Photo by Michelle Stocker, The Capital Times

The state Ethics Commission Tuesday countered DOJ’s investigation into leaks from the John Doe probes, saying the report failed to accurately describe the agency’s efforts to cooperate or the steps it took to secure records after replacing the GAB.

But AG Brad Schimel fired back, saying questions the Ethics Commission raised were nothing more than disagreements over the agency’s characterization of certain events. He also said the commission had issue with DOJ’s tone, but not the substance of the report.

What’s more, Schimel suggested Ethics Commission Chair David Halbrooks has a conflict of interest because he was a witness in John Doe I, which involved aides and associates of then-Milwaukee County Exec Scott Walker. Schimel wrote in a letter Halbrooks should recuse himself from any further involvement and for the full commission to review the chair’s actions since the report dropped last week.

Meanwhile, the Elections Commission signed off on a resolution asking Walker to appoint an attorney to help with issues raised in the report. The resolution also outlined commissioners’ support of Administrator Michael Haas, who was among those called on to resign last week by Sen. Steve Naas.

Still, the resolution didn’t mention Elections Commission attorney Nathan Judnic, who Nass also singled out and is among those Schimel recommended for contempt proceedings.

The dueling letters from Schimel and Halbrooks and Ethics Commission Vice-Chair Katie McCallum are the latest twist since DOJ last week released its report. The report found a crime was committed when documents from the secret investigations were released to The Guardian. But DOJ said it could not pinpoint who was to blame because of sloppy record keeping by the now defunct Government Accountability Board. The report also was critical of the Elections and Ethics commissions, which were created to replace the GAB.

That report also for the first time detailed the existence of what DOJ called John Doe III, an investigation that collected hundreds of thousands of emails from Republican aides, operatives and a state lawmaker and included a folder marked “Opposition Research.”

The Ethics Commission letter suggested the folder was not prepared by a GAB employee and was instead illegally seized by investigators from a target of John Doe III.

DOJ countered that “cannot possibly be true” because it was created on a GAB hard drive on April 10, 2012, which post-dates any of the documents found in the folder. Schimel also said most of the emails in the folder were personal and did not include “any items that a Republican would label as ‘Opposition Research.'”

The Ethics Commission letter outlined some of the issues Halbrooks raised to late last week in response to the DOJ report. 

That included the allegation that administrator Brian Bell and counsel David Buerger invoked their Fifth Amendment rights while interviewed by DOJ employees. Halbrooks and McCallum countered it was the commission that wanted an attorney present during the interviews with each agency employee.

They also wrote in Tuesday’s letter the DOJ report failed to acknowledge the “major security improvements” the commission has put in place since replacing the GAB.

Along with rejecting the DOJ description of how the Ethics Commission handled the records once they were transferred from the GAB, Halbrooks and McCallum pushed back on DOJ’s questioning of why the agency did not report a crime after The Guardian published the leaked documents.

“There is not a single person in our agency who had knowledge of the content of the leaked documents before they were published, and as such none of us were able to identify that a crime had occurred at the time,” they wrote.

Schimel, though, insisted Bell and Buerger invoked their Fifth Amendment rights to counsel.

He wrote they spoke with DOJ attorneys and investigators on turned over documents on several occasions. It was only after the so-called “Falk boxes” of records were found that they requested an attorney. The name refers to former GAB counsel Shane Falk; DOJ says the documents leaked to The Guardian were all on his hard drive, which is still missing.

“When a witness in a criminal case refuses to talk to investigators without an attorney present,  this is an invocation of the witness’s Fifth Amendment rights,” Schimel wrote. “Although the commission wishes to characterize this event differently, the report is correct and speaks for itself.”

Schimel also disputed the commission’s assertion that it could not report a crime when the documents were leaked. He wrote the commission was in custody of John Doe evidence at the time of the leak. While they could not review the documents, commission employees could identify boxes, files and electronic folders.

Read the Ethics Commission letter: 

See the story from Friday: 

Read the DOJ response: 

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