Milwaukee County prosecutor seeks to pass off case over fake electors to state or federal agencies

MADISON – A Milwaukee County prosecutor has consulted with Attorney General Josh Kaul on whether 10 Republicans committed fraud by claiming to be presidential electors even though Donald Trump lost in Wisconsin.

Assistant District Attorney Matthew Westphal sent a letter Wednesday saying Kaul's Department of Justice or federal prosecutors were best suited to investigate the matter.

"This office has already consulted with the Wisconsin DOJ to discuss these matters. The Milwaukee County District Attorney's Office will be available to provide any necessary assistance to the extent able," Westphal wrote in a letter to attorney Jeffrey Mandell, an attorney who filed a complaint over the matter.

Subscribe to our On Wisconsin Politics newsletter for the week's political news explained.

The response from District Attorney John Chisholm's office puts the issue squarely before the Democratic attorney general a year after Republicans secretly gathered in the state Capitol to sign formal-looking paperwork that purported they were the state's 10 electors.

They sent their paperwork to the U.S. Senate and National Archives, as did Republicans in six other states that Trump lost to Joe Biden.

Kaul did not say Wednesday what he would do. In a statement last week, he suggested that federal prosecutors should consider the matter. He did not say in that statement that he was formally referring the matter to the U.S. Department of Justice and he did not rule out the possibility that he would look into it himself.

"I believe it's critical that the federal government fully investigates and prosecutes any unlawful actions in furtherance of any seditious conspiracy," Kaul said in his statement last week.

The attorneys general of Michigan and New Mexico have asked federal prosecutors to investigate the matter.

Mandell filed complaints a year ago with Chisholm's office and the Wisconsin Elections Commission. Mandell represents the state arm of the Service Employees International Union.

In his letter to Mandell, Westphal noted that the 10 Republicans signed the paperwork in Dane County, not Milwaukee County. Their homes are scattered across the state and what they did "would be more appropriately addressed by an agency that maintains jurisdiction across county lines," Westphal wrote.

Westphal did not explain why Chisholm's office took a year to make that determination. Chief Deputy District Attorney Kent Lovern did not respond to questions Thursday about why the review of the complaint took so long.

Republicans have said they met as electors to make sure they could submit the state's electoral votes for Trump if he were to win lawsuits he and his allies filed challenging the results.

Mandell on Thursday cast doubt on that contention. He released a copy of the envelope they used to send their paperwork and it shows it was mailed on Dec. 16, 2020, two days after the would-be electors met in the state Capitol. By then, the legal challenges over Wisconsin’s results were over.

“Not only did they do this on the fourteenth, but then they had two full more days of news and information before they made the deliberate decision to submit these documents," Mandell said during an online news conference.

AG candidate would not investigate

For its part, the Wisconsin Elections Commission has been handling the complaint it received behind closed doors. The commission, which consists of three Republicans and three Democrats, has not said when it will issue a decision.

The commission's deliberations have been complicated because Commissioner Bob Spindell was one of the 10 Republicans who filed the false paperwork. He has alleged his colleagues on the commission are trying to force him off the case.

Also among the would-be electors is Andrew Hit, who at the time served as the chairman of the Wisconsin Republican Party.

Hitt is now the campaign chairman for Adam Jarchow, a former state lawmaker seeking the Republican nomination to challenge Kaul.

Jarchow said he did not believe Hitt did anything wrong and would not investigate the Republicans who posed as electors if he were attorney general.

"What they were doing there, as I understand it, was that they were employing a long-standing legal strategy under the advice of election lawyers to make sure that they preserve standing to object in the future if they wanted to," Jarchow said. "So I don't believe that there's any there there. This is something that Josh Kaul is using as another one of his political games and politicizing the electoral process."

Mandell and the union have separately filed a complaint against Hitt with the Office of Lawyer Regulation. Hitt is an attorney with Michael Best & Friedrich.

The Office of Lawyer Regulation conducts its work in secret and has not said how it is handling the complaint against Hitt.

Vanessa Swales of the Journal Sentinel staff contributed to this report from Milwaukee.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.

Our subscribers make this reporting possible. Please consider supporting local journalism by subscribing to the Journal Sentinel at jsonline.com/deal.

DOWNLOAD THE APP: Get the latest news, sports and more

This article originally appeared on Milwaukee Journal Sentinel: Milwaukee County seeks to pass case over fake electors to Wisconsin AG