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Court Orders Ex-Wisconsin Supreme Court Justice Hired by Republicans to Investigate 2020 Election to Stop Deleting Records

Michael Gableman

Michael Gableman

As part of an ongoing battle over partisan investigations into the 2020 presidential election, a Wisconsin court ordered the state’s Office of Special Counsel (OSC) not to delete any public records in its custody Tuesday — including records not subject to a formal records request.

Dane County Circuit Court Judge Jacob B. Frost granted the temporary restraining order in favor of the watchdog group American Oversight. The group filed a group of lawsuits seeking to force Wisconsin to comply with open records requests relating to a Republican-led “audit” of the Badger State’s 2020 presidential election results.

Former Wisconsin Supreme Court Justice Michael Gableman was appointed by Republican Assembly Speaker Robin Vos to act as special counsel to the state legislature in July 2021; Gableman’s task was to review the election results in Wisconsin — where President Joe Biden officially won by more than 20,000 votes.

Gableman came under scrutiny for his role, as he was slated to earn $11,000 per month as special counsel. Later, his pay was cut to half that amount. As Law&Crime previously reported, Gableman was accused of failing to adequately respond to public records requests. He and his attorneys also admitted to destroying other documents and claiming that they had fully complied with requests.

As part of the election audit Gableman was charged with overseeing, Gableman traveled extensively, including attending the election conspiracy symposium of Donald Trump ally and MyPillow salesman Mike Lindell. Gableman said the event was “an honest effort to find out if anyone has any information that will be helpful in carrying out my duties as special counsel.”

In one lawsuit, American Oversight called specific attention to Gableman’s alleged statement that he “routinely” deleted records of his so-called election “audit.” At a later hearing, Gableman openly acknowledged the practice, saying “Did I delete documents? Yes, I did.”

During court proceedings in June, Gableman had was called “a total meltdown” by legal reporters.

During the hearing, Gableman mocked both American Oversight’s attorney and the judge, mimicking a conversation in which the judge said “why don’t you come back into my chambers so you can dictate.” The judge noted that Gableman violated “numerous” rules of professional conduct and said that while the court chooses to ignore the personal insult, it “cannot ignore Gableman’s disruptive conduct and misogynistic comments about a fellow lawyer.” Gableman was held in contempt and ordered to pay $2,000 per day until he complied with public records requests.

Dan Schwager, Chief Counsel at American Oversight, said in an email statement to Law&Crime:

It is absurd that a government office purportedly established to build public trust would require multiple court orders telling them not to delete public records. Unfortunately, Mr. Gableman’s own admission that he routinely destroyed documents makes our lawsuit and today’s restraining order completely necessary. We will continue to fight for the public’s right to transparency. That begins with making sure no more records are deleted in violation of the law.

Jessica Morton, Senior Counsel of Democracy Forward, the group that represents American Oversight in the lawsuits, said, “We are pleased the court took this action today.” Morton continued:

The OSC is not above the law. Its efforts to shield its work from scrutiny through the deletion of public records undermines Wisconsin’s democratic values and the public’s ability to understand the actions it is taking. We will continue to work with our colleagues in this fight for the public’s right to transparency.

Judge Frost’s order Tuesday ordering Gableman and the OSC to stop deleting records is the third of its kind.

Michael Gableman and the OSC did not immediately respond to a request for comment.

The TRO is embedded below:

[screengrab via Wisconsin Special Counsel’s Office]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos