Fraley,History,Public Policy

Our Fight Against the John Doe Ringleaders Continues

2 Aug , 2016  

If you thought conservatives’ counter assault against the partisan witch hunters who tried to silence us was over, think again.

On Monday, the John K. MacIver Institute for Public Policy filed a class action in Federal Court.

From the official press release:

MacIver Institute Files Class Action Lawsuit Against Milwaukee DA Chisholm, Former Wisconsin Government Accountability Board Staffers

Group Wants John Doe Ringleaders Held Accountable For Illegal Email Seizures

Madison, WI—August 1, 2016-The John K. MacIver Institute for Public Policy, a Wisconsin based free-market think tank, filed a class action lawsuit today against Milwaukee County District Attorney John Chisholm, other employees of his office, and senior staff of the now- defunct Government Accountability Board (GAB) for illegally seizing MacIver’s digital records during the infamous John Doe II investigation of conservative groups and individuals.

The suit maintains that the ringleaders of the probe violated the Stored Communications Act (18 U.S.C. §§ 2701–2712) by secretly requesting, obtaining, and cataloguing 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.

In addition to Chisholm, other defendants in the suit include former GAB Director and General Counsel Kevin Kennedy, John Doe Special Prosecutor Francis Schmitz, and other employees of the GAB and the Milwaukee County DA’s Office.

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

“Chisholm and the other defendants seized every email, contact, calendar entry, and every document in my account at the MacIver Institute—all without notice or review by a proper court,” said Brian Fraley, Senior Fellow of the MacIver Institute. “The SCA exists to prevent exactly this kind of abuse and to protect individuals and groups from rogue agents like Chisholm and Kennedy. The law is ideologically neutral, as it should be. The fact that conservatives were the targets and victims here will bring no joy to liberals, for if agents of governments can ignore the law to target their ideological foes, no one is safe,” said Fraley.

On October 3, 2013, Chisholm, Kennedy, and Schmitz coordinated a series of sweeping pre- dawn paramilitary raids throughout Wisconsin. Law enforcement agents searched the homes of prominent conservatives and gathered personal information as well as electronic correspondence and equipment. The searches also extended nationwide, as the defendants issued more than 150 search warrants and subpoenas in rapid-fire succession to every corner of the country. Defendants pursued their dragnet by invoking a theory of state campaign finance regulation that the Wisconsin Supreme Court held was “unsupported in either reason or law.” When details of the investigation finally came to light in legal challenges filed by the targets, the Court further called it a “storm of wrongs.”

“The defendants understood that they were required to provide notice to the targets of their digital dragnet before seizing the records,” said Edward Greim, an attorney with Graves Garrett, LLC, the Kansas City-based law firm representing the MacIver Institute. “Instead, Chisholm and the other defendants intentionally avoided the requirements of federal law and the scrutiny of a proper court in order to build their database of political intelligence as quickly as possible.”

The Stored Communications Act required that Chisholm, Kennedy, and Schmitz provide prior notice to their targets or seek a warrant from a Wisconsin circuit court before seizing their electronic communications. In October 2013, Defendants requested, obtained, and executed a secret John Doe warrant to MacIver’s email provider, Google. MacIver didn’t even know about the seizure of its information until the Wisconsin Supreme Court ordered Doe Special Prosecutor Francis Schmitz to notify all the targets of the information that he seized. MacIver finally learned that the Defendants requested its records in December 2015—although, despite the order of the Wisconsin Supreme Court, Schmitz still refuses to disclose exactly what records the defendants seized.

The MacIver Institute is seeking monetary damages on behalf of itself and others whose records were illegally seized. MacIver is also asking the court to order the defendants to disclose exactly what records they seized and to prohibit the defendants from disclosing the records or further violating the Stored Communications Act.

Here is a link to the full complaint. 2016-08-01 Complaint

Remember my earlier account of this whole ordeal:

Now, the John K. MacIver Institute for Public Policy and myself in particular have been among the vocal (and, I’d argue, effective) critics of the soon-to-be-defunct Government Accountability Board. My research and reporting have exposed the GABs shortcomings and their political agenda. Again, these are all details are widely available in the public domain. The sweeping nature of the warrant is prima facia evidence of both the temperament and efficacy of the prosecutor and the dereliction of duty of the original John Doe Judge to carefully review and consider his requests.

Why would the GAB want to go after me?

Consider this timeline…

August 12, 2010
Fraley Op-Ed on WisOpinion.com
That’s Debatable: Government Accountability Board rules on election-related communication LINK
“As long as the GAB is structured the way it is, they’ll be back, trying to lord over those with whom they disagree.”

March 24, 2011
On behalf of the MacIver Institute, I filed an open records request with John Erpenbach and three other state senators seeking “Copies of all correspondence you have received or sent, (including, but not limited to, letters, emails, voice mails, records of phone calls, and logs of in-person meetings) regarding the subject of changes to Wisconsin’s collective bargaining laws for public employees. This request covered such correspondence received or sent between January 1, 2011 and March 23, 2011. At MacIver, we reported on the Capitol Chaos and wrote critical opinions regarding those who fled the state to advance a political cause. Our actions were Constitutionally protected free speech, but apparently put us in the crosshairs of powerful officials who didn’t like that speech.

February 8, 2012
MacIver filed a complaint against Senator Erpenbach in Grant County Court regarding the Senator’s failure to comply with the request for records. Case is originally referred to as Fraley v Erpenbach.

August 7, 2012
“The GAB is a Joke” LINK
“However, there is one thing Wisconsin citizens can count on the GAB aggressively and diligently do: respond to is criticism and defend their own reputation.”

October 26, 2012
I left my job at the MacIver Institute to become Managing Editor of RightWiscosnin.com which begins publishing original content on January 29, 2013. I maintain honorary title of Senior Fellow at MacIver. But most of my criticisms of the GAB are then published at RightWisconsin.

I also exposed the GAB elsewhere…

December 3, 2012
“Wisconsin Needs Better Watchdogs” LINK
“For the GAB is a joke that no amount of training and no blessing by unaccountable judges can fix.”

December 11, 2012
“Wisconsin Election Watchdogs Jump Into Action to Save Their Own Bacon” LINK
“Their analysis, much like their overall job performance, is shoddy and driven by a self-righteous and partisan mindset that ill serves Wisconsin taxpayers.”

In addition to the articles and columns linked above, the MacIver Institute (and later RightWisconsin) routinely reported on the ineptitude of the GAB. From their bungling of routine tasks to their thwarting legislative intent to their obvious partisan bias, I and the organizations for which I worked routinely exposed the failed state agency.

So what the hell, the GAB may as well cast their fishing net wide enough to include me, right?

Yes, this entire probe was a political witch hunt.

Click here for more regarding their witch hunt and check this space often for updates on the MacIver class action suit.

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