Arizona GOP chair may still have to show phone records to Jan. 6 committee
By Howard Fischer
Capitol Media Services
PHOENIX -- The attorney for the U.S. House is urging the U.S. Supreme Court to reject a last-ditch effort by the head of the Arizona Republican Party to shield her phone records from the committee looking at the causes of the Jan. 6 riot at the Capitol.
In a filing late Friday, Douglas Letter said Kelli Ward was involved in activities, not only around the time of the 2020 election but for months after, that led to the riot. And that, he told the justices, gives the panel the legal responsibility and the right to find out with whom she was communicating.
"Dr. Ward aided a coup attempt,'' Letter said.
"She tried to stop the vote count in Maricopa County, tried to arrange contact between President Trump and a top county official, promoted inaccurate allegations of election interference by Dominion Voting Systems, and served as a fake elector as part of Trump's scheme to overturn the election on Jan. 6 by sending Congress spurious electoral slates in contravention of the actual electoral outcome in several states,'' he wrote.
Letter also said the court should reject arguments by Ward that what is formally known as the Select Committee to Investigate the January 6th Attack on the United States Capitol, will use the information to contact every person who communicated with her during and after the election.
"The Select Committee has no interest in contacting persons simply because they communicated with Dr. Ward during that period,'' he said. And Letter noted that the subpoena seeks only the phone numbers of those people called and texted by Ward between Nov. 1, 2020 through Jan. 31 2021, and those who called and texted her in the same period, along with the length of any phone calls -- but not the content of any communications.
Instead, Letter said the data will be merged with similar phone records the committee already has obtained to essentially build a road map of who was communicating with whom.
"The interest is in information regarding persons who had key ties to (ITALICS) the unprecedented effort to overturn the presidential election,'' (ROMAN) he said. And that, said Letter, includes individuals outside of Arizona.
"The Select Committee has reason to believe Dr. Ward communicated with such people, and learning more about such conversations will help the Select Committee understand the facts, circumstances and causes relating to the Jan. 6 attack,'' the specific charge of the panel,'' he said. "These records will shed light on how Dr. Ward contributed to the multi-party effort to interfere with the peaceful transition of power and the attack on the U.S. Capitol.''
Ward has said the alternate slate of electors prepared to cast the state's 11 electoral votes for Trump, despite the official tally showing Joe Biden had won Arizona, was not an illegal effort to mislead Congress. Instead, she has argued it was a bid to have Republican electors in place should courts or Congress reject the official slate.
But Letter said all that was part of a larger plan, hatched by Trump and his allies, to get Congress --or at least Vice President Mike Pence who was presiding over the Senate on Jan. 6 -- to ignore the legal returns.
And all that, he told the justices, were part of the ways Ward "sought to overturn the presidential election, culminating in participation in a fake elector scheme that -- regardless of whether she intended it -- helped lay the groundwork for the Jan.6 attack on the Capitol.''
Ward's petition to the Supreme Court is her last chance to keep the information confidential or delay release beyond Jan. 3 when the committee will cease to exist. Both a trial judge in Arizona and the 9th Circuit Court of Appeals have rebuffed her request to enjoin T-Mobile, her phone provider, from complying with the subpoena.
Ward, however has picked up support from an unusual coalition of groups who are telling the justices that they should block the committee from accessing her phone records.
In a legal brief filed also Friday, Attorney William Olson said it appears the committee has started from the position that what occurred in 2020 was the "most secure election in history.'' What the panel is trying to do, he said is undermine those who believe otherwise.
But it's more than that.
"The committee has pointedly refused to consider any evidence that does not support its preconceived notions,'' said Olson.
"The committee has refused to consider any of the credible evidence demonstrating that election laws were broken in swing states and behest of courts and election officials in support of the prevailing candidate,'' he continued. "The committee has no interest in whether those election violations may have changed the outcome of the election, or at least created a very reasonable belief on the part of supporters of the losing candidate that the outcome was corrupted.''
In fact, Olson claims the "indisputable historical record proves that numerous state election officials in swing states defined state election laws relating to absentee balloting, likely leading to an inaccurate vote count.
"The committee has insisted that those who question the 2020 election are lying,'' he told the court.
Some of those Olson represents are clearly in the camp of those who believe the election was stolen from Trump. That includes the Conservative Legal Defense and Education Fund which is financing Expose the Steal.
But others come at the issue from a different perspective about protecting constitutional rights of free speech and association.
All that goes to what Olson said would be the effects of the justices upholding the subpoena.
"The individuals whose telephone communications with Dr. Ward would be made available to the committee would immediately feel the chilling effect of the subpoena,'' he said. "They will be reluctant to continue communicating with Dr. Ward and with others who share Dr. Ward's political positions.''
And Olson told the justices that if they allow the panel to get the phone records and the list of those who were in contact with Ward it will have broader effects on nonprofits involved in political issues.
"Efforts by government officials to learn the identity of those engaged Americans with different views strike at the heart of such nonprofit organizations,'' he wrote. "Such intrusive government tactics are designed to, and do, discourage donors from giving to nonprofits, impair efforts to recruit and retain members, and cause those who work in association with nonprofits on their programs to rethink their involvement.''
And Olson said there are the indicators that the committee "is working in league with the Department of Justice to develop criminal cases.'' Using congressional subpoenas, he said deprives those who get them of protections to which they would be entitled under criminal law.
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