Judge Dismisses Michael Flynn’s Request to Block Jan. 6 Committee Subpoena on Procedural Grounds

Says he may refile in future if procedural requirements met
By Mimi Nguyen Ly
Mimi Nguyen Ly
Mimi Nguyen Ly
Mimi Nguyen Ly is a reporter covering world news with a focus on U.S. news. Based in Australia, she has a background in clinical optometry. Contact Mimi at mimi.nl@epochtimes.com
December 22, 2021 Updated: December 23, 2021

Former Trump adviser and retired Lt. Gen. Michael Flynn has had his request to block a subpoena, issued by House select committee investigating Jan. 6 last month for his testimony and documents, dismissed.

District Judge Mary Scriven dismissed without prejudice Flynn’s request for a temporary restraining order (TRO) to block the subpoena, saying Flynn can refile the case provided certain conditions are met.

In her order (pdf) on Dec. 22., she wrote Flynn “failed to comply” with several procedural requirements.”Flynn may refile his Motion if he believes that he can comply with the procedural requirements,” Scriven wrote.

The subpoena from the Jan. 6 committee sought the production of twenty categories of documents, including “[a]ll documents and communications relating to the January 6, 2021, attack on the U.S. Capitol,” the judge noted. The subpoena had directed Flynn to produce documents by Nov. 23 and to appear for a deposition at the U.S. Capitol building. Flynn has not produced any documents.

Scriven said Flynn was denied the TRO in part because he “has not set forth ‘specific facts in an affidavit or a verified complaint clearly showing that immediate and irreparable injury, loss, or damage will result to him.'”

Expanding on her point, Scriven noted that since Flynn has not produced any documents since the Nov. 23 deadline, “there is no evidence in the record as to the date by which the Select Committee now expects Flynn to comply with its document requests.”

“Flynn does not assert, for example, that the Committee expects him to produce responsive documents by the end of the week. … Thus, on this record, there is no basis to conclude that Flynn will face ‘immediate and irreparable’ harm before Defendants have an opportunity to respond to his request for injunctive relief,” Scriven wrote.

Flynn, in addition to asking the court to block the subpoena, had also asked it to block the committee from enforcing “any third-party subpoena seeking [his] cell phone data,” alleging that “the Select Committee has issued or intends to issue a subpoena to telecommunications providers regarding [his] subscriber information and cell phone data,” Scriven noted in her order.

But “[t]here is no evidence in the record as to the content of such a subpoena or any deadlines it sets for the production of responsive documents,” the judge wrote of the alleged subpoena seeking Flynn’s phone records.

Scriven said that if the Jan. 6 committee “attempts to expedite the response dates for document requests from Flynn or for the third-party subpoenas,” then Flynn “may seek appropriate relief from the Court.”

“If Flynn chooses to renew his request for a temporary restraining order, he must adequately explain why injunctive relief is necessary before Defendants have an opportunity to respond,” she added. “Alternatively, Flynn may pursue his Motion for Preliminary Injunction in the ordinary course following service of the Complaint on Defendants.”

Flynn’s attorney and partner at Dhillon Law Group, David Warrington, said in a statement to The Epoch Times the latest court ruling “does not affect General Flynn’s underlying case for injunctive relief.”

“The motion for TRO sought to stop any immediate threat against General Flynn’s rights. The Court’s Order held that because there were no imminent deadlines for General Flynn to produce documents or testimony, a TRO would not be granted at this time,” Warrington said.

“The Court acknowledged that should the Select Committee take actions that would cause an immediate harm to General Flynn, such as expediting the response dates for document requests from Flynn or for the phone company subpoenas, a renewed motion for TRO may be appropriate. General Flynn looks forward to obtaining relief from Congress’s unconstitutional and unlawful investigation in the normal course of his pending suit for injunctive relief that was not affected by today’s order.”

The Jan. 6 committee did not immediately respond to requests for comment.

Constitutional Rights

Flynn had argued in his legal challenge, filed Dec. 21 (pdf), that complying with the select committee’s demands would violate his constitutional rights.

“Flynn has raised significant Constitutional and practical concerns that preclude his compliance with the subpoena without clarification of its scope and terms by the Select Committee,” reads the filing.

“Without intervention by this Court, General Flynn faces the harm of being irreparably and illegally coerced to produce information and testimony in violation of the law and his constitutional rights,” the lawsuit also states. “He will also be illegally and irreparably harmed by the Select Committee’s unlawful and secret seizure of his and his family’s personal information from their telecommunications and/or electronic mail service providers.”

Flynn also argued in the lawsuit that the committee “has no authority to conduct business because it is not a duly constituted Select Committee.”

An appeals court had previously rejected that argument, ruling on Dec. 9 that the committee is valid and entitled to see White House records Trump has tried to shield from public view.

The nine-member House panel consists seven Democrats and two Republicans—Reps. Adam Kinzinger (R-Ill.) and Liz Cheney (R-Wyo.)—both known for their strong opposition to former President Donald Trump.

House Speaker Nancy Pelosi (D-Calif.) had chosen Kinzinger and Cheney after she refused to seat members picked by House Minority Leader Kevin McCarthy (R-Calif.).

Mimi Nguyen Ly
Mimi Nguyen Ly is a reporter covering world news with a focus on U.S. news. Based in Australia, she has a background in clinical optometry. Contact Mimi at mimi.nl@epochtimes.com