'Shut this fake investigation down': Attorney general slams GOP election review, calls subpoenas unlawful

MADISON – Attorney General Josh Kaul argued Assembly Republicans' subpoenas for election materials were unlawful Monday and contended a former state Supreme Court justice they have hired could not interview officials in secret, as he has planned. 

"Shut this fake investigation down," the Democratic attorney general said during a news conference. 

His push against the subpoenas came as a key Republican turned against the review because she hadn't been consulted about the subpoenas. She took the opposite stance of Kaul, contending former state Supreme Court Justice Michael Gableman needs to be more aggressive with his election review. 

The comments of Kaul and Rep. Janel Brandtjen of Menomonee Falls send into further turmoil the partisan review of the election, which recounts and courts have repeatedly found was won by Joe Biden in Wisconsin. 

Gableman, who last year claimed without evidence that the election was stolen, has a taxpayer-financed budget of $676,000.

Assembly Speaker Robin Vos of Rochester showed no signs of backing off. Vos hired Gableman and approved his subpoenas and budget.

"In order to restore confidence in our election system, Justice Gableman will continue his investigation," Vos said in a statement.

Gableman issued a swath of subpoenas in recent weeks, but walked many of them back, canceling interviews and saying for now he wants a smaller set of records than what he initially sought. 

Unclear is what his plans are for his subpoena to Meagan Wolfe, the executive director of the bipartisan Wisconsin Elections Commission. Gableman has demanded an interview with her on Friday and no one has said if he would put that one off, as he has with others. 

Kaul, who represents Wolfe and the commission, said Gableman's subpoena to her is improper and raised the possibility of going to court to try to quash it. He contended Gableman cannot interview Wolfe behind closed doors at a rented office in Brookfield, as Gableman has intended.

Wolfe is happy to talk about the 2020 election, but her testimony should be in public before the Assembly Elections Committee, Kaul said.

Kaul's office sent a 9-page letter to Gableman detailing other flaws he sees with subpoenas to Wolfe and the commission that seek all records from the commission about the 2020 election. Kaul said the demand for records is "dramatically overbroad" because it would require the commission to turn over tens of thousands of documents.

Since issuing the subpoenas, Gableman's office has told the commission he initially wants much fewer documents but has not confirmed that view in writing, according to Assistant Attorney General Gabe Johnson-Karp.

The commission plans to turn over some records on Friday, many of which have previously been made available to the Assembly Elections Committee, according to Johnson-Karp. It is not clear why Gableman is asking for those records, given that he is supposed to be working with the committee.

Vos contended the sweeping subpoenas were appropriate. 

"The subpoenas have been issued correctly — a fact backed up by the nonpartisan Legislative Council in a memo requested by Assembly Democrats," Vos said in his statement.

He was referring to a memo last week that noted a court that applied a plain-language reading of Wisconsin's statutes would likely find Gableman could not interview anyone outside the presence of the Assembly Elections Committee. The memo went on to say courts could allow such testimony because they have often deferred to the Legislature on its own operations. 

AG says review tainted by politics

Kaul called the review tainted in bias because of unfounded claims by Gableman and an associate, Andrew Kloster, the election was stolen. In addition, Kloster has said conservatives need to have prosecutors who will "let our boys off the hook."

Kaul noted Gableman's hiring was announced at the state Republican Party's annual convention, saying the review is nothing more than a political exercise.

"What we are seeing is corrosive to our democracy," Kaul said. "We know Wisconsin's elections were freely and fairly conducted."

Democratic Rep. Lisa Subeck of Madison, who sits on the Assembly Elections Committee, made a similar argument.

"You can't have an honest investigation of any sort when the investigators have already determined the outcome before it begins," she said. "That said, I think it's exactly what Speaker Vos was looking for when he started the investigation."

Republican Rep. Ron Tusler of Harrison, another member of the Assembly Elections Committee, said Kaul’s comments will foster more concerns among Wisconsin residents who already have questions about the 2020 election.

"Justice Michael Gableman and the Legislative Audit Bureau have an important job, to get those answers," Tusler said in a statement. "We should be thankful that they are trying to answer these difficult questions."

The nonpartisan audit bureau is conducting a separate review of the election ordered by Republicans. Its findings are expected soon.

Committee chair raises concerns

Kaul spoke just hours after Brandtjen raised her own questions about the subpoenas. 

Brandtjen is the chairwoman of the committee ostensibly is working with. Her committee's name appears at the top of the subpoenas. 

In a lengthy written statement, Brandtjen said she had not been talking with Gableman and learned of his activities from news reports and two videos he has posted on YouTube. She took a shot at him for saying last week he did not have "a comprehensive understanding or even any understanding of how elections work."

Brandtjen said her committee had not approved the subpoenas Gableman issued to mayors and election officials. She said Gableman should not have sought interviews with the mayors because she does not believe they should be granted immunity, which is provided to those who cooperate with legislative subpoenas. 

No one has offered credible evidence of crimes being committed. State and federal courts have ruled the election was conducted legally.   

"I do not approve of the current list of subpoenas to the five Wisconsin Mayors, as this provides immunity to them in any trial or criminal proceedings," Brandtjen said in her statement.

Like Gableman, Brandtjen has put her focus on grants the Center for Tech and Civic Life gave to Milwaukee, Madison, Green Bay, Racine and Kenosha. The group, which is funded by Facebook founder Mark Zuckerberg, gave hundreds of millions of dollars to communities around the country last year to help them cover increased election costs during the coronavirus pandemic.

In all, the group gave more than $10 million to more than 200 Wisconsin municipalities. Republicans have called the grants unfair because most of the money went to Wisconsin's largest cities, which are packed with Democratic voters. 

They have put much of their attention on Green Bay because it received on-the-ground-help from a consultant with the National Vote at Home Institute in conjunction with its grant.

Brandtjen accused Green Bay Mayor Eric Genrich of "dereliction of duty."

"Providing him immunity after all the time it has taken to uncover his actions will not serve justice," Brandtjen said.

Genrich's chief of staff, Amaad Rivera, said he had no comment on Brandtjen's claims.

Gableman has been able to issue subpoenas because Republicans who control the Assembly this spring authorized Brandtjen's committee to conduct an investigation. 

Brandtjen's statement made plain what has been apparent for weeks — that Gableman is working closely with Vos, but not Brandtjen's committee. A spokeswoman for Vos offered no comment in response to Brandtjen and Kaul.

Brandtjen this summer tried to issue subpoenas to seize ballots and voting machines, but Vos declined to sign them. 

Republicans spar over Arizona review

Brandtjen also took issue with Gableman for disparaging a partisan review of ballots in Arizona. Brandtjen and Gableman separately visited Arizona this summer to tour the site of that review. 

Gableman on Friday told conservative host Dan O'Donnell on WISN-AM that Arizona effort was "ineffective at best, crazy at worst." Election experts, Democrats and some Arizona Republicans have expressed the same sentiment, saying the review — which found Biden won Arizona — was sloppy. 

More:Arizona Senate leaders confirm Biden win but call for further review of election procedures

Brandtjen said the Arizona review had found problems and contended Gableman had "defamed" it. She called for recounting Wisconsin's ballots and analyzing voting machines. 

The ballots in Dane and Milwaukee counties were recounted at then-President Donald Trump's request last year. The recount slightly padded Biden's winning margin. Machines around the state underwent standard audits last year and no major problems were found. 

Gableman has faced nonstop criticism in recent weeks, both from the left and the right. Over the weekend, he tried to take attention off of himself by attacking Democratic Gov. Tony Evers, who has called Gableman's review a "$700,000 boondoggle."

Molly Beck of the Journal Sentinel staff contributed to this report.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.