Michael Gableman is expected to testify in court Friday as part of a lawsuit related to his ongoing taxpayer-funded investigation into the 2020 election.
At a hearing Wednesday, Gableman's attorney failed to quash the subpoena calling the former supreme court justice to testify. Friday’s hearing would be the first time Gableman has appeared in person in the legal challenges surrounding the investigation.
Dane County Circuit Judge Frank Remington denied the motion to rescind on several grounds. The judge said there was nothing prejudicial about calling Gableman to testify in the case where his attorney admitted some records were destroyed.
"Indeed I would have been puzzled had not the custodian of the records appear in court when there is leveled the accusation of an intentional disobedience or violation of a court order," Remington said.
The liberal watchdog group American Oversight sued in an attempt to get access to records related to the investigation. Remington previously ordered the special counsel’s office to hand over the documents the organization was seeking. The judge also ordered Gableman's office to stop deleting emails, texts and other records related to the investigation.
Remington also suggested a special counsel staff member who previously testified in the case may want to consider getting his own attorney. The judge said Gableman's attorney’s legal argument in fighting the subpoena appeared to place responsibility for handling the records on special counsel staff member Zakory Niemierowicz.
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The judge warned that if the handling of records violated court orders, it could lead to a contempt of court finding. And that could lead to jail time.
"I wonder whether Mr. Niemierowicz has been apprised of the possibility that he may need to seek independent legal counsel if in fact the strategy of the office of special counsel is to place the failure to comply with the court’s order squarely upon his shoulders," Remington said. "Because I’m not sure Mr. Niemierowcz's interests now have not diverged from the interests of Mike Gableman or the office of special counsel itself."
Remington said he was not accusing anyone of wrongdoing. He said he was being cautious in bringing the issue up for discussion.
Michael Dean, attorney for the special counsel’s office, said the idea of jail time related to the case would be "incomprehensibly disproportionate."
The hearing Friday is scheduled to begin at 9:30 a.m.