Dem and GOP ethics regulators clash with Attorney General Brad Schimel over John Doe report

MADISON - The leaders of the state Ethics Commission from both parties asked Attorney General Brad Schimel on Tuesday to acknowledge they had fully cooperated with a leak investigation, but Schimel quickly declined to do so. 

Within hours, the Republican attorney general said a report he filed in court last week was accurate and criticisms of it were minor. He fired back by contending the head of the Ethics Commission had a potential conflict of interest and should stop participating in the case. 

Also Tuesday, members of the separate Elections Commission issued a unanimous, bipartisan statement backing their top appointee. 

Tuesday's developments came in response to a report by Schimel that called for contempt-of-court proceedings against nine government officials for their handling of confidential information in a now-shuttered investigation of GOP Gov. Scott Walker. 

Schimel battled with the Ethics Commission over a number of issues, including a set of more than 390,000 computer files labeled "opposition research." Schimel maintains those investigating Walker's campaign gave computer folders that name.

In 2012, Milwaukee County District Attorney John Chisholm launched the probe of Walker's campaign. It grew out of an earlier investigation and was called John Doe II because it was conducted under Wisconsin's John Doe law, which allows investigations overseen by a judge that are similar to grand jury probes.

John Doe II was conducted by special prosecutor Francis Schmitz, Chisholm's aides and the state Government Accountability Board, which at the time oversaw the state's ethics and elections laws. 

The state Supreme Court shut down the investigation in 2015, finding nothing illegal occurred. In 2016, the Guardian U.S. published nearly 1,400 pages of documents from the probe that were meant to be kept secret. 

Schimel investigated the leak and last week issued a report seeking contempt proceedings against nine officials for their handling of confidential evidence. 

The accountability board was disbanded last year and replaced with the Ethics Commission and Elections Commission. Those agencies inherited accountability board staff and records and as a result were contacted as part of the leak investigation. 

In a letter to Schimel, the heads of the Ethics Commission argued his report mischaracterized how the Ethics Commission responded to the leak investigation.

They asked him to promptly address what they called inaccuracies. Schimel declined.

"The Wisconsin Department of Justice stands by the attorney general’s report," Schimel wrote in response.

The letter to Schimel was sent by David Halbrooks, the chairman of the Ethics Commission, and Katie McCallum, the vice chairwoman. Halbrooks is a Democrat and McCallum is a Republican.

They were the latest to raise questions about the accuracy of Schimel's report. Schimel last week said he planned to correct one error, but argued Tuesday that other criticisms were wrong.

Schimel's report questioned why the Ethics Commission did not report that a crime had occurred at the time the Guardian U.S. published the documents. Halbrooks and McCallum noted that no one at the Ethics Commission had participated in the original secret probe of Walker's campaign, and thus could not know independently whether the leaked documents were covered by court secrecy orders.

In response, Schimel noted the Ethics Commission at the time had a large number of John Doe II files. 

Halbrooks and McCallum also raised questions about how Schimel described the "opposition research" folders in his report. 

"As for the folder marked 'opposition research, while provocative, it is our understanding that the file was one of the pieces of illegally seized data rather than a document prepared by a GAB operative," Halbrooks and McCallum wrote.

Schimel responded that the notion that the file was created by Republicans whose information was collected through search warrants "cannot possibly be true" because they were created on an accountability board hard drive in April 2012.

"To be clear, the folders at issue here labeled 'Opposition Research' were not obtained as part of any search warrant," Schimel wrote Tuesday. "The folders were created subsequent to the receipt of the evidence being collected via search warrant."

Halbrooks said his main point was that the Ethics Commission was not involved in creating the computer folders. 

"I was trying to say the material in the file was illegally seized and we didn't have anything to do with it," he said.

Schimel argued Halbrooks should not participate in matters related to the leak investigation or underlying probes because he was granted immunity in John Doe I. Halbrooks, a Milwaukee attorney, received immunity as a John Doe I witness in 2012.

"At best, this presents the appearance of a conflict-of-interest and at worst an actual conflict," Schimel wrote.

Halbrooks said his role in John Doe I created no conflict for him as an ethics commissioner. He noted he has long been a critic of both John Doe II and the accountability board.

State Sen. Steve Nass (R-Whitewater) last week called for four former accountability board employees who now work at the Elections Commission or Ethics Commission to resign.

The Elections Commission on Tuesday issued a unanimous statement in support of one of those employees, Michael Haas. Haas formerly led the elections division of the accountability board and now is the director of the Elections Commission. 

Mark Thomsen, chairman of the Elections Commission, said he wants to hire a private attorney for his agency that can pursue getting other documents from Schimel that would shed light on the leak investigation. 

He questioned whether Schimel had turned up enough evidence to pursue contempt proceedings.

"I'm a lawyer," Thomsen said. "I haven't read anything that gets to contempt."

Others dispute Schimel's report

Schimel said last week he would remove a footnote from his report that implied the wife of Milwaukee Journal Sentinel reporter Daniel Bice had been the source for a story about Schimel’s team visiting the state Supreme Court clerk’s office in February 2017 as part of its leak investigation.

Schimel wrongly stated that Sonya Bice worked for the court at the time. Sonya Bice had left the court more than a year earlier and was not the source for the Journal Sentinel story.

Separately, Supreme Court Justice Shirley Abrahamson said Schimel’s report was “inaccurate” in describing her stop at the clerk’s office just before Schimel’s team got there. She said she had been there to make sure the boxes were sealed and a log was being kept of who looked at them.

Brown County Circuit Judge Kendall Kelley will consider whether to hold the contempt-of-court proceedings that Schimel is seeking.

Kelley was assigned the case Monday and is the fifth judge to oversee proceedings dealing with the probe of Walker's campaign and its aftermath.

Last week, Jefferson County Circuit Court Judge William Hue stepped aside after acknowledging he had tweeted about the case before it was assigned to him. He said he had forgotten about those tweets when he accepted the case in the spring.