Key Points

• Judges says attorney general illegally withheld information in seeking indictments

• Case targeted so-called fake electors seeking to overturn Trump loss in the 2000 election

• Mayes claimed documents were protected by Public Records law

Attorney General Kris Mayes acted illegally when she withheld certain information about communications her office had with States United Democracy Center, a group that provided information on how she could bring charges against “fake electors,” the state Court of Appeals has ruled.

The judges said that Mayes, in seeking to keep some documents from Judicial Watch, argued that they were protected by attorney-client privilege and fell into the area of being a work product — both of which are generally exempt from the state’s Public Records Law.

But the court said that Mayes, in making that claim, was required to produce an index of the documents withheld that is sufficient to show that she did not have to surrender them. And appellate Judge Jeffrey Sklar, writing for the unanimous three-judge panel, said that Mayes failed to do this.

The new ruling does not mean that Mayes will now have to turn over the documents to Judicial Watch, which describes itself as a “conservative nonpartisan educational foundation” that uses state and national public records law to investigate government activities. Its focus in part is on what it sees as election integrity and voter registration issues.

What it does mean is that, unless overturned, Mayes now has to go back and provide a more detailed description for Judicial Watch and for the trial judge of what documents were withheld — they appear to fall into the area of communications between her lawyers and people at States United — and, more to the point, exactly why she believes they are not subject to disclosure.

And that, in turn, would allow the trial judge to rule whether Mayes has a legitimate legal reason to refuse to turn over the materials and, if not, could order the attorney general to surrender them.

A spokesman for Mayes said the office has no comment on the court ruling.

What prompted this legal fight was the discovery that States United, which describes itself as nonpartisan but has worked on Democratic issues, had prepared a memo for Mayes in July 2023 as it was investigating events leading up to 11 Republicans signing a document after the 2020 election that Donald Trump had won the presidential race. That signing occurred despite the fact that Trump had been outpolled by Joe Biden by 10,457 votes.

That document was sent to Congress, a move that the Attorney General’s Office has said was part of a national plan to throw the results of the race into doubt and have members of Congress declare that Trump had won reelection.

Judicial Watch, on learning of the work done by States United, filed a public records request for the memo as well as all communications between Mayes’ office and the organization.

Some of that eventually became public.

A copy of that memo, obtained by Capitol Media Services, shows that States United provided not just a detailed timeline of the events leading up to the signing of the fake certificate but also a list of charges that the organization said could be brought against them and others involved in the scheme.

Judicial Watch wanted more, like communications between Mayes’ office and States United. But some of the requests were answered not with documents but instead an index simply declaring they were exempt from the Public Records Law.

That, said the appeals court, was legally insufficient to allow Mayes to unilaterally reject the request.

“Index entries must contain more than generalities,” Sklar wrote.

“Rather, an index must include specific assertions explaining why the document is purportedly privileged to the greatest extent possible without revealing its content or otherwise violating the privilege,” the judge said. What that means, he said, is that any public official seeking to shield materials must “sufficiently describe the communications to allow assessment of the asserted privilege.”

What Mayes provided, Sklar said, doesn’t comply with that requirement.

“The index provided by the Attorney General’s Office supplies no context about the withheld emails that would allow a court or any other party to determine if a privilege applies,” the judge wrote. “We thus agree with Judicial Watch that the privilege log’s insufficiency prevented the trial court from adequately scrutinizing the office’s privilege assertions.”

Separately, the appellate court concluded that the Attorney General’s Office did not search for all the documents that were responsive to the request by Judicial Watch. The judges said that’s because the office imposed both date and keyword searches.

What makes all of this relevant is that everything Judicial Watch is seeking is related to the criminal charges brought against the 11 Republicans who signed the election certificate and seven other associates of Trump, all accused of multiple criminal charges including fraud, forgery, and conspiracy. Trump himself was named an unindicted co-conspirator.

Two have had charges dropped after entering into deals, a third pleaded guilty and was placed on probation.

Efforts to pursue the remaining defendants are currently on hold after a trial judge said that prosecutors withheld relevant information from the grand jury that handed up the original indictment. Mayes has appealed that ruling to the Arizona Supreme Court.

Richie Taylor, a spokesman for Mayes, has declined to say what information his office was seeking from States United when the contract was signed on May 15, 2023, nearly a full year before there was an indictment.

Taylor, however, said that the work States United did on the case was “separate from the independent investigation” by the Attorney General’s Office. He said it included “publicly compiled information.”

But the memo obtained by Capitol Media Services shows there was more involved than a historical narrative.

For example, States United listed six specific state statutes they said were violated: forgery, tampering with a public record, criminal impersonation, presenting a false instrument for filing, fraudulent schemes and artifices, and conspiracy. It also went into great detail on why each applies in this case.

The final indictment by Mayes used three of those — forgery, fraudulent schemes and artifices, and conspiracy — and added a lower-level felony of fraudulent schemes and practices.

States United also went on to describe potential defenses that those indicted could claim, including that they had no “unlawful intent” but instead were relying on the advice of counsel. But the attorneys at States United told Mayes’ office that to do that, the defendants would have to waive their attorney-client privilege which could expose both to the public and prosecutors other communications they had with their lawyers.

The memo also went into detail on why Mayes’ office could indict those involved even though the events dated back to late 2020. It said that, in general, the statute of limitations for these crimes is seven years.

And it also sought to give Mayes some cover if questions were raised about why she would be seeking indictments years after the event.

“Thorough investigations of complex cases take time,” the memo said. And there was something else: the fact that Mayes herself wasn’t elected until 2022 and took office in early 2023.