Judge lifts contempt ruling in election review case, has questions about deleted documents

A Dane County judge on Thursday lifted a contempt-of-court finding against Wisconsin Assembly Speaker Robin Vos after Vos’ election investigator explained to the court when and how he destroyed records from his 2020 election review.

But Dane County Circuit Judge Valerie Bailey-Rihn said questions remain about why Michael Gableman’s Office of Special Counsel failed to follow state open records laws.

Former Supreme Court Justice Gableman testified that after he was hired by Vos to lead the Assembly’s investigation into the 2020 election in June, he had to get up to speed on how “the ballot process works” and conducted internet research on a computer at the New Berlin Public Library.

That research included claims that China had interfered with voting machines in Wisconsin in November 2020. Gableman said that led him to a symposium organized by Mike Lindell, the billionaire founder of the pillow company My Pillow who helped finance former President Donald Trump’s attempts to overturn the election, in South Dakota in August 2021.

“I went out there because I thought there was going to be some solid evidence of Chinese interference with the machines,” Gableman said. “And I was very disappointed by the lack of substance to back up those claims.”

Gableman said he was annoyed by that, “especially as it turned out I had COVID.”

The former state Supreme Court justice’s demeanor during the Thursday testimony was subdued compared to a June 10 hearing for a separate records case in which he accused Dane County Circuit Court Judge Frank Remington of abandoning “his role as a neutral magistrate” and “acting as an advocate.” Remington responded to that and what he called misogynistic comments from Gableman caught on a live microphone during a court recess by recommending the state’s Office of Lawyer Regulation look into potential sanctions for the former justice.

During the Thursday hearing, attorney Christa Westerberg, who is representing liberal watchdog group American Oversight in lawsuits against Gableman’s Office of Special Counsel and Vos, asked Gableman if he produced any written notes during the symposium or had received any materials at the event, which took place after American Oversight had filed a request for records.

“The records — the notes I would have taken — I would have reviewed for myself,” said Gableman. “I came to the determination there was nothing there. And so I would not have kept them.”

Gableman billed taxpayers for the South Dakota trip and an August 2021 trip to Arizona, to attend a discredited election audit by an organization called Cyber Ninjas, which ultimately confirmed Joe Biden and not Trump won the state in 2020.

Gableman said he also discarded notes from the Arizona trip he felt weren’t useful to his investigation in Wisconsin.

Westerberg and Bailey-Rihn also questioned Gableman about potential records produced on a private Yahoo email account, which he said was “discontinued” after media criticism about cybersecurity risks. Gableman initially testified he didn’t know who discontinued the Yahoo account or when that happened.

After Gableman left the stand during Thursday’s hearing, Bailey-Rihn said she would lift the contempt-of-court findings against Vos, though she said there are still unanswered questions about Gableman’s record keeping.

“Anything that didn’t fit into his pre-ordained view of what occurred here was, frankly, disposed of,” said Bailey-Rihn. “And then there was a lot of contradicting testimony that he was sick with COVID but yet he’s at the New Berlin Library, typing up a seven-page report or something.”

She said based on Gableman’s testimony, whatever work he conducted during July and August was “minimal” despite taxpayers “paying $11,000 a month to do so.”

Vos paused the 2020 election review in May due to a slew of lawsuits working their way through the court. Gableman’s pay was also reduced from $11,000 a month to $5,500 a month. The review was to end on October 2021, but Vos allowed the contract to continue following pressure from Trump.

Bailey-Rihn said near the end of Thursday’s hearing that Vos and Gableman likely provided all the documents that still exist from the investigation.

“I think at this point there’s no more documents to be gained from this,” said Bailey-Rihn.

Bailey-Rihn called for an evidentiary hearing featuring oral arguments and a ruling on July 28 that she said would address still-unanswered questions raised by Gableman’s testimony.

On March 1, Gableman produced a report outlining his review, which called for decertifying the 2020 election, which the law does not permit. Republicans including Vos rejected that call, saying decertification is not possible.

Biden’s 2020 victory over Trump was affirmed by a partial presidential recount, multiple state and federal court rulings and a review by the nonpartisan Legislative Audit Bureau.