Vos, Gableman fight to keep records hidden in court hearing Friday
Former Supreme Court Justice Michael Gableman in a video promoting the partisan review of the 2020 election. (YouTube | Office of the Special Counsel)
Lawyers for Assembly Speaker Robin Vos (R-Rochester) and former Supreme Court Justice Michael Gableman appeared in Dane County Circuit Court on Friday afternoon to prevent the release of records relating to Gableman’s partisan review of the 2020 election.
This is the second case stemming from open records requests made by government watchdog group American Oversight regarding Gableman’s review, directed by Vos and the Assembly Committee on Campaigns and Elections.
In the first case, Vos has already been deposed as American Oversight fights for access to the records. Gableman’s review has been criticized as being harmful to democracy and unprofessional as he digs through the 2020 election looking for evidence of fraud or wrongdoing.
Multiple recounts, lawsuits, audits and investigations have found no widespread evidence of election fraud in the state and affirmed that Joe Biden won Wisconsin in 2020 by more than 20,000 votes.
On Friday, lawyers for Vos and Gableman revealed that the former justice has been doing his work for months without a contract. Gableman’s original contract expired last year and no contract extending his work was ever signed by both parties, the lawyers said.
“I have seen a contract … with one signature on it,” Ronald Stadler, an attorney for Vos and the Legislature, said. “I don’t remember whose, whether it was Gableman’s or Vos’, but it was signed by one and not the other. I haven’t seen another one that has both signatures on it.”
Gableman’s attorney said later he believes there is a new contract.
On Friday, attorneys for Vos, Gableman and American Oversight appeared in the court of Judge Frank Remington to settle a dispute over records requested in September 2021. Vos’ office has said they’ve released all records covered under the request and Gableman refused to release the records, saying they were protected as he completes his investigation because he’s afforded the same privileges as law enforcement officers or prosecutors.
Wisconsin open records law leans toward always granting the public access to government proceedings with some exceptions, including prosecutorial work. In such cases, a balancing test is conducted to determine whether or not the harm of releasing records outweighs the public benefit of open government.
James Bopp, Gableman’s attorney, argued repeatedly that Remington had no authority to force the release of the records; that the Wisconsin Constitution allows the Legislature to keep the records secret and that because Gableman is conducting an investigation, those records should remain confidential until the investigation is completed.
“You have no authority to regulate the investigation by the Legislature pursuant to legislative authority,” said Bopp, a conservative lawyer and Republican activist who argued in the Citizens United case that upended the country’s campaign finance laws and has been heavily involved in efforts to overturn the 2020 election. “[The Assembly has] not provided, within the rules of the investigation that Mr. Gableman is pursuing, for public access to the records of the investigation. Secondly, they have specifically provided that the records of the investigation are to be maintained confidentially until the investigation is concluded.”
Bopp went on to argue that the records need to be kept secret because there are a lot of people who want to attack Gableman’s work who may be responsible for electoral wrongdoing.
“Revealing the details of an ongoing investigation, the Wisconsin Supreme Court has regularly said, is devastating to that investigation,” Bopp said. “And the special counsel will be disclosing all relevant documents that he has in possession once he concludes his investigation and makes his recommendation to the Wisconsin Legislature. So it’s not that he’s withholding all documents forever. He is withholding documents that may be irrelevant, may reveal sources. I mean, there’s a million reasons why people would want to attack this investigation. They could be wrongdoers that have violated the law, he might find out about and undermine the elections in Wisconsin.”
Remington signaled several times — while pointing out a number of misspellings and typos in briefs filed by Gableman’s attorneys — that he was unsympathetic to Gableman’s arguments. At one point during the hearing, Remington spoke for several minutes using case law and state statutes to outline why Gableman’s arguments against release of the records were falling short. He called Bopp’s claims “a straw man argument,” and accused him of “misstatement” and “exaggeration.”
“You argue that the Assembly has broad authority to conduct investigations and determine a manner of investigations, including the disclosure of confidential [material],” Remington continued. “I would agree with you in principle, Mr. Bopp, but in this case, the Assembly has not articulated the provisions upon which you rely.”
Ultimately, Remington concluded that the true test of the case is whether the balancing test Gableman said he conducted withstands scrutiny. To determine this, Remington ordered that Gableman’s office provide the requested documents to him under seal so he can inspect them privately and determine if the balancing test applies.
A hearing is scheduled for March 8 in which Remington will make a decision on the release of the records.
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