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Supreme Court could complicate Scott Walker's campaign

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Wisconsin Gov. Scott Walker speaks at the Freedom Summit, Saturday, May 9, 2015, in Greenville, S.C. (AP Photo/Rainier Ehrhardt)

Wisconsin Gov. Scott Walker could face an unusual distraction to his 2016 Republican presidential bid — a Supreme Court case rehashing two secretive "John Doe" criminal probes that have dogged him since 2009.

The Wisconsin Club For Growth, a conservative activist group that was targeted in the second probe along with the governor, has petitioned the Supreme Court to hear its challenge to the prosecutor's investigation.

Ed O'Keefe, the group's director, told the Washington Examiner they expected to find out on Monday whether the justices have agreed to hear their case. The group wants the justices to be shut down the probe for good.

If the court agrees to hear the case, it will mean the whole controversy over the probes will be re-examined at the national level just as the White House race is heating up.

It will be hard for Walker to avoid questions about the case, which involved allegations by the prosecutors that the governor illegally coordinated his campaign fundraising efforts with groups such as the Club for Growth during his 2011 recall election.

A spokesman for Walker did not respond to requests for comment.

David Mark, author of Going Dirty: The Art of Negative Politics, argues that a Supreme Court case could actually help Walker's campaign since it will remind Republicans of the backlash he faced from the left in 2011 and 2012.

"While Gov. Walker probably doesn't relish the idea of the lawsuit surfacing, this could actually help his campaign. Hearings on these issues would allow Gov. Walker to play the victim against out-of-control prosecutors attempting to criminalize legitimate political activity," Mark said.

He added that voters likely to be concerned about Walker's connections to the conservative donors such as the billionaire Koch brothers were unlikely to have supported him the first place.

For O'Keefe, the case involves important First Amendment issues. He says he wants his day in court and doesn't care what that means for Walker's bid.

"I am seeking justice one step at a time," O'Keefe said, "The implications for presidential politics are not a part of my calculations."

He adds that it ought not to have an impact on Walker's campaign because the governor is only tangentially involved in the specific matter the group wants the court to address.

"This case is not about Scott Walker or what he did or did not do. Or what the Wisconsin Club for Growth did. It's about what the prosecution team has done," he said.

Bradley Smith, former chairman of the Federal Election Commission, says there is a good chance that the justices will take the case. The Club for Growth's petition involves First Amendment issues in political fundraising, which the court has delved into numerous times in recent years, and the claim that the state-level courts cannot resolve the issue fairly due to local politics.

"I think they have a very strong case," said Smith, who is now chairman of the nonprofit Center for Competitive Politics, which has filed an amicus brief supporting the group's position.

But it is far from a sure thing, Smith added. Even if a majority of the justices agree with the underlying argument in Club for Growth's petition, they may still decide it is too soon to intervene because the case is still being appealed at the state level.

Wisconsin allows prosecutors to launch special probes, called "John Doe" investigations, which give them full investigatory power and are officially confidential. The subjects of the probe are prohibited from talking about them publicly.

Walker has been the subject of two. The first was launched in 2010 by the Milwaukee County District Attorney's Office when Walker was Milwaukee County Executive. It involved misappropriation of funds meant for a charity and led to the convictions of six people, including three Walker former aides. Walker himself was never implicated. It was his office that first alerted prosecutors to the matter.

A second probe was launched in 2012 and involved allegations that Walker's campaign to win a recall election illegally coordinated its activities with conservative groups, including the Wisconsin Club for Growth. The prosecutor issued subpoenas and staged midnight raids at the homes of conservative activists. But to date, no charges have been filed.

The groups targeted have derided the probe as a partisan witch-hunt. O'Keefe's petition states: "In retaliation for supporting Walker's controversial reforms limiting collective-bargaining rights for public-sector workers, conservative activists across the state were subjected to home raids, everything-but-the-kitchen-sink subpoenas demanding internal communications and membership information, and other intimidation — all as part of a secret investigation into conduct that a state court held isn't even regulated by Wisconsin law. The purpose of these actions was to silence Walker's supporters. It worked, to devastating effect."

The probe had the effect of shutting the Club for Growth down, O'Keefe says, since donors, vendors and other activists were afraid to have any contact lest they get drawn into the probe.

Randall Crocker, an attorney representing John Doe special prosecutor Francis Schmitz, did not respond to a request for comment.

In January 2014, a judge quashed the subpoenas issued as part of the investigation, stating that they "do not show probable cause that the moving parties committed any violations of the campaign finance laws." The judge's action is under appeal.