Appellate Panel Knocks Down Judge Randa Hard in Scott Walker, John Doe Case

John Doe Probe Is Open as Rudolph Randa Is Rebuked

U.S. District Judge Rudolph Randa's ruling halting a state John Doe investigation last May is reversed by a panel of the Court of Appeals for the Seventh Circuit today in O'Keefe and Club for Growth, Inc v. Chisholm and Schmitz. (Milwaukee Journal-Sentinel document)

The ruling rejected Randa's innovative theory of the First Amendment under which Randa asserts coordination between campaigns and independent issue groups is legal, no matter how states regulate such activity that has resulted in numerous criminal convictions in recent years.

The John Doe probe is open, as it was in January.

The John Doe probe was halted between May and September 24 by Judge Rudolph Randa's corrupt order and opinion in May that few objective observers contacted believed would stand, and would be reversed in months.

"Results-oriented" is the euphemism for corrupt is public legal statements by jurists making public observations.

Writes Judge Easterbrook for the panel:

...neither a state nor a federal court had held that Wisconsin’s (or any other state’s) regulation of coordinated fundraising and issue advocacy violates the First Amendment.

  Starting with Buckley v. Valeo, 424 U.S. 1, 46–47, 78 (1976), the Supreme Court has stated repeatedly that, although the First Amendment protects truly independent expenditures for political speech, the government is entitled to regulate coordination between candidates’ campaigns and purportedly independent groups. See also, e.g., FEC v. Colorado Re-­‐‑ publican Federal Campaign Committee, 533 U.S. 431, 447 (2001); McConnell v. FEC, 540 U.S. 93, 202–03, 219–23 (2003), over-­‐‑ ruled in part on other grounds by Citizens United v. FEC, 558 U.S. 310 (2010). This is so because Buckley held that the Constitution allows limits on how much one person can contribute to a politician’s campaign. If campaigns tell potential contributors to divert money to nominally independent groups that have agreed to do the campaigns’ bidding, these contribution limits become porous, and the requirement that politicians’ campaign committees disclose the donors and amounts becomes useless.

Although press reports that an overseeing Judge Gregory Peterson had effectively shut down the probe by quashing subpoenas in January, acquired evidence made public (and likely evidence and testimony not yet made public) point to Scott Walker being implicated in a criminal scheme, the point of the John Doe probe determining if and by whom crimes may have been committed.

Documents made public in June, months after Judge Gregory had squashed subpoenas, made clear that Wisconsin Constitutional law enforcement officials, district attorneys, and investigators believed Scott Walker appeared to be a the center of a "criminal scheme." (Marley, Bice and Bill Glauber, Milwaukee Journal-Sentinel)

The scope of the criminal scheme under investigation "is expansive," (Republican Special) Prosecutor Francis Schmitz wrote. "It includes criminal violations of multiple elections laws, including violations of Filing a False Campaign Report or Statement and Conspiracy to File a False Campaign Report or Statement."

Reversal Is Likely of Judge Randa's Ruling on John Doe Probe

In oral arguments today, Judge Diane Wood and Frank Easterbrook both dismissed major elements of two cases cited of the Wisconsin Club for Growth's Eric O'Keefe's attorney and the rationales behind a federal judge's involvement in the Wisconsin John Doe-law enforcement probe of Scott Walker and coordination among Walker, the Walker campaign and third party groups.

Legal scholar Rick Hasen writes a reversal of Judge Rudolph Randa's May 6 ruling halting the probe is likely.

The Randa May 6 ruling can be found here.

Judge Wood challenged the attorney for the rightwing group for whom Randa ruled, "Should a federal court step in and enjoin a state," (57-minute, 50-second of mark of Eric O'Keefe v. John Chisholm (14-1822)) a sentiment and stated skepticism immediately echoed by Judge Easterbrook.

Then, minutes later Easterbrook asked: "Let me tell you what the problem is. If what your client has done is simply not illegal under Wisconsin law at all, why should a federal court issue a [federal] constitutionally based injunction?"

John Doe Oral Arguments Online at Seventh Circuit Site

Oral arguments of the Eric O'Keefe v. Francis Schmitz  and Eric O'Keefe v. John Chisholm cases are available online at the U.S. Court of Appeals for the Seventh Circuit site.

The three-judge panel hearing the cases is composed of: Judges Frank H. Easterbrook,  Diane P. Wood and William J. Bauer.

Appellate Panel Hearing John Doe Probe Appeal Are Judges Easterbrook, Wood and Bauer

The same three federal appellate judges who heard the appeals halting the Wisconsin John Doe probe in an incredible three days in May 2014 will hear oral arguments this afternoon.

The three-judge panel is composed of: Judges Frank H. Easterbrook,  Diane P. Wood and William J. Bauer.

Today the U.S. Court of Appeals for the Seventh Circuit will hear oral arguments slated to begin at 2:30 on several cases related to the John Doe probe including whether documents will be released, and whether U.S. District Judge Rudolph Randa erred when Randa halted the probe on May 6 this year in his corrupt ruling that halted a law enforcement investigation in which Scott Walker has been identified as a central figure in a massive "criminal scheme." (Marley, Bice and Glauber, Milwaukee Journal-Sentinel; (June 19, 2014)

The cases to be heard at oral arguments are: 14-1822, 14-1888, 14- 1899,14-2006, 14-2012, 14-2023;
O’Keefe v. Chisholm; and 14-2585; O’Keefe v. Schmitz.

Randa's ruling also ordered the destruction of evidence collected by the law enforcement probe, an order that was quickly stayed by the federal appellate court on May 7, one day after Randa's ruling.

In response to May 7 appellate court ruling, Randa then issued a finding that the John Doe prosecutors' appeal is "frivolous," another incredible ruling (on May 8) that was necessary to halt the John Doe probe as stated in the May 7 opinion of the federal panel that noted unless there was a finding a frivolity of the John Doe officials' appeal, Randa had no authority to stop the probe. (Marley, Bice and Stein, Milwaukee Journal-Sentinel; May 8, 2014))

This finding of frivolity means that the John Doe appeal is utterly unreasonable and the prosecutors' appeal contains no rational basis for argument.

Appellate Panel Composition Hearing Scott Walker John Doe Case to be Made Public Tuesday Morning

A clerk answering the phone in Chicago says the composition of the U.S. Court of Appeals for the Seventh Circuit's panel hearing oral arguments in the Wisconsin John Doe cases will be made public at 8:30 A.M.

This means citizens wondering which appellate judges will help decide the future of campaign finance, the rule of law, and whether Scott Walker is above the law won't know who the judges are until tomorrow morning.

Tuesday afternoon, September 9, the U.S. Court of Appeals for the Seventh Circuit will hear oral arguments slated to begin at 2:30 on several cases related to the John Doe probe including whether documents will be released, and whether U.S. District Judge Rudolph Randa erred when Randa halted the probe on May 6 this year in his spectacularly corrupt ruling.

The late notice of the composition of the panel, the clerk said, is due to routine security concerns.

As for Randa, make no mistake his decision halting the John Doe probe is not misguided or overzealous as some have said, Randa's decision is corrupt and calls into question his fitness to continue serving as federal judge.

Wisconsin Press Misreporting Nature of Wisconsin John Doe Probe

Wisconsin's two largest newspapers, the AP, and the Gannett Co dailies are misreporting a major element of Wisconsin's biggest political-criminal justice story—The John Doe Recall probe investigating coordination among Scott Walker, the Walker campaign and outside groups that flooded the Wisconsin airwaves with Express Advocacy ads during the 2011-12 Recall Elections

Misreporting a major fact of the Wisconsin John Doe probe has led many Wisconsin readers to the perception that the bipartisan law enforcement officials conducting the John Doe probe are just playing politics, when the opposite is true under the rigorous and reformist John Doe statute that protects the innocent when looking into the possibility of criminal activity.

Wisconsin John Doe Statute

The journalistic mistake is repeating the fallacious and misleading line from the Walker campaign that Scott Walker is not a "target" of the John Doe law enforcement investigation carried out under the authority of Wisconsin Constitutional officers [district attorneys] and the Wisconsin John Doe statute.

Cody, our neighbor's dog who lives down the street is not a John Doe target; Packers coach Mike McCarthy is not a target; and neither is Scott Walker nor anyone else.

That's because the practice, statutory rationale and rules governing Wisconsin's John Doe's statute do not authorize designating 'targets' during the course of Wisconsin John Doe probes.

Federal grand juries in Wisconsin (and other states) do designate and notify targets as "putative defendants," state grand juries in other states designate targets.

In Wisconsin John Doe probes do not designate targets.

The John Doe statute authorizes a law enforcement investigation conducted with the compulsory authority of a quasi-judicial hearing to look into if and by whom crimes have been committed, precisely to determine whether someone should become a target of a criminal complaint on the basis of the facts and testimony gathered in the probe.

In fact, the Wisconsin Supreme Court has specifically recognized that the John Doe statute does not even "require that a witness be advised as to the nature of the proceeding," and does not require that the gathering of evidence and testimony reaches a point when someone must to be advised he or she becomes an effective target of the John Doe investigation, likely to be served a criminal complaint. (Ryan v. Wisconsin, (79 Wis.2d 83 (1977)).

This ruling has stood for 37 years without challenge because it is uncontroversial

Scott Walker's repeated I'm have not been told I'm a target statements are misleading and dishonest.

The Journal-Sentinel editorial this weekend advocating that the John Doe probe continue, notes Scott Walker has repeatedly asserted "that prosecutors have said he is not a target of their investigation."

This is not credible.

Walker won't be told he is a target until and unless he is served with a criminal complaint (likely just before).

In the middle of the for-now-halted John Doe probe Scott Walker surely was not told the status of the secret probe in a misuse of the term "target," while released documents of the John Doe officials reveal their theory that Walker appears to be at the center of a "criminal scheme."

John Doe probes are not grand juries, and they are not mini-trials requiring a reporting of the status of the probe or the disclosure of evidence that could be exculpatory in a hypothetical future trial, the Brady Rule; this imperative exists after the charging of a criminal defendant.

Alerting someone he or she is suspected of illegal activity in a John Doe probe is like law enforcement alerting a criminal suspect that law enforcement has accumulated a mountain of evidence that the suspect is running guns and manufacturing crystal meth, so heads up guys.

Target is a precise legal term used in federal grand jury proceedings, but the Wisconsin press has generally used the term target interchangeably in reporting on the current John Doe Recall probe as though the investigation is a grand jury proceeding.

Federal court opinions on the John Doe probe have used the term "target" and "subject," but by no means are the opinions intended to equate the use of target in grand jury proceedings with subjects and subpoenaed witnesses producing testimony and being investigated in the Wisconsin John Doe Recall election probe.

John Doe probes are begun when there is reasonable suspicion to believe a major crime has been committed, and conflict(s) of interests or practical difficulties—such as stonewalling in the first Walker administration John Doe probe (May 2010 - March 2013) resulting in criminal convictions against three former aides, one appointee and one campaign contributor to/of then County Executive Scott Walker—make a John Doe proceeding necessary as determined by a district attorney, judge; and in some cases as requested and initiated by Wisconsin citizens, a Wisconsin law enforcement jurist confirms.

If someone in a John Doe probe is charged like Tim Russell and Kevin D. Kavanaugh—Scott Walker's longtime political aides who were appointed by Walker to a military veterans' non-profit groups and proceeded to embezzle $10,000s donated and intended for veterans and their families (both were convicted in 2012)—the criminal charging then and only then causes someone to become a "target," at the discretion of the district attorney and judge overseeing the probe.

A quick phone call to a law enforcement jurist or Wisconsin criminal defense jurist will confirm these facts about targets and what John Doe officials reveal to the people to whom they speak.

In the meantime, the Wisconsin State Journal, Milwaukee Journal-Sentinel and most of the Wisconsin press are consistently misrepresenting this major element of Wisconsin's biggest criminal justice-political story right up to the last critical months before the November gubernatorial election.

Tuesday afternoon, September 9, the U.S. Court of Appeals for the Seventh Circuit will hear oral arguments slated to begin at 2:30 on several cases related to the John Doe 'Recall' probe including whether numerous documents should be released, and whether U.S. District Judge Rudolph Randa erred when Randa halted the probe on May 6 this year in an incredible and spectacularly corrupt ruling attempting to salvage Walker's political career in a ruling that stains the federal judiciary in Wisconsin.

Walker has been shown to be at the center of a criminal scheme in the documents already released. (Marley, Bice and Glauber, Milwaukee Journal-Sentinel)

Walker's fear, and Randa's fear is that if the probe were allowed to be continued (and no jurist to whom I have spoken can cite a Wisconsin John Doe proceeding that has been halted in this manner as Randa did in May), Walker and several others would be served with a criminal complaint, then Scott Walker and likely others would become targets.

It has already been established Scott Walker solicited money on behalf of outside groups, and coordinated with outside groups to benefit the 2012 recall campaigns of Republican state senate candidates. (Bottari, Center for Media and Democracy)

Reporting and repeating Scott Walker's line that Walker (and others) are not John Doe targets is an abdication of the commitment to reporting facts that underlie the best of American journalism, and effectively functions as a cover-up and propaganda for Walker and his allies.

This error is exacerbated in the context of Walker's allies' repeated assertion that coordination and solicitation among Walker, Walker's campaign and Walker's allies is not a crime, calling Wisconsin campaign finance regime, "zombie law," though numerous people have already been convicted and sentenced for the same crimes—laundering campaign contributions, misconduct in public office and filing false reports with the state Elections Board (now Wisconsin Government Accountability Board)—that Walker and others appear to have committed.

This is a grave matter for Wisconsin journalism assuming one takes matters such as the formal structures of Wisconsin democracy and the rule of law seriously; the issue is no less than the question: Is Scott Walker above the law?

When there is this much at stake, Wisconsin journalism has to get the story right.