THE PARABLE OF MICHAEL GABLEMAN

The two parts of this piece were previously published in the Lakeland Times, in Minocqua, Wisconsin, and the Northwoods River News, in Rhinelander, Wisconsin.

Part I: Rise and Fall

On November 19, 2024, the Wisconsin Office of Lawyer Regulation (OLR) instituted a formal disciplinary proceeding against former Wisconsin Supreme Court Justice Michael Gableman. The seventy-five-page complaint filed by OLR, which is publicly available online, alleges that, while serving as special counsel to the Wisconsin Assembly, Gableman committed violations of Wisconsin’s Rules of Professional Conduct for Attorneys. Gableman had been retained by Republican Assembly Speaker Robin Vos to assist the Assembly’s Committee on Campaigns and Elections in conducting an investigation of the 2020 presidential election in Wisconsin. The merits of the OLR complaint are not the focus of this essay. Rather, my purpose is to attempt to tell the story of how Gableman’s fortunes deteriorated from what is (arguably) the pinnacle of the legal profession in the State of Wisconsin to being on the threshold of potentially losing his license to practice law.

A little background is in order. First, I must disclose that I am professionally acquainted with Michael Gableman. We appeared in court together during the 1990’s when he was the Assistant Corporation Counsel for Forest County and I was a staff attorney with the State Public Defender. Also, between 2012 and 2018, while we were both members of the Wisconsin judiciary, we exchanged pleasantries several times while attending various judicial events. I have had no contact with Gableman since his departure from the Wisconsin Supreme Court.

After graduating from law school, Gableman, who is originally from the Milwaukee area, clerked for three years at the state level in Minnesota and also in Brown County, Wisconsin. Then, in 1996, he took a half-time position as an Assistant District Attorney in Langlade County and also worked in a private law office in Antigo, which included part-time work, on a contract basis, as Assistant Corporation Counsel in Forest County. Thereafter, Gableman worked as an Assistant District Attorney in Marathon County. In May of 1999, then-Republican Governor Tommy Thompson appointed Gableman to serve as the Ashland County District Attorney. While in Ashland, he served as the chair of the Republican Party of Ashland County. On June 3, 2002, Gableman resigned as District Attorney in Ashland to take a position as an Administrative Law Judge (ALJ) in the Department of Workforce Development.

So, after moving around the northern half of the state for the better part of a decade, occupying primarily government positions, Gableman had made his presence sufficiently known that he was appointed as district attorney by a Republican governor and then administratively appointed as an ALJ under the succeeding Republican administration. It is clear that Gableman, at this point in his career, was hip-deep in state Republican politics.

On August 20, 2002, less than ninety days after commencing his role as an ALJ, Thompson’s Republican successor as governor, Scott McCallum, appointed Gableman to serve as Circuit Court Judge in Burnett County. The appointment generated controversy. Prior to the appointment, a number of judicial aspirants, Gableman not among them, formally applied to Governor McCallum to fill the existing vacancy on the Burnett County court. McCallum had previously signed executive orders providing that an Advisory Council on Judicial Selection would screen applicants for judicial appointments and forward finalists for his consideration. Relative to the Burnett County appointment, the Advisory Council recommended two of the applicants, one of whom was the Burnett County District Attorney, to McCallum. There is no evidence that Gableman ever submitted an actual application for the appointment or that he was evaluated by the Advisory Council. These procedural abnormalities notwithstanding, McCallum appointed Gableman to the position.

It has been widely reported that, prior to being appointed in Burnett County, Gableman had donated $2,500 to McCallum’s pending gubernatorial campaign, including a $1,250 donation on June 18, 2002, just two months before the date of the appointment. Also, Gableman had organized a fundraiser for McCallum’s campaign, an event which he reportedly attended while on the clock relative to his ALJ position. It’s obvious that Gableman’s Burnett County appointment was nakedly partisan—the quintessence of political patronage.

There is nothing shocking about a partisan governor’s appointment in and of itself. While some governors may be more pragmatic than others, partisan considerations play a role in most governor’s appointments. In my judgment, however, Gableman’s Burnett County appointment constitutes an extreme example. In addition to the eyebrow-raising optics of the political machinations that led to it, there is no reporting to indicate that Gableman had ever had any connection to Burnett County prior to his appointment. I know from my own experience that such applicants and/or appointees are colloquially referred to behind the scenes as “carpetbaggers.”

Regardless of the propriety of Gableman’s appointment to the bench, at the time of the 2003 Spring Election, when he was challenged by the Burnett County District Attorney who had unsuccessfully applied for the 2002 governor’s appointment, Gableman was elected by an overwhelming seventy-eight percent majority. Insofar as the will of the voting public is the best mechanism for determining who should serve it, any perceived taint regarding his original appointment was, as a practical matter, rinsed under the bridge and Gableman was in a position to move on in his role as a circuit court judge in Burnett County with a relatively clean slate.

Fast forward to 2007. The Republican establishment in Wisconsin REALLY wanted to defeat incumbent Supreme Court Justice Louis Butler in the state’s 2008 Spring Election. Thanks to a number of decisions issued during Butler’s tenure on the court, in which he either authored the accompanying opinion or voted with the majority, Butler could be reasonably characterized as an “activist judge.” One of the more notable examples of this would be the decision in Thomas v. Mallett, in which Butler authored an opinion holding that a lead paint claim could proceed to trial against lead paint manufacturers despite the fact that the plaintiffs could not identify which manufacturer caused the underlying injury. State conservatives were licking their chops. Enter Michael Gableman. It is not publicly known how it came to pass that his basket was where Republican mandarins chose to place their eggs. Regardless, it was Gableman who ultimately threw his hat in the ring to run against Butler.

During his supreme court campaign, one of Gableman’s primary handlers was Darrin Schmitz, the president of Persuasion Partners, Inc., a political consulting firm whose tagline reads: “Turning Blue States to Red.” Gableman received thousands of dollars—in some cases tens of thousands—in campaign contributions from entities such as the Republican Party of Wisconsin, the Wisconsin Builders Association, the Wisconsin Club for Growth, and Koch Industries. It has been reported that Wisconsin Manufacturers and Commerce, a powerful business lobbying group, spent 2.25 million dollars to help elect Gableman. However one chooses to slice it, it cannot be reasonably disputed that conservatives and Republicans rallied around Gableman as their candidate.

During the campaign, a third-party political group supporting Butler released a television ad suggesting, among other things, that Gableman had “purchased his job” in Burnett County and was a “substandard judge.” Not content to focus on those aspects of Butler’s record where he could be credibly accused of “legislating from the bench” (e.g. Thomas v. Mallett), Gableman’s advisors believed that he needed to respond with an ad contrasting Gableman’s background as a prosecutor with Butler’s experience as a criminal defense attorney. Gableman subsequently released a television ad which referenced Butler’s representation, in his former capacity as a criminal defense attorney, of a man named Reuben Lee Mitchell. The content of the ad was misleading and strongly suggested that Butler had done something which, in fact, he had not.

Come election day, Gableman defeated Butler. On August 1, 2008, Gableman commenced a ten-year term as a Justice of the Wisconsin Supreme Court. For the most part, Gableman’s tenure on the court played out as expected. He had held himself out as a judicial conservative and that is more or less how he acted on the court.

However, Gableman’s time on the supreme court was not without controversy. He drew attention for his unwillingness to recuse himself from certain cases, at least one of which implicated the interests of his benefactor, Wisconsin Manufacturers and Commerce. That controversy was effectively ended in 2011 when the Wisconsin Supreme Court adopted its current recusal rule—which had been crafted, in part, by Wisconsin Manufacturers and Commerce—on a 4-3 vote. Gableman voted in favor.

Perhaps the most memorable aspect of Gableman’s time on the supreme court was a disciplinary proceeding filed against him by the Wisconsin Judicial Commission. The complaint, which was filed only sixty-eight days after Gableman began his term, alleged that his campaign ad about Reuben Lee Mitchell constituted judicial misconduct. The Judicial Commission proceeding against Gableman was lengthy and complex and need not be detailed here. Though ultimately dismissed, the proceeding was undoubtedly a major distraction for Gableman and his fellow justices. One notable aspect of the proceeding was the fact that Gableman was represented therein by Attorney James Bopp.

James Bopp is an accomplished lawyer out of Indiana and a heavy hitter in Republican politics at the national level. Bopp was Indiana's National Committeeman on the Republican National Committee in 2006 and served as the RNC's vice chairman from 2008 to 2012. He has represented a conservative 501(c)(4) organization called Citizens United. On behalf of this client, Bopp filed an action in 2007 against the Federal Elections Commission which was ultimately resolved by way of a highly publicized decision of the United States Supreme Court known as Citizens United v. FEC. Following the 2020 presidential election, Bopp filed legal actions in four swing states, including Wisconsin, challenging the results. (For undisclosed reasons, these suits were all withdrawn within a week of filing.) In April of 2022, Bopp successfully represented Rep. Majorie Taylor-Greene in a Georgia proceeding challenging her eligibility to serve in congress based on Section 3 of the Fourteenth Amendment.

I don’t claim to know why a nationally prominent figure who is apparently accustomed to handling high-profile matters such as those described above would come to Wisconsin to represent a relatively obscure figure in a state Judicial Commission proceeding. One could reasonably speculate that some of Gableman’s well-heeled supporters may have wanted to protect their investment. Regardless, on June 30, 2010, the Judicial Commission proceeding against Gableman concluded in his favor when the remaining six justices (Gableman was apparently willing to recuse himself from his own case) deadlocked 3-3 over whether he had engaged in misconduct.

Seven years later, as the end of Gableman’s ten-year term began to loom, his re-election and its concomitant campaign were on the minds of court observers. Then, unexpectedly, on June 15, 2017, Gableman announced that he would not be seeking re-election. Gableman did not specify a reason for his decision, nor did he indicate what he intended to do with himself after concluding his service on the court. Many wondered why an apparently healthy and obviously ambitious fifty-year-old man, who had attained what some would argue to be the pinnacle of the legal profession in Wisconsin, would suddenly decide to step down for no stated reason with no specific plans for the future. If Gableman were stepping down to take advantage of a lucrative opportunity in the private sector, such as a partnership at Michael, Best & Friedrich, for example, or to accept a prestigious government appointment, such as a federal judgeship or a United States Attorney position, stepping down might make sense. However, nothing to that effect was ever reported.

There was speculation at the time that Gableman might step down before the completion of his term to allow then-Republican Governor Scott Walker an opportunity to appoint a successor prior to the Spring 2018 election. On September 13, 2017, the Milwaukee Journal Sentinel reported that the Trump Administration was vetting Gableman for a federal position. The report did not indicate what job Gableman was in line for, other than that it was an “administrative” position and not a federal judgeship. The parameters of what might constitute an “administrative” position are broad and ambiguous. However, in this context, it most likely meant some anonymous cog in the federal bureaucracy (i.e. not the sort of attractive opportunity that would normally be sufficient to lure a sitting justice off of a state supreme court). Regardless, nothing further was ever reported regarding Gableman accepting a position in the Trump Administration.

So, in the apparent absence of any new pot, sweetened or otherwise, to feed from, Gableman ended up serving out the balance of his term on the supreme court, which concluded on July 31, 2018. Thereafter, Gableman more or less faded into obscurity.

The specific reason underlying Gableman’s decision to step down from the supreme court is not publicly known, at least not with any certainty. However, in my judgment, the only reasonable inference is that some (or all) of the conservative entities that backed Gableman in his original campaign were unwilling to do so this time. This may seem counterintuitive in light of his reliably conservative vote on the court. Nevertheless, it is patently unreasonable to conclude that, with the full support of the Republican establishment firmly behind him, Gableman would voluntarily choose to step down as a supreme court justice with no apparent plans for the future.

In my judgment, the rise and fall of Michael Gableman is easy to explain. His initial rise was made possible thanks to the support and backing of the Republican establishment in Wisconsin. His subsequent fall was the result of that support being withdrawn.

Part II: The Pawn’s Gambit

Come the summer of 2021, Donald Trump remained dissatisfied with the results of the 2020 presidential election. On June 25, 2021, during the Republican Party of Wisconsin’s annual convention, Trump issued a mass email in which he declared that “Wisconsin Republican leaders Robin Vos, Chris Kapenga, and Devin LeMahieu, are working hard to cover up election corruption, in Wisconsin.” Trump further asserted that “[t]hey are actively trying to prevent a Forensic Audit of the election results.” Re-enter Michael Gableman. The day after Trump’s written missive against him, Assembly Speaker Vos announced to the convention that former justice Gableman would oversee an investigation of the 2020 election. Thereafter, Gableman addressed the convention, telling attendees that “I’m glad to be here — glad to see so many friends.” Gableman further stated, referring to the 2020 election, “[T]his is one where we draw the line.”

From Vos’s perspective (at that point, at least), Gableman was a credible choice for leading such an investigation. Locally, his status as a former conservative justice on the Wisconsin Supreme Court carried sufficient prestige to make his selection appear appropriate to his Republican colleagues. And there was no reason to believe that Donald Trump would have had any problem with it either. Gableman had appeared and spoken at a rally at Serb Hall in Milwaukee that was held on November 7, 2020, literally hours after most media outlets projected Joe Biden as the winner of the presidential election. At the rally, Gableman publicly declared that “I don't think anyone would be here if we all had confidence that this was an honest election.” He would be seen by Trump as a loyal foot soldier in the cause. Thus, on the face of things, it appeared that Gableman would be acceptable to both Wisconsin Republicans and Donald Trump himself for purposes of conducting the investigation.

It has been reported that, during the initial months of his investigation, Gableman spent time at the New Berlin public library researching election law. Gableman has since stated: “Most people, myself included, do not have a comprehensive understanding or even any understanding of how elections work.” As part of his investigation, in August of 2021, Gableman attended MyPillow CEO Mike Lindell’s “Cyber Symposium” in Sioux Falls, South Dakota. Gableman also traveled to Arizona to observe a ballot review being conducted there. In response to inquiries, Gableman indicated that he covered the cost of these trips from the $11,000 per month compensation that his contract for services with the Assembly called for. However, it was later reported that the state had, in fact, reimbursed Gableman for those expenses.

Eventually, on March 1, 2022, Gableman appeared before the Assembly Committee on Campaigns and Elections and gave a lengthy presentation, video of which was publicly broadcast, outlining the results of his investigation up to that point. He focused on two main issues. First, Gableman detailed how millions of dollars in private grants were received by various Wisconsin municipalities from an organization funded by Facebook founder Mark Zuckerberg. According to Gableman, these grants amounted to a de facto “get out the vote” effort directed at traditionally Democratic-voting groups. Second, Gableman decried the Wisconsin Election Commission’s March 2020 decision that prohibited special voting deputies, who by law could be assigned by county clerks to assist with absentee voting in nursing homes and qualified care facilities, from entering such facilities because of COVID-19 concerns. Gableman presented video recordings of a handful of nursing home residents who appeared insufficiently cognizant to have cast legitimate votes, but had nevertheless voted by absentee ballot during the 2020 presidential election.

Gableman’s presentation was anecdotally compelling. However, federal District Court Judge William Griesbach, in October of 2020, had already ruled that the election grants—referred to by some as “Zuck Bucks”—were not in violation of the law. In addition, Gableman’s comments to the effect that his handful of videos implicated votes cast among the entirety of Wisconsin’s nursing home population—then numbering 92,000—was somewhat of a stretch. In other words, while the optics of Gableman’s presentation supported his overall narrative, the legal and factual substance underlying his claims was insufficient to actually implicate the results of the 2020 election in Wisconsin.

Near the conclusion of his presentation, Gableman told the committee members that “the legislature ought to take a very hard look at the option of decertification of the 2020 Wisconsin presidential election.” However, on March 16, 2022, away from any cameras, Gableman emailed Assembly Speaker Vos indicating that “[w]hile decertification of the 2020 presidential election is theoretically possible, it is unprecedented and raises numerous substantial constitutional issues that would be difficult to resolve. Thus, the legal obstacles to its accomplishment render such an outcome a practical impossibility.”

Why would Gableman advocate for decertification in front of the cameras while acknowledging its “practical impossibility” behind the scenes? One reasonable inference is that, by this point, Gableman was doing what has come to be known during the Trump era as “performing for an audience of one.”

On April 5, 2022, Gableman attended an event in Florida at Mar-a-Lago where a forty-one minute film produced by Citizens United called “Rigged: The Zuckerberg Funded Plot to Defeat Donald Trump” was debuted. Gableman appears in the film, which makes clear that, at the time of his presentation in Madison on March 1, 2022, Gableman was “on the same page” as the film’s producers. At the event, Trump thanked Gableman personally, telling him in front of the gathered attendees: “Michael, you’ve been unbelievable.” This was reportedly followed by a round of back-patting and glad-handing of Gableman by some members of the audience, which included a coterie of nationally known Trump supporters and surrogates. Just two days after this moment of recognition, on April 7, 2022, Gableman appeared on Steve Bannon’s WarRoom podcast. During his discussion with Bannon, Gableman lamented that Assembly Speaker Vos was potentially going to be shutting down his investigation within the month. He solicited Bannon’s listeners, who are presumably comprised of more nationwide Trump supporters than actual Wisconsin constituents, to call and email Vos and request that Gableman’s investigation continue.

Initially, Vos heeded this call, though he did cut Gableman’s $11,000 monthly compensation in half. In May, however, Vos put Gableman’s investigation on hold pending the resolution of several lawsuits filed in relation to it. American Oversight, a decidedly anti-Trump group, filed a number of open records complaints against Robin Vos and the Assembly Office of Special Counsel (i.e. Gableman) alleging that they failed to turn over public records regarding Gableman’s investigation. On June 10, 2022, Gableman testified at an evidentiary hearing before Dane County Circuit Court Judge Frank Remington relative to one of the American Oversight cases. (At the hearing, the Office of Special Counsel was represented by Attorney James Bopp.) Publicly available video of Gableman on the witness stand suggests that he was performing more for the cameras than the judge or, for that matter, his client. His behavior at the June 10 hearing was such that Judge Remington referred Gableman to OLR as a result. Three of the ten counts in the OLR complaint against Gableman arise from his conduct at the June 10 hearing.

In early August of 2022, a robocall Gableman recorded was released recommending that voters support Adam Steen, Robin Vos’s Republican opponent in the August 9, 2022, primary election. In the robocall, Gableman states that Vos “never wanted a real investigation into the 2020 election in Wisconsin.” Steen, as it so happened, was also being endorsed by Donald Trump. At an August 5, 2022, rally in Waukesha, at which Gableman appeared, Trump, apparently frustrated with Vos’s unwillingness to pursue decertification of the 2020 election results in Wisconsin, endorsed Steen and criticized Vos. On August 12, following his primary victory over Steen, Vos fired Gableman, ending his investigation. At that point, Vos was publicly referring to Gableman as an “embarrassment.”

More recently, in the wake of the OLR complaint filed against Gableman, Vos expressed his hope that Gableman be disbarred. During a television appearance on UpFront on November 24, 2024, Vos stated that “I certainly hope Michael Gableman loses his law license. I hope he goes back to work at Home Depot where he was working prior to working for us.”

How is it that someone with Gableman’s ostensible achievements ended up in such a scenario? However it was that he landed on the bench in Burnett County, he was accepted by that community and, had he stayed there, would likely have enjoyed a stable career as a circuit court judge in a beautiful part of the state.

But that potentially happy ending was squelched when the greater glory of a seat on the Wisconsin Supreme Court beckoned. Initially, having successfully responded to that call, Gableman appeared to have the world where he wanted it—he was a Wisconsin Supreme Court Justice. It didn’t necessarily matter how he got there—he was there. Be that as it may, subsequent events appear to indicate that his staying power was entirely dependent on the largesse of those that put him there. For whatever reason, Gableman’s time on the supreme court apparently did not inspire his earlier benefactors to provide the backing and support that they had ten years earlier. Left holding the bag, so to speak, Gableman was forced to step down.

At some point after receiving the presumably welcome opportunity to get back to work with the Republican establishment in Wisconsin in 2021, it appears that Gableman may have sensed another opportunity: a new benefactor. Instead of directing his investigation into Wisconsin’s 2020 election consistent with the will of his client (i.e. the Wisconsin Assembly, by way of its speaker), it appears that Gableman decided to start taking his marching orders from Donald Trump.

So, as he faces disbarment proceedings and public ridicule by the staunchly Republican Speaker of the Wisconsin Assembly, what is Gableman going to do? Perhaps he is hoping for a job in the upcoming second Trump Administration. In that context, where loyalty is apparently a major factor, a tenuous law license may not be a dealbreaker. No reporting on such a possibility has appeared in the media as of the date of this writing.

Another potential outcome is that Gableman will join others on the scrapheap of disbarred lawyers accumulating in the aftermath of the chicanery that occurred in connection with some of the challenges to the results of the 2020 presidential election. A number of nationally known lawyers have suffered this fate. Sidney Powell pleaded guilty on October 19, 2023, to six misdemeanor criminal counts in Georgia in connection with her role in attempting to overturn the results of the 2020 presidential election there. Lin Wood, a Georgia attorney who appeared publicly with Powell in connection with her ill-fated efforts, surrendered his law license in 2023 rather than face disbarment proceedings. Rudy Guiliani was disbarred in the state of New York in July 2024 and in the District of Columbia in September 2024.

Attorney John Eastman is in the midst of disbarment proceedings in California and has been indicted criminally in Georgia and Arizona in connection with his role in attempting to overturn the results of the 2020 presidential election. Eastman is a lawyer out of California who was one of the architects of the so-called “Fake Elector” scheme connected to the events of January 6, 2021. He appeared and spoke that day, along with Rudy Guliani and Donald Trump himself, at the Ellipse in Washington D.C. Eastman appeared clad in an overcoat and wide-brimmed fedora, pumping his fist and jabbing his pointed finger at the crowd, exhorting them on behalf of President Trump. Now, like Gableman, he is on the cusp of potentially losing his license to practice law.

In September of 2023, Gableman traveled to California to testify on behalf of John Eastman in disbarment proceedings there. It is highly doubtful that Gableman traveled to California to seek some benefit for the State of Wisconsin. (It has been reported that Gableman’s behavior while testifying before the Judge of the California Bar Court was reminiscent of his conduct before Judge Remington in Wisconsin in 2022.) The only connection between Gableman and Eastman is their efforts on behalf of Donald Trump. The most believable explanation for Gableman’s California trip is that he was attempting to keep himself on Trump’s radar.

Presumably, Gableman has been a loyal Trump supporter since the 2016 nomination. There is no question that, at least since November 7, 2020, Gableman has publicly positioned himself as a zealous advocate for Donald Trump. As of the date of this writing, Gableman appears to have taken his place among the growing ranks of those fighting for the scraps from the president-elect’s table. It has yet to be seen whether this gambit will bear fruit. Whatever happens, it won’t be the first time in Gableman’s career that his fate will be determined by someone else’s priorities.

There was a time when Michael Gableman had a conventionally bright future ahead of him.However, as time has gone by, circumstances reveal a slow acceptance of his role as a pawn; initially of the Republican establishment in Wisconsin, and currently of the incoming president and/or his administration.In my humble opinion, the story of Michael Gableman stands as a cautionary tale illustrating the folly of willingly becoming, in furtherance of one’s own ends, a pawn in someone else’s game.