation violated his client’s rights. Cease and desist, warned his letter. Rivkin meant it. If the Wisconsin prosecutors kept it up, he had every intention of filing a civil rights lawsuit that charged prosecutors with violating O’Keefe’s First Amendment rights to free speech and his Fourteenth Amendment right to due process. Unlike the Doe, this case would be out in the open, with documents available for public perusal. And under this case, the prosecutors themselves could be held personally liable for their abuse.

  The prosecutors didn’t desist, and Rivkin held true to his word. On February 11, the lawyer filed in federal court in Milwaukee on behalf of both the Club for Growth and O’Keefe. The complaint named four prosecutors, including Chisholm and Schmitz, and laid out how the group had spent more than four years using John Does to harass political opponents.

  The lawsuit was a positive step. But there was no denying that the John Doe investigation was having its intended effects.

  Some were deeply personal. O’Keefe lived with the knowledge that he might go to jail. After he went public, and after Peterson quashed the subpoenas, the prosecutors went back to the court to complain about his actions. Schmitz in a filing with the court argued that the conservative had “demonstrated contempt for the John Doe process, secrecy order, and Wisconsin legal system.” The club director spent some sleepless nights wondering where that might go.

  Some of it was professional. Johnson notes that after the probe went public, his business came under scrutiny. People weren’t returning his calls, and he had to pass up opportunities for fear that he might prove a liability to clients. “Even if they hadn’t heard about the Doe,” he told the Wall Street Journal, “it would have been unethical for me to bring them in blind. So I had to turn down business on that account.”

  Deborah Jordahl would note how hard it was for her and Johnson to piece back their business after investigators absconded with all their equipment and their records. “You live under a cloud of suspicion,” she said.

  Some of it was very serious indeed. Kelly Rindfleisch was a deputy chief of staff to Walker when he was still Milwaukee County executive, and was a subsequent victim of the dawn raids. Rindfleisch had actually been a target of the first John Doe, and after years of combing through tens of thousands of e-mails and calls, prosecutors finally ginned up a charge. They found she’d used her county office for some outside campaign e-mails. In fact, all she’d done was sign in to a private e-mail account to answer a few e-mails related to a campaign (not even Walker’s). If she’d walked just a few feet outside the building and answered them on her phone, no one would have blinked. She was nonetheless charged with a felony. Rindfleisch was terrified and panicked; she copped a plea.

  She later appealed her conviction, and her reward was to have her e-mails made public. It was an exercise in public humiliation, broadcasting Rindfleisch’s private conversations about her medication and her cats. The suit worked its way up, and even the state public defender’s office filed a supporting brief on her behalf, arguing that prosecutors had set a dangerous precedent for digital searches. The state supreme court nonetheless declined to hear it. Rindfleisch served a six-month sentence with an ankle bracelet, for a crime that had nothing to do with the original John Doe proceeding. “The whole thing was a disgraceful operation,” says O’Keefe. “All she’s gotten for trying to protect her most basic rights is to have her e-mails blasted coast to coast. These people are sick.”

  * * *

  Rivkin had been right to warn the state prosecutors that their John Doe proceedings were a flagrant violation of the Constitution, and that no federal court would stand for it. They should have listened to him. On May 6, 2014, federal Judge Rudolph Randa shut the whole sordid operation down, issuing a preliminary injunction against the probe.

  It’s no easy thing to get a judge to issue an injunction; a defendant has to prove he has a high likelihood of succeeding on the merits. Randa didn’t take much convincing. His opinion wasn’t so much a legal reading as a legal reproach.

  The Doe suit, he said, was based on a mistaken reading of campaign finance law that infringed on O’Keefe’s free-speech rights. He reminded everyone that the intent of campaign finance law is to prevent corruption, but that it was hardly corrupt for candidates and outside groups to believe in similar things. He noted that “the larger danger is giving government an expanded role in uprooting all forms of perceived corruption which may result in corruption of the First Amendment itself.”

  The Wisconsin prosecutors immediately appealed to the Seventh Circuit Court of Appeals, demanding a stay of the judge’s order. They ultimately got it, on a technicality. Rivkin notes that the panel of judges expressed real concern about the gag orders and other aspects of the case. But they felt this was properly a state issue, to be heard in state court. So the Doe proceeded.

  Rivkin says the case gave him a new wariness of power. “Given my background on national security issues, I generally have held the view that the executive is right, cops are good people, prosecutors are honorable. So it was an unbelievable stunner to learn about the levels of chicanery by the Milwaukee DA, by other DAs, by judges, by the GAB,” he says. “Power corrupts, and government power corrupts very robustly, and we have very little oversight. I look at prosecutors in a very different light now. A lot of
them are bums.”

  The Walker case made a lot of people think differently—including about Walker. In the late spring of 2014, the Wall Street Journal broke the news that Steven Biskupic, representing Walker’s campaign committee, Friends of Scott Walker, was negotiating a settlement with Schmitz. It looked as if Walker wanted to save his own skin—to get the Doe out of the way in a reelection year—while hanging everybody else out to dry.

  The news frustrated conservatives, who were otherwise winning in court. And some worried that a settlement might give credence to the prosecutors’ nonsensical theories. The Journal news caused an uproar, and not long afterward, Walker backed away from the whole thing: “I’m an economic and fiscal conservative. Obviously the last few years I’ve shown it, that I’ve committed to those principles even in the face of extreme outside pressure. And it just surprises me that anyone would think that in any way I would undermine anyone who shared those same principles. Clearly, I would not,” he said in a Wisconsin interview.

  * * *

  The prosecutors were losing in court, so they decided to try to win with the public. A main point of the John Doe was to smear Walker and the groups and get them out of politics. They’d done that a bit, through selective leaks. Now they asked an appeals court both to block Randa’s ruling and to unseal all their documents, to give the public a taste of what they’d been digging up.