While the regulator doesn’t admit any wrongdoing, it acknowledges “it had contact with prosecutors about the subject of John Doe II and later made expenditures in conducting GAB Investigation No. 2013-02 in cooperation with prosecutors conducting the John Doe II investigation,” according to a press release issue by Kansas City, Mo.-based Graves Garrett LLC, the law firm that represented the conservatives.
More important, the settlement releases some 40,000 pages of investigation-related documents the GAB desperately fought to keep in the dark.
A GAB official did not return Wisconsin Watchdog’s request for comment.
The agreement curtails a trial that most likely would have pushed the secret documents into the light.
“At the end of the day the GAB is never going to admit (wrongdoing), even if the court were to say it was wrong,” said Eddie Greim, one of the plaintiffs’ attorneys. “We think the most powerful thing is to allow the public to review the actual internal documents and decide for itself whether the GAB has been telling the truth the last two years.”
The conservatives filed the lawsuit in May 2014, alleging the regulator exceeded its authority in working alongside, even at times leading, the criminal investigation at taxpayer expense. In short, the GAB involved itself in areas that are strictly the domain of prosecutors.
Documents released from the lawsuit thus far have shown staff members motivated by political agendas continuously pushing widely rejected theories of illegal coordination — even as courts told them they were wrong, and to stop.
The investigation was launched in August 2012 by a Democrat-led Milwaukee County District Attorney’s office that had a contentious relationship with Walker, the former Milwaukee County executive.
Documents show GAB staff getting on board early on, some 10 months before the judges who preside over the “nonpartisan” agency signed off on the GAB’s investigation.
The probe featured armed early morning raids on the homes and offices of people who were never charged with a crime, an extensive spy operation that illegally tapped millions of documents and a gag order that threatened targets and witnesses with jail time if they spoke publicly about the probe.
Documents and deposition testimony obtained in the lawsuit revealed the GAB, an agency with authority to pursue civil enforcement actions, “worked to control the criminal John Doe investigation from the shadows, and that the GAB funded and operated the investigation alongside Milwaukee County prosecutors,” states the press release from Graves Garrett.
“GAB Ethics Division Administrator Jonathan Becker spearheaded and controlled the hiring of John Doe special prosecutor Fran Schmitz, and the GAB paid his bills. Equally troubling, GAB assigned staff to work on the investigation who were biased against the targets and motivated by political animus,” along with Todd Graves represented O’Keefe and the Club in the lawsuit.
The settlement prohibits the GAB from researching and drafting legal documents on behalf of law enforcement and third-party groups for use in a criminal investigation or prosecution, and it bars GAB staff from assisting law enforcement without Board approval.
“This just doesn’t seem to be the way that things were to work,” said constitutional law expert Rick Esenberg, president of the Wisconsin Institute for Law & Liberty. “The GAB was not supposed to be an agency engaged in criminal investigations. This illustrates the danger in allowing regulators substantial discretion to pursue broad and vaguely worded statutes governing speech.”
Earlier this month, the state Supreme Court reaffirmed its July ruling the investigation was unconstitutional and the position of the GAB’s hand-picked special prosecutor was invalid since the probe’s inception.
Two of the five district attorneys who signed off on the multi-county dragnet have said they want nothing more to do with the John Doe, including any effort to ask the U.S. Supreme Court to review the state court’s decision. As of Thursday, the three Democrat prosecutors had not publicly announced their intentions.
Many of the facts regarding the GAB’s involvement in John Doe II derived from discovery in O’Keefe’s lawsuit.
The bills eliminating the GAB and reforming Wisconsin’s controversial John Doe law were drafted after revelations about the abusive investigation. Among the changes, the GAB and its successor will lose their blank check to fund political investigations, power the agency had in John Doe. Kevin Kennedy, the agency’s long-time director and general counsel who stands to lose his job, has refused to turn over expense information to Wisconsin lawmakers, citing the agency’s confidentiality clause and the John Doe secrecy order.
“The GAB systematically violated its enabling statute, wielding its power of the purse and using its own embedded staff to influence the criminal prosecutors who were presented as the face of John Doe II to the courts,” Greim said in the statement. “After nearly 20 months of legal proceedings, we are pleased the GAB has admitted its role in the John Doe investigation and agreed not to violate the law in the future.”