Justice defends decision to not recuse himself from John Doe case (UPDATE)

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — Wisconsin Supreme Court Justice David Prosser said Thursday he didn’t have to recuse himself from a ruling that ended a secret investigation into coordination between Republican Gov. Scott Walker’s recall campaign and outside groups. Prosser acknowledged spending by some of those same groups helped him win re-election in 2011 but argued that was years ago.

The investigation centered on whether Walker’s 2012 recall campaign illegally coordinated with Wisconsin Club for Growth and other conservative organizations on advertising during the 2012 recall. Prosecutors ran the probe as a so-called John Doe proceeding, Wisconsin’s version of a grand jury investigation where information is kept secret.

Prosser is part of the high court’s conservative majority that ended the investigation earlier this month, saying Walker’s campaign and the groups legally coordinated on so-called issue advocacy, a political term for communications that outline a candidate’s positions but don’t expressly call for his or her election or defeat. The ruling removed a potential obstacle for Walker as he seeks the 2016 Republican presidential nomination.

At least three groups named in the probe have spent millions to support the court’s conservative majority. That prompted Francis Schmitz, the lead prosecutor in the investigation, to ask Prosser and Justice Michael Gableman, another member of the conservative majority, in February to step out of the case. The court denied the request with no explanation the same day it issued the ruling halting the probe. That could give Schmitz grounds for an appeal to the U.S. Supreme Court.

Prosser released an opinion Thursday saying he was the justice Schmitz wanted out. He wrote that Schmitz alleged several groups under investigation had spent about $3.3 million to help get him re-elected in 2011. Prosser said he couldn’t name the groups because of secrecy orders.

Prosser wrote that he couldn’t name the groups due to secrecy orders still in place, but acknowledged some targets of the investigation “engaged in expenditures that, under all the circumstances, were very valuable to my campaign.”

But he noted Schmitz doesn’t argue the spending was improper, contending instead that Prosser shouldn’t participate in the case simply because he received help from the groups.

Prosser said the public chooses who sits on the Supreme Court and it’s not up to prosecutors to permit justices to participate in cases. He noted that the spending took place four years ago, enough time to make recusal moot.

“If my recusal were now because of these expenditures — that is, four years after lawful independent communications were made to support my candidacy … the special prosecutor will have found a way to undermine judicial elections in Wisconsin,” Prosser wrote.

Schmitz also argued that Prosser’s campaign treasurer also serves as campaign treasurer for one of the investigation’s targets and Prosser’s campaign was closely connected to Walker’s administration, noting Prosser’s campaign manager issued a news release in December 2010 promising to complement Walker’s office, Prosser wrote.

Prosser said his campaign treasurer has served as treasurer or bookkeeper for nearly 30 political candidates and he doesn’t remember ever meeting her in person. She wasn’t a target of the investigation anyway, he wrote. As for the news release, Prosser wrote that it went out without his knowledge or approval and he didn’t agree with it.

Schmitz declined comment on Prosser’s opinion but said he was still weighing his options for an appeal.

Gableman has not explained why he declined to recuse himself.