Wisconsin, the Surveillance State

On May 23, the Wisconsin Department of Justice (WisDOJ) received a call from the state’s ethics board. An employee rummaging around in the basement of the building had found a filing cabinet full of material from the now-defunct “John Doe” investigations into the state’s Republican governor, Scott Walker, and his supporters.

WisDOJ was investigating the illegal 2016 leak to the Guardian of confidential details from the investigations, and in January, it had ordered that all John Doe records be turned over immediately. Yet this unexpected trove appeared four months later. The new evidence included three hard drives, 10 optical disk drives, a thumb drive, and paper files, which contained nearly 500,000 private emails and text messages collected from Republican political aides and staffers between 2009 and 2012. Among the millions of pages were discussions of the most personal nature—Wisconsin GOP staffers talking with family members about illness, helping friends through precarious relationships, and discussing money troubles with their spouses. Not knowing government bureaucrats were monitoring their discussions, some saved sensitive passwords in Gmail accounts; others sent pictures of themselves trying on clothes to friends and asked how they looked. Many of these messages were filed in a folder marked “opposition research.”

On December 6, the WisDOJ released a 91-page report on the leak, and what it shows is that Wisconsin public officials set up what amounts to a political spying operation.

The John Doe investigations have been a fixture of Wisconsin politics and courts for more than half a decade. Originating in 2010 with a request from Milwaukee County executive Scott Walker—who was running for governor—to investigate some missing money in his own office, they metastasized into a series of wide-ranging witch hunts used to harass and intimidate conservatives. In both the 2012 recall election to unseat Walker and the 2014 gubernatorial race, Democrats frequently cited the investigations as evidence of his “corruption.”

John Doe proceedings are initiated by a judge to see if a crime has been committed; investigators and suspects are prohibited from discussing the case. The Wisconsin law, dating to 1889, was intended to protect the identities of those being investigated. Yet the inquiries into Walker and his supporters achieved the exact opposite effect. While confidential details about Republicans leaked freely to the media, those under investigation were barred from defending themselves. The gag order against the investigation’s targets prompted U.S. Circuit Court judge Frank Easterbrook to call the John Doe framework “screamingly unconstitutional.”

In 2012, the Milwaukee County district attorney asked for a second John Doe probe, into Walker’s gubernatorial campaign. This one gained national notoriety in October 2013, when law enforcement officers began making paramilitary-style, pre-dawn raids on the homes of unsuspecting private citizens. With floodlights trained on the targets’ homes, armed officers threatened to beat doors down with battering rams; rifled through rooms; and seized phones, computers, and bank records without allowing the subjects to contact their attorneys. Groggy families awakened to the sound of police boots running through their homes were told that they could not tell anyone what had happened.

Their crime? Supporting conservative causes in Wisconsin.

The legal basis for the second investigation was specious as prosecutors were accusing Walker of illegally coordinating with third-party groups during the recall elections in 2012. But that interpretation of state law relied on an outdated reading of election law—which had been overturned by the Supreme Court’s 2010 Citizens United decision. In January 2014, Judge Gregory Peterson effectively shut the second investigation down, noting that the conservative groups were engaged in constitutionally protected speech. In July 2015, the Wisconsin State Supreme Court ended the investigation for good and ordered that all the evidence be destroyed or returned to its owners.

It was only after this court order that dozens of conservative activists learned that three years’ worth of their private email and text messages had been seized. With the release of the WisDOJ report, the public found out that this mountain of intimate, private correspondence had been sitting for years in an unsecured filing cabinet in the basement of what used to be the offices of the Government Accountability Board (GAB), which enforced the state’s ethics and elections laws until 2015, when it was replaced by two separate watchdogs. Much of this material had been reviewed and filed by GAB staff when they began the secret investigation that WisDOJ calls “John Doe III.”

The existence of this third investigation came as a complete surprise to the state’s attorney general when he learned of it last year. WisDOJ agents surmised it was instigated by staff at the GAB when they had caught wind of “illegal” campaigning by legislative staff during the 2012 recall elections that swept Wisconsin in the wake of Scott Walker’s controversial union reforms.

It was many of these staffers whose private emails and chats showed up in the basement. Investigators identified 35 campaign workers whose personal accounts had been obtained by search warrant, and in its report, WisDOJ said it was “deeply concerned by what appears to have been the weaponizing of GAB by partisans in furtherance of political goals.” The list of people subjected to the search includes not just people who worked on the 2012 recall campaigns, but also Republican Party of Wisconsin staffers and Scott Walker aides. One former Senate aide says he had spent two weeks in Wisconsin’s North Woods in 2012 volunteering for a Republican candidate, and for this innocuous act, three years of his emails were seized.

Republican state senator Leah Vukmir, who will be running for the U.S. Senate in 2018, was also subject to the spying. WisDOJ found files with more than 150 emails between Vukmir and her daughter—many of which contained “private medical information and other highly personal information.” In an op-ed for the Wall Street Journal on December 10, an outraged Vukmir announced she was looking into her legal options for the violation of her privacy. “This was criminal behavior, and the individuals involved ought to see jail time,” she wrote. Vukmir says that despite the court order, she was never notified that her emails had been seized.

As Vukmir’s daughter’s case demonstrates, it wasn’t simply the targets of the investigation whose personal information ended up before the leering eyes of the GAB staff. All those who emailed one of the subjects on the list were unwittingly spilling their personal secrets to government bureaucrats, whether they had any connection to the ill-fated investigation or not.

WisDOJ investigators never conclusively identified where the leak to the Guardian came from, but the report noted that the only place where all the relevant documents were ever held all together was a portable hard drive belonging to a GAB investigator named Shane Falk. According to the same report, the file cabinet holding all the seized personal emails and documents was adorned by Post-it notes suggesting that Falk was also its owner.

A Democratic appointee to the GAB, Falk made the news in 2015 when his zeal to take down Scott Walker was revealed in leaked emails. In an email to prosecutors in November 2013, Falk wrote that the alleged coordination between Walker’s campaign and conservative groups was a “bastardization of politics” and that the state was being run “by corporations and billionaires.” According to emails released by WisDOJ, Falk frequently harangued other John Doe prosecutors for not going after Walker vigorously enough and questioned their knowledge of campaign finance law. Ironically, it was Falk’s legal reasoning that was repeatedly rejected in court after court.

In interviews since the WisDOJ report was released, Falk has said he doesn’t know anything about the leak and that he doesn’t know how the personal emails obtained by GAB came to be marked “opposition research.” In its report, WisDOJ called the leak a crime, but concluded that it couldn’t identify who had made it—so instead of criminal charges, Wisconsin attorney general Brad Schimel forwarded contempt of court charges against Falk and eight other GAB investigators for their reckless handling of records.

Those records include numerous details of state Republicans’ private lives, collected with little probable cause in the course of a bogus investigation. To date, WisDOJ agents have not been able to locate Falk’s external hard drive, which mysteriously went missing after he resigned from the board.

Christian Schneider is a columnist for the Milwaukee Journal Sentinel.