Two Arizona Republican lawmakers who traveled to Washington, D.C. ahead of former President Donald Trump's "Save America" rally and subsequent riot at the U.S. Capitol are now refusing to release their phone records.
Under the state's public records law, the Arizona Republic requested for the state's House of Representatives to provide any correspondence between Rep. Mark Finchem, (R-Oro Valley), and then-Rep. Anthony Kern, (R-Glendale). However, the private attorney for Finchem and Kern both pushed back against the demand arguing that any phone records on their "personal devices" cannot be categorized as public records, according to Arizona Central.
The attorney's letter also acknowledged the FBI investigation into the U.S. Capitol siege as it argued that even if the two lawmakers did opt to release their records under the public records law, "the threat of criminal prosecution gives rise to certain Constitutional rights that may overcome the duty to disclose otherwise public documents under Arizona's public records law."
Arizona courts have, in the past, ruled otherwise. Although the devices are categorized as "personal," the courts "have ruled that records on a public official's private device can be considered a public record if those records relate to public business and the phone was used for a public purpose," Arizona Central reports.
In fact, House staff issued a warning to lawmakers urging them to be cautious when conducting official business on personal devices as it would lead to records on their personal devices possibly being made public. They were also informed that they would have to disclose the information if requested to.
Constitutional law expert Dan Barr argued that the device type is an irrelevant factor. Despite the Republican lawmakers' arguments, Barr noted that the nature of the communication and capacity are the key points attorneys can argue.
Barr noted, "Look at the nature of the communication. Are you acting in an official capacity?"
So, what was their purpose for traveling to Washington, D.C.? Finchem and Kern expressed support for a "joint resolution" to invalidate Arizona's general election results. Their trip to D.C. appears to have been related to their previous efforts to overturn the election.
In fact, Fincham claims he had a letter to deliver to former Vice President Mike Pence and reportedly had plans to speak at one of the rallies leading up to the Capitol riots.
He also shared a social media post that read, "What happens when the People feel they have been ignored, and Congress refuses to acknowledge rampant fraud."
While Fincham claims to have left the area before violence erupted, a photo of Kern appears to show him standing on the steps of the U.S. Capitol the day it was stormed by the angry mob. Kern also argues that by Jan. 6, he had already "completed his active service as a public official at the time of the riots." The lawmaker had run for office again but lost his bid for re-election.