The judge who authorized the release of Attorney General Brad Schimel’s report on records leaked from an investigation into Gov. Scott Walker’s recall campaign said Monday he shouldn’t have allowed the disclosure of a separate but related, previously unknown ethics investigation.
In an interview with the Wisconsin State Journal on Monday, Jefferson County Circuit Court Judge William Hue accepted responsibility, though he said Schimel never raised a question about whether disclosing details from a closed ethics investigation was permitted.
“I really would have done things differently if I had known this issue,” Hue said. “If you’ve been investigated by a government entity, and they’ve decided they aren’t going to prosecute that, you’d be entitled to an expectation that an investigation done by that entity would be kept in confidence.”
The State Journal reported Sunday that Schimel’s report was the first to reveal the previously unknown ethics investigation into whether Republican state employees were campaigning on taxpayer time.
Schimel responded late Monday, confirming the State Journal’s report that the former Government Accountability Board based its ethics investigation on evidence obtained from the Milwaukee County District Attorney’s Office. But he insisted on calling the GAB investigation “John Doe III,” even though it wasn’t a John Doe investigation, a specific kind of legal proceeding.
Former GAB staff members and others have described the probe as an ethics investigation.
Schimel said the DOJ was “specifically authorized to release and disclose this information in two separate court orders,” which were both signed by Hue.
“Disclosing the existence of ‘John Doe III’ was critical to document the circumstances that allowed the leak to occur in the first place, which was DOJ’s charge from the Legislature,” Schimel said.
Schimel’s original report said the investigation had no discernible limit, although the report and his statement don’t explain exactly what he meant by that. The report does not mention that the former GAB, made up of six retired judges, authorized the investigation in December 2011 and recommended no charges when it closed the investigation in March 2013.
Private emails gathered
The report listed 35 individuals, including Sen. Leah Vukmir, R-Brookfield, whose private emails had been obtained as part of the investigation. Vukmir has decried the ethics investigation itself as an “egregious overreach of government,” but hasn’t responded to a request for comment on Schimel disclosing its existence.
State law prohibits prosecutors and investigators from releasing information from a closed ethics investigation that didn’t result in charges. Those who violate the law can be subject to up to nine months in jail and a $10,000 fine.
Hue said if he faced charges related to the release of the ethics investigation details, “I would have to plead guilty.” It’s unclear whether the law would apply to a judge.
In his statement Monday, Schimel described “media reports indicat(ing) that ‘John Doe III’ was ‘not a John Doe at all,’ but solely a GAB ethics investigation” as “false.” The State Journal reported the GAB ethics investigation was based on evidence collected by the Milwaukee County District Attorney’s Office during the John Doe I investigation, as Schimel confirmed.
The John Doe I was an investigation into Walker’s Milwaukee County office that netted six felony convictions, including two related to staff campaigning on taxpayer time during the 2010 election.
Schimel said the Milwaukee County DA’s Office started the investigation by obtaining a 2010 search warrant for several email accounts; followed by a 2011 search warrant for phone records and emails; a 2012 subpoena to the Legislative Technology Services Bureau, the Senate and the Assembly; and then several 2012 search warrants and subpoenas mostly to email providers. It also obtained the recordings of one or more phone calls, possibly by a wiretap, though the records do not specify how they were recorded, he said.
Schimel said that after the Milwaukee DA decided not to file charges, the GAB requested the evidence be turned over. The DA turned over evidence on a portable device to the GAB, which then moved the data onto several hard drives. The evidence was then re-organized, sorted and in some cases labeled by GAB staff as “Opposition Research” in four separate file locations, Schimel said.
Schimel said the records were not kept in such a way as to indicate whether the investigation was closed and the allegations unsubstantiated, although in his previous report he said they were in a box labeled “GAB investigation files-closed, 2012-01 State time campaigning.”
“There was also no indication that this evidence was scheduled to be destroyed as required by the public records law, and certainly not scheduled to be turned over to (John Doe II) Special Prosecutor Francis Schmitz in 2016,” Schimel said, adding the Legislature should consider requiring a complete inventory of all investigative files still remaining at the Ethics Commission that should have been destroyed.
Evidence collected from the John Doe I investigation led to the John Doe II, which examined coordination between Walker’s campaign and a tax-exempt independent group during the 2011 and 2012 recall elections. The Wisconsin Supreme Court shut down that investigation in 2015, ruling the activity in question was protected by the First Amendment.
Contempt proceedings sought
Documents from the investigation were leaked to the Guardian U.S. newspaper, resulting in Schimel’s leak investigation. His report was unable to determine who leaked the information and no charges were issued, but the report recommended nine people face contempt of court proceedings.
Schimel said last week he hopes the proceedings will lead to more information about who leaked documents to the Guardian. A former GAB lawyer’s hard drive, which Schimel concluded contains the leaked documents, is missing.
Hue said the primary purpose of releasing Schimel’s report was to begin the contempt of court proceedings, which he said must be done in open court.
Hue said he was provided the report at about 4:30 p.m. on Dec. 5 and studied it for four or five hours before authorizing its release the next day.
Hue has since stepped down as the judge overseeing John Doe II after the Milwaukee Journal Sentinel reported that he had previously tweeted about the case. The tweets were observations about various legal developments in the case, but Hue said he had previously told Supreme Court Chief Justice Pat Roggensack that he hadn’t discussed the case in social media.
The director of state courts has appointed Brown County Circuit Court Judge Kendall M. Kelley as the fifth judge to oversee the case.