January 20, 2022

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UPDATE: Michael Flynn Pratfalls Onto Federal Docket

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(Photo by the Defense Department via Wikimedia)

Yesterday we reported that former National Security Advisor and presidential pardon recipient Michael Flynn had sued House Speaker Nancy Pelosi and the members of the January 6 Select Committee. In less than 24 hours, he’s already managed a spectacular bellyflop on the courthouse steps, with his motion for a temporary restraining order unceremoniously dropkicked.

Flynn seeks a declarative judgment that the Committee is bad and illegal and can’t subpoena him or see his phone records. He has no scheduled testimony and no indication that the Committee has sought to obtain his call logs. Nevertheless, he raced into the court yesterday demanding a TRO to stop the Committee from voting to hold him in contempt or subpoenaing Verizon for his cellphone metadata.

Unfortunately, he raced into the wrong court, filing his complaint in the Fort Myers Division of the Middle District of Florida. As he stated in the complaint, Flynn lives in Englewood, which is in the Tampa Division. Oopsie!

After the court promptly transferred his case, and after Judge Kathryn Mizelle recused herself (likely because she’s married to Trump’s former DHS head Chad Mizelle), Flynn landed on the docket of Judge Mary Scriven.

Judge Scriven, who’s been a district judge since 2008 and a magistrate for eleven years before that, took one look at Flynn’s motion for a TRO and launched it into the circular file.

The court begins by noting that the Flynn had waited four weeks from the November 23 document production date, and two weeks since December 6 when he was scheduled to testify, and “[t]here is no evidence in the record that the deposition has been rescheduled.”

Similarly, while Flynn claims that he fears a subpoena for his phone records is imminent, “[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.”

And while the court doesn’t say it, former White House chief of staff Mark Meadows became aware of the subpoena for his records because Verizon sent him a letter telling him that it was going to turn over his records if he didn’t file a suit challenging the subpoena. Flynn does not claim to have received any such letter, and we know that his lawyers are aware of Meadows’s complaint since they appear to have copypasted passages of it directly into Flynn’s filing.

Here’s the Meadows complaint:

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And here’s Flynn’s:

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Heckuva coincidence.

On December 8, when Meadows submitted his complaint to the US District Court in DC, it was true that Trump’s appeal of the National Archives case was “still pending.” This was not the case when Flynn filed on December 21 in the Middle District of Florida. In fact, Trump lost resoundingly and only appealed to the Supreme Court today.

But wait, there’s more. Because Flynn failed to give notice to Speaker Pelosi that he was seeking emergency relief, and, although he claims to have sent a letter to the Committee informing it that he intended to sue, no such letter or proof that he told them that he was going to seek a TRO was attached to his complaint. Which was also unverified.

“Flynn’s failure to provide the information required under Rule 65(b)(1)(B) and Local Rule 6.01(b) is fatal to his request for a temporary restraining order without notice,” noted Judge Scriven.

And since there appears to be no upcoming hearing or document production deadline looming, the court was entirely disinclined to provide ex parte emergency relief.

Auspicious start, huh?

Flynn v. Pelosi [Docket via Court Listener]


Liz Dye lives in Baltimore where she writes about law and politics.

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