Ballots are stored in boxes and bags as workers recount Milwaukee County's ballots at the Wisconsin Center. Photo by Adam Kelnhofer,, Nov. 23, 2020.

Dem AG Josh Kaul is asking a Dane County judge to block the subpoenas Justice Michael Gableman issued to the Elections Commission, arguing the former justice doesn’t have the power under state law to compel public officials to provide a deposition in his private office.

Yesterday’s filing also argues that Gableman’s review of the 2020 election doesn’t have the power to veer into a law enforcement action under the Wisconsin or U.S. constitutions. Kaul argued that exceeds the power of the Legislature and violates the separation of powers before the legislative and executive branches.

He has asked a Dane County judge to declare the subpoenas are invalid and unenforceable under the U.S. and Wisconsin constitutions as well as state law. Kaul also wants an order prohibiting Gableman and others from taking any actions to enforce the subpoenas or to seek sanctions for noncompliance during the suit.

In the alternative, the suit seeks an order requiring subpoenas to be narrowed and clarified before WEC Administrator Meagan Wolfe and the agency are required to comply.

Gableman’s office didn’t immediately respond to a message late yesterday seeking comment.

The lawsuit comes on the heels of Kaul last week criticizing the probe authorized by Assembly GOP leaders as a “fake investigation” ripe with bias from members of Gableman’s team. He added the investigation is an abuse of the Legislature’s authority and a waste of $700,000 of taxpayer money.

Gableman issued subpoenas to the Elections Commission and Wolfe seeking a trove of records related to the 2020 election and an in-person appearance at his Brookfield office to provide testimony. He issued similar subpoenas to officials in Green Bay, Kenosha, Madison, Milwaukee and Racine.

According to the filing, DOJ had discussed objections to the subpoenas with Gableman’s office, but the two had been unable to resolve the objections or agree to a postponement of testimony that had been scheduled for today.

In the filing, Kaul argued legislative subpoenas may only compel sworn testimony before a legislative committee. But the Assembly Committee on Campaigns and Elections, and Chair Janel Brandtjen, R-Menomonee Falls, has made clear she didn’t sign off on the subpoenas or was working with the former justice.

What Gableman is seeking has “all the hallmarks of the type of deposition procedure typically used to examine a witness in the context of a judicial proceeding,” DOJ wrote. But state law only contemplates compelling a witness to testify in a legislative proceeding, not a judicial one.

What’s more, the Legislature has the power to investigate subjects to aid lawmakers in performing their duties. But the “legitimate legislative purposes of an investigation do not include the function of law enforcement.”

Kaul noted Assembly Speaker Robin Vos, R-Rochester, recently likened Gableman’s review to a law enforcement investigation in defending his refusal to turn over records related to the probe.

“The legitimate purpose of a legislative investigation is to inform the Legislature about subjects susceptible to legislation, not to inform the public about matters the Legislature deems important, to expose facts for the sake of exposure, or to intimidate or assign guilt to individual public officials,” the suit argues.

Read the summons and complaint:

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