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Brad Schimel

Attorney General Brad Schimel said Thursday it's likely a grand jury could be convened to investigate a leak of materials related a John Doe investigation into Scott Walker's recall campaign. 

The Wisconsin Supreme Court ruled last week, in a 4-1 decision, that it won't reopen a John Doe investigation into Gov. Scott Walker's campaign and the conservative groups that supported him in his 2012 recall election.

But I thought the court shut down that investigation in July.

It did. In a 4-2 decision, the court ruled this summer that close coordination between candidates and groups is legal. The ruling put an end to the investigation launched by Milwaukee County District Attorney John Chisholm in 2012 and put on hold in 2014. 

That ruling concluded that no legal duties had been violated in appointing special prosecutor Francis Schmitz to oversee the case, but in a concurring opinion, the court wrote he had been improperly appointed. 

The court also ruled that all evidence gathered in the probe must be destroyed. 

Schmitz appealed the decision in August. Last week's ruling is an answer to that appeal.

So, what changed?

A few things. The court still found such coordination to be legal and said the investigation cannot go on. 

It clarified that Schmitz was not properly appointed to oversee the probe, arguing that a special prosecutor can only be appointed in limited cases. That means he's not allowed to continue most activities related to the investigation.

However, the court found this time that evidence gathered in the John Doe should now be retained by the court. Schmitz is in charge of gathering it and turning it over.

Does this mean John Doe II is really over now?

Not necessarily. The Dec. 3 decision says the "prosecution team" can appeal the decision to the U.S. Supreme Court, and Schmitz has said he intends to do so. 

However, in her dissent, Justice Shirley Abrahamson said it's unclear who is meant by "prosecution team."

Meanwhile, the Wisconsin Democracy Campaign is calling on one of the five other district attorneys involved in the case, including Dane County District Attorney Ismael Ozanne, to make the appeal.

That's not complicated enough. Isn't there some other new development to figure out?

Of course. Deb Jordahl and R.J. Johnson, two Republican consultants who were targeted in the investigation, sent a letter to Republican Attorney General Brad Schimel this week arguing he should take over the case.

The pair argued that for Schmitz to appeal to the U.S. Supreme Court would be a violation of the state court's ruling that stripped him of his authority. They encouraged Schimel to impose sanctions on Schmitz should he choose to make the appeal.

"The state has no legitimate interest in seeking a writ of certiorari in the United States Supreme Court. That, in any event, is your decision to make, and no one else’s," they wrote.

Does anyone disagree with their request?

Sure. Both the Wisconsin Democracy Campaign and One Wisconsin Now have argued that the four justices who formed the state court's majority ought to have recused themselves, because they received more than $8 million in campaign donations, combined, from parties named in the investigation. 

WDC and OWN argue that under the U.S. Supreme Court case Caperton v. Massey Coal, at least a few of those judges should have recused themselves. The case found a judge must recuse when "extreme facts" create a "probability of bias."

OWN executive director Scot Ross suggested those opposed to a U.S. Supreme Court review are afraid the high court would apply Caperton to this case, invalidating the state court's ruling. 

"The Republicans want to bring Brad Schimel in to do what Brad Schimel does best when it comes to stopping political corruption: nothing," Ross said. "The Caperton decision was about one justice sitting on a case where campaign spending created bias. The four conservative members of the Wisconsin Supreme Court who tossed the John Doe owe their seats to the $8 million in spending by parties that wanted the John Doe to die."

What does the Attorney General Brad Schimel say about all this?

Schimel said in a statement issued Tuesday that he doesn't expect the U.S. Supreme Court to take the case at all — and if it did, he would expect it to uphold the state court's ruling.

He said the state Supreme Court's orders should be carried out immediately and the entire process brought to an end. Still, he said, the state Department of Justice has "no authority" to represent the individuals asking for the orders to be enforced.

"This has been a long, unfortunate chapter in Wisconsin's history. The courts have unequivocally rejected the John Doe investigation, both in the manner in which it was carried out, as well as the legal arguments brought by the prosecutors," Schimel said in a statement. "The Wisconsin Supreme Court has now ordered that the property seized be returned. For everyone involved, the special prosecutor should end the case, and the property seized from the individuals in this case should be returned immediately."

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