The race for Wisconsin attorney general is a showcase of sharp contrasts as the incumbent and a political newcomer grapple over a range of issues from sexual assault kit testing and environmental protection to qualifications and politicization of the office.
Republican Brad Schimel, elected four years ago on a promise to defend laws passed by the Legislature or approved by voters, says his Democratic challenger, Josh Kaul, is too inexperienced to lead the state Department of Justice, and says Kaul would only defend whatever laws he likes.
Kaul counters that Schimel has been an ineffective attorney general who wastes taxpayer money, took too long to respond to a backlog of rape kits waiting for testing and puts special interests ahead of the interests of state residents.
Schimel has painted his opponent as an outsider. Kaul grew up in Oshkosh and Fond du Lac but has spent most of his law career on the East Coast. Schimel has emphasized in his advertisements that Kaul has never tried a criminal case in Wisconsin, as Schimel has spent his entire career doing.
Kaul boasts the support of 61 former state assistant attorneys general, including some who worked in the justice department under Schimel. They charge that Schimel has politicized the office, hiring managers who don’t listen to the career prosecutors in the office.
“He has marginalized career attorneys by cutting them out of the loop, by micromanaging their work and by basically disrespecting them as attorneys,” former Assistant Attorney General John Greene said at a recent news conference promoting Kaul. “And if the message is, we don’t want people to stick around in the Wisconsin Department of Justice, this is an excellent way of accomplishing that.”
Schimel has responded by highlighting that many Democratic sheriffs and district attorneys around the state have endorsed him.
“To me, it wasn’t about party, it was about the benefits I’ve seen locally for law enforcement,” said Adams County Sheriff Sam Wollin, a Democrat. His endorsement of Schimel, he said, has been “based on my experiences I’ve had with him,” and his support of such things as drug take-back programs, treatment courts and public awareness campaigns on things like opioid addiction and human trafficking.
The latest Marquette Law School Poll, released on Oct. 10, found Schimel holding a 47-43 lead over Kaul, with 10 percent still undecided. Schimel’s lead had narrowed from a seven-point difference in September.
Different views on voter ID
Kaul, 37, in his first run for political office, is the son of former Democratic Attorney General Peg Lautenschlager. From 2007 to 2010, after serving as a law clerk to the chief judge of the First Circuit Court of Appeals, Kaul worked for a law firm in Washington, D.C. Then until 2014 Kaul was a prosecutor in the U.S. Attorney’s Office in Baltimore, with cases that included drug conspiracies, homicides and gangs.
Kaul now works for the Madison office of Seattle-based Perkins Coie on voting rights and other election-related litigation, including a lawsuit that challenged Wisconsin’s Voter ID law.
During a recent debate, Kaul said he was proud of his work on the case, which is still under appeal, in which some restrictions on early voting were overturned by a federal judge. Under Gov. Scott Walker, Kaul said, about a dozen new laws have hit the books that restrict voting.
Schimel, 53, who was elected attorney general in 2014 after serving as Waukesha County district attorney for about seven years, said he fought the lawsuits in court because that’s his job, to defend state laws whether or not he likes them.
“We need to have an attorney general who’s not an activist,” Schimel said. “Who won’t pick and choose which laws to defend.”
Kaul agreed that the attorney general’s job is to defend laws or state agency actions “if there is a reasonably defensible basis for doing so.” Schimel, he said, didn’t do that when he defended Walker’s decision earlier this year not to hold special elections for two legislative seats, even though a Dane County judge and a Waukesha-based appeals court judge said that state law clearly dictates it.
GOP knocks Kaul for sentences
Republicans have been critical of Kaul’s record as a federal prosecutor in Baltimore, claiming that he made generous plea agreements with drug dealers who ended up serving just a fraction of the prison time that they faced.
One drug dealer faced up to life in prison and ended up with a 19-year prison sentence as part of a plea agreement. Another, who faced a 20-year maximum, agreed to a 5½-year sentence.
“Josh Kaul’s record is thin and what is there shows he goes easy on drug dealers,” Schimel spokesman Johnny Koremenos said. “Kaul has never prosecuted a criminal case in Wisconsin, not one, ever, and his track record in Baltimore shows he’s weak on crime.”
A veteran federal prosecutor who looked at the two Baltimore plea agreements, however, called them “very ordinary” and “routine federal cases.” What critics fail to take into account, former U.S. Attorney John Vaudreuil said, is that any deal Kaul made would have been approved by his supervisors, and may have included cooperation deals to secure the convictions of others, which only the judge in the case would have known about to protect the defendants from retaliation.
Advisory federal sentencing guidelines also made it very unlikely that either man actually faced the maximum sentence under the law, he said.
Vaudreuil, who was a federal prosecutor from 1980 to 2017 and now teaches American prosecution techniques in other countries, said he considers both Kaul and Schimel to be friends and hasn’t given money to either campaign.
Schimel said Kaul only had 25 cases assigned to him — a number Kaul disputes, but his campaign couldn’t provide an exact number — while Schimel said Wisconsin court records show he has handled 16,000 cases.
Democrats say Schimel too political
Critics of Schimel accuse the attorney general of politicizing the office, taking on cases that have little to do with Wisconsin but more to do with conservative causes.
“The attorney general in conjunction with the governor has involved the Department of Justice in a variety of issues that it has no business being involved in,” said Madison lawyer Lester Pines, who has frequently fought in court against DOJ lawyers on a variety of issues, including public-sector union rights and the state Domestic Partnership Registry.
Pines said Schimel’s decision to join a lawsuit attacking the federal Affordable Care Act and to get involved in a lawsuit over climate change brought by other state attorneys general against oil giant Exxon — with Schimel taking Exxon’s side — are two examples.
“It’s that orientation which is radically different than the orientation that any previous attorneys general has had, Republican and Democrat,” Pines said.
On the opposite end of the spectrum is Rick Esenberg, founder and president of the conservative Milwaukee-based Wisconsin Institute for Law & Liberty, which frequently files lawsuits that take a more conservative view of government. He said he doesn’t think DOJ has become more politicized under Schimel.
“I don’t think there’s any basis for that,” he said. Any AG, he said, will be influenced by their worldview. “So if Brad Schimel is the AG, then there’s probably going to be a focus on federalism, so that will have the AG participating in litigation to challenge the Obama Administration’s Clean Power regulations, which really was in many respects an example of executive overreach that everybody should be concerned about.”
Schimel has defended his work challenging the Clean Power plan, which sought to limit carbon emissions from power plants, saying it would have “killed tens of thousands of manufacturing jobs in Wisconsin.”
Kaul said it’s an example of Schimel getting involved in something that harms the interests of Wisconsin residents, like his failure to challenge the Federal Communications Commission’s end to net neutrality and his failure to act as other state attorneys general did when protections were rolled back for students who were defrauded by predatory for-profit colleges.
Schimel said he only sues in cases in which a law is unconstitutional or harms Wisconsin. With net neutrality, he said, any harm so far has been “hypothetical in nature.”
Rape kits an issue
The two candidates also disagree about Schimel’s handling of a backlog of untested rape kits. Schimel called DOJ’s testing of the entire 4,000-kit backlog “mission accomplished.”
“I’m proud of our work at the Department of Justice because we got it done,” he said at a recent debate. “A 25-year problem has been solved in less than three years. Every kit has been tested.”
But others, among them Kaul and former Dane County Circuit Judge Diane Sorensen, have said that Schimel waited too long after getting a $4.4 million federal grant in 2015 to test the backlog. Sorensen said Schimel claimed in 2017 that there was no backlog, that all of the kits had been tested, when in fact only nine had been tested at that point.
“He hasn’t done the job, he hasn’t been honest about how he does the job,” said Sorensen, a Kaul supporter who was an assistant attorney general and was elected Columbia County district attorney in 1977 and Dane County DA in 1998, both times as a Republican.
Kaul also faults Schimel for not joining the growing number of states and counties that have filed lawsuits against the pharmaceutical industry for its role in the ongoing opioid epidemic, which Kaul said claimed nearly 900 lives in Wisconsin last year.
Schimel said that with DOJ’s “Dose of Reality” campaign, Wisconsin has been a national leader in the fight against opioid abuse. He said DOJ has also put more investigators in the field and more prosecutors on cases.
“But I know from my experience that we won’t arrest our way out of this epidemic,” Schimel said. “We need a comprehensive approach and that’s what we’ve put in place.”