Senate President Karen Fann faces contempt hearing in fight over Cyber Ninjas audit documents

By Howard Fischer, Capitol Media Services
Published: Wednesday, November 3, 2021 - 7:48am
Updated: Wednesday, November 3, 2021 - 8:02am

Senate President Karen Fann
Howard Fischer/Capitol Media Services
Arizona Senate President Karen Fann on May 8, 2020.

A judge has set a hearing for next month on whether to subpoena — and possibly jail — Senate President Karen Fann (R-Prescott) for failing to produce records related to the election audit.

The move comes Tuesday after attorney Keith Beauchamp, attorney for American Oversight, pointed out to Maricopa County Superior Court Judge Michael Kemp that Fann has yet to obtain and turn over all the records now in the hands of Cyber Ninjas. That is the private firm that Fann hired to audit the results of the 2020 election in Maricopa County.

So now he wants to force the Senate to do more to get the company to cough up the documents.

“You could fine them,” he told Kemp. "You could put them in jail.”

And by “them,” that would mean Fann.

But Kory Langhofer, who represents Fann and the Senate, questioned what good that would do.

He contends that Fann has done everything within her power to get the records. That includes not just sending a demand to Cyber Ninjas CEO Doug Logan but the fact that the Senate has so far refused to pay the last $100,000 of the $150,000 contract.

More to the point, Langhofer said that putting Fann behind bars will not bring American Oversight closer to getting what they want.

Fann, for her part, was philosophical about the prospect of incarceration.

“You know what?“ she told Capitol Media Services. “If he wants to hold me in contempt and throw me in jail, I guess we'll see where that goes.”

Kemp set a hearing for Dec. 2 on the issue.

Mark Henle/Pool Photo
Workers fill the floor of the Veterans Memorial Coliseum, the site of the Maricopa County ballot audit, on April 27, 2021.

Central to the debate are the records related to the audit of the election. American Oversight, represented by Beauchamp, filed suit demanding access.

So far the Senate has produced many of the records it has, including texts, emails and reports, though it is still fighting disclosure of items that Fann claims are protected by "legislative privilege.” Kemp has so far rejected most of those claims.

But the issue now is the documents that Fann said remain in the hands of Cyber Ninjas and the subcontractors it hired to review the 2.1 million ballots and examine the procedures used by Maricopa County to tally the returns.

Kemp rejected arguments that these documents are private, ruling that the company was acting as an agent of the Senate and performing a public function, in this case, the audit of the election results. And that, he said, makes its audit-related records as public as those produced by the Senate itself.

Only thing is, American Oversight never sued Cyber Ninjas directly. And that means the only remedy is to force the Senate to demand the documents.

Fann already has sent a letter to the company, saying it is in violation of its contract to cooperate with the Senate and produce the records. That, Langhofer said, should be the end of it.

“We've done what can be done to solve the problem,” he told the judge. But Beauchamp wants Kemp to force her to do more.

One option, he said, would be for the Senate to file suit against Cyber Ninjas for breach of contract.

Langhofer, however, said it would be improper to bring contempt charges against the Senate simply because it did not sue Cyber Ninjas. And Kemp seemed disinclined to issue such an order to the Senate.
Beauchamp, however, has other suggestions.

He said that the Senate could do like anyone whose property is being wrongfully withhold by someone else: Go to the sheriff to have the property seized.

“They can also make a referral to the attorney general and ask the attorney general to help them get the public records they're required by statute to maintain and to get them back,” Beauchamp said.

The bottom line, he said, is that Kemp needs to take action to ensure his orders for production of records from Cyber Ninjas is obeyed.

“This court's orders are entitled to be followed,” he said.

“Government officials do not have immunity from contempt,” Beauchamp continued. "And government officials are held in contempt all the time around this country and even in the state.”

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