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Making sense of John Doe II

Bill Lueders is the Money and Politics Project director at the Wisconsin Center for Investigative Journalism.

The ongoing John Doe probe into alleged illegal activities concerning Gov. Scott Walker’s recall election campaign is nothing if not complicated.

The probe was launched in August 2012 by the Milwaukee County District Attorney’s Office, which in an earlier John Doe secured criminal convictions against six individuals, including three Walker aides from his days as county executive. John Doe II focuses on the interplay between political campaigns and their supporters during the recall elections.

Critics contend the probe is a baldly partisan attempt by Democrats to damage Walker and other Republicans. That spin hit a brick wall recently when the probe’s special prosecutor, Francis Schmitz, revealed that he voted for Walker in 2012.

John Doe probes, overseen by judges, let prosecutors gather evidence and compel testimony, usually in secret. Much of what is known about the probe’s scope and nature comes from breaches, both accidental and deliberate.

In the deliberate category are leaks to the editorial pages of the Wall Street Journal. In November, the newspaper reported that subpoenas issued in the probe named 29 conservative groups, including Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce, the Republican Governors Association and Americans for Prosperity.

From that disclosure it was surmised, correctly, that John Doe II concerns the possible coordination of campaign activities between political players and outside interest groups.

Outside groups can spend however much they want to influence elections as long as those groups act independently. But coordination between campaigns and outside groups is regarded as a no-no.

Former state Supreme Court Justice Jon Wilcox paid a fine for violating that rule in his 1997 campaign. And state Sen. Mike Ellis ended up not seeking re-election after being caught on tape discussing plans to work in concert with a third party.

The targets of John Doe II contend the law applies only if they expressly advocate the election or defeat of a given candidate. The prosecution argues coordination is illegal either way.

In January, in another development leaked to the Wall Street Journal, presiding Judge Gregory A. Peterson sided with the targets. He quashed some previously issued subpoenas, saying it wasn’t clear that laws were broken.

In February, Wisconsin Club for Growth filed suit in federal court, alleging that the probe violated its constitutional rights to free speech and association. That led to another breach, in March, when a response brief by one of the defendants accidentally allowed clever viewers to see redacted portions.

Thus it came to light that Judge Peterson had rescinded part of his order, acknowledging that other courts might read the arguments differently.

“As I see the dispute, it is a classic case of statutory interpretation,” according to what was supposed to remain a secret filing attributed to Peterson. “The state’s theory is not frivolous. In fact, it is an arguable interpretation of the statutes. I simply happen to disagree. An appellate court may indeed agree with the state.”

There are also three pending actions regarding John Doe II in state courts, including prosecutor Schmitz’s appeal of Peterson’s ruling. In April, an attorney representing Walker asked the Wisconsin Supreme Court to hear that appeal directly.

As it happens, the four conservative justices who make up the court’s majority all received substantial “issue ad” support from Wisconsin Manufacturers & Commerce and Wisconsin Club for Growth.

Despite that conflict, those justices have ruled on past matters involving WMC and could again. In an apparent shot across their bow, Justice Ann Walsh Bradley, lamenting the court’s “weak recusal rules,” pledged to step aside from at least one probe challenge, not because its targets helped elect her, but because her son works for the same firm as one of the attorneys involved.

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