Dane County Judge orders release of Gableman records

A Dane County Circuit Court judge ordered the immediate release of more than 700 pages of documents relating to former Supreme Court Justice Michael Gableman’s partisan review of the 2020 election on Tuesday. 

The release of the documents comes after Gableman and his staff spent months attempting to avoid complying with an open records request from government watchdog organization American Oversight — arguing that it had an “investigative privilege” to not release documents because it could hinder the work of Gableman’s Office of Special Counsel. 

Last week, Judge Frank Remington made an initial order that the documents must be released, but delayed his decision until a hearing on Tuesday to hear arguments on Gableman’s motion to stay the decision pending an appeal. 

Gableman’s attorney, James Bopp, argued that the release of the documents must be prevented so as to not tip off any of the subjects of the review, such as election officials in cities that received private grant funding to help cover the costs of administering an election during a pandemic. 

“They would have had months to undermine that investigation, to threaten people in those cities,” Bopp said. “I mean, look at the power that can be brought against an individual person. That’s why we protect whistleblowers, because of the power that can be done to shut people up and prevent people from talking about investigations. They would have had months to do that. Before he eventually served subpoenas on them. They could have destroyed documents, they could have done numerous things to inhibit the investigation. And that is the danger. That is the danger of the release prematurely.”

Bopp also argued that if people know that anything they send to Gableman could be subject to open records law, they may be discouraged from reporting wrongdoing. 

But Remington, having already established that there is no such thing as a broad “investigatory privilege” for investigations conducted by the state Legislature, said he doesn’t believe there is any information in the documents that could hinder Gableman’s work. 

“Upon my careful review, I can find no documents in this pile of papers that, if released, would undermine the investigation,” Remington said. 

As the open records case, which is just one of the open records lawsuits American Oversight has filed against Gableman, has worked its way through Remington’s court, Bopp has argued that Gableman has the ability to keep records secret in the same way that prosecutors or law enforcement officers can keep their records from the public. 

American Oversight attorney Christa Westerberg countered that argument on Tuesday by saying Gableman — who has frequently been accused of unprofessionalism as he conducts his review — is then potentially violating other rules about attorneys publicizing information that can’t be made public. 

Westerberg argued that if Bopp’s argument is that Gableman is entitled to “investigatory privilege” he is violating ethics rules about the publicity of that investigation. 

“The Office of Special Counsel has chosen itself to selectively release information about the investigation,” she said. “That conduct undermines any claim of harm associated with releasing the records. Mr. Bopp referenced the continuing cooperation of the populace and there needs to be a blanket exception so people will still continue to participate in the investigation. But maybe more people would come forward if they thought the investigation was transparent and being conducted in a non-partisan manner?”

A Wisconsin Supreme Court rule states that “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

In the several months since he was hired, Gableman has created a YouTube channel to share information about his review, published two interim reports, spoken several times to the Assembly Committee on Campaigns and Elections, spoken to the Chippewa County Republican Party and, just this week, appeared on Tucker Carlson’s Fox News program. 

Meanwhile, Gableman and Assembly Speaker Robin Vos have fought the release of documents relating to the investigation. Vos was previously forced to give a deposition in a separate but related open records lawsuit. 

At the hearing, Bopp said that Gableman was committed to “transparency” in his investigation, but only after his work was completed. In a statement that echoes an argument Gableman had with Rep. Lisa Subeck (D-Madison) in a committee hearing last week, Bopp said after the review is completed, Gableman and his office will release all records that are related to conclusions Gableman has made. 

Subeck pointed out last week that this means Gableman will be keeping hidden any documents that aren’t directly related to a conclusion and American Oversight’s records requests are much broader than just the documentation for any of Gableman’s conclusions or allegations. 

Also in the hearing on Tuesday, Bopp revealed that Gableman and the Assembly have reached a new agreement for a contract governing Gableman’s work. Gableman’s initial contract expired at the end of December and a lot of attention was focused on Gableman’s ability to conduct his work in the intervening months without a contract. 

At an appearance before the Assembly elections committee last week Gableman said his agreement with the Legislature was “complicated,” and Remington’s written order revealed that an amended version of the contract wasn’t signed and just had an “/s/” on the line for Gableman’s signature. 

On Tuesday, Bopp said that Gableman had framed and hung the amended agreement on his office wall and that a new contract had been agreed upon. 

Remington noted on Tuesday that none of the 700 pages of documents include anything especially groundbreaking about Gableman’s work and that it may all be “much ado about nothing,” signaling that none of the allegations made so far by Gableman, which include accusations of bribery and the recommendation that the Legislature decertify the 2020 election, are backed up by substantial documentation. 

Westerberg noted that it’s possible Gableman and his office are still withholding relevant documents such as calendars and weekly reports Gableman’s contract states must be filed with Vos’ office. If Gableman has in fact not turned over all the requested documents, American Oversight’s remedy would be to file a motion for contempt of court. 

“I sense this is not the last episode,” Remington said. 

Bopp said that even though Remington denied the motion for a stay of the documents’ release pending an appeal, an appeal will still be filed.