Milwaukee County DA Moves To Revive John Doe Case

Three district attorneys have filed a “motion to intervene” in the case known as John Doe 2, a move that could open the door for them to appeal to the U.S. Supreme Court.

The John Doe 2 investigation was looking into whether Gov. Scott Walker’s campaign broke the law when it coordinated with conservative groups during the 2012 recall election. The state Supreme Court shut the case down this summer, ruling that such coordination is permitted in Wisconsin.

The court went a step further earlier this month, ordering special prosecutor Francis Schmitz to relinquish his duties in the John Doe case. Schmitz had hoped to appeal the decision to the U.S. Supreme Court, but the state high court’s action closed that door.

The conservative majority of justices wrote that one of the five DAs with connections to the case could file a motion to intervene, setting a deadline of this Friday. The motion filed by Milwaukee County District Attorney John Chisholm and two other DAs suggest they may pursue that appeal, though their motion remains under seal. Chisholm’s office did not respond to questions about the filing.

While a successful appeal would be an uphill battle, campaign finance advocates have suggested that prosecutors could ask the U.S. Supreme Court to overturn the case on the grounds that some of justices should have recused themselves from this case. Schmitz suggested as much in a court filing from earlier this year. He asked Justices Michael Gableman and David Prosser to step down from the case, arguing their recusal was “clearly warranted.”

Schmitz said several of the people and groups being investigated in the John Doe “also had significant involvement in the election of particular Justices to the Wisconsin Supreme Court.”

Rick Hasen, a professor of election law at the University of California-Irvine, said any appeal would likely hinge on whether the U.S. Supreme Court thinks Wisconsin Justices should have recused themselves.

“It really depends upon whether they think what’s going on before the Wisconsin Supreme Court with their elected judges is really egregious compared to what usually goes on when judges have to take campaign contributions to run for office,” said Hasen.

Whatever happens, the circumstances surrounding the John Doe have already changed dramatically. The Republican-dominated state Legislature acted swiftly on three bills connected to the case, all of which were signed into law by Walker.

One ended the ability of prosecutors to use John Doe investigations to pursue violations of state campaign finance law. Another eliminated the Government Accountability Board, which was deeply involved in the investigation. And the third codified the State Supreme Court’s ruling from earlier this year, permitting near-unfettered coordination between candidates and interest groups that keep their donors private.

Editor’s note: This story has been updated to include a statement from Rick Hasen.