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Wednesday, Feb. 15, 2012

Scott Walker, Meet John Doe

The governor's legal and political troubles heat up

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Milwaukee County District Attorney John Chisholm has charged a handful of Gov. Scott Walker's past aides as a result of a 20-month John Doe investigation. But things took a more serious turn when Walker announced that he and two criminal defense attorneys would meet with Chisholm and his fellow prosecutors for a chat. The admission seems to indicate that the investigation is still moving forward—and that Walker is intimately involved in it—at the same time Walker is fighting an unprecedented recall attempt.

Suddenly, the governor looks very, very vulnerable.

Legal and political experts from all parts of the ideological spectrum spoke off the record with the Shepherd on the shape of the investigation, Walker's defense and how he could retain Republicans' hold on power even if recall elections are called. Here's what they had to say.

How much trouble is Walker in?


Well, it's never good for the district attorney to invite you over for a chat during a John Doe investigation. Walker has been spinning this meeting as being "voluntary," a way for him to "cooperate" with Chisholm, but it's voluntary only in the sense that Chisholm isn't serving him with a subpoena and ordering Walker to come in to his office. Neither the district attorney's office nor the Walker campaign responded to the Shepherd's request for more information on when this meeting will take place—or if it's already taken place.

Walker has hired some high-powered attorneys, but the discussion is full of dangers for him. Walker cannot shade the truth at all. If he does say something that prosecutors determine to be false, he could be charged with obstruction of justice, a felony, for misleading the prosecution.

Even worse for the governor? Walker will likely be called in front of the retired judge presiding over the John Doe investigation, Neal Nettesheim, although that would not be disclosed to the public, according to the rules of the John Doe investigation. If Walker is put under oath and deliberately misleads the judge, he could be charged with perjury, a felony.

Is the investigation going to end anytime soon?

While a few Walker associates have been charged with very serious crimes, including misconduct in public office and child sex enticement, it appears that this investigation is a long way from winding down or fizzling out. In fact, the Walker interview—and the willingness of lower-level staffers to begin to cut deals in exchange for their cooperation—signals that the investigation, which also involves the Federal Bureau of Investigation (FBI), may be at a critical juncture. After all, John Doe investigations are a way to collect evidence against those at the top of an alleged crime scheme, not to prosecute those who were just "following orders."

Who are some of the players in this scandal?


The biggest name to surface thus far is Tim Russell, who has been charged with four felonies stemming from the more than $20,000 he allegedly stole from a veterans' charity and two county supervisor campaign accounts.

But there's far more to Russell's story than that. Russell and Walker have been friends since their days at Marquette University. Walker had hired Russell for various posts at the county. Russell was also a top Walker campaign operative throughout the years.

Russell's name appears in criminal complaints in addition to his own. His domestic and business partner Brian Pierick is alleged to have attempted to solicit a 17-year-old Waukesha boy for sex, and the criminal complaint indicates that he discussed procuring a "boy" with Russell. Pierick has been charged with child enticement and exposing genitals, two felonies.

There's more. Russell is also alleged to have bought the wireless router used within the county executive's office suites so that county "insiders" could work on campaign (and county) matters without using the official county Internet system. In fact, the county's information manager told prosecutors that she had no idea that a private Internet hookup existed within Walker's office suite. Neither Russell nor Walker aide Kelly Rindfleisch, two members of an open records committee who allegedly used this private Internet network, mentioned it while vetting open records requests.

Rindfleisch is an interesting character in this saga, and it's not the first time she's attracted the notice of prosecutors. A decade ago, Rindfleisch had been granted immunity in the caucus scandals, which involved legislative staffers improperly performing campaign work on state time.

Russell hired Rindfleisch in January 2010 to be a policy analyst; she became Walker's deputy chief of staff when Russell became the county's director of housing. However, at the same time Rindfleisch was working for County Executive Walker, prosecutors allege she was fund-raising for Brett Davis, Walker's preferred Republican candidate for lieutenant governor. (As governor, Walker appointed Davis to be his Medicaid director.) In fact, Rindfleisch told a friend in an online chat that "half of what I'm doing is policy for the campaign."

Rindfleisch was in constant contact with Cullen Werwie, Davis' campaign manager who later worked for the Walker gubernatorial campaign and now serves as Walker's spokesman. (Werwie was granted immunity in this investigation.)

Prosecutors have charged Rindfleisch with four felony counts of misconduct in public office for her work for the Davis campaign. However, prosecutors also allege that she exchanged more than a thousand emails with top officials from Walker's gubernatorial campaign during regular work hours. Those emails could be a gold mine for prosecutors, and they pose a huge risk for Walker.

Darlene Wink
, Walker's constituent services coordinator and the vice chair of the Milwaukee County Republicans, struck a deal with prosecutors. In exchange for providing evidence—apparently about destruction of digital records—Wink was charged with two misdemeanors for organizing Walker fund-raisers and doing other political work while at her county job. Wink pleaded guilty to those charges last week.

Other names to watch? Cynthia Archer, the former head of the county's Department of Administrative Services, took a high-ranking state job when Walker was elected governor. Last September, the FBI raided her Madison home. She has not been charged with anything. Tom Nardelli, Walker's former chief of staff at the county, also went to Madison, but suddenly—and surprisingly—resigned from his state job last summer, just before Archer's home was raided. Another interesting resignation is that of John Hiller, who served as Walker's campaign treasurer for 18 years; Hiller resigned from that position in the spring of 2011. Andrew Jensen, a Milwaukee commercial real estate magnate, was arrested after he declined prosecutors' offers of immunity. Rose Ann Dieck, a Republican fund-raiser, has been granted immunity.

Who are Walker's attorneys?


Walker's campaign has paid an estimated $60,000 to Michael Best & Friedrich for former U.S. Attorney Steven Biskupic's work on "compliance" issues, assumed to be legal advice on the John Doe investigation. Walker has also hired two heavy-hitting, very expensive criminal defense attorneys, Mike Steinle and John Gallo.

Walker's choice of attorneys indicates that this investigation involves a whole lot more than staffers campaigning on county time. Milwaukee-based Steinle got high marks from the attorneys interviewed for this article. Former federal prosecutor Gallo is a partner in the Chicago firm Sidley Austin who represents criminal defendants and grand jury targets. Gallo's representation of Walker indicated to one attorney that there is likely a federal investigation running on a parallel track to Chisholm's state investigation that could produce federal charges.

Who is paying for Walker's criminal defense attorneys?


Right now, we don't know, and Walker's campaign didn't respond to the Shepherd's request for clarification. Walker has said he would not use public funds for his defense. Apparently, he can use some of his campaign war chest for his attorneys, but he must get his donors' permission. However, state statutes don't require that he get this permission in writing, according to the Government Accountability Board, and he doesn't need to turn over any such agreements to the state.

But what about the unlimited sums of money he can raise for his recall? According to state statute, these funds can only be used for his recall. Attorneys contacted for this article wondered if Walker could use those funds for criminal defense attorneys representing him for matters relating to events that happened when he was the Milwaukee County executive.

How relevant is this case to the caucus scandals of a decade ago?


From what we can tell right now, the cases are pretty similar. Members of then-Milwaukee County District Attorney E. Michael McCann's office worked on the caucus cases; some are still working in the district attorney's office. But the caucus scandals involved doing campaign work on state time in offices across the street from the state Capitol. In Walker's case, the alleged campaigning on county time occurred within the county executive's office suite. Kelly Rindfleisch and Tim Russell—and most likely other staffers—allegedly both used a private wireless router in their offices, which were just feet away from Walker's office. Darlene Wink worked just steps away from Walker, too, when she was working on campaign materials during the business day. So Walker will have a difficult time proving that he didn't know what was going on right under his nose.

In addition, prosecutors say Rindfleisch exchanged more than a thousand emails with high-ranking members of Walker's gubernatorial campaign during regular work hours. If Rindfleisch exchanged political emails with Walker, or if he was copied on those emails, "he's toast," as one attorney put it.

Isn't Walker exonerated by the email he sent to Tim Russell saying that no campaign work should be done by county staffers?

Instead of exonerating Walker, the email pretty much damns him.

Here's what Walker wrote after it was revealed that his staffer Darlene Wink was posting pro-Walker Internet comments while working for the county: "No one can give them [the media] any reason to do another story. That means no laptops, no websites, no time away during the work day, etc."

Remember: It was reported that Darlene Wink was blogging while working for the county. There was no mention of laptops and other things. So why would Walker mention them?

And why would Walker send the email from his campaign account to Russell? At the time, Russell was working as the county's director of housing. Why would Walker use his campaign email to deal with a county personnel matter? And why would he send it to his housing director?

If the district attorney presses charges against Walker, would he have to resign as governor?


No. But it would add a lot of fuel to the movement to recall him.

If Walker were to resign from office, what would happen?


If Walker were to resign as governor, Lt. Gov. Rebecca Kleefisch would become governor—not acting governor, but governor. She would be able to appoint a lieutenant governor, who would need to be confirmed by the state Legislature.

If Walker resigned and Kleefisch became governor, what would happen to the recalls?


This is a fascinating scenario, one that doesn't have a simple answer.

Let's assume that the recall organizers have gathered enough signatures to force a recall of Walker as governor and Kleefisch as lieutenant governor. Now, once recalls are initiated, they cannot be stopped. There is no state law or constitutional provision that allows the process to be halted.

If Walker were to resign before his recall is held, his recall would likely still take place, but the result would be moot, since he would already be out of office.

But what about Kleefisch? She's being recalled from her position as lieutenant governor, not governor. What would happen to her pending recall? Would it go ahead but she'd remain as governor? Would recall organizers have to wait a year before attempting to remove her as governor since she would no longer be lieutenant governor?

There are no easy answers to these questions, but one thing that is certain is that the scenario would wind up in the courts. And as we've seen during the past year, Kleefisch could attempt to litigate her case in a friendly venue—for example, in Waukesha County in front of a judge who had been a Republican legislator, as Walker's campaign did in the recall petition case.

Alternatively, the state Supreme Court could take up the matter as an original case or wait to hear it on appeal. Since Republicans have a friendly majority on the state's highest court, they'd likely rule in favor of Kleefisch and allow Republicans to retain their lock on power.

Would Walker and Kleefisch use this nuclear option? Stay tuned.