John Doe judge to step down because of tweets he posted about the case

MADISON - The John Doe judge overseeing possible contempt proceedings of nine state officials withdrew from the case Friday because he had posted comments about the case on Twitter before he was assigned the case this spring.

Jefferson County Circuit Judge William Hue said he had forgotten about the posts until the Milwaukee Journal Sentinel asked him about them on Thursday. He said Friday he was disappointed to be losing an interesting case but thought he needed to step aside so no one questioned whether the judge hearing the case was impartial. 

"I don't want to be the focus of any attention here," Hue said. 

Attorney General Brad Schimel filed a report in court this week seeking contempt proceedings against nine government officials for allegedly mishandling millions of pages of records they gathered in an investigation that was supposed to be kept secret.

In addition, Schimel said the Office of Lawyer Regulation should consider professional sanctions against Shane Falk, who until 2014 was an attorney with the now-disbanded Government Accountability Board. 

Falk said Friday he reported the issue to legal regulators himself so they could look into the issue. He contended he had acted appropriately and the Republican attorney general had misrepresented what had happened.

"Of course, it is not true, but with how he cherry picked emails in his report, it doesn't seem that way," Falk said by email. 

Falk and the others had been investigating whether GOP Gov. Scott Walker's campaign had illegally worked with conservative groups in recall elections in 2011 and 2012. The state Supreme Court in 2015 found nothing illegal had occurred and shut down this probe, known as John Doe II.

The investigation was conducted in secret under the John Doe law by a special prosecutor, Milwaukee County District Attorney John Chisholm's office and the accountability board. Chisholm headed an earlier investigation known as John Doe I that led to the convictions of six of Walker’s aides and associates during his time as Milwaukee County executive.

Schimel's report said that these two probes became so broad that they amounted to a third, unauthorized John Doe with a broad scope that included looking at whether state workers were doing campaign work while in their taxpayer-funded jobs. 

In 2016, the Guardian U.S. published 1,300 pages of secret records that had been leaked from the probes about the inner workings of Walker's campaign and groups backing him.

Soon afterward, Schimel launched an investigation into the leak. Schimel this week determined the leak was illegal and likely came from the accountability board but said he could not prove beyond a reasonable doubt who the leaker was.

Schimel asked the judge this week to commence contempt proceedings because of how Falk and others handled the material. But Hue, who uses the Twitter handle @therealfakebill, stepped down Friday because of the tweets he had posted in recent years about the long-running case. 

State Supreme Court Chief Justice Patience Roggensack in a statement Friday said she believed Hue could remain impartial, but had accepted his withdrawal from the case because of appearance concerns.

"Judge William Hue has raised the concern to me that his continued participation in the John Doe matter over which he has presided could become a distraction from legal issues that may arise in that matter," her statement said. "I agree with his concern."

Hue was appointed to the case when his predecessor, Jefferson County Circuit Judge David Wambach, retired in March. 

Randy Koschnick, the director of state courts, will be responsible for appointing Hue's replacement. 

Last year, Hue posted a message on Twitter in response to a Journal Sentinel story about campaigns working with outside groups.

“Both sides do it but John Doe II only went after Republicans HARD. Imagine if the investigation fairly targeted BOTH parties," he wrote. 

When the state Supreme Court in December 2015 ruled the special prosecutor leading the probe of Walker's campaign had been improperly appointed, Hue tweeted, "This happens when 'clever' lawyers outsmart themselves. It goes boom. Just play it down the middle. Just a wasteful shame."

Schimel spokesman Johnny Koremenos declined to comment on Hue's decision to step down.

Sweeping investigation

Schimel's report showed the John Doe investigation was vast, with more than 200 subpoenas issued to national and Wisconsin Republicans and conservatives. Among those whose emails were gathered were Leonard Leo, the executive vice president of the conservative Federalist Society; and Ed Gillespie, who lost a race for governor of Virginia last month and in 2012 headed the Republican State Leadership Committee. 

Schimel's report contended that material was not kept secure.

Francis Schmitz, the special prosecutor who led the investigation, said Friday he was confident the material that he gathered was kept confidential and was not reviewed after a judge quashed the subpoenas used to collect it. 

"I wish the DOJ investigators would have taken up my offer to provide additional info before issuing their final report," Schmitz said Friday. "One thing I think I could have clearly showed is I never gave anyone my permission to review any material in violation of court orders."

Some of the emails were purely personal, such as ones about a Bible study group and the need for someone to see a gynecologist. For unknown reasons, some were placed into a folder marked "opposition research."

Falk, who worked for the state accountability board until 2014, said he did not leak secret evidence and did not know why some of the material was labeled "opposition research." He said he believed they were marked that way by the people they were taken from and not investigators.

"We didn't change folder names and such, so I suspect it was the Republicans who set that up," he said by email. "I have no idea about anything anymore. I left the GAB in August 2014, turned over everything then, and haven't had access since."

Schimel's investigators were unable to find Falk's hard drive. He said he turned it over to the accountability board when he left the agency. He noted that happened two years before the Guardian published the secret documents. 

"I never leaked anything to the Guardian," Falk said by email. 

Falk said he was unable to say more because of secrecy orders governing the now-closed investigation of Walker's campaign. 

Walker and Republican lawmakers approved disbanding the accountability board in 2015 because they believed it was biased against Republicans. They replaced it with two new commissions, which absorbed the staff of the accountability board. 

State Sen. Steve Nass (R-Whitewater) called this week for four former accountability board workers to resign from their jobs with the commissions. 

David Halbrooks, the chairman of the new state Ethics Commission, said Friday he had full confidence in his workers.

The commission met in closed session Friday and the Democratic and Republican commissioners were united in their concerns about how Schimel wrote portions of his report, Halbrooks said.

Schimel said he was looking into whether the Ethics Commission violated the state's open meetings law by meeting with less than 24 hours' public notice. Halbrooks said he and another commission leader found they had good cause to meet with short notice because of the importance of the issues they are facing and scheduling challenges.