PHOENIX — The head of the Arizona Republican Party has gotten at least a temporary reprieve from a court order that would surrender her phone records to the House panel investigating the events around the Jan. 6 riot.
But it may not last.
In a brief order, a three-judge panel of the 9th Circuit Court of Appeals enjoined T-Mobile, the company that has Kelli Ward’s records, from releasing the records despite an order from U.S. District Court Judge Diane Humetewa that they be turned over.
Instead, the appellate judges said they want to take the time to consider her legal arguments that they should keep the information private while they appeal Humetewa’s ruling.
But the judges stressed that, in ordering the delay of the lower court ruling, they were not necessarily agreeing with Ward’s arguments that her interests in keeping the information secret trumps the needs of the House committee.
“We express no opinion as to the merits of this pending motion for injunction,” they wrote in the unsigned order.
Still, the action is at least a temporary victory for Ward whose lawyers argue that once the records are in the hands of the House panel it won’t matter if courts ultimately agree that the subpoena violates her rights as well as that of her husband, Michael, with whom she also shares a medical practice and phone.
“The proverbial toothpaste will all be out of the tube,” her attorneys told the appellate judges.
“There will be no way for any court to undo the disclosure of political contact and patient telephone numbers,” they continued. “Once the disclosure is made, this case will be moot.”
But Douglas Letter, the general counsel to the U.S. House, is asking the judges to act quickly and rule against Ward’s claims. He is arguing that delaying disclosure while Ward appeals Humetewa’s ruling could have the reverse effect: forever denying the information he said the Jan. 6 committee needs.
“The Select Committee is authorized through the end of the current Congress, which expires on Jan. 3, 2023,” Letter told the appellate judges. “Far from (as Dr. Ward suggests) preserving the status quo, any further delay would, practically speaking, make it extremely difficult for the Select Committee to obtain and effectively utilize the subpoenaed records before that date.”
Hanging in the balance is whether the panel gets a list of all the phone numbers involved in calls and texts to and from Ward from Nov. 1, 2020 through Jan. 31 2021. The subpoena, however, does not seek the content of the calls or texts or even location information.
Ward has objected, saying that allowing T-Mobile to surrender that information would chill interest by members of the state GOP with communicating with her as the party’s chair.
That argument didn’t wash with Humetewa who called that argument “highly speculative” while saying Ward produced nothing to back up her argument that the release of phone numbers will chill her rights of association or that of the state party.
Humetewa also refused to stay her ruling while Ward appealed. Now she wants the appellate judges to keep the information from being released while they consider her claims.
Letter, in his legal filings, urged the judges to weigh what he said is the important work of the committee which is charged with making recommendations for changes in federal law to prevent what happened on Jan. 6. And he said they need to consider who is making the request for delay, saying that Ward participated in “multiple aspects” of attempts to interfere with efforts by Congress on that day to count the electoral votes.
It starts, Letter said, with Ward urging Maricopa County officials to stop counting ballots, a contention that Ward responded to at the time of disclosure in July 2021 with a two-letter Twitter response: “BS.”
But Letter noted that texts also showed that Ward, days after the election when it was clear Joe Biden had won Arizona, texted Clint Hickman, chairman of the Maricopa County Board of Supervisors, seeking to arrange a call with President Trump. And he said that Ward “promoted false allegations of election interference by Dominion Voting Systems.”
Then there was Ward’s role in convening a set of electors — herself and her husband included — and sending their votes for Trump to Congress as “representing the legal voters of Arizona.”
“This fake elector scheme was a key part of President Trump’s effort to overturn the election,” Letter told the appellate judges, saying she even continued to maintain even after the Jan. 6 riot that the votes for Trump.
And then, he said, there was a Twitter post by Ward, even as Congress was in recess as the Capitol was being attacked, urging that the choice of electors should be sent back to state legislatures.
“The Select Committee’s interest in obtaining call detail records pertaining to a person who was involved in multiple aspects of the unprecedented efforts to overturn the election — including the fake elector scheme — necessarily involves the free functioning of our national institutions and would substantially outweigh any theoretical harm to the plaintiffs,” Letter said.
The appellate judges gave no date for when they will decide whether to order T-Mobile to surrender the records.
