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As Wisconsin Attorney General Josh Kaul flails to hold on to “evidence” his agents seized in a politically charged raid on Wausau Mayor Doug Diny’s office and home, a new court filing argues that the leftist AG has built a case without a legal foundation. 

“To put it charitably, it’s a political fishing expedition,” Diny’s attorney, Joseph Bugni, wrote in reply to the state Department of Justice’s defense of its investigation into the conservative mayor. “It’s one that’s being engaged in without legal support and that has to end with the return of his devices and the destruction of the data gathered from them.”

As The Federalist first reported in October, Wisconsin DOJ investigators served a warrant on Diny’s mayoral office and raided his home while his wife and 18-month-old grandson looked on. They seized smartphones and other electronic devices belonging to the mayor and his wife nearly a month after Diny removed an unsecured drop box that was going to be used as an absentee ballot receptacle from outside city hall. 

The search warrant claims investigators intended to seize evidence on allegations that Diny committed election fraud in moving the drop box to his office on Sept. 22. The mayor has said he was concerned about the security of the ballot drop box, which was ultimately used — without approval of the Wausau City Council — to collect absentee ballots ahead of the Nov. 5 presidential election. 

Kaul, a Democrat political climber with visions of a possible run for governor in 2026, took over the probe after the left went ballistic and screamed for Diny’s head. As the local paper reported, a group of four residents, including Marathon County Supervisor Randy Radtke, delivered a request to the U.S. Attorney’s Office for the Western District seeking federal intervention. 

No Cause, No Crime

On Nov. 21, the state filed a response to Diny’s motion calling out Kaul’s probe as an illegal seizure conducted without probable cause. The attorney general’s brief, filed in Marathon County Circuit Court, asserts that Diny wasn’t specific enough in his legal claims that the law enforcement action was illegal.

And Kaul argues that there’s no need for this talk about suppressing evidence. After all, the AG’s office hasn’t filed charges yet. 

“The probable cause of the search warrant remains sealed by order of the court,” the response states. 

In short, Kaul and crew are asking the judge and the target of his investigation to trust them.

As the mayor’s attorney argued in the this week’s court filing, Diny does not have “to be content that law enforcement is acting in good faith and, in time, the property matter will be sorted out.” Kaul has earned a reputation as a leftist zealot motivated by politics. Why would a conservative mayor in particular trust an investigation run by Kaul’s Department of Justice? 

To begin with, there is no probable cause because Diny committed no crime, the brief asserts. The election fraud statute “can only be violated on election day and only by tampering with a ballot box,” Bugni states in the brief. 

“September 22 wasn’t election day, and he didn’t touch a ballot box,” the filing notes. 

And while drop boxes may be used in Wisconsin to collect absentee ballots, they are not ballot boxes as defined in the statute. Expanding the definition of “ballot box” could open up a legally problematic kettle of worms, the Madison defense attorney argues. 

“What’s more, if the State’s theory holds then every drobox is a ballot box and the municipal clerks are violating the statutes every time they empty it or fail to turn it over or don’t place the seal over it,” the brief contends. “In a word, it is foolhardy to argue that the statute reaches drop boxes and that it covers behavior before election day. To read the statute that way is to not only ignore the plain meaning of the statutes but also to upend over a century of case law that treats ballot boxes with certain and precise prescriptions.”

A Lot Like John Doe

Some legal observers have likened Kaul’s politically-charged investigation into Wausau’s mayor to Wisconsin’s notorious John Doe investigations more than a decade ago. Corrupt prosecutors in Democrat-led Milwaukee County joined forces with the Government Accountability Board, Wisconsin’s election and campaign finance regulator at the time, in the secret investigation targeting then-Gov. Scott Walker, a Republican, and conservative allies. Law enforcement officials conducted pre-dawn, armed raids on the homes of conservatives and seized electronic devices and mountains of documents in the bogus campaign finance probe that the Wisconsin Supreme Court ultimately ruled was unconstitutional and a “perfect storm of wrongs.”

Bugni points out that John Doe prosecutors, too, attempted to tell appeals courts that they were “incapable of ordering the return of the devices and the destruction” of the the evidence produced from the investigation. 

“When those actions were challenged (before charges had issued), the Wisconsin Supreme Court didn’t throw up its hands and say: ‘sorry, nothing we can do until the charges come;’ instead, it marched through the analysis and found that the prosecution’s theory was not grounded in reason or law.’ And as a remedy it ordered that the evidence be returned and the copies destroyed. We are asking for exactly the same,” the brief states. 

“In other words, this Court isn’t powerless to do what’s previously been done.” 

Sen. Ron Johnson, R-Wis., has said the probe and the accompanying raid “are the actions of jack-booted thugs.” Rep. Tom Tiffany, a Republican who represents Wausau in Wisconsin’s 7th Congressional District, has said he would like the House Judiciary Committee, of which he is a member, to look into Kaul’s politically driven probe. State Sen. Cory Tomczyk, R-Mosinee, called the raid “an infuriating abuse of power.” 

“It appalls me that we fund Josh Kaul’s department to conduct politically motivated actions such as this. With all the issues our state has at the moment, this is what Josh Kaul has prioritized?” the lawmaker said in a statement after The Federalist broke the story of the raid. 

Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.