The Wisconsin Supreme Court has set Friday, December 18 as the date the DAs involved in the secret probe of Gov. Walker's 2012 recall campaign must to decide whether to intervene. Two of the five prosecutors have declined. Of the three who remain, all Democrats, one is Milwaukee District Attorney John Chisholm.
The state high court ordered an end to the John Doe in July, ruling that it had uncovered no evidence that parties had broken the law. The investigation was exploring whether Walker's campaign illegally coordinated with so-called issue advocacy groups. These groups can collect and spend unlimited amounts of money on a candidate's behalf, but not pay for the words 'vote for' or 'vote against' a candidate.
This month, the high court in effect dismissed special prosecutor Francis Schmitz who had headed the probe and then gave the DAs involved two weeks to decide whether to request permission to take over the case. Schmitz reportedly wanted to appeal certain aspects to the U.S. Supreme Court.
The two DAs who have stepped aside, both Republicans, insist the Wisconsin Supreme Court and U.S. Supreme Court in its Citizens United ruling have settled the question of coordination - that campaigns and third party funders can interact, under the condition that the independent groups don't tell people to vote for or against a candidate.
Wisconsin had a law limiting coordination, and the John Doe was reportedly examining whether anyone crossed the line.
The issues the three remaining DAs may be weighing include the knowledge that if they do not intervene, no one has legal standing to appeal the Wisconsin Supreme Court decisions regarding John Doe 2, and the fact that pursuing a case to the U.S. Supreme Court against a state supreme court would be an immense undertaking and with limited county resources.
Regarding the speculated grounds on which any remaining DAs could appeal aspects of the case to the U.S. Supreme Court, one is arguing that the U.S. Supreme Court in its various decisions does allow some limits on coordination between candidates and issue advocacy groups. So, in effect, the prosecutors would argue that the state high court misread campaign finance precedent.
Another potential argument the DAs could make is that several Wisconsin justices should have recused themselves from John Doe 2 rulings because their candidacies benefited from big contributions from some of the same independent groups that were involved in the case.
A third possibility is that investigators found a link to the key words, 'vote for' or 'against' someone.
Another lingering issue remains - what happens with the volumes of evidence the prosecutors amassed? The Wisconsin Supreme Court ordered them to either destroy or return all the material. The DAs have asked a federal judge to let them keep it, in case appeals move forward.