T-Mobile Subpoena Fight Among ‘Most Important First Amendment Cases' Ever: Ward

Arizona GOP Chair Kelli Ward argued in her emergency application Wednesday at the Supreme Court for a stay of the House Jan. 6 subpoena for her T-Mobile phone and text records that there was a “reasonable probability that four justices will consider the issue sufficiently meritorious to grant certiorari.” Justice Elena Kagan responded hours later with an order (docket 22A350) temporarily enjoining T-Mobile from releasing the records and ordered the committee to respond to Ward’s application by 5 p.m. Friday.

There has “never been a situation in American history where a congressional committee dominated by one party has subpoenaed the telephone and text message records of the state chairwoman chair of a rival party,” said Ward’s emergency application. The argument twice failed to sway U.S. District Judge Diane Humetewa or a majority of the 9th Circuit Court of Appeals three-judge panel when they denied Ward’s motion on grounds that the subpoena violated her First Amendment associational rights.

Though there is ample reason to afford SCOTUS “the opportunity to decide such an important Constitutional question,” it cannot do so if every such case “results in mootness” when a district or appellate court denies a stay, said the application. If SCOTUS “were to somehow find that this case was not likely to come before it on certiorari, the entry of writ of mandamus compelling the district court to stay its judgment prior to the completion of the appellate process would be appropriate,” since there would be no other adequate means to attain the relief that Ward is seeking, it said.

There also is a “fair prospect” that a majority SCOTUS vote would reverse the 9th Circuit’s order allowing the T-Mobile subpoena to be enforced, said the application. “There could hardly be a starker example of seeking to punish people for having ties to political views regarding the outcome of the 2020 presidential election” that many Americans view as “dissident,” it said.

In a case like this, “the punishment is the process,” said Ward’s application. “The harm comes from the fear that your views will be exposed, that you can be the next person to expect a knock on your door from government investigators, and that you may be required to face the disastrous personal and financial consequences of having to retain counsel and appear before the Committee to answer for your political affiliations and opinions. This sets a terrible precedent for the future of public participation in American politics.”

Any failure of SCOTUS to grant a stay “will result in this case becoming moot,” thus leaving Ward “without any remedy” for the disclosure of her phone and text records, said the application. “That easily constitutes irreparable harm.” To the extent there is any urgency now, “it is urgency entirely of the Committee’s making and does not justify depriving the Wards of the right to meaningful appellate review in one of the most important First Amendment cases in history,” it said.