Lesson in Abuse of Power, Or How Not To Try Bringing Down a Sitting State Governor

Mo

I’m a fan of federalism for a lot of reasons, not the least of which is the fact that federal control provides a breeding ground for corruption and abuse of power for political ends. That said, it’s worth noting that state officials have the same problems. Theoretically, they have a much smaller effect and are better managed by and accountable to the state’s voters. Nevertheless, they’ve been known to abuse their power and often with consequences that reach beyond just the state. What’s worse, these abuses often don’t generate the kind of media attention as the federal ones.

Last Wednesday, the Wisconsin Department of Justice published a report [https://cdn.wrn.com/wp-content/uploads/2017/12/Report-of-the-Attorney-General-Signed-UNSEALED.pdf] on its investigation of state official shenanigans involving an effort to take down Governor Scott Walker. Have a seat while I tell you the story about out-of-control state officials who abused their positions of power to try to take down a sitting governor.

Walker was the Milwaukee County Executive in 2010. He started an investigation, known as a “John Doe” investigation, into a report that someone had stolen public funds. John Doe investigations are conducted to gather evidence and testimony to build a case to charge someone with crimes. They’re often conducted in secret, which serves a useful purpose, but as you’ll see can also be a means of horrible abuse.

Walker’s John Doe case, John Doe I, resulted in six convictions in 2012.  At that point, Walker had been elected Governor of Wisconsin. He had also survived a rather brutal recall effort, brought by Wisconsin Democrats because they were outraged that he limited the collective bargaining privileges of state employees (an effort for which Walker should be applauded).

Immediately following the failed recall, the Milwaukee County District Attorney decided to expand the John Doe I investigation into an investigation that targeted Walker for supposed campaign finance violations. Why? Pure partisan politics, it appears.

From the start, the John Doe II investigation was out of control. The DA’s office enlisted help from the Wisconsin Government Accountability Board or “GAB” to investigate what everyone now knows were not campaign finance violations. Indeed, the DA and GAB should have known (and probably did know) from the outset that the Walker campaign didn’t violate any laws, but politics are politics and politicians in power are prone to using that power to achieve political ends. So, the DA’s office partnered with GAB to conduct the investigation. (It’s worth noting here that GAB was actively involved in and directed parts of the investigation, but told the Wisconsin Legislature later that it “does not conduct John Doe investigations.”)

The DA and GAB wanted to conduct the investigation in secret, ostensibly to prevent the targets from tampering with or destroying evidence, so they sought and received a secrecy order from the court.  Despite being a secrecy order, however, it contained broad exemptions that permitted at least 60 named people and potentially hundreds more to access the secret information.

By summer of 2013, the DA and GAB had amassed a huge amount of digital evidence, including bank records from at least five organizations, 1.5 million emails from citizens and organizations, and call records from over 80 private cell phones. They wanted more, so in October 2013, they obtained additional subpoenas and search warrants for another 29 organizations and citizens.

On October 3, 2013, at 6:00 a.m., the DA executed the search warrants, as the Wisconsin Supreme Court describes, “in pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets’ homes.” David French further explains [http://www.nationalreview.com/article/440692/wisconsin-john-doe-investigations-partisan-witch-hunt-ends-victims-pain-lingers]:

In a coordinated series of dawn raids, armed police officers raided the homes of conservative activists, barging into sleeping children’s rooms, confiscating cell phones and computers, carting off files, and ordering the targets of the raids to keep quiet. Despite the fact that the raids occurred in full view of the public, the victims were unable to defend themselves: They couldn’t tell friends or family, and they couldn’t talk to the media. A cloud of suspicion hovered over their lives.

The targets of these raids were restrained under police supervision and were not allowed to contact their lawyers as their homes were ransacked.

According to the Wisconsin Supreme Court, from these raids the DA and GAB obtained “virtually every document possessed by the [targets] relating to every aspect of their lives, both personal and professional, over a five-year span.” Yet, despite the sensitivity of the documents and information, the DOJ reports that GAB maintained no system whatsoever to ensure that they were kept confidential:

[T]here was no log kept of what was received by GAB staff, how many copies were made, to whom these records were given, or where these records were stored after the John Doe II investigation was closed.

What’s worse, the DA and GAB were extraordinarily careless in sharing these documents with each other. They shared them over gmail accounts with shared passwords that were accessed from public locations. They also shared them among a Dropbox account with a single password. They did virtually nothing to secure these highly sensitive and personal documents to ensure they remain confidential or to keep track of who received them. The DOJ later discovered that the DA executed over 218 search warrants and subpoenas over the course of the investigation.

It was these early morning raids in October 2013 that finally alerted the targets that they were subjects of the investigation. They filed motions to quash the subpoenas in early 2014 and a Wisconsin judge finally shut down the investigation in January 2014, finding that the targets had not “committed any violations of the campaign finance laws.” The judge also ordered that no one on the prosecution team should examine or investigate the property while the appeal was pending.

The Wisconsin Supreme Court upheld the ruling in July 2015 and ordered the prosecution team to completely divest itself of all documents and property. It didn’t. Instead, someone, almost certainly on the prosecution team, strategically leaked a select set of documents to The Guardian while a petition for certiorari to the U.S. Supreme Court was pending—a petition denied by the Supreme Court in October 2016.

According to the Wisconsin DOJ, the clear intent of the leaker was to influence the Supreme Court on the pending cert petition. Indeed, The Guardian published these documents just eleven days before the Supreme Court was scheduled to consider the cert petition, and the DOJ concluded that the selection of documents demonstrated not only deep knowledge of the case, but a response to particular parts of the Wisconsin Supreme Court opinion that were the focus of the cert petition.

The Wisconsin DOJ was, in fact, appointed to investigate the investigations because of this leak. While the DOJ has not yet been able to determine the specific source of the leak, it has concluded the leak came from the GAB, and it’s pretty clear from the report that the leaker is likely a former GAB attorney, Shane Falk, whose fingerprints are all over this.  In fact, there is only one hard drive that appears to have contained all of the documents that were leaked to the The Guardian in one place: that hard drive belongs to Shane Falk and has yet to be recovered by the DOJ. No one seems to know where it is.

The DOJ’s report is painstakingly detailed and thorough and demonstrates a clear pattern of abuse by GAB and the DA’s office. For instance, Falk and others repeatedly violated multiple court orders that required them to stop reviewing the documents and turn them over. Instead, GAB continued to review and categorize documents well after the initial January 2014 order, with the full knowledge of the DA’s office.

Moreover, since 2015, the prosecution team has been under a court order to hand the documents over to the Wisconsin Supreme Court within 30 days of resolution of the cert petition. Yet, the DOJ was still finding boxes of documents and drives in November of this year, and it seems likely that even more documents remain to be found.

Falk seems to be a particularly nasty sort of partisan—a wild-eyed believer in the evil of his opponents. In emails recovered by the DOJ, Falk expressed his contempt and derision for everyone who did not see the case as he did, complaining, for instance, that “this was a bastardization of politics and our state is being run by corporations and billionaires” and “[t]he cynic in me says the sheeple would still follow the propaganda even if they knew.” He repeatedly called into question the legal skills of people who disagreed with him, for example, telling a DA who disagreed on a point of campaign finance law “It is clear that your office has some difficulties understanding and applying [campaign law] correctly” and saying, of the judge who quashed the subpoenas “I knew he was bad news from the start.” Of the judge’s ruling he said: “This is so pathetic it is almost funny.” His supervisor, Nathan Judnic, also had complaints, calling the judge’s decision “poorly written” and suggesting it was a conspiracy: “something does not smell right here.”

When the special prosecutor who was working with GAB finally released a statement saying that Scott Walker was not a target of the investigation, Falk accused him of lying to the press. Another GAB attorney told the special prosecutor that he was “thoroughly disgusted by” the press statement and that the special prosecutor was “rewriting history” and should “man up.”

But it gets worse, because it’s now abundantly clear from the DOJ’s report that these lawyers were on a political mission only. The most shocking revelation from the report is the DOJ’s discovery that GAB had opened a second John Doe investigation, John Doe III, which was completely intertwined with John Doe II. John Doe III included subpoenas to state officials and search warrants executed on the private email accounts of state employees, state officials, and campaign workers and fundraisers associated with Wisconsin Republicans, including Scott Walker.

Specifically, during its investigation, the DOJ found boxes of documents and drives, labeled with Falk’s name, that demonstrated GAB had obtained the complete personal email accounts, chat and messenger logs, contact lists, IP login information, and other similar information of at least 35 people, as well as chat logs and emails from people with whom those 35 people communicated, including Scott Walker, Speaker Robin Vos, Senator Ron Johnson, Congressman Sean Duffy, and Reince Priebus.  

The Falk boxes contained 500,000 emails totaling millions of pages, “most of which were purely personal (and sometimes very private) conversations.”  Those conversations involved, among other things, private medical information and other highly personal information.  Most incredibly, GAB placed a large chunk of these emails into folders called “Opposition Research” or “Senate Opposition Research.” In other words, these people were using their vast powers for politics alone—to bring down a sitting Governor who won the failed recall election.

Simply put, this was a partisan witch hunt, conducted by officials with too much power, mostly in secret, and involving serious violations of confidentiality and of citizens’ privacy. Many of the attorneys involved in this investigation are in jeopardy of losing their licenses to practice law or at least being found in contempt of court. This is good. But it’s alarming that these state officials were allowed to act with utter impunity for years before a stop was put to it. Simply put, it’s truly a “bastardization of politics.”