High court rules against Ariz. GOP leader in records fight
WASHINGTON — The Supreme Court paved the way Monday for the House committee investigating the Capitol attack to obtain phone records of Kelli Ward, chair of the Arizona Republican Party.
As is its custom in ruling on emergency applications, the court’s brief order gave no reasons. Justices Clarence Thomas and Samuel Alito noted dissents, also without giving reasons.
Experts in legal ethics have said that Justice Thomas should recuse himself from cases concerning the Jan. 6 attack in light of the efforts of his wife, Virginia Thomas, to overturn the 2020 election. Ms. Thomas’ activities included lobbying the speaker of the Arizona House to try to reverse Joe Biden’s victory in the state.
Lower courts had ruled against Dr. Ward, an osteopathic physician who the committee said had played a key role in efforts to subvert the election.
A divided three- judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, rejected a request from Dr. Ward and her husband to block a subpoena seeking metadata information about calls placed from November 2020 to January 2021. The subpoena did not seek information about the content or location of the calls.
In a Supreme Court filing, lawyers for the House committee said they had good reason to seek the records.
“Dr. Ward aided a coup attempt,” they wrote, adding that she had taken part in “several improper efforts” to overturn the election, including by planning to create false slates of electors.
They added: “At best, her arguments amount to a claim that she has an absolute right to attempt to overturn a presidential election, yet at the same time Congress cannot take reasonable investigative steps to learn more about that plan that had such disastrous consequences for our nation.”
Dr. Ward argued that the subpoena infringed on her First Amendment right to freedom of association.
The committee called that argument far-fetched. “It is not plausible,” the panel’s lawyers told the justices, “that Dr. Ward herself — chair of the Arizona Republican Party, former state legislator, two-time U.S. Senate candidate and author of a recent book reiterating her false claims about the 2020 election — would be chilled from further participation in partisan politics due to T-Mobile’s compliance with this congressional subpoena.”
The members of the majority in the 9th Circuit — Judge Barry G. Silverman, who was appointed by former President Bill Clinton, and Judge Eric D. Miller, appointed by former President Donald Trump — wrote that Dr. Ward had not met her burden.
“Ward participated in a scheme to send spurious electoral votes to Congress,” the two judges wrote, “a scheme that the committee describes as ‘a key part’ of the ‘effort to overturn the election’ that culminated on Jan. 6.”
They added that Dr. Ward had invoked her Fifth Amendment rights when the committee sought to question her. “Having attempted the less intrusive method of asking Ward directly,” the two judges wrote, “the committee has a strong interest in pursuing its investigation by other means.”
The majority said the subpoena did not appear to chill political activities.
“There is little to suggest that disclosing Ward’s phone records to the committee will affect protected associational activity,” the two judges wrote, adding: “This subpoena does not target any organization or association. The investigation, after all, is not about Ward’s politics; it is about her involvement in the events leading up to the Jan. 6 attack, and it seeks to uncover those with whom she communicated in connection with those events.”
In dissent, Judge Sandra Ikuta, appointed by former President George W. Bush, said the majority had given insufficient weight to the couple’s constitutional rights. “The communications at issue here between members of a political party about an election implicate a core associational right protected by the First Amendment,” Judge Ikuta wrote.
In her emergency application, Dr. Ward relied on a Supreme Court decision last year, Americans for Prosperity Foundation v. Bonta, which ruled that California may not require charities soliciting contributions in the state to report the identities of their major donors.
Dr. Ward’s lawyers argued that “Bonta requires that any compelled disclosure of information pertaining to political association gives rise to a presumption that it burdens First Amendment rights.”
The committee’s lawyer responded that “Bonta involved a statewide regulatory regime applicable to a broad class — all charities — not a congressional subpoena issued for third-party records pertaining to one person.”