Not content to merely kill off the John Doe investigation into Gov. Scott Walker’s potentially criminal connections to special interest groups, last week the conservative majority on the Wisconsin Supreme Court decided to twist the knife they’d plunged into the back of Special Prosecutor Francis Schmitz.
In short, they fired him.
Schmitz’s offense?
Doing his job.
The veteran Republican prosecutor asked the court to review their July decision shutting down the John Doe investigation and declaration that candidates’ coordination with dark-money issue ad groups—as Walker was alleged to have done during the 2011-2012 recalls with Wisconsin Club for Growth, Wisconsin Manufacturers and Commerce (WMC) and others—was legal in Wisconsin.
The Wisconsin court’s decision approving campaign coordination is an outlier and on the same day of the Wisconsin Supreme Court decision in July a federal appeals court came to the opposite conclusion on a Delaware law, so Schmitz had good reason for wanting the U.S. Supreme Court to rule on these conflicting rulings.
Schmitz’s request was supposed to be merely a formality, something he had to do before asking the U.S. Supreme Court to review the Wisconsin court’s July decision.
But the four members of the conservative majority announced last week that Schmitz’s appointment as special prosecutor was invalid and tossed him off the case. The four justices firing Schmitz were Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler.
Last week’s decision to terminate Schmitz contradicts their July finding that Schmitz was, in fact, appointed properly. But, confusingly, the majority justices also signed on to a concurrence to that decision written by Justice David Prosser finding that Schmitz wasn’t appointed properly. That gave the anti-Doe forces an opening to attack Schmitz yet again and ultimately get him fired.
Last week, the four-member conservative majority bought that argument and fired Schmitz and ordered him to collect and return to them for safekeeping all of the materials gathered during the investigation within 30 days.
This leaves the case without anyone to appeal the July decision to the U.S. Supreme Court, for now at least.
Abrahamson: ‘What a Mess’
Perhaps realizing that they had backed themselves into a corner, the four justices wrote that members of what they term the “prosecution team” could request that the state’s highest court allow them to intervene in the case so that their decision could be appealed to the U.S. Supreme Court and, apparently, deal with the other legal matters connected to the John Doe.
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But the majority didn’t state who, exactly, is included in the “prosecution team”—they pretty much assume that at least one of the five district attorneys who had worked with Schmitz on the case would come forward to appeal the decision.
Interestingly, the majority didn’t state whether they would grant that team member the ability to intervene in the case, just that the individual could ask them.
Nor did they mention that they had previously ruled that the five prosecutors could not intervene in the case when they had petitioned to do so. They only allowed Francis Schmitz to become a party to the case.
“What a mess this court has wrought,” wrote Justice Shirley Abrahamson in her blistering dissent.
But the story doesn’t end there. Two days later, on Friday, just before 6 p.m., the majority released yet another order giving the five district attorneys a 14-day deadline for filing to intervene. Again, Abrahamson dissented, writing, “The instant order [with the14-day deadline] is the embodiment of the four justices’ piecemeal approach to the John Doe trilogy and the four justices’ constantly changing direction. Thus, the four justices add to the mess they have created.”
Abrahamson wrote that the other justices didn’t consult her or involve her in the decision to issue a deadline, nor is there any precedent for this type of deadline. She also wondered who would pick up the costs for the district attorneys—the state or the counties in which they serve—and whether the 90-day clock for applying for U.S. Supreme court review had already begun.
Abrahamson wrote that the two decisions filed last week “appear to raise the specter of unfairly undermining review of this court’s rulings by the United States Supreme Court.”
Marquette University Law School Professor and former Justice Janine Geske, who’d been appointed to the high court by Republican Gov. Tommy Thompson, told the Shepherd that the decision to fire Schmitz was “incredibly difficult to read” and left Schmitz and the prosecutors without a clear roadmap for moving forward.
“It’s a very odd order,” Geske said.
She said that asking the U.S. Supreme Court to take the case requires certain skills that district attorneys typically don’t possess.
“It will be very challenging,” Geske said.
Down the Rabbit Hole
Schmitz’s firing is just the latest turn in a convoluted, unpredictable, politically charged case that had the potential to bring down Walker as he set his eyes on the White House. But instead of fighting the case on its merits, the high-priced attorneys representing those under investigation chose to attack the prosecution while also striking down Wisconsin’s campaign finance regulations as unconstitutional.
According to several local attorneys, those under investigation acted boldly, by essentially admitting that they broke the law and then challenging both the law and the prosecutor. However, their actions were not as bold as they appeared, since those under investigation also knew that the current majority on the Wisconsin Supreme Court would support them because the court’s conservative majority has a strong history of totally politicizing their decisions and being loyal to their campaign donors. And, of course, the Wisconsin Supreme Court did the groups’ bidding and they were successful on both counts.
Going even further, the Republican-dominated Legislature passed a series of laws backing up Walker and his allies. Now, elected officials cannot be investigated via a John Doe proceeding; the Government Accountability Board, the nonpartisan elections watchdog that was involved in the John Doe, will be eliminated and replaced with partisan election boards; and the state’s campaign finance rules have been shredded to allow, among other things, candidates like Walker to work in secret with groups that can take in unlimited contributions from anonymous donors, thus blowing up the state’s campaign finance limits.
Ed Fallone, associate professor at Marquette University Law School, said that the pro-Walker court majority has been making up the rules on the fly throughout the entire John Doe saga.
“This was not a total surprise,” Fallone said of Wednesday’s decision. “The Supreme Court committed itself to sort of ad hoc creative writing of the rules of criminal procedure. Every case in the John Doe proceeding, every motion, requires the court to invent new rules. They have gone so far down the rabbit hole that I’m not sure that even the majority knows where they’re going.”
Fallone said the Supreme Court’s actions in this case set a dangerous precedent for criminal prosecutions in the state, since those under investigation could fight the investigation in court while it’s underway and not after being charged with a crime.
“If I was still a defense attorney representing corporations being investigated by the government, this whole litigation is just a huge Christmas present,” Fallone said.
The pro-Walker side got lucky in court. When they fought the John Doe in the federal courts, the case was given to U.S. Circuit Court Judge Rudolph Randa, a very political right-wing judge who has ties to the Bradley Foundation—whose president and CEO, Michael Grebe, chaired Walker’s campaign while it was under investigation—as well as the Koch brothers’ network. Randa halted the probe and, unusually, ordered the destruction of all of the evidence gathered in the case, but his ruling was overturned by a federal appellate court.
In state court, the Walker allies were helped by the four conservative justices on the state Supreme Court, who benefited from $10 million in campaign spending by the groups under investigation and the entities they control. The Walker-friendly majority—Gableman, Roggensack and Zeigler—decided to take up the complex set of cases involving the John Doe investigation without oral arguments, a highly unusual step. David Prosser, usually in the conservative majority, dissented and voted for holding oral arguments.
The heavy campaign spending by Wisconsin Club for Growth and WMC in the justices’ races is perhaps why Schmitz had asked that two justices—Prosser and Gableman—should recuse themselves from the case. According to a U.S. Supreme Court ruling, judges and justices should decline hearing cases involving big campaign contributors. Nevertheless, both justices ruled on the case and Gableman wrote the July decision for the majority. (Last week’s ruling was unsigned.)
Schmitz declined to comment for this article, but he did release a statement attacking the special-interest groups who won these dubious decisions.
“My career in the military and as a federal prosecutor fighting violent criminals and terrorists did not fully prepare me for the tactics employed by these special interest groups,” he wrote.
He said in his statement he intended to fight on, but didn’t provide specifics.
Matthew Rothschild, executive director of the Wisconsin Democracy Campaign, sent a letter to the five district attorneys involved in the John Doe—including Milwaukee County District Attorney John Chisholm—urging them to intervene and appeal the case to the U.S. Supreme Court, even though it wasn’t clear who would foot the costs for the appeal. Rothschild likened Schmitz’s firing to President Richard Nixon’s “Saturday night massacre,” when the ethically challenged president fired Watergate Prosecutor Archibald Cox in 1973.
Rothschild’s letter says that the justices’ refusal to recuse themselves, their misreading of the state’s campaign finance precedents and their failure to acknowledge evidence showing that there was coordination on campaign ads, not just issue ads, gives the prosecutors valid reasons to appeal the July decision.
“I think people should know just how corrupt the state Supreme Court has become,” Rothschild said. “There seems to be no bottom that they won’t stoop to, when they’re firing the John Doe prosecutor. But this case is much more important than whether Scott Walker is eventually investigated further than the John Doe II. What I care about is the precedent that the Supreme Court has made, with the ridiculous decision it made in July and then reaffirmed now, that candidates can coordinate with outside issue advocacy groups. That makes a mockery of our ability to limit campaign contributions and to require adequate disclosure.”
Chisholm’s office emailed the Shepherd that it wouldn’t comment on either of last week’s decisions at this time.
