Federal court declines to unseal records on investigation into Wisconsin Republican campaign finances

A district court in Wisconsin denied a motion to unseal documents last week in a lawsuit attempting to end an investigation into Wisconsin Republican campaign finances.

On May 1, the Reporters Committee for Freedom of the Press, along with four other media organizations, filed a motion to intervene and unseal the entirety of the parties’ filings in the federal court proceeding O’Keefe v. Schmitz et. al.

U.S. District Court for the Eastern District of Wisconsin Judge Rudolph Randa acknowledged the increased public interest in the underlying case, in which Wisconsin prosecutors have investigated conservative supporters of state Governor Scott Walker for potential campaign-finance illegalities. However, Randa held that the nature of the criminal investigation requires much of the federal case to remain closed.

The state used a so-called “John Doe” investigation, under which prosecutors collect evidence and can compel people to testify. John Doe investigations are overseen by a judge and are generally conducted in secret.

One of the targets of the probe, the Wisconsin Club for Growth, and its director, Eric O’Keefe, sued state prosecutors in federal court in February for civil-rights violations. O'Keefe's suit alleges that the state misused the investigatory tool to chill conservative speech and to drum up Democratic opposition to Walker.

Randa found that much of the material in the federal suit – which likely includes information about the John Doe investigations – should be closed. He explained that John Doe investigations are similar to grand jury proceedings in that a judge oversees the investigation. He pointed out in his opinion that common law shows that grand jury proceedings function better in secrecy.

“John Doe proceedings, like grand jury proceedings, are historically closed,” Randa wrote in his decision. “Nor does public access play a ‘significant positive role’ in the functioning of the John Doe.”

Randa did admit that there may be some basis for unsealing the federal case, but he refused to do so.

“John Doe proceedings are ‘presumptively open,’ but almost invariably, they are closed,” Randa wrote.

The media coalition had stressed in its brief that it wanted to unseal documents in O’Keefe v. Schmitz within the federal court, rather than the John Doe investigation in the state court.

The opinion noted that certain bits of information can be opened, and instructed the parties and the intervenors to decide what should remain sealed or redacted and report back to the court by July 3.

The federal judge’s decision sided with two “unnamed intervenors,” who opposed the media coalition's efforts and filed a motion to keep the documents sealed in order to protect their privacy. The intervenors were targeted in criminal investigations and argued that unsealing documents would be harmful to their privacy and reputations.

Tom Dupree, an attorney who helped draft the media coalition's filings, said Randa's ruling "undervalued the significant public interests at stake."

"This is a case that has generated headlines, particularly in the wake of the Seventh Circuit’s unsealing order and even the John Doe judge did not object to unsealing," said Dupree, a partner at Gibson, Dunn & Crutcher LLP

On June 16, the U.S. Court of Appeals in Chicago (7th Cir.) held that it would disclose 266 pages of documents that were previously sealed on their dockets. The next day, the same unnamed intervenors filed a motion to seal those documents, which the appeals court denied.

The Reporters Committee and the media coalition were not involved in that appeals court’s disclosure.

The unsealed documents revealed that state prosecutors believe Walker to be centrally involved in schemes to coordinate conservative campaign spending during his campaign in 2011 and 2012. No charges have been filed against Walker.

Gibson Dunn & Crutcher LLP, as well as Baker Botts LLP, are representing the media coalition pro bono. The other intervenors are the American Society of News Editors, Wisconsin Broadcasters Association, Wisconsin Freedom of Information Council, and Wisconsin Newspaper Association.