Scott Walker campaign seeks to deflect talk of John Doe settlement
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Gov. Scott Walker, shown speaking at a Memorial Day event in Milwaukee this week, on Thursday sought to deflect questions about whether his campaign is in settlement talks with prosecutors in a secret John Doe probe.
By Jason Stein of the Journal Sentinel
Updated: 11:32 a.m.
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Madison — With a terse but carefully worded statement, Gov. Scott Walker sought Thursday to deflect questions about whether his campaign is in settlement talks with prosecutors in a secret John Doe probe.
The campaign for the GOP governor was responding to a letter sent Wednesday on behalf of a conservative group that questioned whether a special prosecutor in the probe is negotiating with Walker's campaign to seek concessions that the outside group might oppose.
The Wisconsin Club for Growth and its treasurer, Eric O'Keefe, filed a federal lawsuit in February against special prosecutor Francis Schmitz and others contending their free speech rights were violated by the secret investigation into possible illegal coordination by groups involved in the 2012 recall campaigns. This month, U.S. District Judge Rudolph Randa in Milwaukee halted the probe as he considers the group's claims.
The statement by Friends of Scott Walker was attributed simply to the campaign and not to any individual and appeared to deal only with the federal lawsuit, not the state investigation in which both the Club for Growth and Walker's campaign are targets.
"Neither Governor Walker nor his campaign committee are parties to the federal lawsuit. This means they have no legal standing to reach a settlement or deal in their lawsuit," the statement reads in full.
A spokeswoman for Walker did not immediately respond to questions clarifying the full significance of the statement.
The secrecy requirement surrounding the John Doe investigation makes it difficult for the Walker camp to respond to the Club's claims. Randa's order — a federal ruling halting a state investigation — also makes for a highly unusual situation even for the top-shelf attorneys involved in the case, said Jeremy Levinson, a Democratic campaign finance attorney who has represented clients in John Doe probes.
"Part of what's going on is that nobody knows what's going on," Levinson said.
A primary concern for the Club for Growth would be whether its own legal footing could be undermined by a Walker campaign's settlement, he said. For instance, the settlement could oblige the Walker campaign to provide certain information about the case. It could also mean the campaign gives up the right to decline to testify to avoid self-incrimination, since the campaign would be safe from new charges.
"The danger (for other parties) would be that a deal by definition could weaken the position of everyone else," Levinson said.
Rick Esenberg, an attorney and president of the conservative Wisconsin Institute for Law & Liberty, said that isn't necessarily the case. For instance, prosecutors may now be simply looking for a way out of what has become a very difficult case, Esenberg said.
But he added that O'Keefe and the club would be unlikely to know what was happening.
"It could be what's being negotiated is abject surrender (by prosecutors), but if you don't know that you don't know that," he said.
In Wednesday's letter, David Rivkin, a Washington, D.C. attorney for the club, asked Schmitz's attorney whether Schmitz was attempting to reach a settlement, which he said would violate Randa's order. Specifically, Rivkin raised the question of whether a settlement might preclude Walker's campaign from associating with the Wisconsin Club for Growth.
"Let me be perfectly clear: a settlement that seeks, in any fashion, to further the John Doe investigation by violating Mr. O'Keefe's or the Club's speech or associational rights would be a blatant violation of the preliminary injunction," Rivkin wrote to Randall Crocker, Schmitz's attorney. "Your client cannot, via settlement or other maneuvers, attempt to circumvent the injunction — at least, he cannot do so without seriously risking a judgment of contempt."
In response to Rivkin's letter, Schmitz's attorneys filed a motion Wednesday with Randa seeking clarification of his injunction, saying they wanted to confirm they were free to engage in settlement talks.
"Mr. Schmitz has and will continue to comply with the orders of Judge Randa and the state courts as he understands them. No action taken by Mr. Schmitz is in violation of any order," Crocker said in a statement.
The moves were touched off by a broadside attack on Walker and Schmitz that was posted Tuesday on the Wall Street Journal's online editorial page.
Until now, the newspaper's editorial page has defended Walker against what it says is an unconstitutional violation by prosecutors of his campaign's free speech rights. In Wednesday's editorial, the newspaper attacked Walker, alleging that his attorney was negotiating with prosecutors at a time when they are facing legal setbacks.
"Sounds like Mr. Walker has to decide whose side he's on — his own, or the larger principles he claims to represent," the editorial reads.
A source with knowledge of the probe confirmed to the Milwaukee Journal Sentinel on Wednesday that other conservatives caught up in the probe are worried that the attorney for the Walker campaign, Steven Biskupic, is not being aggressive enough with prosecutors and not acting in their best interests.
Biskupic, a former U.S. attorney, had no comment on the anonymous allegations and neither did Walker, who at an event Wednesday morning in New Berlin cited a judge's order of secrecy in the case.
"As I pointed out before, the bottom line is, per the law, people who know anything about it are prohibited from talking about it, and people who don't know anything about it shouldn't be talking about it. So either way I don't talk about it," Walker told reporters.
Leaks and litigation
Shortly after Walker, a Republican, won his June 2012 recall election, Milwaukee County District Attorney John Chisholm launched a secret probe to look into whether the Wisconsin Club for Growth and other conservative groups illegally coordinated with the campaigns for Walker and candidates for state Senate. R.J. Johnson, who did not respond to a request for comment, is an adviser to both Walker's campaign and the Wisconsin Club for Growth.
Chisholm is a Democrat, and Schmitz, the special prosecutor overseeing the investigation, describes himself as a Republican who voted for Walker.
John Doe investigations are overseen by judges and allow prosecutors to compel people to produce documents and give testimony. The inquiry is being conducted under secrecy, though details have spilled out through leaks and a wave of litigation surrounding the investigation.
A three-judge panel of the federal 7th Circuit Court of Appeals in Chicago is considering aspects of Club for Growth's lawsuit, including requests from prosecutors to overturn Randa's order blocking the probe and to dismiss the lawsuit outright.
In spite of the secrecy order, O'Keefe spoke to the Wall Street Journal editorial page last year about receiving a subpoena from authorities in early October.
Rivkin did not respond to questions about whether his client or firm had spoken to the Wall Street Journal prior to Wednesday's editorial. In a statement, Rivkin said the editorial shows the Club is not in cahoots with candidates.
"While the Club fights for its First Amendment rights to speak out on the issue, the Walker campaign apparently seeks to negotiate a settlement with the prosecutors that will keep the issue out of the spotlight," Rivkin said. "This shouldn't be surprising: The business of political campaigns is to elect candidates, but the business of issue advocacy groups is to advance policy beliefs, plain and simple. The John Doe prosecutors still don't understand this fact, even when proof of it is staring them in the face from across the negotiating table."
Schmitz and Biskupic are no strangers to each other. Both are former federal prosecutors in the U.S. attorney's office in Milwaukee.
Along with former Milwaukee County Circuit Judge John Franke, Schmitz and Biskupic were among the three finalists for the U.S. attorney job in 2001. Then-President George W. Bush chose Biskupic for the appointment and later, in 2005, Schmitz served as the number two official in the Milwaukee office under Biskupic.
Schmitz and state reserve Judge Gregory Peterson, who is overseeing the John Doe probe, both declined to comment on any potential negotiations in the case.
In addition to the federal skirmish, prosecutors are fighting in state courts, where unnamed targets have sought to shut the Doe down. They are also appealing a ruling by Peterson quashing subpoenas issued to unnamed parties caught up in the investigation. Peterson has stayed that ruling while it is on appeal.
