Ariz. GOP Chair’s Case for Blocking Subpoena ‘Deeply Flawed’: Committee

The “insistence” of Arizona GOP Chair Kelli Ward that the Supreme Court “take the highly unusual step of becoming involved now on an emergency basis” to block the House Jan. 6 select committee’s subpoena for her T-Mobile phone and text records “is deeply flawed,” said the committee in its response Friday to her emergency application for a stay or injunction. The rulings by the U.S. District Court for Arizona and the 9th Circuit U.S. Appeals Court denying Ward’s motions to quash the subpoena “are correct,” plus “there is no legal issue warranting” SCOTUS action, it said.

Ward’s overriding argument is that the subpoena violates her First Amendment associational rights and will chill the political participation of Republican operatives with whom she communicated in the days running up to the riots at the Capitol. The committee insists it needs the phone and text records for its investigation into Ward’s efforts to thwart certification of the 2020 election, but it doesn't allege that Ward herself entered the Capitol during the insurrection (see 2210280031).

The “call detail records” the committee seeks from T-Mobile “will shed light” on how Ward “contributed to the multi-part effort to interfere with the peaceful transition of power and the attack on the U.S. Capitol,” said the committee. “They include, for a specified telephone number, limited information such as when a call was made or message was sent, its duration (if a call), and which phone numbers were involved.” The records “do not include the content of any communications or any location information,” it said.

The records will reflect, for a specified phone number, any calls or texts between Ward and “other participants in the scheme” to thwart certification of the 2020 election, said the committee. They will give the committee “important details regarding the timing and frequency of such communications,” but the records “will not provide any information regarding what the participants spoke or texted about,” it said.

The committee has received under subpoena the phone and text records “for many individuals whose conduct is relevant to its investigation,” said its filing. When combined with the more than 1,000 interviews the committee has conducted, it may be that many of the people Ward communicated with “in her effort to obstruct the peaceful transfer of power have either already been contacted or attempts to contact them have already occurred,” said the committee. The “primary investigative value” of Ward’s records “likely will be establishing when and with what frequency she communicated with individuals known to be relevant” to the investigation, it said.

Ward has not carried the burden of showing “that the extraordinary remedy of either an injunction or a stay pending review is justified here, and the application should be denied,” said the committee. The 9th Circuit “correctly analyzed and applied the First Amendment” when it denied Ward’s motion to quash, it said. The committee’s interest in obtaining call detail records “pertaining to a person who was involved in multiple aspects of the unprecedented effort to overturn the election” would “substantially outweigh” any theoretical, incidental harm that might come to individuals, it said.

Ward’s emergency application gives “no reason to suspect such harm will occur” to her or to anyone who communicated with her, said the committee. It is “not plausible” that Ward, contrary to her arguments, “would be chilled from further participation in partisan politics due to T-Mobile’s compliance with a congressional subpoena, it said. Even accepting “for purposes of argument the questionable assertion” that Ward’s First Amendment rights “include a right to have others not dissuaded from associating with her,” she fails to provide “any legally cognizable, non-speculative explanation of how the subpoena here does so,” it said.