Frederica Freyberg:

But first, the John Doe investigation into allegations that Milwaukee county staffers under Scott Walker campaigned on county time. Governor Walker has been called in to meet with Milwaukee county D.A. John Chisholm, but it's not known when that meeting will take place or if it has. We begin talking with someone who knows his way around a John Doe investigation. He was also a prosecutor during the Capitol Caucus Scandal ten years ago, overseeing the conviction of Senator Chuck Chvala. He’s the former Milwaukee County district attorney. E. Michael McCann joins us now from Milwaukee. Thanks very much for doing so.

E. Michael McCann:

Good to be with you.

Frederica Freyberg:

To drill down into this John Doe investigation, is it true in general that in conducting a John Doe you start kind of at the outside like peeling an onion and work your way in toward the target?

E. Michael McCann:

That's frequently the case. It's the manner in which the district attorney can compel witnesses to come before a judge and testify. The district attorney cannot require people to come into his or her office. He can subpoena a person before a John Doe proceeding. That's started by filing a complaint with a judge and if the judge finds merit to it they proceed. Pretty much within the judge's discretion how far it will go. They're usually secret. Particularly if they are looking at areas where there’s reason to believe those who are watching it might flavor their testimony one way of another if they know about the proceedings.

Frederica Freyberg:

In this particular John Doe that John Chisholm is undertaking, there seems to have been a lot of grants of immunity. Should people watching from the outside make anything in particular of that?

E. Michael McCann:

Well, it generally means that a person has a right to refuse to answer questions if they feel the questions will incriminate them. And if they do and the district attorney wishes to hear from that person, he can compel that testimony. But the requirement when you compel the testimony, you have to give the testifying person immunity. And that's a decision by the judge. And that's done in open court. Some who track John Doe proceedings are carefully watching who may be getting immunity and have an idea of how the matter may be proceeding. But not all who plead the fifth are guilty. They may have reason to fear for one reason or another and they want to be cautious about it. You can't automatically assume because someone pleads the fifth they are in fact guilty of a crime.

Frederica Freyberg:

How important do you think it is that the former Milwaukee County constituents services employee, Darlene Wink, that her plea agreement that requires her to cooperate with the John Doe, how important do you think that is to this case?

E. Michael McCann:

I think it was probably very important. She was working in the office. It's hard to tell. I do not know who the target or targets of that investigation may be. You must understand, everyone, including anyone's name who surfaces, as a target or a person who's been granted immunity, the assumption is, under our law, is that they're guilty. Darlene has entered a guilty plea, and it’s going to be before the court, I think in May. So one would not presume that she's innocent. Otherwise, as persons' names surface, under the law you presume they're innocent.

Frederica Freyberg:

What do you think it means that now prosecutors in this John Doe want to talk with Governor Walker?

E. Michael McCann:

Well, I think that's typical and understandable. He's in charge of the office and the investigation appears to be focusing on the office. Someone said to me, 'Well, he's getting lawyers. What does that mean?' I think anyone who's called before a John Doe, or an investigation of this sort, is very wise to get lawyers. We convicted a state senator several years ago, a number of years ago because he lied in a proceeding. Martha Stewart, as I recall, was convicted not for the principle offense, but for lying to an investigating officer for the FBI. So one must be very careful in answering questions. There's a lot of pressure on a public official, an elected official. A good lawyer may say your interest would be best served by pleading the fifth amendment. The public official is concerned that that might leak to the press and that the public will then presume the public official must be guilty or he or she would not have plead the fifth. So the official that's called in, whether it's formally before the John Doe or before the district attorney's office, there’ll be investigators there, you have to be truthful. It's tough. Any person under such circumstances is very well-advised to get a lawyer. Sometimes a lawyer may say your best interests are served by pleading the fifth, whether you're guilty or not, by pleading the fifth, because things may look otherwise. The public official is under great pressure not to do that because the public official is concerned with what the public perception will be of pleading the fifth.

Frederica Freyberg:

Would we necessarily know in the midst of a John Doe investigation whether or not someone like Scott Walker pleaded the fifth?

E. Michael McCann:

If it's very conscientiously conducted you would not know. We conducted an investigation a number of years ago where a public official, a person that was well known, plead the fifth that never went into the public realm. It's secret. The concern is, of course, that someone leaks because the press pushes individuals that may have information of one sort of another because there may be individuals involved who may have a level of designs rather than a concern for justice, may leak information. Anything that the Governor Walker may say, whether it's before the John Doe or in the district attorney's office, should remain secret. But what will happen I cannot predict.

Frederica Freyberg:

When you see how this John Doe is going, does it appear to you that D.A. Chisholm will in fact have more charges forthcoming?

E. Michael McCann:

I do not know. I would only be speculating. I was surprised by the nature of the charges. Some of them, obviously the theft charges certainly were not done with any approbation by Governor Walker. I have no doubt about that. So it's -- here you have a mix of theft, men who apparently or allegedly stole money from a veterans group, and then the mix of that is -- and I think they're probably quite desperate, maybe the same office, but quite desperate. Then you have persons allegedly taking state time, or public time, and appropriating it to individual campaigns. There's a certain amount of mix of that going to happen anyways. Even a conscientious public official that tries to keep it out of his or her office. There's some. The law says ‘de minimis lex non curat’, the minor amount, you're not going to get criminally prosecuted. But it has to be enough to persuade a jury that there's been abuse, that public resources have been used, either time of individuals paid by the county or resources, mail, copying machines and so on. It has to be, I think, a significant amount before you would see any charges.

Frederica Freyberg:

All right. I have many more questions for you, but we need to leave it there. E. Michael McCann, thanks very much for your time.