Misinterpreting a federal judge's ruling denying Michael Flynn’s request for a temporary restraining order on Jan. 6 committee
In searching for media reaction to the denial by Hon. Mary S. Scriven, U.S. District Judge, Middle District of Florida, of Michael Flynn's request for a temporary restraining order against the House January 6th Select Committee, I noticed this headline at the Law and Crime website:
‘Flynn Has Failed’: Federal Judge Immediately Rejects ex-National Security Advisor’s Motion to Halt Jan. 6 Committee Investigation
With the name Law and Crime, this article credited to Elura Nanos seemed to be an authoritative source for a take on this matter, involving Lt. General (ret.) Michael Flynn's resistance to impressment by the Pelosi Very Select Jan. 6 Committee (Pelosi limited her selection to seven Trump-hating Democrats and two Trump-hating Republicans). Thereupon, I clicked the search result: to learn that this website is labeled "A Dan Abrams Production."
Well, isn't that interesting, I immediately thought. The TV legal commentator and son of attorney Floyd Abrams, has an online venue to reflect on Law and Crime. But can he resist tilting the scales of justice way over to the left?
Apparently not. Prior to scanning media treatment of the Scriven ruling, I had read Judge Mary S. Scriven's opinion on Gen. Flynn's request for a temporary restraining order (TRO). The very opening sentence of the Law and Crime take on the Order from Judge Scriven, was so at variance with the reality of her ruling, that I realized I needn't go further to find that the media has yet to treat Gen. Flynn fairly.
(And he was treated shabbily for having dared to do what a National Security Adviser would do, between Election Day and the inauguration: sound out foreign sources, particularly adversaries, on their views. Special Counsel Robert S Mueller III, in partisans-make-the-law fashion, shamefully treated Gen. Flynn's good faith preparation for his service in the Trump administration as illegitimate defiance of the Israel- and Trump-loathing Obama.)
The account from this "Dan Abrams Production" began: "Former Donald Trump National Security Advisor Michael Flynn will have to turn over documents related to the Jan. 6 attack on the U.S. Capitol Complex." This is false. One of Gen. Flynn's arguments in asking for the TRO was that, if not granted, he will face "irreparable" harm."
Judge Scriven, in denying Flynn's request for a TRO, pointed out in her opinion that four weeks had passed since the Committee sent a November 23rd date for documents, and the record did not show a new date for documents. Also, Judge Scriven noted that the original date set, by subpoena, for Gen. Flynn to appear before the January 6 panel, was pushed back from December 6, 2021, to December 20, 2021, and then, on December 16, the Committee postponed the general's appearance to "'a date to be determined.'" As of December 22, 2021, the date of Judge Scriven's ruling on the TRO -- which was denied "without prejudice," the date of Gen. Flynn's appearance before the January 6 panel had not been "determined." How, then, can this 'Dan Abrams Production assert that the rejection, "without prejudice," of the TRO requestion meant that the general will have to turn over his January 6 documents to Pelosi's inquisition? The Committee has yet to set a new date for compliance or else, as to a personal appearance or production of documents!
Missing from the Law and Crime account of Judge Scriven's ruling is this not insignificant sentence, appearing on page 5 of her 6-page ruling, here set in the added bold type I believe it deserves in view of the Law and Crime distortion-beyond-recognition account: "Of course, if the Select Committee attempts to expedite the response dates for document requests from Flynn or for the third-party subpoenas, Flynn may seek appropriate relief from the court." Clearly, if Gen. Flynn shows that he is in imminent danger of irreparable harm from the Select Committee, Judge Scriven will re-consider his TRO request.
Judge Scriven also indicated that the Flynn request for a TRO was made without presenting the court with facts that show he will suffer "immediate and irreparable injury." if the court waits for the adverse parties to respond.
Law and Crime further distorted Judge Scriven's ruling by citing this observation from Judge Scriven, without the follow-up:
"If Flynn chooses to renew his request for a temporary restraining order, he must adequately explain why injunctive is necessary before defendants have an opportunity to respond." So? What's the problem? Here is the follow-up sentence not cited by this "Dan Abrams Production." "Alternatively, Flynn may pursue his Motion for Preliminary Injunction in the ordinary course following service of the complaint on defendants."
I believe, therefore, that it is, indeed, accurate to say that Judge Scriven, denying the TRO request, merely acted on the evidence before the court at this point in the litigation. The fact that Judge Scriven’s order is "without prejudice" (as Law and Crime acknowledges) offers the general the opportunity to seek relief from the court should the Select Committee suddenly act expeditiously against him. And should the Select Committee tarry, choosing to torment the general by playing cat to his mouse, his complaint against the Pelosi panel will continue in the ordinary course of litigation. Law and Crime has boasted (falsely) that Judge Scriven has made it necessary for General Flynn to comply immediately with the dictatorial demands of the Pelosi panel.
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