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A secret criminal investigation made national news with the disclosure that prosecutors had alleged Gov. Scott Walker was at the center of an effort to illegally coordinate fundraising among conservative groups to help his campaign and others.
But the next day, the Republican governor and potential 2016 presidential candidate said the John Doe probe had been resolved and that two judges had said it was "over."
Here is part of the June 20, 2014 interview of Walker by Steve Doocy, host of the network TV talk show "Fox & Friends":
Doocy: "So, over the last couple of years, there’s been some legal action out in Wisconsin. And some of the documents were unsealed yesterday. We’ve got to point out, you were never charged with anything. But at one point, they allege that you had a central role in a criminal fund-raising scheme. OK, tell us what you did."
Walker: "Well, don’t just take my word for it. Look at the facts. The facts are pretty clear.
"You’ve had not one but two judges -- a state judge and a federal judge; a state judge (who is) a well-respected court of appeals judge, and a federal judge more recently -- have both looked at this argument. And in the past, not just recently -- remember this is not new news, it’s just newly released yesterday because documents were opened -- but no charges, case over.
"Both judges said they didn’t buy the argument. They didn’t think that anything was done that was illegal, and so they’ve gone forward and not only said, we don’t buy it, they actually shut the case down, both at the state and at the federal level.
"So, many in the national media and even some here in Wisconsin are looking at this (case) backwards. This is a case that’s been resolved, that not one but two judges have said is over. And we’re just learning about it because it became open in a document yesterday. But there is no argument there."
Is that it?
Is Walker right that the Doe case has been "resolved" and two judges have said it is "over"?
Experts say no. After all, one of the key court rulings that has stalled the investigation is a "preliminary injunction." And that is on appeal.
What’s the case about?
Under Wisconsin law, a John Doe is "intended as an independent, investigatory tool to ascertain whether a crime has been committed and, if so, by whom."
Unlike standard criminal investigations, law enforcement officials in a John Doe have special powers, including the power to compel the testimony of reluctant witnesses under oath and to issue subpoenas requiring witnesses to turn over documents.
Another key difference is that the judge overseeing a Doe can -- and typically does -- order that the proceedings be done in secret, unlike the vast majority of court proceedings.
Walker has been connected to two John Doe investigations.
Milwaukee County District Attorney John Chisholm, a Democrat, conducted a wide-ranging probe of aides and associates to Walker going back to Walker's time as Milwaukee County executive. That investigation, sometimes known as John Doe I, led to six convictions, ranging from misconduct in office for campaigning on county time to stealing from a veterans fund. Walker was not charged, and that investigation was shut down in March 2013.
Before closing that probe, however, Chisholm launched a separate investigation in the summer of 2012 based on information learned in the first one. To get what has been termed John Doe II off the ground, Chisholm worked with district attorneys from four counties -- members of both parties -- and the state Government Accountability Board, which administers the state's elections and ethics laws. Francis Schmitz, a former assistant U.S. attorney and self-described Republican, was named special prosecutor in the case.
Alleigh Marre, spokeswoman for Walker’s campaign, cited two court documents to back Walker’s claim. It’s not clear what she was referring to in the first document, a December 2013 court filing by Schmitz, and she didn’t respond to our request to elaborate.
The second document was a court order that John Doe Judge Gregory Peterson issued on Jan. 10, 2014. It quashed subpoenas that had been issued to Walker’s campaign and several conservative groups. And it ordered the return of any property seized with those subpoenas or with search warrants served on two officials of the groups.
But the order did not resolve the case.
Indeed, in his order, Peterson made reference to the possibility of his ruling be appealed. And the order has been challenged and is awaiting a ruling from the state Court of Appeals.
Other legal action
Another key ruling was made in federal court, by U.S. District Judge Rudolph Randa.
In February 2014, the conservative Wisconsin Club for Growth and one of its directors, Eric O'Keefe sued in U.S. District Court in Milwaukee in an attempt to stop the Doe investigation, saying it violated their rights to free speech, free association and equal protection under the law.
Three months later, Randa issued a preliminary injunction halting the probe while he considered the lawsuit. He said it appeared prosecutors were violating the First Amendment rights of Club for Growth and O'Keefe. And he ordered prosecutors to return any material they had gathered in the investigation and destroy whatever copies of it they had made.
But as the term "preliminary injunction" would indicate, that did not mean the case had been resolved or was over.
Indeed, Randa’s ruling has been appealed and the parties are awaiting a decision from the 7th Circuit Court of Appeals in Chicago.
Experts weigh in
We consulted five attorneys who have represented multiple clients in criminal John Doe investigations -- Madison defense attorneys Marcus Berghahn and Stephen Morgan (Morgan is a former state and federal prosecutor); Milwaukee defense attorneys Jeremy Levinson, who also handles campaign finance cases for Democrats, and Raymond Dall’Osto; and Marquette University Law School professor and former state prosecutor Daniel Blinka.
Bottom line: The John Doe investigation case has been stopped for the time being, but it has not been resolved. The rulings by judges Peterson and Randa are not final and are being appealed. The appellate rulings could also be appealed.
And if the Chicago appeals panel overrules Randa, the investigation can resume.
"Once the Court of Appeals decides the merits of the case and if no party appeals the Court of Appeals’ decision, then it may be possible to say that the cases are over -- unless the case is returned to the trial court or John Doe Judge for further litigation," said Berghahn.
Said Blinka: "The governor's remark overlooks the role of the appellate courts. The final resolution is up to the appellate courts, and only when the appellate process has run its course will we have a final resolution."
It’s notable that at times during his governorship, Walker has been in the position of supporting appeals when a lower-court ruling has gone against him.
In 2012, when judges struck down parts of Walker’s Act 10 -- the law ending most collective bargaining for most public employees -- the state appealed, and higher courts so far have upheld the law.
And on same-sex marriage, which Walker opposes, he didn’t concede that a ban on gay marriages was dead when a federal judge found Wisconsin’s ban unconstitutional. Indeed, he’s backing the state’s appeal of the judge’s ruling.
Similarly, the status of the Doe case is being hammered out in the appeals process.
Walker said the secret John Doe criminal investigation of his campaign has been "resolved" and two judges have said it is "over."
His characterization is misleading at best. The investigation has been stopped, for now, under one judge’s ruling.
But the second ruling, while a serious blow, did not end the probe, and in any event prosecutors have appealed the two rulings Walker mentioned.
We rate Walker’s statement False.
You may comment on this item on the Milwaukee Journal Sentinel web site.
YouTube, "Fox & Friends" interview of Gov. Scott Walker, June 20, 2014
Email interview, Gov. Scott Walker campaign spokeswoman Alleigh Marre, June 20, 2014
PolitiFact Wisconsin, "Wisconsin law prohibits anyone who knows about a secret John Doe investigation from talking about it, Gov. Scott Walker says," June 12, 2014
Wisconsin Circuit Court, filing by John Doe special prosecutor Francis Schmitz, Dec. 9, 2013
Wisconsin Circuit Court, order by John Doe Judge Gregory Peterson, Jan. 10, 2014
Milwaukee Journal Sentinel, "Twists, turns in John Doe hard to follow? This Q and A may help," May 9, 2014
Interview, Milwaukee criminal defense and Democratic campaign finance attorney Jeremy Levinson, June 20, 2014
Email interview, Madison defense attorney and former state and federal Stephen Morgan, June 20, 2014
Email interview, Milwaukee defense attorney Raymond Dall’Osto, June 20, 2014
Email interview, Marquette University law professor and former state prosecutor Daniel Blinka, June 20, 2014
Email interview, Madison criminal defense attorney and University of Wisconsin Law School adjunct professor Marcus Berghahn, June 20, 2014
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