Finchem and Kern target Democrat in defamation lawsuit over response to Jan. 6 riot at U.S. Capitol

Andrew Oxford
Arizona Republic
Arizona legislators Mark Finchem, left, and Anthony Kern were in D.C. during the Capitol riot, but won't release records from their phones.

Two Republican politicians are suing state Rep. Charlene Fernandez, alleging defamation after she signed a letter with other Democratic lawmakers urging the U.S. Department of Justice to investigate them for joining rallies in Washington, D.C. the day a mob stormed the Capitol.

Rep. Mark Finchem and then-Rep. Anthony Kern both have said they were outside the Capitol on Jan. 6, when rioters disrupted the certification of the presidential election. And both have denied any wrongdoing.

But Democrats have condemned the duo, with every member of the party’s caucus in the Legislature signing a letter to the acting U.S. Attorney General on Jan. 12 that said evidence indicates Finchem and Kern “encouraged, facilitated, participated and possibly helped plan this anti-democratic insurrection.”

Lawyers for Finchem, R-Oro Valley, and Kern, R-Glendale, called the Democrats’ letter a smear, filing suit Friday in Yuma County Superior Court. Fernandez resides in Yuma.

“The purpose of the First Amendment is to facilitate and encourage robust debate. Its purpose is not to encourage or facilitate baseless charges of criminal acts by one’s political adversaries, for base political purposes. That is the stuff of banana republics,” attorney Alexander Kolodin wrote in a complaint that included various allegations about the 2020 election and more than one reference to deceased organizer Saul Alinsky.

More details about Jan. 6 activities

The lawsuit also expands on the duo’s account of their activities in Washington, D.C. the day of the Capitol riot, contending Finchem was “never closer than what he perceived to be several hundred yards from the Capitol building.” He previously said he was 500 yards from the structure.

The lawsuit also said the lawmaker “neither fomented nor witnessed any violent activity” and only learned the Capitol was breached later in the day. But text messages he has since released show a contact among protest organizers sent him a message after he reached the area stating, "They are storming the capital, I don't think it safe."

As for Kern, the lawsuit said he heard what sounded like flash bang grenades before reaching the Capitol on Jan. 6 and left the area for about an hour.

Kern later returned, around 4 p.m., the lawsuit states.

Walking around to the west side of the Capitol, “he witnessed some disorderly conduct by a number of protesters,” the lawsuit said.

The lawsuit said that he did not “foment any disorderly or violent activity.”

In their letter, Democrats pointed to social media posts, such as one in which Finchem shared a photograph of a crowd on the Capitol steps with the message: "What happens when the People feel they have been ignored, and Congress refuses to acknowledge rampant fraud."

Democrats also noted Finchem’s connection to Ali Alexander, an organizer of the Stop the Steal rally. Text messages Finchem has since released show he was in direct contact with Alexander during his time in Washington, D.C.

But Finchem and Kern had refused to turn over records from their travels under Arizona’s public records laws, citing in part concerns about the threat of federal prosecution.

Kern has since left office after losing a campaign for re-election.

High bar for defamation cases

It remains unclear whether the duo intend to sue other legislators.

Fernandez was just one of 43 Democratic legislators to sign the letter, though. Her name appears on the second page of signatures.

Rep. Charlene Fernandez, D-Yuma, speaks during the opening of the Arizona Legislature at the state Capitol, Monday, Jan. 11, 2021, in Phoenix.

The lawsuit said Fernandez co-authored and published the letter. And they claimed Fernandez was motivated by animus, contending she made "disparaging comments" about Kern, such as by accusing him of vindictively holding Democratic bills in a committee he chaired.

But Finchem and Kern face a high bar under free speech laws.

Not least, as public officials who inevitably come in for more scrutiny due to their work, they would likely have to prove Fernandez's statements were false and that she knew those statements were false.

Lawyers for Finchem and Kern did not respond to a message Tuesday.

Robbie Sherwood, a spokesman for the House Democrats, said Fernandez had not been served with a lawsuit.

"I'm sure she will have a response if and when that happens," he said.

Contact Andrew Oxford at andrew.oxford@arizonarepublic.com or on Twitter at @andrewboxford.