The Volokh Conspiracy
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The congressional committee investigating the events of January 6 may have had its last public hearing, but it continues to seek information about efforts to challenge or obstruct the 2020 electoral vote count. Yesterday, a divided panel of the U.S. Court of Appeals for the Ninth Circuit denied Kelli Ward's attempt to quash a committee subpoena for her cell phone records, Politico reports. Ward currently Chairs the Arizona Republican Party and previously ran for U.S. Senate.
The court's order denying Ward's request for an injunction barring T-Mobile (her cellphone carrier) from providing records to the Jan. 6 committee was issued by Judges Silverman and Miller. Judge Ikuta dissented.
From the court's order:
We assume, without deciding, that the balance of hardships tips sharply in Ward's favor. Under Alliance for the Wild Rockies, we therefore ask whether Ward has raised "serious questions going to the merits." 632 F.3d at 1132. . . . we conclude that Ward has not raised serious questions on the merits—and, a fortiori,
that she is not likely to succeed on the merits. . . .
there is little to suggest that disclosing Ward's phone records to the Committee will affect protected associational activity. Unlike the regulation at issue in Americans for Prosperity Foundation, which required organizations to reveal their major donors, 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 January 6 attack, and it seeks to uncover those with whom she communicated in connection with those events. That some of the people with whom Ward communicated may be members of a political party does not establish that the subpoena is likely to reveal "sensitive information about [the party's] members and supporters." Americans for Prosperity Found., 141 S. Ct. at 2384. Grand juries—and, for that matter, civil litigants—routinely employ subpoenas for phone records, and any such subpoena necessarily reveals something about a person's associations. We do not read Americans for Prosperity Foundation as establishing that all of those subpoenas are subject to First Amendment scrutiny.
To prevail, Ward must therefore identify some reason to think that compliance with this subpoena will burden association. The district court found that there is "no evidence to support [the] contention that producing the phone numbers . . . will chill the associational rights of Plaintiffs or the Arizona GOP," and it determined that Ward's arguments to the contrary are "highly speculative." . . .
The district court's finding is amply supported by the record. . . .
Because there is no indication that the compelled disclosure in this case would deter protected associational activity, the exacting scrutiny standard does not apply. But even if that standard did apply, this subpoena would satisfy it. The subpoena is substantially related to the important government interest in investigating the causes of the January 6 attack and protecting future elections from similar threats. Cf. Trump v. Thompson, 20 F.4th 10, 41 (D.C. Cir. 2021) (noting that "the January 6th Committee plainly has a 'valid legislative purpose'" (quoting Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031–32 (2020))), cert. denied, 142 S. Ct. 1350 (2022). Ward participated in a scheme to send spurious electoral votes to Congress, a scheme that the Committee describes as "a key part" of the "effort to overturn the election" that culminated on January 6. Although Ward asserts that "[c]ongressional investigators already know what [she] did," the Committee explains that that is untrue: When the Committee sought to question her about those activities, she invoked the Fifth Amendment and refused to answer. In this civil proceeding, it is appropriate to draw adverse inferences from her assertion of the Fifth Amendment privilege—namely, that Ward's conduct during the period in question went beyond simple discussions with her political associates, and that those with whom she communicated might have the information about her activities that she refused to provide.
Having attempted the less intrusive method of asking Ward directly, the Committee has a strong interest in pursuing its investigation by other means. The subpoena is a narrowly tailored mechanism for doing so because it seeks only Ward's phone records, only from the critical window of November 1, 2020 through January 31, 2021, and only metadata, not content or location information.
From the dissent:
"First Amendment freedoms need breathing space to survive." Americans for Prosperity Found. v. Bonta (APF), 141 S. Ct. 2373, 2389 (2021) (citation and quotation marks omitted). Therefore, "[w]hen it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual's ability to join with others to further shared goals," but also by the mere "risk of a chilling effect on association." Id. Here, a House Select Committee (the Committee) is attempting to obtain the names of the Arizona Republican Party (the Party) members who spoke to Kelli Ward, the Party's chair, during a period of contentious political upheaval. But the Committee has not provided any explanation as to why the phone records are relevant to its investigation. Because such government inquiries "discourage citizens from exercising rights protected by the Constitution," id. at 2384 (citation and quotation marks omitted), the Wards' challenge to the Committee's subpoena raises at least "serious questions going to the merits" of their First Amendment claim, All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). The majority's view to the contrary is in conflict with the Supreme Court's recent landmark ruling, Americans for Prosperity Foundation, 141 S. Ct. at 2389. By denying the Wards' motion for an injunction pending appeal, the majority likely prevents the Wards from raising serious questions regarding Kelli Ward's constitutional rights, because once T-Mobile produces her phone records, the Wards' appeal may be moot. . . .
Regardless of Ward's position regarding the 2020 election, her right to engage in discussions with her political associates remains entitled to First Amendment protection against the government's compelled disclosure of her political affiliations. Maj. op. at 6–7. We must be vigilant to protect First Amendment rights—even when raised by an individual alleged to have engaged in a nefarious "scheme," Maj. op. at 6—because "[t]he weakening of constitutional safeguards in order to suppress one obnoxious group is a technique too easily available for the suppression of other obnoxious groups to expect its abandonment when the next generally hated group appears," Communist Party of the U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 166 (Black, J., dissenting). Because the majority has applied an erroneous legal framework, and the Wards' claim that the Committee's subpoena burdens Kelli Ward's First Amendment rights at least raises a serious question on the merits, I dissent