AZ Supreme Court Gives Republican State Legislators A ‘License To Crime’

First, the factual record and timeline are important.

The January 6 Committee evidence has established that Donald Trump had a ‘seven-part plan’ to overturn the election:

A committee source later provided CNN the following description of the “sophisticated seven-part plan”:

President Trump oversaw a sophisticated seven-part plan to overturn the 2020 election and prevent the transition of presidential power.

1. 1. President Trump engaged in a massive effort to spread false and fraudulent information to the American public claiming the 2020 election was stolen from him.
   2. President Trump corruptly planned to replace the Acting Attorney General, so that the Department of Justice would support his fake election claims.
   3. President Trump corruptly pressured Vice President Pence to refuse to count certified electoral votes in violation of the US Constitution and the law.
   4. President Trump corruptly pressured state election officials, and state legislators, to change election results.
   5. President Trump’s legal team and other Trump associates instructed Republicans in multiple states to create false electoral slates and transmit those slates to Congress and the National Archives.
   6. President Trump summoned and assembled a violent mob in Washington and directed them to march on the US Capitol.
   7. As the violence was underway, President Trump ignored multiple pleas for assistance and failed to take immediate action to stop the violence and instruct his supporters to leave the Capitol.

Under Number 1, Arizona Republican state legislators arranged and participated in this Coup Plot with a “stop the steal” clown show hearing in Phoenix on December 1, 2020. Arizona GOP lawmakers hold meeting on election outcome with Trump lawyer Rudy Giuliani:

President Trump’s personal lawyer spent many hours with a handful of Republican Arizona lawmakers at a downtown Phoenix hotel Monday discussing concerns with the 2020 election.

Rudy Giuliani and state lawmakers billed the meeting as a “hearing,” but it was not an official legislative event.

[I]nside the hotel ballroom, Republican lawmakers Mark Finchem, Bret Roberts, Nancy Barto, Leo Biasiucci, David Cook, Kelly Townsend, David Gowan, Sonny Borrelli and Sylvia Allen listened to “witnesses” — who were not placed under oath — as they explained why they thought Arizona’s election results were possibly compromised.

They listened to theories on how elections can be infiltrated.

Neither the Republican speaker of the Arizona House of Representatives nor president of the state Senate authorized the meeting. Republican congressmen Paul Gosar and Andy Biggs attended, sitting behind Giuliani.

Under number 4, Team Trump pressured Arizona Republican state legislators to reject the official canvas of the election results. Republican Legislators Call for Audits in 50 States in Bid to Decertify Joe Biden’s Win:

The letter, shared via Twitter on Tuesday by Republican Arizona state legislator Wendy Rogers, claims that “our representative republic suffered a corrupted 2020 election.”

BREAKING: 186 Legislators from 39 States Write a Letter to the American People Calling for a 50-State Audit, Decertification Where Appropriate, and Possible Convening of the US House of Representatives (1/2) pic.twitter.com/syGpDm5fN9

— Wendy Rogers (@WendyRogersAZ) November 23, 2021

Also, Ginni Thomas pressed 29 Ariz. lawmakers to help overturn Trump’s defeat, emails show: “Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, pressed 29 Republican state lawmakers in Arizona — 27 more than previously known — to set aside Joe Biden’s popular vote victory and ‘choose’ presidential electors, according to emails obtained by The Washington Post.”

American Oversight provides a tick-tock of events that happened next:

The documents contain a December 2020 letter signed by state Sen. Kelly Townsend, who had just been elected to the state Senate, addressed to then-Vice President Mike Pence asking that he “not accept” Arizona’s valid electors during the Jan. 6 congressional certification of the election results. It’s unclear whether Pence received the letter, but Townsend’s letter appears to be similar to one sent by state Rep. Jake Hoffman the day before the certification that, as reported recently by the Arizona Republic, also asked the vice president not to accept the state’s electoral votes.

Townsend’s letter is dated Dec. 31, 2020. That same day, she shared it in an email to Ron Hooper of the nonprofit U.S. Term Limits and investor Bradley Rotter and asked for feedback. Rotter replied, copying conspiracy theorist Jerome Corsi as well as someone named Phil Cannon: “Please meet Corsi Undergrounder Phil Cannon who can get your letter to Keith Kellogg who is the Natl Security Advisor to the VP.”

The letter to Pence also referenced the “alternate slate of electors” sent by Arizona on Dec. 14, 2020 [Number 5 in the Trump Coup Plot, above], the day Arizona and multiple other states submitted forged electoral certificates to Congress, seeking to overturn Biden’s victory by falsely claiming their states’ electoral votes went to Trump.

On Jan. 5, 2021, Townsend introduced a resolution in the Arizona Senate to revoke Biden votes and appoint the alternate electors, among whom were Hoffman and Arizona Republican Party Chair Kelli Ward. That same day, Townsend followed up on her email with a link to the resolution, writing, “This resolution to appoint the alternate slate of electors is prepared and ready for the election audit findings, should they result in what I expect to happen.”

In December, state Senate leaders had issued subpoenas to Maricopa County demanding the release of ballots cast, voting machines, voter rolls, and other election information:

Dec. 4: Bowers and Fann issue a joint statement calling for an independent audit of Maricopa County’s Dominion Voting Systems software and voting machines. Bowers is looking to work cooperatively with the county and with accredited experts.

One America News personality Christina Bobb emails Fann on behalf of Giuliani offering what they viewed as pertinent information and a promise of continued contact. “Good morning, Ma’am,” Bobb writes. “Mayor Giuliani asked me to send you these declarations. He will follow up with you as well.”

Dec. 8: Bowers, Fann, Hickman and attorneys and staffers for all sides meet via Zoom to cooperatively discuss issues such as how ballots are counted, the status of election-related lawsuits and how an accredited firm could review Dominion Voting Systems software and voting machines.

Dec. 9: Bowers and Fann acknowledge to each other that members of the GOP caucuses want public hearings. Bowers would later relay to The Republic that he is concerned about adding to “the circus,” but Fann says they need to do something. Bowers agrees to a joint House-Senate committee hearing on one condition: No subpoenas would demand the county produce information. He wants to work cooperatively with county officials rather than to create a legal battle.

Dec. 10: Fann and state Sen. Eddie Farnsworth, R-Gilbert, a longtime friend of Republican U.S. Rep. Andy Biggs, an outspoken Trump ally, meet with county representatives without Bowers and the House. The senators tell county staff they intend to hold an election-related hearing without the House and raise the issue of subpoenas. Ahead of the hearing, Fann tells Bowers her caucus is moving ahead on its own. “OK. Good luck,” he recalls telling her. Bowers tells The Republic that Fann’s decision is one of the “nagging mysteries,” saying he has no idea why she shifted away from a cooperative, joint audit.

Dec. 14: County officials spend the day answering questions at the Senate hearing. At the end, Farnsworth announces he will issue subpoenas.

Dec. 15: Arizona Senate Republican leaders send subpoenas to Maricopa County for all ballots cast in the November election, voting machines, voter rolls and more information for “forensic analysis.” One of the demands is for “ranked-choice voting,” which is not something Arizona uses. This suggests that Farnsworth did not write the subpoenas.

American Oversight continues:

On Dec. 22, 2020, Alabama Rep. Mo Brooks’ staffer emailed Arizona Rep. Mark Finchem indicating that the office was “putting together a master memo on the valid grounds” for objecting to the Electoral College certification.

The staffer also asked Finchem for a memo detailing “allegations of fraud and other election irregularities” from a meeting involving Rudy Giuliani that had been held on Nov. 30 in Phoenix. Later that day, a Townsend staffer sent a copy of Townsend’s resolution to Brooks’ office, asking to be notified once it was “submitted to Congress.”

On Jan. 5, Finchem circulated another letter addressed to Pence regarding the “reclamation of Electoral College Electors from Arizona,” signed by Finchem, Townsend, and other Arizona House and Senate members. State Sen. Sonny Borrelli forwarded the letter to Phillip Jauregui, the head of the conservative advocacy organization Judicial Action Group, writing: “Mark has the most updated list” — likely referring to the list of lawmakers signing the letter and resolution. Jauregui, who is based in Birmingham, Alabama, was later invited to the July 2021 election integrity call that included numerous election deniers across the country, including Finchem, Townsend, Brooks, and Brooks aide Madison Engelking.

On Dec. 13, 2020, in response to a constituent who demanded that the state Legislature “decertify” the election results, Arizona Senate President Fann said that she had met with a “nationally accredited constitutional attorney” and that lawmakers needed evidence of “clear fraud.”

“With respect to the US Constitution Article 2 and 3 provisions,” Fann wrote, “we spent an hour and a half with a nationally accredited constitutional attorney which was extremely interesting and I learned a lot. He stated that the ‘plenary clause’ allowing us to convene ourselves with a simple majority applies ‘when there is no clear winner of an election.’”

The records do not indicate the name of the attorney who spoke with Fann, but the idea that state legislatures, rather than the popular vote, could determine the winner of the election was frequently espoused by Trump allies. In a now-famous memo prepared around that time, Trump-allied lawyer John Eastman outlined a plan for Pence to reject the results from states with “dual slates of electors,” writing that Article II granted state legislatures “the plenary power to determine the manner for choosing presidential electors.”

In her email, Fann added that there had “been no proof provided to the courts” of significant voter fraud, but that the Senate was “committed to pursuing these claims” through an “audit” of Maricopa County, and referred to Jan. 6 as a deadline for altering the election’s results. “We are hoping any substantiated information from any state regarding voter fraud can be brought and verified by January 6th, 2021 when congress convenes to give the final ‘blessing’ on the election. That would be one of our last options to make a difference in the outcome of the 2020 election.”

So the “origination story” of the Arizona Senate’s GQP sham “fraudit” was that it was intended to be completed before the certification of the electoral college vote on January 6, 2021, in order to support Rep. Paul Gosar‘s objection to the certification of Arizona’s electoral college vote. It was part and parcel to Trump’s Coup Plot.

At every critical juncture, Arizona Republican state legislators were knowing and willing participants in Donald Trump’s Coup Plot. They were co-conspirators and/or accessories to his coup d’état. This was not a legislative act, it was a high crime – sedition and insurrection – against the United States.

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Which brings me to the Arizona Supreme Court decision on Wednesday to permit Arizona Republican state legislators to shield their criminality behind a specious claim of legislative privilege under the “speech and debate clause.” This was not a legislative act, it was a high crime – sedition and insurrection – against the United States. The Arizona Supreme Court is aiding and abetting a coverup to protect fellow Republicans from accountabiity for their high crimes.

In one passage the Court says it is up to the voters to hold these Republican state legislators accountable. This is political accountability. But justice demands legal accountability for their crimes. The Republican Arizona Supreme Court is not interested in holding any Republican accountable under the rule of law.

This is emblematic of the decades-long authoritarian GQP culture of corruption in Arizona.

Howard Fischer reports, Court allows Arizona lawmakers to keep more records secret:

State lawmakers are entitled to shield records from public disclosure if they deal in any way with legislative business, the Arizona Supreme Court ruled Wednesday.

In a unanimous decision, the justices overturned lower court rulings that only documents, emails and texts related to proposed new laws can legally be kept from public view. Instead, the high court said “legislative privilege’’ extends to “any other matters placed within the jurisdiction of the legislature” — including a decision to launch an investigation.

Even when it was part and parcel to a conspiracy for a coup d’état against the U.S. government.

The court said that provides a broader, though not absolute, right to keep more records secret.

Wednesday’s ruling most immediately affects more than 1,000 records related to the “audit’’ of the 2020 election ordered by Senate President Karen Fann. She had argued — and the court has now agreed — that the public is not entitled to see every internal communication among lawmakers about how the review was conducted.

The ruling also sets the stage for lawmakers — as well as city councils and county boards of supervisors — to now claim that same privilege and withhold more records in more circumstances.

In issuing the ruling, Justice John Lopez made clear he and his colleagues were not anxious to get entangled in the dispute over the election audit, calling it a political matter “outside this court’s constitutional prerogative.’’ He also said he and his colleagues were being deferential to “the principles of the separation of powers,’’ saying the court did not want to exercise “undue influence’’ on the work of legislators.

Lopez said it really is up to voters to decide if lawmakers are doing the right thing.

“Arizona legislators routinely stand for election and, thus, are accountable to the state’s electorate who serve as the ultimate arbiters of the wisdom of any legislative action, rather than the courts,’’ he wrote.

Dan Barr, an attorney with the First Amendment Coalition, told Capitol Media Services there’s a flaw in that logic.

“The state’s electorate needs to find out what these people are doing’’ in order to exercise that oversight, he said. Barr said Wednesday’s decision only makes that more difficult.

He also said the court ruled, in essence, it doesn’t matter if the audit had legitimate legislative purposes or was really just a political exercise by the Republican-controlled Senate. In either case, Barr said, the justices were saying it is all protected under the umbrella of other legislative business.

This ruling makes it easier for officials to hide the truth about their motives and conduct from the public, but the court has still ordered the Senate to produce any administrative, political, and other communications withheld. https://t.co/3U1nB7nAQl

— American Oversight (@weareoversight) August 31, 2022

That point was emphasized in a statement by American Oversight, a group that sued to get all records from the Senate and Cyber Ninjas, the private firm hired by Fann, related to the review of the conduct and results of the 2020 election in Maricopa County.

“While legislative privilege should protect legitimate functions of the legislature, extending the privilege to activities that the court recognized as uniquely politicized is misguided,’’ said Heather Sawyer, the group’s executive director. “This ruling makes it easier for officials to hide the truth about their motives and conduct from the public.’’

American Oversight sued after Fann refused to surrender audit records, claiming legislative immunity.

The Court of Appeals disagreed, resulting in the Senate surrendering about 22,000 records.

But the Senate withheld more than 1,000 others, claiming they were not subject to disclosure and were “internal legislative discussions regarding the audit’’ as well as communications regarding the investigation, the audit process and legislative proposals. That sent the case to the Supreme Court.

Andy Gaona, attorney for American Oversight, argued that only communications among lawmakers about actual proposed legislation is subject to privilege and that the audit was really more administrative or political than legislative.

Lopez, in the 17-page ruling, acknowledged the state’s public records law is meant to provide access to official records so people can monitor the performance of governmental officials and employees.

But he also said there’s a constitutional concept of legislative immunity, designed to allow lawmakers to debate issues without fear of being sued. And legislative privilege, Lopez said, is an extension of that.

In all other cases, the crime-fraud exception eviscerates a privilege. This should hold true for the legislative privilege as well. The Arizona Supreme Court just gave Republican state legislators a “license to crime.”

More to the point, he said lawmakers need not be considering actual legislation for the privilege to apply.

“Legislative investigation is often sufficient to invoke legislative privilege because such inquiries frequently produce formal legislative action,’’ Lopez wrote. “Indeed, curtailment of the privilege’s scope to communications concerning proposed or pending legislation would discourage wise or effective evaluation of the very necessity of investigation.’’

And he said the legitimacy of a legislative inquiry is not defined by what it produces or does not produce.

“The very nature of the investigative function — like any research — is that it takes the searchers up some blind alleys and into nonproductive enterprises,’’ Lopez said. “To be a valid legislative inquiry, there need be no predictable end result.’’

Lopez cautioned, however, this is not absolute.

“To be sure, a legislator’s act does not warrant privilege merely because it is undertaken in an official capacity,’’ he wrote, saying the shield does not cover political or administrative communications.

Literally everything that occurred up to the MAGA/QAnon violent insurrection on January 6, 2021 was “political communications” and should be produced. The legislature was not even in session – the regular session started on the second Monday in January – January 11, 2021.

The justices sent the case back to the trial judge to review each individual claim of privilege for the more than 1,000 disputed documents, directing him to analyze the explanation of the Senate of why each fits within this definition of privilege. But they said the judge can demand to review the documents himself only if the Senate’s explanation does not make the case for privilege.

This sets up another interlocutory appeal to the Supreme Court if the legislature wants to dispute the trial judges’ rulings on privilege.

The only solution to ending this decades-long authoritarian GQP culture of corruption in Arizona is to vote every Republican out of office, and to vote “do not retain” for the three Supreme Court justices on the judicial retention ballot this year. Take  a big broom and sweep all of them out of office.