Flynn ultimately informed the committee on Monday that he would sue in order to prevent the panel from enforcing its subpoena and holding him in criminal contempt.
“[T]here appeared to be no prospect these issues would be resolved absent the intervention of a court, and that General Flynn would seek the Court’s protection,” Sarelson wrote. “Committee counsel responded that the Committee’s 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.”
Sarelson also indicated that Flynn believes the committee is preparing to subpoena phone records “pertaining to General Flynn and his family.”
Flynn is a crucial target of the Jan. 6 committee’s investigation. He attended a Dec. 18, 2020, meeting in the Oval Office with Trump during which Flynn reportedly discussed deploying the military to seize voting machines in service of Trump’s effort to stave off defeat. That conversation came amid increasing indications that Trump was considering invoking the Insurrection Act amid his effort to remain in power.
Trump ultimately opted against taking that step, but many of those who violently attacked the Capitol anticipated he would, and cited this possibility as part of their calculus in participating in the riot.
Flynn’s lawsuit is the latest in a cascade of litigation by targets of the select committee’s investigation. Former White House chief of staff Mark Meadows, attorney John Eastman, attorney Cleta Mitchell, pro-Trump broadcaster Alex Jones and Stop the Steal organizer Ali Alexander have all recently filed suit in Washington to prevent the select committee from subpoenaing their testimony or phone records. Several organizers of the Jan. 6 rally that preceded the attack on the Capitol have filed suit in New Jersey to block the panel from obtaining their phone records. And a freelance photojournalist, Amy Harris, has sued to block a subpoena for phone records as well, contending the panel’s demand could expose sources.
The House has also referred Meadows for criminal contempt of Congress, awaiting a potential charge by the Justice Department for his refusal to appear for a deposition. And Steve Bannon, another longtime Trump ally, has been indicted for refusing to appear as well.
Flynn’s lawsuit echoes many of the others by claiming that the Jan. 6 committee is illegitimate because it includes no members appointed by House Minority Leader Kevin McCarthy, despite requirements that the panel consult with the minority party when making decisions like issuing subpoenas. McCarthy withdrew all GOP members from the panel after Speaker Nancy Pelosi vetoed the participation of two — Reps. Jim Banks (R-Ind.) and Jim Jordan (R-Ohio) — an unprecedented step she said reflected concerns about their willingness to conduct a serious investigation.
“[T]he Select Committee as it currently stands—and stood at the time it issued the subpoenas in question—has no authority to conduct business because it is not a duly constituted Select Committee,” Flynn’s attorneys wrote.
Flynn also contended that the panel lacks a valid “legislative purpose,” though the committee emphasizes that its goal is to produce legislation aimed at preventing future attacks against democracy, reforming election-related laws and combating domestic extremism, among other goals. A federal appeals court in Washington recently upheld the committee’s legislative purpose, though Flynn’s suit was filed in a district court outside that panel’s jurisdiction.
The former Trump national security adviser argued that his Fifth Amendment concerns arise for two reasons: the Justice Department’s ongoing investigation into the Jan. 6 attack on the Capitol and a newly reported investigation into “a political nonprofit with which General Flynn was briefly affiliated.” Prosecutors reportedly subpoenaed the nonprofit, Defending the Republic, last month. It’s run by Sidney Powell, a Trump ally who was with Flynn in the Oval Office on Dec. 18 and represented him during his effort to unravel a guilty plea for lying to federal investigators in 2017.
“The Select Committee is rushing to refer any non-cooperative witnesses for criminal prosecution by the Department of Justice for contempt of Congress,” Sarelson wrote. “Thus, General Flynn is caught between alternatives that both risk criminal prosecution by the Department of Justice, either in an ongoing criminal probe, or in a new prosecution for contempt of Congress.”