By Howard Fischer
Capitol Media Services
PHOENIX -- The attorney for a Yuma lawmaker issued a warning Monday to Rep. Mark Finchem and former Rep. Anthony Kern: Withdraw your "utterly meritless'' and "obviously baseless'' lawsuit against her or be forced to surrender everything you have showing your role in the Capitol riots.
In a letter to the attorneys for the pair, David Bodney said the litigation against Democratic Rep. Charlene Fernandez fails on multiple levels. It starts with the fact Finchem and Kern are public figures, meaning the only way to maintain a lawsuit is to provide that anything she said in a letter about them to the FBI and the U.S. Department of Justice was knowingly false or done with conscious disregard for the truth.
Bodney said Finchem and Kern can't overcome that legal burden in the lawsuit he filed against her -- and only her -- alleging she libeled him in asking federal agencies to investigate his activities before and during the Jan. 6 insurrection.
"While the complaint attempts to raise a series of irrelevant, tinfoil-hat conspiracies about the 2020 election that have been thoroughly, repeatedly and officially debunked, the gist of the Jan. 12 letter -- that your clients were present at the Capitol riot and actively encourage the mob -- are true,'' Bodney wrote.
He cites in particular that Finchem, an Oro Valley Republican, was in regular contact with Ali Alexander, one of the planners of the Stop the Steal effort that led to the riot, and that Finchem was on the Capitol grounds at the time of the siege.
Anyway, Bodney says, Fernandez and all the other legislative Democrats who signed the letter were exercising their legal "right of petition'' to ask a law enforcement agency that already was looking into the Capitol riots to investigate the role that Finchem and Kern played.
Bodney, in writing to the attorneys for the two Republicans, also sent a not-so-subtle message: If they pursue the litigation, they could end up publicly exposing more of their activities before and on Jan. 6 than have so far come to light.
"We notify you of your clients' obligation to preserve all text messages, emails and other communications and documents potentially relevant to their involvement in the Capitol riots,'' Bodney said. And he also wants "related communications'' about the decision to sue between the two lawmakers and any outsiders.
"Such documents are subject to production in the event this matter proceeds to discovery,'' Bodney wrote.
The lawsuit, filed last week in Yuma County Superior Court names Fernandez as the only defendant. Finchem has not returned messages about why the decision to sue only here and not any of the other Democrats who also signed the letter.
Finchem and Kern, who was defeated in his reelection bid last year, seek unspecified monetary damages as well as a court order requiring Fernandez "to publish a full retraction of the false and malicious allegations'' in that letter to the federal agencies.