MADISON – Assembly Speaker Robin Vos said former Supreme Court Justice Michael Gableman could lose his law license over his conduct during the taxpayer-funded review of the 2020 election — but he stopped just short of calling for it.
"It's really a decision the courts have to make. I mean when you have a client and you decide to besmirch the very client that is paying you, I'm not a lawyer but I think that is against the legal code or the legal ethics or whatever it is," Vos said. "But that's for somebody else to decide."
Vos spoke to reporters Tuesday evening after the Republican caucus. He said he has not had contact with Gableman since firing him Friday.
The decision to revoke Gableman's law license would be made by the Office of Lawyer Regulation, the agency of the Wisconsin Supreme Court that receives grievances relating to lawyer misconduct, Vos said.
Dane County Circuit Judge Frank Remington has referred previous comments from Gableman to the OLR.
Vos' decision to fire Gableman came more than a year after he hired him to probe the 2020 election. The review has cost state taxpayers more than $1 million and has turned up no evidence of significant voter fraud.
Recounts, audits and court rulings have reaffirmed that Joe Biden won the state's presidential contest by more than 20,000 votes.
In June, Remington fined Gableman $2,000 per day until he proves to the court and attorneys representing liberal group American Oversight that he has produced all records the group has requested related to his review of the 2020 election.
Despite Gableman's termination, those legal battles over the public records have continued.
On Wednesday, Remington ordered Gableman to pay the court $24,000 for 12 days in which he was found in contempt for failing to properly search for and produce the records requested by American Oversight.
Remington in his order said an affidavit submitted by Gableman on June 28 — the fines were ordered June 15 — cleared him of contempt, though it was "far from ideal."
"Gableman averred to a vague, blanket search of ‘all locations,’" Remington wrote of Gableman's search for records. "It was not even clear whether he actually searched those locations or whether he misunderstood the purge conditions to be, somehow, to ‘duplicate the searches previously conducted…’”
A second affidavit from the Office of Special Counsel submitted Aug. 5, Remington said, "sufficiently remedied some of those deficiencies."
“It is true, as American Oversight points out, that ambiguities remain," Remington wrote Wednesday. "I am nevertheless satisfied to the ‘reasonable degree of certainty’ required by my order that OSC has, finally, complied with the Court’s order to produce records.”
He added: “I conclude by observing that the sanction of $2,000/day, although burdensome, was ultimately proved necessary to compel compliance with what should have been the basic obligation of a records custodian to the public.”
Remington's order followed a hearing Tuesday in which American Oversight attorney Christa Westerberg argued Gableman had not met the requirements to be cleared of the contempt ruling and the fines imposed on June 15.
It is not clear who will foot the $24,000 in fines. At the time the contempt order was issued in June, a spokeswoman for Vos did not say whether taxpayers would cover the fees.
Taxpayers often cover fines associated with legal disputes over public records involving state lawmakers and Gableman's contract protects him from personal liability in lawsuits over the review.
Westerberg during Tuesday’s hearing claimed Gableman had not turned over requested records, including documents regarding a Yahoo email account Gableman reportedly used, as well as information about people employed by the Office of Special Counsel and a so-called “confidential employee.”
“Knowing what we know, there are a lot of gaps here, and the affidavit doesn’t fill them,” Westerberg said of Gableman’s records filings.
Gableman’s attorneys contended that “every single record, every page, every document in their possession” is on the Office of Special Counsel’s website. They claimed the request for additional records sent them on a “wild goose chase” and said the Office of Special Counsel had no records related to the confidential employee.
“And they have found, categorically, no further responsive documents at all that would have been required to be produced,” said James Bopp, a prominent conservative attorney representing the Assembly’s office.
Michael Dean, another attorney for the Assembly’s office, said he does “not know” who the confidential employee is and doesn’t know “if he actually became an employee.”
“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 and given what we know about the Office of Special Counsel’s records procedures,” Westerberg, the American Oversight attorney, said.
Remington questioned the substance of the searches conducted by Gableman himself, which reportedly included looking for files on work computers and employees’ personal cell phones.
“Are you suggesting that he had the ability to take someone else’s cell phone and conduct these searches in a rather sophisticated way?” Remington asked. “This is coming from a fellow who spent the first couple months in the public library, not even owning a laptop.”
Gableman previously testified he began his review of the election from the New Berlin Public Library because he did not have a computer of his own.
“I might say, Mr. Bopp,” Remington added. “That would tax my abilities to engage in that search. I would ordinarily rely on people who are more knowledgeable in electronic communications.”
“He’s confident he knew how to do it, and he did do it,” Bopp responded.
Remington during the hearing said he agreed with American Oversight that “there are a lot of gaps” in the records and criticized the absent Gableman while proposing potential reasons for those gaps.
“One is the affidavit is just incomplete — Mr. Gableman isn't saying everything that he should say for reasons nobody knows because he’s not here,” Remington said. “Or, that he didn’t do the things that the gaps seem to suggest.”
“Or, quite plausibly, Ms. Westerberg, that Mr. Gableman has demonstrated that he’s not capable of conducting a professional and 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, on an individual that just doesn't exist,” Remington added.
The election probe has been fraught with mishaps, like a botched deposition after an attorney tasked with conducting an interview with a local official subpoenaed by Gableman was not licensed to practice law in Wisconsin.
Gableman has been at the center of its controversy by making misogynistic comments about women he sees as adversaries.
Gableman previously said he wanted to jail the mayors of Green Bay and Madison and other local officials. Vos on Tuesday said he would probably end that action.
"I have to talk to our attorneys about that," Vos said. "I mean we're all gonna sit down and go through where we are with everything. Once again, the investigation is over and we're focusing on our future."
Still, Vos said he doesn't regret hiring Gableman because the original goal had merit, but it started to get embarrassing in 2022.
"Just like Democrats had doubts about the election in 2016, where they worried that there was Russian collusion and hacking and had the FBI investigate and in the end they found it was a fair election, I kind of thought justice Gableman would do the same thing for us," Vos said.
Vos fired Gableman a week after former President Donald Trump announced Gableman endorsed Vos' primary opponent, Adam Steen.
Vos narrowly won his primary last week by just 260 votes.
The Assembly office’s attorneys said the office still exists “without staff” and claimed it had not yet been dissolved by the state legislature.
Vos told reporters that the office exists without employees or a budget.
"We still have all these lawsuits that have been filed against the office," Vos said. "There are still outstanding issues where I think the judges decided wrongly."
"I don't think because we provided all the records that they should have awarded all of these hundreds of thousands of dollars of bogus fees for these liberal special interest groups."
Molly Beck of the Journal Sentinel staff contributed to this report.
Our subscribers make this reporting possible. Please consider supporting local journalism by subscribing to the Journal Sentinel at jsonline.com/deal.
DOWNLOAD THE APP: Get the latest news, sports and more
This article originally appeared on Milwaukee Journal Sentinel: Vos says Gableman could lose law license over 2020 election probe