Even after former Supreme Court Justice Michael Gableman was fired by Assembly Speaker Robin Vos, the legal battle for public records created during the 2020 election review he led continues.
During a Tuesday hearing, Dane County Circuit Court Judge Frank Remington said he’ll soon decide whether to lift a contempt-of-court finding against the Wisconsin Assembly’s Office of Special Counsel for failing to produce records requested by liberal watchdog American Oversight.
Remington will also decide whether to stay a June 15 order fining Gableman’s office $2,000 per day as attorneys representing the Office of Special Counsel work on an appeal.
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Finally, Remington said he plans to issue a supplemental decision responding to prior comments made by Gableman accusing him of bias during proceedings.
During Tuesday’s oral arguments, Attorney Christa Westerberg, who represents American Oversight, said the group still hasn’t received contracts for two employees hired by Gableman’s office or records pertaining to a “confidential employee” that was mentioned in a report issued by the office.
Westerberg said there were other gaps, including emails from a Yahoo account used by Gableman prior to obtaining an official state email.
Attorney James Bopp, who represents the Office of Special Counsel, said all documents requested by American Oversight have been produced and are posted on the special counsel’s website.
Westerberg said it’s unlikely all records requests have been satisfied in light of the office’s lax recordkeeping practices.
“These kind of overbroad statements that ‘everything was produced, we searched everything,’ it’s just almost too broad to be credible, given what we know from other sources,” said Westerberg.
As for the confidential employee mentioned by Westerberg, OSC attorney Michael Dean said he wasn’t able to discern their identity, and that he did “not know who that individual is.”
Remington appeared frustrated by the inability to name the employee.
“The public records law certainly expects and certainly the government ethics require that if an Office of Special Counsel, a sub-unit of the Wisconsin State Assembly, has a relationship with an individual, and especially if that individual is being compensated with taxpayer money, we ought to know who it is,” said Remington.
In response, Bopp said no records about the individual had been created, thus there are no records to disclose.
Gableman’s Office of Special Counsel was found in contempt-of-court on June 10 for failing to produce records requested by American Oversight. During the hearing, Gableman accused Remington of wanting to put him in jail.
Remington ordered Gableman to draft an affidavit showing proof that the office had searched for any records requested by the watchdog group. Westerberg said there are still a lot of gaps left unfilled by Gableman’s affidavit.
Remington agreed, and said it’s possible the former Supreme Court justice’s affidavit is simply incomplete, that he “isn’t saying everything that he should say for reasons nobody knows.”
“Or quite plausibly … that Mr. Gableman has demonstrated that he’s not capable of conducting a professional and a thorough investigation, that he deleted records, public records, and that what you’re trying to do is superimpose a level of professionalism on an entity and an individual that just doesn’t exist,” said Remington.
Remington appeared to question whether Gableman’s entire election investigation was based on speculation. He said the remaining records sought by American Oversight may not exist.
“We’ve hit a dead end,” said Remington.
No date has been set for when Remington will decide on whether to lift the OSC contempt ruling.
Assembly Speaker Robin Vos, R-Rochester, fired Gableman on Aug. 12 after narrowly fending off a primary challenge by a candidate endorsed by the former justice.
The move came more than a year after Vos hired Gableman to lead the OSC to investigate the 2020 presidential election, which former President Donald Trump has falsely claimed was stolen from him.
Gableman issued an “interim” report in March alleging the Wisconsin Elections Commission issued unlawful guidance in 2020 and suggesting the state Legislature consider decertifying President Joe Biden’s win. Legal experts say that would be impossible.
During Tuesday’s hearing, Bopp stated that the OSC still exists, though it has no staff. That stood in contrast with a statement from Vos four days earlier that said, “it is beyond clear to me that we have only one choice in this matter, and that’s to close the Office of Special Counsel.”
Wisconsin Public Radio asked a spokesperson for Vos’ office Tuesday whether the OSC still exists but did not receive a response.
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