AZGOP Chair Kelli Ward Trumps Up The Courts in Response to #Jan6th Commission Subpoenas

Any time I need a good laugh, I read a court filing by the bevy of complete shysters the AZGOP has representing them in their attempts to overturn a legitimate election or to stymie the investigation of the same. They are always amusing and creative – and utterly baseless. Their desperate attempts to even find a colorable legal argument are endlessly amusing.

So now is Kelli Ward’s time in the barrel. She did some very unethical and probably illegal stuff over the past few years and the chickens are coming home to roost. The Jan 6th Committee is looking into her role in the #AZFakeElectors forgery scam, and any connection to the command and control of the terrorist attack on the Capitol.

So the Committee has now issued subpoenas for phone records (metadata connection records – not the content of any calls) from Nov. 1, 2020, through Jan. 31, 2021, for four phone numbers associated with the Wards and Michael Ward’s business, Mole Medical Services. Of course, instead of cooperating, the Wards are fighting tooth and nail to resist investigation, as one would expect of any guilty party.

For some reason, the complaint begins by acknowledging that the Wards are under criminal investigation by the DOJ for their fraudulent scheme, seeming to imply that the records sought are somehow protected because they might also be subject to subpoena in a criminal investigation? Hint: that’s not a thing. They go on to assert the metadata sought is covered by various privileges such as “attorney-client” and “executive” privileges.

I don’t see any legal basis for bringing up privileges about metadata. The fact that you spoke with your attorney is not itself privileged (which is all that the subpoenaed meta-data would reveal) and the only executive privilege would be if the Wards spoke with Trump himself during his presidency, and Biden does not waive said privilege, and again – the fact that a call took place is not privileged. There seems to be no point or reason for these arguments, and any court will rightly dispose of them. Of course, the AZGOP will insert these bogus claims into their disinformation campaign against the Jan 6th Commission, you can be sure.

Their first cause of action is the allegation that the inquiry serves no legislative purpose and is instead for the “purpose of law enforcement or as a prelude to a criminal investigation” or for the “personal aggrandizement of investigators, and/or to punish those investigated, and/or to expose for the sake of exposure.” This is merely PR, not a legal argument. Given that the Wards both signed one of the forged Trump elector certifications that the mob on Jan 6 was trying to force Pence to accept and that the Commission seeks to legislate such that this criminal scheme cannot recur, this claim is weirdly absurd.

The second cause of action is a claim that the Wards’ First Amendment associational rights are violated by the subpoena and will be chilled by the release of their telephone metadata. This amounts to claiming a right to conspire to commit one’s crimes in private. They allege that “providing that list to the Committee would give a committee of the House of Representatives, which was formed and chaired by political rivals, the personal telephone numbers, IP addresses, file names of attachments, and contact details of the party members most in communication with the state chair of the party at a time when the legitimacy of the last presidential election was in dispute. As such, the Subpoena provides the Committee with the means to chill the First Amendment associational rights not just of the Plaintiffs but of the entire Republican Party in Arizona.” In other words, the data is exactly what the Committee needs to assemble a roadmap of the criminal conspiracy in Arizona to overturn and steal a free and fair election. So, yeah. Duh. That’s kinda the point. They seem to merely be emphasizing why the subpoena is appropriate and necessary. Nothing about the private office of Party Chair makes one immune from subpoena, Kelli. You aren’t special.

That’s all absurd enough, but what really gets me is that the Wards then claim that revealing the outlines of their criminal conspiracy would expose them to “substantial and serious injury and harassment.” and that “Because of the controversy and her associational status, Keli Ward has received death threats, harassing letters, and phone calls, deeply concerning both her and her family.” In other words, “people are being mean to me for trying to steal an election! Providing proof of my guilt would make them dislike me even more! Wah!” Because of this supposed ‘reputational harm’ and ‘harassment’, the lawyers go on to claim his clients are entitled to Bivens damages against Congress for violation of their First Amendment rights!

It’s hard to overstate just how stupid and shocking such an assertion is. Let us count the ways:

1. Bivens damages are generally disfavored because of separation of powers concerns – the courts do not wish to intrude on Congressional authority to create money damage penalties for constitutional torts.
2. Bivens is pretty strictly cabined to violations of 4th Amendment protections against unreasonable search and seizure, and have NEVER been extended to violations of the 1st Amendment, or any other.
3. Bivens damages EXPLICITLY cannot be levied against the Presidency, Nixon v. Fitzgerald, 457 U.S. 731 (1982), again, for separation of power concerns.
4. Bivens damages have NEVER been extended to Congress, and by analogy to their inapplicability to the Presidency, prudential concerns for the separation of powers would be insurmountable.
5. Bivens damages are not speculative harms, they must stem directly from a violation of the Fourth Amendment. These guys are absurdly threatening Congress with Bivens damages merely for having the temerity to issue a subpoena that causes their clients some shpilkes regarding their nebulous First Amendment associational rights.

So, in sum, the attorneys are alleging at least four completely absurd, insurmountable, and major changes to the law in order to even begin to apply Bivens to a Congressional subpoena. It’s not wildly audacious – it’s insultingly absurd and baseless to the extent that any reasonable court would find the claim to be frivolous in the extreme. If these ‘attorneys’ are not sanctioned for even asserting such a claim, I would be shocked. This is nothing more than a thuggish attempt to brush back the Congressional inquiry with a legal-sounding, but utterly shockingly stupid claim. Expect ‘Bivens damages‘ to wind up in talking points attacking the Jan 6th Committee.

For the final stupidity, we turn to Plaintiff’s third cause of action: violation of physician-patient privilege and, I shit you not, the Health Insurance Portability and Accountability Act (HIPPA). The first claim under the state physician-patient privilege is patently absurd. There is no testimonial evidence in controversy, only metadata, so the privilege is utterly irrelevant. Of course, you will surely hear talking points from the AZGOP that the Jan 6th Commission is “seeking to violate the doctor-patient privilege of these poor innocent, destitute orphans and little old ladies that Drs. Ward are treating out of the goodness of their hearts”. Utter tosh.

As to HIPPA, it is more complicated but still doesn’t pass the smell test. Protected Health Information (PHI) is what these ‘lawyers’ are claiming this telephone metadata amounts to. While it is true that PHI can include personally identifiable information including phone numbers and fax numbers, as well as internet urls and ip addresses, that only applies when those identifiers are connected to actual individually identifiable medical information relating to the past, present, or future health status of an individual that is created, collected, or transmitted, or maintained by a HIPAA-covered entity in relation to the provision of healthcare. In other words, the simple fact that you called a health provider from a particular number at a particular time for healthcare purposes does not make those facts HIPPA protected PHI. If phone numbers or ip addresses, or whatever, were attached to health records such that it would allow one to connect the patient to the health information, then, and only then, is it PHI.

So, no surprises: more utterly dilatory and inaccurate nonsense that any lawyer with a passing acquaintance with the law would know is complete bullshit. This lawsuit was launched using utterly baseless allegations, utterly absurd legal claims, and no good faith basis for just one reason: to make it appear that the Wards are having their rights abused by the Jan 6th Committee to the utterly ignorant groundlings on whom Kelli Ward relies to support her political power. After all, the ignorant will reason, “Why would one file a lawsuit if you didn’t think your rights were violated?” Well, most people, and most attorneys, would not do so. But we have learned long since now that the Trumpists abuse legal processes as readily as any Sovereign Citizen, merely to create the appearance that they have colorable legal claims when they, in fact, have none. And when they inevitably lose, they simply claim the judge was biased, or the jury bribed, or the game rigged against them in some nefarious way. Like so much of what the modern GOP and Trumpists do and say these days, it is a complete and utter fraud.

This is the reason why so many ‘attorneys’ handling Trump’s baseless post-election lawsuits are being disciplined by their respective State Bar associations: filing frivolous lawsuits is unethical, as is abusing the legal process to manufacture political talking points and disinformation. The legal process is there to serve justice and vindicate our laws, not to provide wealthy miscreants with a means of delay and a basis for public disinformation. Well, I guess some ‘attorneys’ are still willing to trash their reputations to spin shit into gold for the Trump Cult – this suit is ample proof of that.