Does prosecutorial immunity trump justice in John Doe-related lawsuit?


MADISON, Wis. —  A Madison-based free-market think tank will appeal its lawsuit alleging prosecutors of Wisconsin’s unconstitutional John Doe II investigation illegally seized and held electronic communications.

SEIZED EMAILS: A federal judge ruled John Doe prosecutors acted properly in seizing electronic communications from a free-market think tank because a John Doe judge gave them permission to do so. But the John Doe judge is not a court in the usual sense, and the prosecutors violated federal law, argues the John K. MacIver Institute.

U.S. District Judge William Conley last week dismissed the John K. MacIver Institute’s lawsuit alleging that “John Doe ringleaders” violated the federal Stored Communications Act by seizing the organization’s digital records during the lengthy probe into dozens of right-of-center groups and other conservative individuals.

The Madison-based federal judge, an appointee of former President Barack Obama, ruled that investigators acted within the confines of the law in secretly obtaining search warrants from MacIver. Besides, the judge decided, prosecutors have qualified immunity against such federal lawsuits.

Ben Hurst, attorney for the conservative organization, told Wisconsin Watchdog last week on the Vicki McKenna Show that MacIver intends to seek review of Conley’s decision at the 7th U.S. Circuit Court of Appeals in Chicago.

He said prosecutorial immunity does not apply in this case.

“And we also believe that, to the extent there is a question about qualified immunity, about whether there was reasonableness (with the prosecutors’ actions), we think it’s been clear under Wisconsin law for many decades that a John Doe judge is not a court and that a John Doe judge can’t issue the warrants that satisfy the requirements of federal law on Stored Communications,” Hurst said.

That’s what the controversy boils down to: Whether a John Doe judge has the authority to approve the kinds of warrants used by prosecutors to secretly tap into and seize the electronic communications of subjects or targets of their investigation.

The lawsuit alleges that Milwaukee County District Attorney John Chisholm, a Democrat, and his co-defendants violated the federal Stored Communications Act by “secretly requesting, obtaining, and cataloging millions of personal and politically sensitive emails, contact lists, calendar entries, and associated records from the MacIver Institute and dozens of similarly situated individuals and groups in an attempt to amass a staggering database of political intelligence.”

“Because of their secrecy, defendants denied us the opportunity to ask a court to review their seizures before the harm was done,” Brett Healy, president of the MacIver Institute, said in a statement in August. “Now, years after defendants unlawfully seized and cataloged millions of our sensitive documents, we ask the court to vindicate our rights under federal law.”

RELATED: Federal judge scolds John Doe prosecutors for ’emergency motion’

Chisholm’s secret probe has been described by critics as a partisan witch hunt. The sweeping dragnet, which spread its tentacles well beyond the Badger State’s borders, has raised some alarming First Amendment and Fourth Amendment questions.

Other defendants include Kevin Kennedy, former director of the now-defunct Government Accountability Board, John Doe special prosecutor Francis Schmitz and top investigators and prosecutors who worked the probe.

Hurst said the records seized are those of “association.”

“Federal law requires that if you want to seize those records you either have to give notice or you’ve got to go through certain procedural hurdles,” the attorney said. “You have to seek a real warrant from a real judge in an open court.”

“What resulted was, these seizures were done without anybody knowing about it, without any ability of any of the organizations that were targeted to step in the court and say, ‘Look we didn’t want our stuff stolen. You don’t have a good basis for having our stuff stolen.’ And instead they didn’t find out about it until years later when the Wisconsin Supreme Court finally put a stop to the John Doe investigation,” Hurst said.

The conservative-led state Supreme Court in July 2015 ruled that the politically driven probe was unconstitutional and ordered it shut down. It ordered that the illegally seized property be returned.

The court’s ruling seemed to matter little to Conley, the district court judge. He wrote that the electronic communications were obtained through a warrant issued by a “court of competent jurisdiction.” He rejected the plaintiffs’ argument that a judge in a Wisconsin John Doe proceeding is not a “competent” court.

Hurst said the ruling defies a longstanding proposition in Wisconsin that a “judge is a man and a court is an institution,” and the “court is open.”

A John Doe procedure is not open, but very closed. The process is not adversarial in the way that other court proceedings are. Witnesses, including targets of the probe, are compelled to answer questions with limited legal assistance. Under Wisconsin’s former John Doe law, reformed by the Republican-led Legislature following the political investigations, those involved in the investigations could face six months in jail and pay thousands of dollars in fines for breaking a gag order that 7th Circuit Court of Appeals Judge Frank Easterbrook once described as “screamingly unconstitutional.”

Conley noted a 2009 amendment to the Stored Communications Act that he argues expanded the definition of judges qualified to oversee the kinds of warrants sought in the John Doe investigation. The John Doe judge, Conley wrote, is a “neutral, independent judicial officer” allowed to issue warrants for electronic information “only upon a showing of probable cause.”

Chisholm and his partners, as another federal judge ruled in a related civil rights lawsuit, are protected from such lawsuits under qualified immunity.

Documents released in previous lawsuits challenging the probe show the John Doe prosecutors were clearly involved in a spying operation. One target told Wisconsin Watchdog in June 2015 the property seizures were akin to the tactics used by the National Security Agency’s domestic spying program.

“It was actually worse because (Milwaukee County prosecutors) were taking the body of emails and looking at actual data,” said the source, who asked not to be identified for fear of retribution from the prosecutors.

“The (documents) reveal just how far they went,” the source said. “These warrants reached well beyond what could be seen as real targets.”

All these years later, MacIver, like other conservative groups, remains in the dark about precisely what the prosecutors seized.

“One of the central purposes of the lawsuit is to get those things back and make an assessment of how much damage was done,” Hurst said.

M.D. Kittle is bureau chief for Wisconsin Watchdog and First Amendment reporter for Contact him at

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Author: M.D. Kittle

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