The Supreme Court on Monday refused to block a Jan. 6 Committee subpoena for the phone records of Kelli Ward, an ally of former President Donald Trump. The vote was 7-to-2, with Justices Clarence Thomas and Samuel Alito noting their dissent, without explanation.
The court's action means that specific parts of Ward's phone records will be turned over to the House committee investigating the attack on the Capitol on Jan. 6, 2021, in an attempt to prevent the certification of Joe Biden as president.
Ward is the chairwoman of the Arizona Republican Party. She claimed that the limited request for her phone records, served on her service provider T-Mobile, was a violation of the First Amendment.
The subpoena is of particular interest because during this same period, Ginni Thomas, the wife of Justice Thomas, emailed 29 lawmakers in Arizona, urging them to choose "a clean slate of electors" instead of the state electors pledged to vote for Biden if he won the state, which he did. It is not known whether Ginni Thomas was in communication with Ward. Justice Thomas did not recuse himself from the case, nor has he recused himself from any matter involving the Jan. 6 committee, though his wife was questioned under oath by the panel.
Ward's role after the election
The subpoena at issue is one of many of its sort served by the Jan. 6 committee. It does not ask for the content of any messages Ward may have sent or received. Rather, it asks for data about the communications between Nov. 1, 2020, and Jan. 31, 2021 – phone numbers, IP addresses, and so forth.
Ward is under scrutiny from the committee largely for her role in the "fake elector" scheme following the 2020 election, in which she and others falsely declared themselves the Arizona electors for the purpose of disrupting election certification. The committee is also scrutinizing Ward's alleged claims that the election in Arizona was "stolen" and "fraudulent."
Ward, who filed the emergency application, argued primarily that the disclosure of her phone records would violate "associational rights" protected by the First Amendment. She says that since she uses her phone to engage in political communications, the required disclosure would potentially – and, she argues, impermissibly – reveal the identities of individuals who were "most in communication with the state chair of the [Republican] party at a time when the legitimacy of the last presidential election was in dispute." This, she says, would chill political activity.
The Arizona district court and the Ninth Circuit Court of Appeals found this argument unpersuasive. The three-member appellate panel, consisting of two Trump appointees and one Clinton appointee, voted 2-1 to require T-Mobile to provide Ward's phone records to the Jan. 6 committee. The majority noted that if the possibility of revealing party affiliation were sufficient to quash subpoenas of call records, "Narcotics traffickers . . . would be well advised to make at least a few calls to their preferred political party."
Lower courts weigh in
The backdrop to Ward's challenge is a string of cases, some recent, that suggest disclosure requirements can chill associational rights in certain circumstances. For example, in 2021 the Supreme Court held that requiring nonprofit organizations to regularly disclose the names and addresses of their major donors would improperly discourage contributions. However, in discussing Ward's case, the Ninth Circuit majority noted that the Jan. 6 Committee subpoena does not target an organization; it is specifically investigating individuals potentially connected to criminal activity. Further, the majority said, the cellphone data is not necessarily "sensitive" information protected by the First Amendment, nor has Ward shown that the disclosure would in any way discourage free political association.
The Jan. 6 committee's subpoenas have regularly made headlines, and the D.C. District Court heard a case similar to Ward's earlier this year. The Republican National Committee sued Speaker Nancy Pelosi, the Jan. 6 Committee, and others to block a subpoena served to Salesforce, a software and marketing company, for information about how the Trump campaign and the RNC may have used Salesforce tools to spread misinformation about the 2020 election. While the district court agreed there was a "cognizable" First Amendment claim, it also said that in light of the innocuousness of the type of data to be revealed, and the overriding government interest in investigating the events of Jan. 6, the subpoena was legitimate. The RNC appealed the decision, but the case became moot when the Jan. 6 Committee withdrew the subpoena, saying it "no longer ha[d] a need" for the specific information the subpoena would have produced.
Following Monday's order, T-Mobile will be required to produce Ward's phone data to the Jan. 6 Committee.
The Supreme Court's order was considered by the full court, after it was referred to them by Justice Elena Kagan, who is responsible for emergency applications from the Ninth Circuit Court of Appeals.
Copyright 2022 NPR. To see more, visit https://www.npr.org.
