Advocate or partisan? Attorney General Josh Kaul wants record to speak for itself

That’s because in a lame-duck session after the 2018 election, Republicans passed several laws that stripped the attorney general of certain powers, such as how Wisconsin spends court settlements, a move Kaul said has denied the Department of Justice about $30 million in funding.

Despite the setback, Kaul said he’s kept his campaign promises and plans to make that the centerpiece of his reelection campaign. His opponents, meanwhile, say lame-duck laws or no, Kaul’s record is his biggest weakness.

Kaul has also used the office to push favorable political causes — boosting environmental protection, voting rights and reproductive rights — something he accused his predecessor, Republican Brad Schimel, of doing on the other side of the political spectrum.

Kaul will likely face either former state Rep. Adam Jarchow, R-Balsam Lake, or Fond du Lac County District Attorney Eric Toney, two conservatives currently trying to rally the party’s base ahead of the August primary.

Whomever he faces in November, it could be a challenge for Kaul, who defeated Schimel by less than one percentage point and faces the political headwinds of a midterm election environment favorable to Republicans.

While there’s not any polling in the attorney general race, Democratic Gov. Tony Evers has seen his approval rating hover around 50% for the last year and a half, according to Marquette University Law School polling.

Perceptions about crime, fueled in part by the 2020 racial justice protests and subsequent riots in Kenosha, as well as the Waukesha Christmas parade tragedy, which conservatives blame on lax bail standards in Milwaukee, could also influence the race.

Homicides in 2020 were at a five-year high, with 302 in 2020 and 185 in 2019, according to Wisconsin Department of Justice data. Data from 2021 isn’t yet available, though crimes like larceny, theft, burglary and robbery are at the lowest level in five years.

Marquette Law School Poll director Charles Franklin noted that while 69% believe crime is rising nationally, 78% feel personally safe in their daily lives.

“Is it really converting any votes, or is it just holding them to the party they would have voted for anyway?” Franklin said.

Promises kept?

Prior to becoming the state’s top law enforcement officer, Kaul, a Stanford Law grad and former federal prosecutor in Baltimore whose mother, Peg Lautenschlager, served as attorney general from 2003 to 2007, worked on voting rights and election law for law firm Perkins Coie, the in-house counsel of the Democratic Party.

He now oversees more than 700 employees and litigates cases ranging from violent crime to Medicaid fraud.

“One of the things I’m really proud of is, if you look at the things I talked about in my campaign when I was running for attorney general, you can see a track record of us meeting those promises,” Kaul said in an interview.

Kaul made a major issue in 2018 of processing Wisconsin’s backlog of sexual assault evidence kits, which Schimel completed in the final months before the election after years of delay. Kaul touts further progress on that front, with a bipartisan law being signed last year aimed at preventing a future backlog and expediting the testing of sexual assault kits.

Kaul highlights removing Wisconsin from a multistate challenge to the Affordable Care Act in the first months of his tenure. Other victories he touts:

• $24 million settlement from a multistate suit against Navient, a student loan servicer, for predatory lending;
• Persuading the state Supreme Court to halt purging the names of 69,000 people who may have been moved from voter rolls, leaving it up to local clerks to update their status;
• Civil environmental enforcement lawsuit over PFAS spills;
• and joining a multistate antitrust lawsuit against Facebook.

In recent years, Kaul’s office has led the prosecution into some of the state’s more notorious violent crimes, including a conviction by his office of Devon Neuman, a Fond du Lac man who murdered and robbed 30-year-old Logan Foster during a late-night scuffle in 2017.

In the first months of Kaul’s tenure, the DOJ also lent support to prosecutors in Barron County during the Jayme Closs murder and kidnapping case, which saw the perpetrator Jake Patterson plead guilty.

Opioid epidemic

Another central promise from Kaul’s first campaign, one he emphasized when he declared victory on the steps of the Dane County Courthouse in 2018, was the opioid epidemic.

Early in his tenure, Kaul joined a multistate lawsuit into the business practices of opioid distributors. In August 2021, Kaul announced his intent to join a $26 billion settlement between states and the nation’s top opioid distributors and manufacturers.

Through that suit, Wisconsin is set to receive $420 million over the next 18 years. About 70% of that funding will go to Wisconsin counties and cities, with the remainder being funneled to the Department of Health Services, Kaul said.

“We’re going to be getting resources, starting this year about $50 million, but more after that to communities across the state,” Kaul said. “That’s going to help with treatment, prevention and enforcement efforts.”

But some county executives dispute the extent of Kaul’s role in the settlement.

“He was a huge obstacle,” alleged Washington County Executive Josh Schoemann, who is a Republican. “They (the Department of Justice) literally did nothing nothing nothing until it was becoming clear there was going to be a settlement.”

Kaul opposed a bill signing off on the settlement, arguing it gave the Legislature authority over how to spend settlement dollars that went beyond even the rules passed in the lame-duck session. Evers signed it despite Kaul’s opposition.

“This was bipartisan,” said Racine County Executive Jonathan Delagrave, another Republican. “To claim credit for something for political purposes, off the backs of those who are actually addicted to opioids, that’s just wrong.”

The Department of Justice has been involved in the settlement since Kaul initiated the lawsuit in August, and has an assistant attorney general that collaborates on the settlement with prosecutors’ offices around the state, said Gillian Drummond, a Department of Justice spokesperson.

“It would be untrue to say we’re not an active participant in the resolution of this matter,” Drummond said.

Portage County Executive Chris Holman, though not privy to the day-to-day legal maneuvering surrounding the settlement, said he recalled a “flurry of activity” from the Attorney General’s Office “when it was clear that a settlement might be imminent.”

Social unrest

In August 2020, Kenosha Police Officer Rusten Sheskey shot Jacob Blake, a Black man who was armed with a knife, seven times in the back. Two days later, Kyle Rittenhouse fatally shot two people and injured another during unrest on the streets of Kenosha.

The next day, the images of bedlam in Kenosha still fresh, Kaul went before the press and detailed Blake’s shooting before rebuking the excesses of the protests.

“What happened yesterday night in Kenosha was despicable,” Kaul said. “One of the things that we have seen in the last few nights is that there are a number of people, certainly some and quite possibly many of the people who’ve been involved in destructive activity or violent activity, who are not from the city of Kenosha and in some cases, not from the state of Wisconsin.”

One of Kaul’s potential opponents, Jarchow, in statements has said the attorney general “fanned the flames” of unrest in Kenosha, and that his policies “led to cities burning” and “a target on the back of our first responders.”

They also say Kaul has neglected to fill key prosecutorial posts at the Department of Justice, although he has proposed more funding for law enforcement, and in previous budgets, dozens of prosecutors were added in district attorneys’ offices across the state.

Plan ignored

In November, Kaul proposed $115 million in funding under the moniker the “Safer Wisconsin Plan.” The plan, among many items, calls for $20 million in community policing grants, $12 million for law enforcement recruitment and training, $10 million for re-entry programs and $10 million for crime victim services.

In the months since the plan was introduced, Republicans have not touched it.

“It’s a comprehensive public safety plan,” Kaul said. “I believe it’s the only comprehensive public safety plan that’s out there, either in the Legislature or from other candidates.”

Jarchow and Toney have both highlighted the vacant prosecutorial positions at DOJ.

There were six vacant assistant attorney general posts in the Department of Justice’s Criminal Litigation Unit as of October and a total of 13 filled positions, according to the department’s organizational chart.

Under Schimel, the former attorney general, there were 18 filled posts and one vacancy as of November 2018. The Department of Justice’s Criminal Appeals Unit had comparable staffing levels between the two administrations though, with 24 assistant attorneys general under Schimel and 25 currently under Kaul.

“That’s caused a tremendous strain for prosecutors and law enforcement across Wisconsin,” Toney said of the Department of Justice’s staffing in an interview. “The failure of Josh Kaul to fill those positions has caused DAs across Wisconsin to be prosecuting cases in a multitude of counties.”

Hands tied?

In the last two budgets, Kaul said he helped push for 70 prosecutor positions in DA’s offices throughout the state. And while Kaul acknowledges the vacancies at the Department of Justice, he blames the lame-duck legislation passed before he took office, noting that its deprived the DOJ of around $30 million in funding that has affected staffing at all levels.

Kaul noted that one of his potential challengers, Jarchow, is a plaintiff, along with the rest of the Legislature, in Kaul’s lawsuit to recoup those funds.

“The impact of those funds is significant,” Kaul said. “On one hand we have Adam Jarchow, who’s literally suing to take those funds away from DOJ, and then we’ve got Eric Toney, who’s been silent about the lame-duck legislation and now is using the fact that we weren’t able to fill those positions as an attack.”

Jarchow, a former state legislator, disputed Kaul’s explanations that the shortfall in settlement funds has caused the empty posts, arguing that Kaul could have tried to fill them during budget negotiations.

“He is wrong and bordering on lying,” Jarchow said in an interview. “Josh Kaul would have every single opportunity and all of the budget opportunities to fill vacancies with prosecutors, to fill vacancies at the (Division of Criminal Investigation).”

Clear contrasts

As Jarchow and Toney continue to battle for the Republican nomination, Kaul has already hinted at what might be his line of attack against either opponent.

“One of my two opponents, Adam Jarchow, I don’t think has ever been a prosecutor, I don’t know if he’s ever worked on a criminal case,” Kaul said. “Eric Toney’s (experience) is also much narrower. He’s been a prosecutor, unlike Jarchow, but he certainly hasn’t had the breadth of cases that I have.”

Whoever is Wisconsin’s attorney general come next year, that person could potentially arbitrate the state’s response to national issues like abortion, voting rights and the environment, issues where Kaul can draw a clear contrast with Republicans. The winner could also play a major role if there is any dispute over the 2024 presidential election.

“I’ve been an outspoken advocate for protecting our democracy,” Kaul said. “We have not seen that from the Republican candidates. I’m a strong supporter of reproductive freedom. Republicans have attacked me for that issue. We’ve heard very little from them about protecting consumers, protecting the environment. There are clear contrasts on a number of different issues.”