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Wisconsin judge urged to block subpoenas in 2020 election probe

At issue is whether a former state supreme court justice hired by the GOP-controlled Wisconsin Legislature to investigate the 2020 election can force elections board members to sit for private depositions.

MADISON, Wis. (CN) — A Wisconsin judge on Thursday heard arguments over the subpoena authorities of a former state Supreme Court justice investigating the 2020 election on behalf of a legislative committee controlled by Republicans.

Former Wisconsin Supreme Court Justice Michael Gableman—a conservative who claimed without evidence last year the 2020 election was stolen from former President Donald Trump—was hired over the summer by Republican leaders in the Wisconsin Legislature, chiefly Assembly Speaker Robin Vos of Rochester, to spearhead one of several probes into alleged irregularities and lawbreaking during the general election.

In his investigation, Gableman, who officially works out of the Office of Special Counsel on behalf of an elections committee controlled by GOP legislators, has issued multiple subpoenas for documents and testimony, including to the bipartisan Wisconsin Elections Commission and a designee of that agency most knowledgeable about the administration of the 2020 election, presumably WEC Administrator Meagan Wolfe.

Wisconsin Attorney General Josh Kaul, a Democrat, sued on behalf of Wolfe and the WEC in October, claiming the subpoenas are overbroad, serve no valid legislative purpose and unlawfully demand testimony in private rather than publicly, among other reasons. Defendants in the lawsuit are Vos, Gableman, the Wisconsin State Assembly, the Assembly Committee on Campaigns and Elections, and Janel Brandtjen, a Republican representative from Menomonee Falls and chair of the elections committee.

Assistant Attorney General Gabe Johnson-Karp argued before Dane County Circuit Court Judge Rhonda Lanford on Thursday that the subpoenas pose “grave due process issues” because they demand private depositions at Gableman’s Brookfield office beyond statutory authority and carry the threat of imprisonment if the subpoenaed person does not comply.

George Burnett with the Green Bay-based Conway, Olejniczak & Jerry firm, one of four attorneys representing the defendants, said since Wolfe is suing in her official capacity, she has no more due process rights than the WEC itself, which has none as a government agency. Because the WEC gets its authority from the legislature, it has no right to sue to withhold documents or testimony demanded by a legislative investigation, he said, adding that the court itself has no authority to “superintend a legislative investigation” unless there’s a constitutional violation, which there is not.

Also appearing for Gableman was James Bopp, an Indiana attorney that brought numerous lawsuits challenging the 2020 election results last year. He reiterated that Gableman essentially acts with the authority of a legislative committee because he is authorized by a legislative committee and argued that nothing in the law says depositions must occur publicly before the committee.

Joseph Voiland, a Port Washington-based attorney and former Ozaukee County Circuit Court judge, was also in court on behalf of the elections committee and Brandtjen. Michael Dean, an attorney based in Brookfield, appeared via phone for Gableman.

Lanford said at the close of proceedings Thursday she would issue a written decision on the plaintiffs’ injunction motion and the defendants’ motion to dismiss on or before Jan. 10.

President Joe Biden’s 20,000-vote win in Wisconsin more than a year ago has withstood a recount demanded by Trump and multiple lawsuits that failed in both state and federal courts. Out of more than 3 million ballots cast, reported cases of potential fraud have numbered in the dozens, falling short of a potentially meaningful effect on the election’s outcome.

Despite a lack of evidence, many Wisconsin GOP leaders – whose party firmly controls both chambers of the Legislature – have sown doubt that Biden’s win was legitimate. Their efforts to pass legislation to restrict voting after Trump’s loss have met vetoes from Democratic Governor Tony Evers.

Further perpetuating echoes of Trump and his supporters’ assertion he was cheated out of a second term in office, Wisconsin Republicans went beyond lawmaking and opened multiple broad investigations into the 2020 election.

Wisconsin’s nonpartisan Legislative Audit Bureau’s probe delivered results in October that found no widespread fraud but made dozens of recommendations to the WEC for formal rules to clean up election procedures. Another audit by conservative advocacy group Wisconsin Institute for Law & Liberty similarly found no evidence of outcome-affecting fraud and no issues with voting machines but claimed some laws related to ballot drop boxes and indefinitely confined absentee voters were not followed.

The office of Racine County Sheriff Christopher Schmaling, a Republican, conducted its own 10-month investigation into voting at a local nursing home and accused the WEC of breaking laws controlling voting in such facilities. Those accusations led Vos and other Republicans to call for members of the WEC to resign or even be prosecuted, contributing to more partisan warfare.

Wisconsin Senate Republicans signaled in October they will conduct yet another election investigation, announced days after the Legislative Audit Bureau’s report was released.

Gableman’s investigation has been the most controversial. Vos and other Republican leaders approved his nearly $680,000 taxpayer-funded budget and gave him virtual free rein to hire contractors and conduct his investigation as he sees fit.

Gableman recently offered some insight into his probe’s activities and personnel, but it has largely been conducted in secret. What is known, in part, is that Gableman has used his time and taxpayer dollars to visit Arizona’s “cyber-forensic” election audit and an election fraud symposium in South Dakota hosted by MyPillow CEO Mike Lindell, one of a handful of conspiracy theorists and Trump-aligned election truthers the former justice has courted.

A central concern of Gableman’s audit is millions in donations provided by the Mark Zuckerberg-funded Center for Tech and Civic Life to Wisconsin municipalities to run their elections, specifically such cash given to Wisconsin’s five most populous, and largely liberal, cities. Lawsuits challenging the grants have failed in court and the WEC unanimously tossed complaints filed by conservatives directly with the agency over the grants this month.

In a lawsuit he filed in Waukesha, Gableman has asked sheriff’s deputies to detain the Democratic mayors of Madison and Green Bay for refusing to adequately cooperate with his investigation. A hearing for that Waukesha County Circuit Court action is scheduled for January 21.

At least one Wisconsin Republican, state Senator Kathy Bernier of Chippewa Falls, has called Gableman’s investigation a “charade,” said it should be finished sooner rather than later and urged her Republican colleagues to back off their election-based attacks.

That seems unlikely, however, as Vos said last week that Gableman’s audit will likely proceed for longer and cost taxpayers more money, which he blamed on Democrats fighting subpoenas with lawsuits like the one argued on Thursday.

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