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Wednesday, May 23, 2012

Will Scott Walker Beat John Doe?

Voters may go to the polls with incomplete information about his role in alleged misconduct

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With just two weeks before the June 5 recall election facing Republican Gov. Scott Walker, the embattled governor may be running out the ticking clock on the John Doe investigation into alleged misconduct of his Milwaukee County aides and others.

The sprawling investigation began in the spring of 2010, then heated up—publicly, at least—when the FBI raided the home of Walker's former top aide at the county, Cynthia Archer, in September 2011.

Since then, four Walker associates have been charged with crimes that include embezzlement, child enticement and misconduct in office. In addition, a major Walker donor, railroad executive William Gardner, pleaded guilty to campaign finance offenses, and a county aide, Darlene Wink, pleaded guilty to misdemeanors in exchange for providing information to prosecutors.

Will any more charges be issued before the recall?

The Milwaukee County District Attorney's Office will not comment on its John Doe investigation.

Walker's defense attorneys, Michael Steinle and John Gallo, did not return the Shepherd's phone calls.

But legal experts and political operatives spoke to the Shepherd about the two-year-long investigation, who and what Milwaukee County District Attorney John Chisholm and his team may be targeting, and the political ramifications of the John Doe and the recall.

What's Walker's Role?

So is Walker involved in the alleged misconduct that took place within his county executive office suite in 2010?

Or is Walker merely an innocent bystander who knew nothing about the thousand emails that prosecutors say were exchanged between his top campaign staffers and his county aide, Kelly Rindfleisch, during county work hours; the private Internet system apparently set up by Walker's then-deputy chief of staff, Tim Russell, for county "insiders"; and the Walker campaign fundraisers set up by another county aide, Darlene Wink, while she was being paid by taxpayers?

That answer is a bit of a mystery, at least until Chisholm and the John Doe judge, Neal Nettesheim, make another public move.

And unless Chisholm releases new criminal complaints or additional information about the investigation before June 5, voters in the recall election will head to the polls with an incomplete picture about what, exactly, transpired while Walker was county executive and campaigning for governor.

Walker has spent at least $60,000 on top-flight criminal defense attorneys representing him in this investigation, set up a criminal defense fund, and has said he was "cooperating" with Chisholm, who had requested a meeting a few months ago. Walker hasn't said if he has met with Chisholm or whether he has dragged his feet in order to push the conversation into June or later, after the recall election has been held.

That leads Walker opponents to envision a nightmare scenario in which Walker survives the June recall election because voters are not fully informed of his role, if any, in the alleged crimes—but then is dragged down by the John Doe later this year.

A Walker resignation would allow Lt. Gov. Rebecca Kleefisch to become governor and serve out Walker's four-year term, if she survives her recall challenge, too.

Experts who spoke to the Shepherd said that Chisholm still has time to issue complaints before the June 5 recall. After all, then-District Attorney E. Michael McCann filed charges against legislative leaders in the caucus scandal a mere two weeks before the November 2002 general election.

What We Do Know: Felony Charges and Immunity from Prosecution

John Doe investigations are highly secretive. The public knows that there is, in fact, a John Doe. The public knows who has been granted immunity from prosecution. Resulting criminal complaints are made public as well and often include clues about where the investigation is headed.

While Walker allies have complained that the John Doe investigators are providing leaks to the media, highly respected criminal justice officials pushed back on that theory last week.

In a sharply worded open letter to the public, McCann, former Supreme Court Justice Janine Geske, former Kenosha County District Attorney Robert Jambois and others wrote: "There is no evidence that anyone associated with the prosecutorial, investigative and judicial functions of this John Doe inquiry has violated the secrecy order in that inquiry or otherwise acted contrary to law or good conscience."

In this John Doe, we know that a dozen people have been given immunity. They include Walker's gubernatorial spokesman, Cullen Werwie, who ran Brett Davis' campaign for lieutenant governor in 2010 before joining Walker's campaign when Davis didn't survive the primary. Werwie was mentioned in the criminal complaint filed against Kelly Rindfleisch, a top Walker aide at the county who at the same time was a paid fundraiser for the Davis campaign. Rindfleisch emailed a friend in 2010, "Half of what I'm doing is policy for the campaign." She is facing four felony counts of misconduct in office for her work for the Davis campaign while on the county dime.

Rindfleisch and Werwie reportedly exchanged numerous emails about fundraising during Rindfleisch's county work hours on a private Internet network allegedly set up in the county executive's office suite by Walker's close county and campaign aide, Tim Russell, who faces felony charges for allegedly embezzling more than $20,000 from a charity for veterans. Russell also turns up in the criminal complaint of his partner, Brian Pierick, who is alleged to have attempted to solicit a 17-year-old Waukesha boy for sex.

Immunity was also granted to Rose Ann Dieck, a local Republican fundraiser, and to David Halbrooks, a Milwaukee attorney and a Democrat. Halbrooks' involvement seems to be a head-scratcher to many watching the investigation play out, since he didn't work for Walker's campaign or for the county.

In addition to this core of insiders, a handful of people in the railroad industry were granted immunity as part of the case against Gardner.

And Walker's county aide Darlene Wink pleaded guilty to misdemeanors in exchange for her cooperation into alleged destruction of evidence by the Walker administration. Her sentencing date has been pushed off into the future. Kevin Kavanaugh also faces criminal charges for allegedly embezzling money from a veterans organization.

Unresolved Issues

More clues about the John Doe investigation have appeared in the media but haven't been resolved. Top Walker aide Cindy Archer's home was raided by the FBI in the summer of 2011 and her computers were seized; nothing in the public record indicates Archer's involvement in the alleged misconduct.

According to prosecutors, Rindfleisch exchanged more than a thousand emails with top Walker campaign operatives, including his campaign manager, Keith Gilkes, deputy manager Stephan Thompson and spokeswoman Jill Bader. The investigators have the emails, yet didn't publish transcripts of them in Rindfleisch's criminal complaint, unlike the emails exchanged between Rindfleisch and the Davis campaign.

What's the content of these emails? Did Rindfleisch exchange emails with Walker? Was he copied on any of them? If so, then prosecutors could allege that Walker knew that his county staffer was campaigning on the taxpayers' dime—a chargeable offense.

This week, Walker told a reporter that Rindfleisch "did what she was expected to do."

In addition, prosecutors released a May 2010 email from Walker to Tim Russell, then working as the county's housing director, telling Russell that campaigning on county time needed to stop.

Another source of puzzlement is the link between Walker and questionable contracts for office space for county workers. The Milwaukee Journal Sentinel ran a highly detailed article in January about allegations of bid-rigging in 2005 and 2010 and the curious involvement of Walker's then-campaign treasurer, John Hiller, and a lobbying firm created by Walker campaign and county aide Jim Villa.

Yet none of those allegations has materialized in any of the publicly released John Doe documents.

The Legal Defense Fund

Not disclosed by Chisholm's office, but made public by Walker himself, is existence of the loftily named Scott Walker Trust. Put more plainly, it's his criminal defense fund.

We know that Walker transferred money into this fund from his campaign account. And while Walker is supposed to obtain the permission of his donors to transfer money into his legal defense fund, he doesn't have to get that permission in writing, nor does he have to submit anything to the Government Accountability Board (GAB). All Walker had to show on his campaign finance statement was a lump-sum transfer to that account; he didn't need to itemize which contributions were transferred.

The GAB can only release general information about the establishment of legal defense funds and cannot comment on any contact it has had with the Walker campaign.

Walker's opponent in the recall, Milwaukee Mayor Tom Barrett, has been pushing the governor to disclose why he set up his legal defense fund. Walker hasn't said a word.

But the reasons for setting up such a fund are very limited. The targeted official or his agent must be under investigation, being charged with or convicted of violations of campaign finance laws or prohibited election practices. According to a May 18 letter from GAB staff counsel Michael Haas to state Sen. Jon Erpenbach (D-Middleton), the campaign statutes cover contribution limits, registration and reporting requirements, election threats, election bribery and election fraud.

So the existence of Walker's legal defense fund confirms a few things: that Walker or one of his "agents" is either under investigation, is being charged or has been charged with crimes related to campaigning and elections.