Six of the Wisconsin “fake electors” live in counties with Republican district attorneys, who have jurisdiction
The law does not allow Democratic Wisconsin Attorney General Josh Kaul to prosecute the state’s so-called “fake electors.”
That’s because, in Wisconsin, state law requires that people accused of election crimes be prosecuted in the county where they reside, and six of the alternate electors reside in counties with Republican district attorneys.
We ran this question past Fond du Lac County District Attorney Eric Toney, the president of the Wisconsin District Attorneys Association. He said the law is crystal clear on it. “Unless the local DA appoints the Attorney General as a special prosecutor, the Wisconsin AG doesn’t have the authority to prosecute them for election violations,” said Toney, who ran against Kaul as a Republican.
It’s very difficult to imagine Republican DAs naming a partisan attorney general like Kaul as a special prosecutor in such a politicized case.
“The way the law reads, jurisdiction is where the individuals reside, not where the conduct occurred,” Toney said.
This state law was passed in reaction to the criminal charges years ago in Democratic Dane County against former Republican Assembly Majority Leader Scott Jensen. They were removed to Waukesha County, where he resides. There is a state Supreme Court case directly on point that upheld Jensen’s right to be tried in the county where he lived.
This point has been missing entirely by Wisconsin’s news media, which is creating the opposite impression by running to Kaul for comment almost every time the “fake electors” get mentioned.
“After Georgia indictment, Kaul undecided on charges for Wisconsin’s fake electors,” CBS 58 blared, saying Kaul refused to comment. “Attorney General Kaul Considers Charges Against Fake Electors,” WGLR-TV reported. “Kaul won’t say if false electors will face state charges,” the Capital Times wrote.
The Milwaukee Journal Sentinel wrote, “While Michigan’s attorney general has charged the state’s false electors, Democratic Attorney General Josh Kaul has not said whether the state is looking into charging Wisconsin’s fake electors.”
The stories and headlines make it sound like the alternate electors are sitting with a literal Damocles’ prosecutorial sword hanging over their heads, when, actually, KAUL DOESN’T HAVE AUTHORITY TO PROSECUTE THEM.
Democratic Gov. Tony Evers has fueled the notion that the fake electors might be prosecuted in Wisconsin, calling for charges; he’s even fundraising off of the topic, writing, “Trump’s Fake Electors Must Be Held Accountable.”
However, at least for six of them, this is almost certainly not going to happen. Evers must know this already. Kaul too.
Wisconsin statute 971.19(1) states, “Except as provided in s. 971.223, in an action for a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, or for a violation of any other law arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 a defendant who is a resident of this state shall be tried in circuit court for the county where the defendant resides.” (our bold.) We would note the present tense “resides.”
State statute 978.05 states that the county district attorney shall “except as otherwise provided by law, prosecute all criminal actions before any court within his or her prosecutorial unit and have sole responsibility for prosecution of all criminal actions arising from violations of” election law chapters “and from violations of other laws arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation…” (our bold).
The bolded passage is really important. Toney said that the passage and the Jensen case “appear to also encompass other violations relating to an election violation.” In other words, Kaul would not have the authority to charge the alternate electors with non-election-related crimes stemming from the alternate elector votes, either.
The legislature “finds that violations of offenses covered by 2007 Wisconsin Act 1 are violations of the public trust that should be adjudicated in the county where the offender resides so the individuals who the defendant interacts with daily, serves, or represents as a public official or candidate and whose trust was violated by the offense will judge the defendant’s guilt or innocence,” the Legislature explained. “The legislature further finds that to so provide is consistent with equal protection of the laws under article I, section 1, of the constitution.”
To be clear, we are not arguing that the Republican DAs would play politics by absolving “fake electors” of criminal conduct. Rather, we are arguing it’s highly unlikely they would IGNORE the rule of law to bring political prosecutions against people who did not violate it (here are 11 reasons Wisconsin’s “fake electors” did not violate the law.) For starters, evidence shows they believed their electoral votes would only count IF former President Trump prevailed in litigation before the US Supreme Court.
For another, they were following a 1960 precedent out of Hawaii. Special Counsel Jack Smith, who is prosecuting Trump, wrote in his indictment that some alternate electors were “tricked.” Kaul’s own prosecutor, who reviewed the matter for the Wisconsin Election Commission (which dismissed a complaint against them), wrote in a memo that they had not violated laws.
“Wisconsin law does not prohibit an alternative set of electors from meeting,” the assistant attorney general wrote.
Kaul, reminiscent of when he passively allowed a false narrative to take root that Jacob Blake was shot seven times in the back by a Kenosha cop, has done nothing to stop the false narrative that he has the authority to prosecute alternate electors. Neither has Evers, who is too busy raising money off the idea.
“Kaul won’t say if or when he’ll bring fake elector charges,” a Wispolitics.com headline said. In a podcast, Kaul used careful semantics to not be technically inaccurate while not clearing up the misperception: “I can’t speak to anything that may be happening in the state of Wisconsin given that we generally don’t comment or confirm or deny the existence of investigations,” Kaul said. He said he hoped people were “held accountable” and indicated that there would be “continuing efforts to hold people accountable going forward.”
According to state law, Kaul’s DOJ has the authority to investigate the alternate electors, which Toney also confirmed. But charges, if any, would be the decision of local District Attorneys. Kaul could refer the results of his investigation to them if he commences one.
As Toney noted, local District Attorneys could appoint Kaul as a special prosecutor, giving him jurisdiction to prosecute alternate electors. However, it’s almost impossible to imagine Republican DAs doing so, especially considering the facts. To date, the Milwaukee County DA’s office has passed off the investigation of the alternate electors to Kaul; one of them, Bob Spindell, lives in Milwaukee County. The Milwaukee DA’s letter mentions the venue issue.
The alternate electors, according to the Milwaukee County DA’s letter, live throughout the state.
They live in Brown, Clark, La Crosse, Milwaukee, Outagamie, Ozaukee, Sheboygan, and Washington Counties, according to that letter. The Milwaukee Journal Sentinel, in a recent article naming the alternate electors, also provided their counties of residence. Here is how that breaks down, per the more recent MJS article:
Republican DA counties
Kathy Kiernan. The Milwaukee Journal Sentinel says she lives in Richland. We believe she actually lives in Richfield, which is located in Washington County. That county is under the jurisdiction of Washington County DA Mark Bensen, a Republican.
Andrew Hitt, Appleton: Under the jurisdiction of Outagamie County DA Melinda Tempelis, a Republican. She was appointed to the position by former Republican Gov. Scott Walker.
Kelly Ruh, DePere: Under the jurisdiction of Brown County DA David L. Lasee, a Republican.
Darryl Carlson, Sheboygan: Under the jurisdiction of Sheboygan County DA Joel Urmanski, a Republican.
Pam Travis, Elkhorn: Under the jurisdiction of Walworth County DA Zeke Wiedenfeld, a Republican.
Mary Buestrin, Mequon: Under the jurisdiction of Ozaukee County DA Adam Gerol, a Republican.
Moved out of state
Carol Brunner moved to Iowa. It appears that people who live out of state would be prosecuted in the county where the alleged offenses occurred, in this case, Dane County. However, it’s unclear whether that determination would involve where they are living NOW vs. where they lived at the time. Thus, Brunner’s case is a gray area. She lived in Franklin before, however, which is in Milwaukee County.
Democratic DA counties
Robert Spindell, Milwaukee: Under the jurisdiction of Milwaukee County DA John Chisholm, a Democrat.
Scott Grabins, Madison area. Under the jurisdiction of Dane County DA Ismael Ozanne, a Democrat.
Bill Feehan, La Crosse: Under the jurisdiction of La Crosse County DA Tim Gruenke, a Democrat. (It should be noted that Gruenke has acted fairly in a politicized case before; he declined to prosecute Wauwatosa Police Officer Joseph Mensah for an on-duty shooting as a special prosecutor.)
It could cause severe credibility problems with the public, were only Democratic DAs to prosecute alternate electors or were they to hand over their authority to a Democratic AG.
It’s not clear, based on the more recent Journal Sentinel story, which alternate elector the Milwaukee DA believed lived in Clark County. That county’s DA is a Democrat.
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