In April, National Review told — for the first time — the stories of the targets of Wisconsin’s “John Doe” investigations. The accounts were harrowing. Anonymous sources told of pre-dawn raids, with police swarming into their homes, walking into sleeping children’s rooms, denying the targets immediate access to lawyers, and then imposing gag orders that prevented them from telling friends, family, and supporters about their ordeal.
These raids were not launched against hardened criminals but against conservative activists, and the “crimes” they were accused of turned out not to be crimes at all. Rather, a hyper-partisan district attorney, John Chisholm, and his special prosecutor, Francis Schmitz, launched a multi-county criminal investigation of First Amendment–protected speech. They wanted to know the extent to which conservative individuals and groups had coordinated with Scott Walker’s campaign — and the campaigns of various state senators — to advocate conservative issues.
This summer, the Wisconsin Supreme Court halted the investigation, holding:
The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor’s theories, rather than “assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people” . . . instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.
Multiple John Doe targets have since fought back, filing lawsuits not only against Chisholm and Schmitz, but also against Wisconsin’s Government Accountability Board (GAB), a purportedly nonpartisan entity that helps regulate Wisconsin’s elections. This litigation, largely conducted under seal, is revealing the extent of the unconstitutional abuses, including the way prosecutors used their transparently absurd legal theories to systematically violate their targets’ privacy, vacuuming up mass amounts of personal information and even penetrating attorney-client privilege.
For example, the initial search warrants themselves — a copy of one has been obtained by National Review, and multiple sources have confirmed that their warrants were similar — illustrate the distinctly political nature of the investigation. The warrant we’ve reviewed — signed by John Doe judge Barbara Kluka — specifically empowers investigators not just to seize “any and all documents or records which show direct or indirect coordination or consultation with Friends of Scott Walker (hereafter FOSW) and/or the FOSW campaign or the 2011/2012 senate personal campaign committees for the recall elections”; it also allows investigators to take “all documents” relating to the “recall campaign for Wisconsin State senators,” “all documents” related to the “gubernatorial recall campaign from 2011 and 2012,” and “all documents” relating to communications with a host of conservative organizations — including such notables as Americans for Prosperity, Crossroads, and the Republican Governors Association.
The John Doe targets were completely unaware that investigators were obtaining — and reading — their personal e-mail.
But even as the shocked John Doe targets read the expansive, explicitly political search warrants, the investigators were seizing all their electronic communications and other records, not just the items designated in the warrants. At the same time that investigators were taking computers and other items that contained information far outside the scope of the warrants, they had also subpoenaed companies like Google and AOL to gain access to all the targets’ electronic communications, including messages that were unmistakably personal and privileged.
The John Doe targets were completely unaware that investigators were obtaining — and reading — their personal e-mail, and while they retained attorneys who tried to block investigators from reviewing the information seized from their homes, neither the targets nor their attorneys knew that investigators were also obtaining their personal e-mails from Internet service providers. And investigators intended to take full advantage of that ignorance. In an e-mail obtained by National Review, Robert Stelter, a Doe investigator, wrote to Schmitz and other members of the Doe investigation team:
Seeing as we are getting hit with lots of high powered attorney’s [sic] that are probably going to be successful at delaying our ability to look at any of the evidence we have seized during the execution of our search warrants last month, it seems that a review of all the email we will get in will be even more critical. . . . The emails should be able to help bolster our arguments on the coordination that it appears we, or should I say Fran will be making to the new Doe judge. From the correspondence I’m reading from the various attorney’s they don’t seem to have a clue that we have and will be getting all their clients emails. So . . . we should be able to keep moving forward even without looking at all the evidence seized during the execution of the warrants. [Emphasis added.]
Moreover, it’s now apparent that the John Doe investigators dumped thousands of privileged messages obtained during previous John Doe investigations into a searchable database — called “Relativity” — that prosecutors and investigators used to review Doe documents. Investigators kept stumbling across privileged documents, and even the hardened partisans understood that the lack of adequate privilege review (undertaken by a so-called “taint team”) could threaten the investigation.
Nor were documents confined to the Relativity database. Deposition testimony reveals that investigators passed around flash drives containing subpoenaed information, including confidential financial information, storing those drives in desk drawers, pasting sensitive e-mails into Word documents, and accumulating records without any system for organizing evidence.
#share#In their own court filing, the John Doe investigators deny wrongdoing, assuring the court that they didn’t review privileged information and that their review of documents seized through the expansive subpoenas of Internet-service providers was entirely proper and not prohibited by any court. The investigators strongly object to any claims of wrongdoing in the investigation and continue to maintain that they were investigating potentially illegal behavior, not First Amendment–protected speech.
The John Doe inquisitors seized vast amounts of personal information, dumped it into a searchable database controlled by angry partisans, and then refused to exercise systematic, meaningful control over the data.
To this date, multiple raid targets don’t yet possess a complete list of items taken, and they believe that the investigators failed to properly inventory all seized assets. Moreover, there was at least one “secret” raid. Sources told National Review that investigators raided one office when no one was present, never disclosed the raid in any of the briefings before state and federal courts, never provided the raid targets with a copy of the warrant, and failed to provide an inventory of items seized.
The result is a privacy invasion of staggering proportions. In the interests of investigating First Amendment–protected activity, the John Doe inquisitors had seized vast amounts of personal information — including information protected by attorney-client privilege — dumped it into a searchable database controlled by angry partisans, and then refused to exercise systematic, meaningful control over the data. The lack of control was recognized even by the investigators themselves. In a confidential, heavily redacted memorandum obtained by National Review, GAB general counsel Kevin Kennedy noted that he “lack[ed] a clear and complete record of the source of each set of documents” obtained in the investigation.
(As the Wall Street Journal reported, Kennedy communicated with the IRS exempt-organizations chief Lois Lerner during the John Doe investigations. The Doe investigations — though far more aggressive — sought the same categories of information the IRS demanded from Tea Party groups applying for nonprofit status.)
While the pre-dawn, paramilitary-style John Doe raids eventually garnered headlines and shocked the conscience of millions of Americans, they represented merely the most dramatic incidents in an investigation that comprehensively and systematically violated the constitutional rights of its targets. And to add insult to injury, even after the investigation has been halted — and even after the investigators have been ordered to return all seized property and information — the investigators still won’t give up. They’ve filed an almost certainly futile request for the Wisconsin Supreme Court to reconsider its July opinion. And until the case is finally, completely over, they still hold the raid targets’ most personal and privileged information. Indeed, they may not even know where it all is.
The John Doe raid targets have been vindicated in the Wisconsin courts. But for them, the process has been the punishment – and that punishment hasn’t stopped.
— David French is an attorney and a staff writer at National Review.