Eric Toney and Josh Kaul debate abortion prosecutions, crime, and election law

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Republican attorney general hopeful Eric Toney tried Thursday to walk back his call to allow district attorneys to cross jurisdictional lines to prosecute abortions, claiming during a debate with Democratic incumbent Josh Kaul that he never made such a proposal.

Toney told PBS Wisconsin for an interview posted earlier this month that the attorney general should be given the authority to prosecute violations of Wisconsin’s 1849 abortion law anywhere in the state. Another option would be to allow local prosecutors in adjacent counties enforce the ban.

“We need to give our attorney general the authority to prosecute,” Toney said in the interview. “They already would have the technical authority to investigate it. And I think another approach would be allowing for adjoining counties to be able to investigate and enforce that abortion ban in Wisconsin.”

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Kaul charged during the debate at the Wisconsin Bar Association headquarters that letting prosecutors cross jurisdictional lines would be a mistake. Toney responded: “I never made that proposal.”

Kaul appeared stunned. “You don’t get to walk that back weeks later,” he said.

Toney explained that in “full context” he was saying the attorney general should be allowed to step in and prosecute if local district attorneys won’t.

Kaul responded that the attorney general should have original jurisdiction of serious crimes like sexual assault, homicide and drug trafficking, not abortions. He added that district attorneys currently lack the authority to prosecute cases outside of their home counties and Toney is trying to purse a “far right, radical agenda.”

Wisconsin enacted a ban on abortions in 1849, a year after the territory became a state. The only exception is to save the life of the mother. The ban had been dormant since the U.S. Supreme Court’s landmark Roe v. Wade decision in 1973 essentially legalized abortion nationwide. The high court reversed that decision this summer, putting Wisconsin’s ban back into play.

Kaul has filed a lawsuit seeking to overturn the ban and has said he would not use state Department of Justice resources to investigate or prosecute anyone who violates the prohibition. Toney accused Kaul of ignoring the ban during the debate, saying the attorney general doesn’t get to pick and choose which laws to enforce.

“What you just heard is the attorney general calling a district attorney a radical because he would enforce the law,” Toney said.

Other highlights from the debate:

Crime

Toney painted Kaul as soft on crime, dinging Kaul for slow turnaround times on evidence testing at the state crime lab and leaving Justice Department investigator and prosecutor positions vacant. He questioned whether a backlog of online child pornography cases exist at the agency. He cited no data to back up that claim, however, saying only that he’d heard about it from retired state agents.

Kaul maintained that the number of cases waiting for analysis at the crime lab has been dropping, but the Republican-controlled Legislature hasn’t given him enough money to make substantial strides.

He accused of Toney of exaggerating the number of openings within the agency. According to data the Justice Department released earlier this month, 83 of 90 agent positions were filled and about 43 of 50 prosecutor positions were filled as of July 1.

Kaul didn’t confirm or deny whether a backlog of online child pornography cases exists but insisted that every case is “quickly reviewed” and ones in which children are in immediate danger are prioritized. According to data the agency released earlier this month, the Justice Department has seen a 400% increase in tips about online child pornography since 2013 but still managed to make almost 470 arrests last year.

“Mr. Toney doesn’t know what he’s talking about,” Kaul said.

Elections

Kaul defended in court 2020 election results that showed Donald Trump narrowly lost Wisconsin to Joe Biden. He has questioned whether Toney would refuse to defend legitimate 2024 results that show Trump lost and essentially hand the former president the state.

Toney has said repeatedly that he believes Biden won the 2020 election fair and square, and there’s no way to overturn those results. Toney voted for Trump in 2020 — even though he privately referred to him as “dumb dumb Donald” — but has refused to say whether he would support him in a 2024 run.

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Toney has played up his decision to charge eight people in Fond du Lac County with voter fraud. Kaul has said he would prosecute election fraud, but it’s extremely rare. Toney has taken issue with Kaul’s phrasing, noting the attorney general can investigate crimes but can’t prosecute them independently. Kaul has said he would work with local district attorneys to prosecute election crimes, just like he does with other crimes.

Toney reiterated during the debate that the 2020 election was fair and he would accept the results of the Nov. 8 election. Kaul said he would accept them as well.