PHOENIX — A judge has set a hearing for next month on whether to subpoena — and possibly jail — Senate President Karen Fann for failing to produce public records related to the election audit.
Fann has yet to obtain and turn over all the records now in the hands of Cyber Ninjas, attorney Keith Beauchamp pointed out to Maricopa County Superior Court Judge Michael Kemp on Tuesday. That is the private firm Fann hired to audit the results of the 2020 election in Maricopa County.
To date, Beauchamp said, little has been produced. He wants to force the Senate to do more to get the company to cough up the records.
“You could fine them,” he told Kemp. “You could put them in jail.”
And by “them,” that would mean Fann.
But an attorney representing Fann and the Senate, Kory Langhofer, questioned what good that would do.
He contends Fann has done everything within her power to get the records. That includes sending a demand to Cyber Ninjas CEO Doug Logan as well as the Senate so far refusing to pay the last $100,000 of the $150,000 contract.
Moreover, putting Fann behind bars would not bring the group that sued for the records, American Oversight, closer to getting them, Langhofer said.
Fann was philosophical about the prospect. “You know what?” she told Capitol Media Services. “If he wants to hold me in contempt and throw me in jail, I guess we’ll see where that goes.”
Kemp set a hearing for Dec. 2 on the issue.
So far the Senate has produced many of the records it has, including texts, emails and reports, though it is still fighting disclosure of items that Fann claims are protected by “legislative privilege.” Kemp has rejected most of those claims.
But the issue now is the documents that Fann said remain in the hands of Cyber Ninjas and the subcontractors it hired to review the 2.1 million ballots and examine the procedures used by Maricopa County to tally the returns.
Kemp rejected arguments that these documents are private, ruling that the company was acting as an agent of the Senate and performing a public function. That makes its audit-related records as public as those produced by the Senate itself, he said.
However, American Oversight never sued Cyber Ninjas directly. And that means the only remedy is to force the Senate to demand the documents.
The letter Fann sent to the company said it is in violation of its contract to cooperate with the Senate and produce the records. Langhofer said that should be the end of it.
“We’ve done what can be done to solve the problem,” he told the judge.
Beauchamp, representing American Oversight, wants Kemp to force Fann to do more. One option, he said, would be for the Senate to file suit against Cyber Ninjas for breach of contract.
Langhofer, however, said it would be improper to bring contempt charges against the Senate simply because it did not sue Cyber Ninjas. And Kemp seemed disinclined to issue such an order to the Senate.
Beauchamp has other suggestions. He said the Senate could do like anyone whose property is wrongfully withheld by someone else: Go to the sheriff to have the property seized.
“They can also ... ask the attorney general to help them get the public records they’re required by statute to maintain,” Beauchamp said.
He said the bottom line is that Kemp needs to take action to ensure his orders for production of records from Cyber Ninjas is obeyed. “This court’s orders are entitled to be followed,” he said.
“Government officials do not have immunity from contempt,” Beauchamp continued. “And government officials are held in contempt all the time around this country and even in the state.”
