MacIver News Service

By M.D. Kittle

MADISON, Wis. – What many in the mainstream media took away from the state Department of Justice’s extensive and troubling report on illegal leaks of John Doe investigation documents is that the DOJ will file no charges because it found no evidence of wrongdoing by government agents.

“That’s dead wrong. They didn’t read the report,” Attorney General Brad Schimel told MacIver News Service Thursday morning on the Dan Conry Show, on NewsTalk 1310 WIBA. 

“We plainly said crimes did occur. Unfortunately, the problem is because of the terrible record-keeping and security process at the Government Accountability Board, we can’t say which one of them did it,” Schimel added.

By “them” he means staff members at the GAB, which the Legislature disbanded after previous allegations of rampant misconduct at the campaign finance and ethics regulator. The Department of Justice report, detailing a litany of abuses by the GAB and prosecutors, finds the unconstitutional investigation was even more abusive and politically manipulative than first suspected.

Schimel has recommended the John Doe judge issue contempt of court charges against several officers of the John investigation.

The leak itself, which involved court documents turned over to the liberal British publication the Guardian, was a crime, according to the report.

“Based on the Guardian article itself and the nature of the documents, at least one person intentionally removed the documents from the former GAB offices and disclosed those documents to The Guardian,” the report states. 

Although DOJ did not learn the precise details about how the crime was committed or by whom, there is probable cause to believe” that violations of misconduct in public office, disclosure of personal information, disregard of the John Doe secrecy order, receiving stolen property, contempt of court, and the unauthorized release of records or information occurred, the Justice Department noted.

Perhaps a strong case could be made for obstruction of justice.

Schimel related the struggle DOJ agents went through to get John Doe investigators to turn over information.

After repeatedly being told that the state Ethics Commission, the GAB’s successor, had complied with the DOJ’s request for any remaining John Doe files, agents would come up with holes in their investigative jigsaw puzzle.

Investigators showed up at the East Washington Avenue office in February with a court order.

“As we read those reports we became convinced there is more, we’re going to find more and we did,” the attorney general said.

Ethics officials contacted the DOJ in March to say that they had found some boxes in the basement. The containers were plainly labeled “Shane Falk.” Falk is the highly partisan GAB staff attorney who led the speech cop’s portion of the John Doe before he left the agency in August 2014. The more investigators read, the more they realized the GAB had unlawfully held onto thousands upon thousands of documents that were supposed to have been turned over to the state Supreme Court.

DOJ agents went back on May 2, and on May 23. They finally had to obtain a search warrant because they doubted Ethics officials were making a competent and honest effort to turn over John Doe-related materials. In particular, they could not come up with a separate hard drive that Falk kept and subsequently turned over to his colleague Nathan Judnic. The DOJ report notes conflicting statements made by former GAB staff and current Ethics officials about the whereabouts of the hard drive. It seems to have disappeared, and with it documents believed to have been leaked to the Guardian.

“It was all the way into November we that we were finding more (John Doe materials) at the Milwaukee (County) District Attorney’s office and some the online accounts that weren’t closed down,” Schimel said. Again, the Supreme Court had ordered that the materials be turned over nearly a year before.

Some illegally obtained records were kept in files collected in “Falk boxes” that would be part of an expanded third wave of the political John Doe investigation. DOJ agents learned about this “John Doe III,” previously unreported, just as they were preparing their final report.

As the DOJ report notes, Falk and others continued to review and collect John Doe evidence after the judge in the case ruled in January 2014 that prosecutors had not shown probable cause of the campaign finance crimes alleged against Gov. Scott Walker’s campaign and conservative organizations.

Some illegally obtained records were kept in files collected in “Falk boxes” that would be part of an expanded third wave of the political John Doe investigation. DOJ agents learned about this “John Doe III,” previously unreported, just as they were preparing their final report. Some of the documents landed in files labeled “Opposition Research” and “Senate Opposition Research,” only underscoring conservative allegations that the political John Doe was nothing more than state-funded opposition research for the left.

Brian Bell, Ethics Commission administrator, said the agency could not comment at this time.

If the nine John Doe officers named in the DOJ report signed affidavits falsely stating that they complied with the Supreme Court order to turn over all documents, they are guilty of a class H perjury felony, according to Wisconsin statute.

Schimel said he never considered raiding Falk’s home to search for John Doe documents or the missing hard drive.

“We don’t have probable cause to say it’s in Shane Falk’s house,” he said. Besides, Schimel said he didn’t want his agents doing what lawless government agents have done.

John Doe prosecutors ordered predawn, armed raids on the homes and offices of several conservatives in October 2013. The targets were told that they could go to jail or pay thousands of dollars in fines if they said anything about the raids or the John Doe investigation.

“We’re not willing to make our investigation lawless,” the attorney general said.

This article appears courtesy of the MacIver Institute.
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