Texts from Arizona Rep. Finchem raise questions about past statements on U.S. Capitol riot

When the deadly incursion unfolded at the U.S. Capitol on Jan. 6, at least one Arizona lawmaker was on the ground there and communicated directly with "Stop the Steal" rally organizers.

Rep. Mark Finchem, R-Oro Valley, exchanged a series of text messages with those organizers as he "got swept up in the crowd" on his way to the Capitol, records released by his attorney show.

"They are storming the Capitol," Mike Coudrey, a Trump supporter and "Stop the Steal" coordinator, warned in a text to Finchem as the lawmaker reached the side of the building. "I don't think it safe."

Those texts raise questions about Finchem's previous public statements about what he did and where he was when he learned the Capitol was under siege.

The records also provide a limited, and selective, view of Finchem's activities in Washington, D.C., throughout that day and the day before. He maintains texts and emails sent from personal devices during the trip are exempt from Arizona's public records law.

Legal experts and a history of rulings in the state courts do not support that position.

The Arizona Republic asked the state House of Representatives to turn over texts and emails from Finchem during his travels to Washington, D.C. The House this week released hundreds of pages of emails from his official legislative email account, but they do not provide insight on his time in Washington.

And Finchem is not the only person defying public records requests. Former Rep. Anthony Kern, R-Glendale, also is withholding texts, emails and other records about his Jan. 6 trip to Washington D.C., where he was captured in a photo on the steps of the U.S. Capitol as rioters surged around him.

Instead, Finchem through an attorney released a string of curated text messages on Tuesday that showed contact with Ali Alexander, the man behind nationwide "Stop the Steal" rallies and the effort to overturn the results of the 2020 presidential election.

The messages from early December through midday Jan. 6 are jumbled together in no particular order.

Asked why he released these messages in particular, a lawyer for Finchem and Kern said the messages were "the documents that we have reviewed that have been cleared for release." Previously, that attorney said releasing the information would raise concerns about the threat of criminal prosecution and ongoing investigations into the storming of the Capitol.

"We continue to maintain that the text messages released do not fall under the definition of public records," the attorney, Alexander Kolodin, said in an email Friday. "That being said I have released all of the messages from Mr. Finchem in my possession relevant to his participation in the approved, permitted, rally he attended."

Kern, whose term in office did not end until Jan. 11, has not released any records requested by The Republic.

How Finchem's texts compare with his previous account 

The selected texts released appear at odds with Finchem's previous public account about his actions on Jan. 6.

They also paint a picture of Finchem's involvement with "Stop the Steal" weeks before the Capitol riot, which left five people dead.

Finchem, in a Jan. 21 letter to constituents, said he never got closer than 500 yards to the Capitol. He said he was invited to speak at a rally on the Capitol steps but it was canceled while he was on his way there.

Finchem said he stayed in the area of the Capitol for about 20 minutes, saw nothing other than a peaceful crowd and left after taking a few photographs.

“I did not learn of the Capitol penetration until shortly before 5:00 pm EST," he said in the statement.

In the Jan. 6 texts, which are not time-stamped, Coudrey advises Finchem to go directly to the Capitol grounds, where he was scheduled to speak. Finchem replies by saying he is caught in the crowd at 15th Street and Constitution Avenue, near the White House. 

"I presume you want me to get as close to the front as I can, and I'll spot you," Finchem says in the next text. "You do know the cowboy hat already."

Finchem then says he is riding in a golf cart and is on his way there. 

That's when Coudrey tells him rioters have stormed the Capitol and the area is unsafe. There is no time attached to the text message, but Finchem replies that he is on side of the Capitol facing the Supreme Court building.

A screenshot of Mark Finchem's tweet before Finchem deleted his account.

The Jan. 6 texts released by Finchem's lawyer stop there. At 3:16 p.m. Eastern Time that day, Finchem posted a photo on social media of a crowd amassed on the east steps of the Capitol. One person stands on top of a vehicle.

“What happens when the People feel they have been ignored, and Congress refuses to acknowledge rampant fraud,” Finchem wrote in the Twitter post.

Also that day, Kern was captured in a throng of people dressed in "Make America Great Again" hats and holding flags in support of Trump. Behind him, at the top of the Capitol steps, a woman in a bright red Trump sweatshirt holds her fist high.

The picture, shared widely on social media, shows the former Republican state representative dressed in a suit, gray scarf and red tie. He is looking across the crowd directly toward the camera.

In touch with others working to overturn results

The messages released by his lawyer show Finchem and Alexander were in touch long before Jan. 6. Alexander invited the lawmaker to a rally in Washington in December and offered to pay for a hotel room.

They also coordinated ahead of a rally at the Arizona state Capitol in December that both men attended.

The messages showed Finchem seeking to bolster his own profile amid his effort to overturn the election results — an effort that gained national attention and made him a regular guest on the podcast of former Trump adviser Steve Bannon.

Rep. Mark Finchem

“It occurs to me that every story needs a victim, a villain, and a hero,” he wrote to Alexander on Dec. 22. “You’ve done a good job of defining the victim (the people) and the reluctant hero (me), but have we defined the right villain? While we have a host of them from Ducey to the Maricopa County Board of Supervisors, we have not yet defined to one behind the curtain. John & Cindy McCain did all they could to make Arizona ‘their’ state and a republican party establishment anchor.”

Other messages appear to show Finchem in contact with U.S. Rep. Andy Biggs on Jan. 5.

Biggs:Under scrutiny after Jan. 6 riot, has history on conservatism's fringes

Biggs, another proponent of overturning the results of the presidential election, asked Finchem for a letter signed by legislators urging Congress to accept a Republican slate of presidential electors from Arizona, instead of the Democratic slate chosen by voters.

Emails released by the Arizona House of Representatives appear to show an aide to U.S. Rep. Mo Brooks, R-Alabama, asking for documents from Finchem’s meeting with Trump campaign lawyer Rudy Giuliani.

Brooks had said at the time that he planned to object to the certification of presidential electors and the aide, Sean Griffin, wrote that they were compiling a “master memo on the valid grounds for objecting.”

But the records released by the state House did not include a response from Finchem or many emails written by him, or Kern, to anyone.

Instead, most of the emails were from people – many outside Arizona – urging him to overturn the results of the election or chiding him for attempting to do so.

While the legislators sent few messages from their official email accounts, the text messages Finchem chose to release show he was in direct contact with other public officials about those efforts.

In one text message, for example, Finchem appears to have sent his personal email address to U.S. Rep. Paul Gosar, R-Ariz.

Public business on private devices

Finchem and Kern have maintained that records on their private devices, like cellphones, and on their personal email accounts, are not public records at all.

However, Arizona courts have ruled that records on a public official’s private device can be considered a public record if those records involve public business.

House staff members even warned lawmakers in January after The Republic's request that public officials cannot use private devices and accounts to conceal official conduct.

"Accordingly, members and employees are strongly cautioned not to use private devices or accounts for the purpose of conducting official business as this would establish an affirmative duty to maintain those records and to disclose those records if requested," the House's chief clerk and public records counsel wrote to members.

That's a view shared by other attorneys who work in this area of the law.

"It doesn't matter if it was a message on a personal email or the Arizona Legislature's email," said Dan Barr, a First Amendment lawyer in Phoenix.

Records about the legislators' travels to Washington, D.C., should be public because they were presenting themselves as public officials representing the state, he said.

Dueling ethics complaints at  Legislature

In the days after the riot, Finchem and Kern sought to distance themselves from events. Arizona Democrats accused them of attempting to shift blame for the riot on Black Lives Matter and Antifa activists, which is a claim federal and state prosecutors have debunked.

Democratic lawmakers publicly asked the U.S. Department of Justice to investigate Finchem and the House Ethics Committee received 82 complaints about him, including one from a legislator, demanding a probe of his activities at the Capitol on Jan. 6.

Finchem went on to file a complaint of his own against Democratic lawmakers, accusing them of making false and misleading statements about him.

The committee's chairwoman, Rep. Becky Nutt, R-Clifton, dismissed all of the complaints, however. She wrote in response to Finchem's complaint, "The ethics committee is not an arena for waging political contests."

Meanwhile, Finchem has raised money off his efforts to reverse the results of the election, telling supporters on social media he needs to pay off debts he assumed to host a meeting with Trump's lawyers, lawmakers and other in Phoenix on Nov. 30.

Finchem said in a statement Friday that the event cost more than $25,000. He said $10,000 of that debt was quickly paid. The lawmaker has appealed on social media for supporters to donate to a political action committee, Make America Safe Again PAC, which never reported assuming any such debts from the event. And he has shared a link to pay him directly. Finchem said Friday that he had raised $13,000 in the past two days to pay off the remaining debt.

The Trump campaign also reported paying about $6,000 to Mark Finchem PLLC in December. Finchem said the payment also was reimbursement for the event in Phoenix.

He did not disclose the existence of that company on his most recent financial disclosure.

Finchem later filed an amended financial disclosure with the Secretary of State's Office.

Contact Robert Anglen at robert.anglen@arizonarepublic.com or 602-444-8694. Follow him on Twitter @robertanglen. Contact Andrew Oxford at andrew.oxford@arizonarepublic.com or on Twitter at @andrewboxford.