Michael Flynn, the embattled former national security adviser to former President Donald Trump, is suing to block a US House subpoena for his phone records.
His lawsuit marks the eighth court challenge against the ability of the House select committee investigating the January 6 attack on the US Capitol to gather evidence on Trump’s efforts to overturn the 2020 election.
Flynn’s lawsuit arrives just a day after he was scheduled to testify before the committee – and appears to be trying to hold off the consequence of his failure to appear, as well as any other fact-finding by the panel.
While the court filing on Tuesday, in the Middle District of Florida federal court, says Flynn is primarily challenging a Verizon subpoena, it’s not clear whether the committee has sought his or members of his family’s phone records, as they’ve done with dozens of people around Trump. The House separately subpoenaed Flynn in early November for him to turn over records he had related to the 2020 election, as well as demanding he testify.
Flynn claims complying with the House’s demands – either with the committee collecting his phone records or if he were to speak to them under subpoena – would violate his constitutional rights.
Flynn’s court filings characterize his lawsuit as a way “to resolve the impasse … in order to facilitate his cooperation with the Committee.”
Flynn never appeared
Flynn was initially in talks with the committee and was beginning to preserve and collect documents he had to share with them, his lawsuit says. And the committee had agreed to delay his deposition, setting it for Monday.
Flynn then told them he planned to assert his Fifth Amendment right against self-incrimination, and didn’t appear in person. Instead, he went to court, according to his lawsuit.
In the lawsuit, he outlines how his failure to appear for testimony may be a sticking point with the committee – believing it could lead the House to vote to hold him in contempt.
The panel has told him, according to his attorneys, that its “preference would be for General Flynn to invoke his 5th Amendment privilege before the Committee, even if it was effectively the only thing he could do, and that the Committee could refer General Flynn for prosecution for contempt of Congress for not doing so.”
Flynn is latest to sue
Trump and several key people around him at the end of his presidential tenure are also putting up a fight against the committee’s subpoenas.
Those who have gone to court are:
- Trump, challenging House requests to the National Archives for government records from his presidency;
- Mark Meadows, former Trump chief of staff, challenging a subpoena for his testimony and a subpoena for his Verizon phone records;
- Cleta Mitchell, election lawyer for Trump, challenging a subpoena of her AT&T phone records;
- Alex Jones, far-right-wing media figure, challenging subpoenas for testimony, documents and phone records;
- Ali Alexander, “Stop the Steal” organizer, challenging a subpoena of his Verizon phone records;
- John Eastman, conservative lawyer, challenging a subpoena of his Verizon phone records;
- Amy Harris, freelance photographer, challenging a subpoena of her Verizon phone records.
The bulk of the cases attack the committee’s pursuits as overly broad or outside its authority.
A ninth potential witness, former Trump adviser Steve Bannon, is in court as a criminal defendant after he opted not to comply with committee subpoenas. He had not sued.
In cases regarding phone records, AT&T and Verizon notified customers when they received requests from the committee, advising them that their records would be handed over unless the person went to court. The phone companies have made clear that the content of communications is not part of the House’s demands. Flynn, in his lawsuit, doesn’t note whether he received a letter from the phone company acknowledging that the House had requested his records, as others had.
Each of the Trump-connected witnesses makes different specific claims in court about why the House should be blocked, based on their unique situations, ranging from confidentiality allowances because of a person’s profession as a lawyer or a journalist, to executive privilege.
Though defendants like Flynn and Jones claim the courts should block subpoenas as a way to protect their Fifth Amendment rights, that protection only can be used when a person is testifying under oath or in an investigation.
All of the lawsuits against the committee are in their earliest stages, except for Trump’s.
The ex-President has lost at both the trial court and appeals court levels, and is headed to the Supreme Court. The courts so far have determined Trump does not have the ability to block the House from his White House’s records, and cannot claim presidential privilege when he is no longer president.
The DC Circuit Court of Appeals has also signed off on the House’s work, saying the panel’s investigation could result in legislation. That part of their decision, in the Trump executive privilege case, essentially shuts down witnesses’ arguments in court that are trying to claim the committee’s subpoenas are not for a valid purpose.
This story has been updated with additional details Tuesday.
