Catherine Englebrecht and Gregg Phillips, two True the Vote participants that were locked up following a restraining order, had something extra special to be thankful for this Thanksgiving: the 5th U.S. Circuit Court of Appeals just ruled on an aspect of their case and they got some great news from it.
That great news was that the 5th Circuit invalidated the temporary restraining order used to lock up both Englebrecht and Phillips.
Englebrecht and Phillips were arrested and jailed on October 31st after being charged with contempt of court. That charge was brought against them, Just the News reports, because they refused to name a supposed FBI informant that they claim is the source of information for their claim that a software company named Konnech and its founder and CEO, Eugene Yu, illegally stored personal information of election workers on a Chinese server.
Konnech accused the two of hacking its computers. To go on the offensive against them, it then, as the 5th Circuit put it, “used a temporary restraining order, a preliminary injunction, and a civil-contempt order to litigate the case on Konnech’s behalf.”
Discussing that and then sounding off on the lower court’s ruling regarding True the Vote naming its source, the 5th Circuit said (emphasis ours):
Plaintiff in the district court, Konnech, Inc., sued petitioner defendants for hacking Konnech’s computers. The district court then used a temporary restraining order, a preliminary injunction, and a civil-contempt
order to litigate the case on Konnech’s behalf. For example, prong (v) of the now-dissolved TRO required petitioner-defendants to “identify each individual and/or organization involved in accessing [Konnech’s] protected computers.” App. 120. Such a demand makes perfect sense when made by a plaintiff in discovery. But the record does not reveal what sort of emergency justified the district court’s demand for that information before the parties could file Rule 12 motions, before the defendants could file an answer, before the parties could file their initial disclosures, or before discovery could begin let alone conclude in the ordinary course. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”). Much less did the district court explain what sort of emergency could warrant jailing the petitioner-defendants for not making such immediate disclosures. Rather, the district court made clear that it was imposing its disclosure requirements because it—the district court—wanted to add defendants to the lawsuit. Resp. 13; App. 188. That is not how the Federal Rules of Civil Procedure work.
It has long been settled that a party cannot be held in contempt for “disobeying an invalid order.”
Later in the ruling the court said:
Accordingly, we VACATE the contempt order because the district court premised it on the now-dissolved TRO. The case is REMANDED to the district court for further proceedings consistent with the Federal Rules. Any future appellate proceedings regarding any future contempt orders shall be directed to and decided by this panel.
True the Vote, discussing the recent ruling in a statement on the homepage of its website, said:
The Fifth Circuit’s powerful ruling lays bare the excesses of Konnech, their attorneys, and the lower court. The impermissible demands of Konnech, which were rubber stamped by the district court, caused great harm to True the Vote as an organization, as well as Catherine Engelbrecht and Gregg Phillips, who were imprisoned for over a week by Konnech and the court’s actions. In addition, Engelbrecht and Phillips’ rights to openly speak on matters of public interest were impeded under the color of authority. But hear them clearly today; the investigation of Konnech and their activities continues across America. Catherine and Gregg offer their profound gratitude to the Fifth Circuit’s vindication and are committed more strongly than ever to defending the integrity of American elections.
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