Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 1 of 12

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1 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 1 of 12 THOMAS G. HUNGAR, General Counsel, DC Bar # TODD B. TATELMAN, Associate General Counsel, VA Bar #66008 ELENI M. ROUMEL, Assistant General Counsel, NY Bar # SARAH E. CLOUSE, Attorney, MA Bar # Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building Washington, D.C Phone: Thomas.Hungar@mail.house.gov Counsel for the Honorable Greg Walden, U.S. Representative for the 2nd Congressional District of Oregon IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, Case No. 3:16-cr BR v. RYAN BUNDY, Defendant. MOTION OF NON-PARTY THE HONORABLE GREG WALDEN TO QUASH SUBPOENA, AND MEMORANDUM IN SUPPORT MOTION OF NON-PARTY THE HONORABLE GREG WALDEN TO QUASH SUBPOENA Pursuant to Fed. R. Crim. P. 17(c)(2), the Honorable Greg Walden, U.S. Representative for the 2nd congressional district of Oregon, by and through undersigned counsel, moves to quash the subpoena (attached to this Motion as Exhibit A) issued by defendant Ryan Bundy, which seeks to compel Congressman Walden to testify at defendant s trial and to produce a broad category of documents. For the reasons set forth in the Memorandum in Support below, 1 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH

2 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 2 of 12 compliance with the subpoena would be unreasonable and oppressive, and the subpoena should therefore be quashed. Oral argument is not requested. CERTIFICATION OF CONSULTATION Pursuant to Local Rule 7-1, counsel for Congressman Walden attempted to contact standby counsel for Defendant Bundy, via and telephone, regarding the motion to quash and potential withdrawal of the subpoena, but received no response, necessitating this motion. MEMORANDUM OF LAW IN SUPPORT OF MOTION On August 24, 2016, Congressman Walden received a subpoena from Defendant Ryan Bundy that seeks to compel the Congressman s testimony at trial and the production of a broad category of documents. See Subpoena to Congressman Greg Walden (Aug. 19, 2016) ( Subpoena ) (Ex. A). Promptly after receiving the subpoena, pursuant to Rule VIII of the Rules of the U.S. House of Representatives, 114th Cong. (2015) ( House Rules ), available at Congressman Walden asked Mr. Bundy, via his standby counsel, to confirm whether the Subpoena encompasses matters within the Congressman s official congressional capacity and, if so, to explain with specificity (i) what testimony and documents Mr. Bundy seeks, and (ii) why such information would be material and relevant to his case. See Letter from Eleni Roumel, Ass t Gen. Counsel, to Lisa Ludwig, Esq., (Aug. 26, 2016) (Ex. B) ( Roumel Letter ). Mr. Bundy s counsel has not yet responded to this inquiry. The Court should quash the Subpoena for two reasons. First, with respect to the testimonial aspect of the Subpoena, the Congressman is a high-ranking government official who cannot be compelled to testify about his official conduct absent a showing of extraordinary 2 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH

3 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 3 of 12 circumstances not present here. There is no basis to believe that Congressman Walden possesses any information relevant to Mr. Bundy s guilt or innocence and, under established law as recognized by this Court in its order quashing a similar subpoena to Oregon Governor Kate Brown, Order (Aug. 26, 2016) (ECF No. 1121) Mr. Bundy must seek any information he believes is relevant through other avenues. Second, with respect to the demand for the production of documents, the Subpoena should be quashed because it fails to demand documents with sufficient particularity and because Mr. Bundy cannot establish either the relevance or the admissibility of the demanded documents. I. Congressman Walden Cannot Be Compelled to Testify about his Official Activities Because Mr. Bundy Has Not Demonstrated that Extraordinary Circumstances Require Such Testimony. Long-settled federal common law makes clear that high-ranking government officials may not be forced to testify about their official actions, in litigation to which they are not a party, absent compelling or extraordinary circumstances. See United States v. Morgan, 313 U.S. 409, 422 (1941); Kyle Eng g Co. v. Kleppe, 600 F.2d 226, (9th Cir. 1979); Coleman v. Schwarzenegger, 2008 WL , at *2 (E.D. Cal. Sept. 15, 2008); Trunk v. City of San Diego, 2007 WL , at *6-7 (S.D. Cal. April 2, 2007) (denying motion to compel deposition testimony of Congressman absent exceptional circumstances). 1 The subpoenaing party bears the burden of proving extraordinary circumstances. In re United States (Bernanke), 542 F. App x 944, 948 (Fed. Cir. 2013); accord In re United States (Reno & Holder), 197 F.3d 310, (8th Cir. 1999). High ranking government officials have greater duties and time constraints than other witnesses. In re United States (Kessler), 985 F.2d 510, 1 See also In re F.D.I.C., 58 F.3d 1055, 1060 (5th Cir. 1995); Franklin Sav. Ass n v. Ryan, 922 F.2d 209, 211 (4th Cir. 1991); Simplex Time Recorder Co. v. Sec y of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985). 3 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH

4 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 4 of (11th Cir. 1993). If courts did not limit the compelled testimony of high-ranking officials, then such officials would spend an inordinate amount of time tending to pending litigation to the impairment of their official responsibilities. Lederman v. N.Y. City Dep t of Parks & Recreation, 731 F.3d 199, 203 (2d Cir. 2013) (quoting Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007)). 2 This rule applies in the criminal context as well as in the civil context. See United States v. Washington, No. CR M-DLC, 2012 WL , at *1 (D. Mont. July 26, 2012) (quashing subpoena by criminal defendant to U.S. Attorney General); Reno & Holder, 197 F.3d at , , 316 (quashing criminal defendant s subpoenas seeking to compel testimony of Attorney General Janet Reno and Deputy Attorney General Eric Holder in support of defendant s motion to set aside jury s death verdict); Kessler, 985 F.2d at (quashing criminal defendants subpoena seeking to compel testimony of FDA commissioner in support of motion to dismiss indictment on ground of selective prosecution); Bardoff v. United States, 628 A.2d 86, 90 (D.C. 1993) (affirming trial court s quashing of criminal defendants subpoenas seeking to compel testimony of Senators and Senate Committee counsel because, inter alia, defendants failed to proffer any reason why others present who did not hold such high office could not provide the testimony ). Members of Congress, as constitutional officers of the United States, are quintessential high-ranking government officials. See, e.g., Springfield Terminal Ry. Co. v. United Transp. Union, No , 1989 WL , at *2 (D.D.C. May 18, 1989) (refusing to compel 2 See also MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856, 859 (D.C. Cir. 1988) ( A litigant does not have to name members or their staffs as parties to a suit in order to distract them from their legislative work. Discovery procedures can prove just as intrusive. ); accord Buono v. City of Newark, 249 F.R.D. 469, 471 n.2 (D.N.J. 2008) (similar); Warzon v. Drew, 155 F.R.D. 183, (E.D. Wis. 1994) (similar), aff d, 60 F.3d 1234 (7th Cir. 1995). 4 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH

5 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 5 of 12 ranking Minority Member of the House Appropriations Committee either to testify at deposition or to produce documents because such discovery would disrupt [his] work ); accord McNamee v. Massachusetts, No. 12-cv-40050, 2012 WL , at *1 (D. Mass. May 10, 2012) (quashing subpoena served on both Member and his former chief of staff seeking to compel testimony in state workers compensation action); Order Granting Mots. to Quash Subpoenas Ad Testificandum & Duces Tecum Served on Congressmen Berman, Filner, & Sherman at 2-3, Cano v. Davis, No. 2:01-cv (C.D. Cal. Mar. 28, 2002) (recognizing that exceptional circumstances are needed to compel discovery from Members of Congress) (Ex. C); Bardoff, 628 A.2d at 90 (recognizing that Senators hold... high office ). Accordingly, in order to demonstrate extraordinary circumstances sufficient to justify compelling a Member of Congress to give non-party testimony about his official activities, the party issuing the subpoena must establish that at least three conditions are present: (i) the provision of the testimony will not interfere with the Member s governmental responsibilities; (ii) the information sought is essential not merely relevant and material to the subpoenaing party s case; and (iii) the information sought cannot be obtained elsewhere. See Coleman, 2008 WL , at *2; Lederman, 731 F.3d at 203; Bogan, 489 F.3d at 423; In re F.D.I.C., 58 F.3d at ; Simplex, 766 F.2d at 587; McNamee, 2012 WL , at *1. 3 Here, as this Court has already held with respect to a nearly identical subpoena to Governor Brown, Mr. Bundy has not satisfied and cannot satisfy any of these requirements, let alone all three. Accordingly, the Court should quash the Subpoena to the extent that it seeks to compel the Congressman s testimony. 3 See also Marisol A. v. Giuliani, No. 95-cv-10533, 1998 WL , at *2-3 (S.D.N.Y. Mar. 23, 1998) (collecting cases); Hankins v. City of Phila., No. 95-cv-1449, 1996 WL , at *1 (E.D. Pa. Sept. 12, 1996) (collecting cases). 5 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH

6 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 6 of 12 A. Compelling Congressman Walden s Testimony Will Interfere with His Governmental Responsibilities. [S]ervice in the United States Congress is not a job like any other. United States v. Rostenkowski, 59 F.3d 1291, 1312 (D.C. Cir.), opinion supplemented on denial of reh g, 68 F.3d 489 (D.C. Cir. 1995). [T]he life of a congressman[,] as incumbent legislator and perpetual candidate for office, is one in which the Member s official day ends only after a round of nominally social events at which he is obliged to appear, and whose weekends and holidays are only an opportunity to reconnect with his constituents.... Id. This is as true for Congressman Walden as it is for his many House and Senate colleagues. When the House is in session, Congressman Walden is obliged by House Rules to be available to vote. See House Rule III.1 ( Every Member shall be present within the Hall of the House during its sittings, unless excused or necessarily prevented, and shall vote on each question put, unless having a direct personal or pecuniary interest in the event of such question. ). The House will be in session and votes are scheduled to be cast for the majority of September, including on the start date of Mr. Bundy s trial. See generally House Calendar, 114th Cong. (2d sess.) (2016), MONTHLY-CALENDAR.pdf. Beyond floor votes, Congressman Walden focuses on other important legislative business while in Washington, D.C., such as: (i) attending to the business of the House Committee on Energy and Commerce on which he sits; (iii) meeting regularly with House leadership to discuss votes on pending legislation; (iv) attending regular meetings of his party s conference to discuss legislative issues and policies; and (v) meeting with constituents and other stakeholders about pending legislation. 6 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH

7 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 7 of 12 Congressman Walden s official duties also include many activities other than [his] purely legislative activities, such as a wide range of legitimate errands performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called news letters to constituents, news releases, and speeches delivered outside the Congress. United States v. Brewster, 408 U.S. 501, 512 (1972). Indeed, when at home in his district, Congressman Walden frequently works with state and local government officials on issues important to the district, meets with local business leaders, and engages with constituents. Simply put, Congressman Walden s schedule is heavily booked with official activities. Thus, requiring him to appear to testify at Mr. Bundy s trial and thereby imposing the additional burden of preparing to do so necessarily would interfere with those official responsibilities. B. Mr. Bundy Has Not Shown That the Congressman s Testimony Would Be Essential to His Case. Mr. Bundy has not shown and cannot show how it is essential to his defense that Congressman Walden testify in this matter. See Reno & Holder, 197 F.3d at 314 (subpoenaing party must... establish at a minimum that the [high-ranking government officials] possess information essential to his case (emphasis added)); In re Ledvina, 210 F.3d 379, 379 (8th Cir. 2000) (per curiam) ( [S]ubpoena should not issue against high government official absent extraordinary circumstances, including showing that official possesses information essential to case.... (emphasis added; citing Reno & Holder, 197 F.3d at )). 4 4 Accord Warren v. Washington, No. 11-civ-5686, 2012 WL , at *1 (W.D. Wash. June 14, 2012) (subpoenaing party must show... the testimony is essential to the case at hand (emphasis added)); McNamee, 2012 WL , at *1 (similar); Dobson v. Vail, No. 10-cv- 5233, 2011 WL , at *2 (W.D. Wash. Sept. 21, 2011) (similar); Thomas v. Cate, 715 F. Supp. 2d 1012, 1049 (E.D. Cal. 2010) (similar); Murray v. U.S. Dep t of Treasury, No. 08-cv- 7 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH

8 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 8 of 12 As explained above, Mr. Bundy so far has not responded to Congressman Walden s request, pursuant to House Rule VIII, that he explain with specificity how the Congressman s testimony would be material and relevant to his defense. See Roumel Letter, Ex. B. Accordingly, Mr. Bundy also has not even attempted to satisfy the more rigorous essentiality requirement for compelling the testimony of a high-ranking government official. In any event, this prosecution has absolutely nothing to do with Congressman Walden, and it is self-evident from Mr. Bundy s eleventh-hour subpoena to the Congressman and similar last-minute subpoenas that Mr. Bundy has directed to other public officials that his defense cannot possibly hinge on whatever attenuated matter Mr. Bundy may believe Congressman Walden could testify about from personal knowledge (if any). Indeed, if Mr. Bundy s interest in Congressman Walden is similar to his stated interest in Governor Brown, it appears that Mr. Bundy would seek to elicit generic information about the alleged events at Malheur National Wildlife Refuge and possibly inquire about public statements made by the Congressman on the issue. See Order, at 3 (Aug. 26, 2016); see also Def. s Resp. to Gov. Brown s Mot. to Quash Subpoena (Aug. 23, 2016) (ECF No. 1096). Such generic information may not even be relevant or material to Mr. Bundy s defense, and it certainly falls far short of satisfying the essentiality requirement. C. Mr. Bundy Can Obtain the Information He Seeks from Other Sources. Although Mr. Bundy has not meaningfully explained what testimony he seeks from Congressman Walden, it is self-evident that he can obtain what he needs from other sources. As this Court noted in quashing a similar subpoena directed to Governor Brown, information about the law enforcement response to the events at Malhuer National Wildlife Refuge is otherwise 15147, 2010 WL , at *3-6 (E.D. Mich. May 18, 2010) (similar); Buono, 249 F.R.D. at 471 n.2 (similar). 8 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH

9 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 9 of 12 available from other sources, notably including the law-enforcement officials present at the time who actually directed and carried out such operations. Order at 3-4 (Aug. 26, 2016). * * * Because (i) compelling the Congressman s testimony about his official conduct would interfere with his governmental responsibilities, (ii) the information about which he would testify is not essential to Mr. Bundy s case, and (iii) that information is available from other sources, the Court should quash the ad testificandum aspect of the Subpoena. II. Defendant Bundy s Subpoena Should Be Quashed Because It Fails to Demand Documents with Sufficient Particularity and Because Mr. Bundy Cannot Establish Either the Relevance or the Admissibility of the Demanded Documents. Federal Rule of Criminal Procedure 17(c) provides that the Court may quash a subpoena if compliance would be unreasonable or oppressive. Fed. R. Crim. P. (17)(c). Mr. Bundy s subpoena does not demand particular documents, and Mr. Bundy cannot establish the relevance and admissibility of the broad categories of documents demanded. Accordingly, the subpoena should be quashed. See United States v. Nixon, 418 U.S. 683, (1974) (party issuing subpoena in criminal case, in order to carry his burden, must clear three hurdles: (1) relevancy; (2) admissibility; [and] (3) specificity ); see also United States v. Eden, 659 F.2d 1376, 1381 (9th Cir. 1981) (defendant failed to meet burden where he failed to make any show of relevancy other than mere conclusory statements ); United States v. Layton, 90 F.R.D. 514, 516 (N.D. Cal. 1981) ( [W]here... the subpoena is directed to a coordinate branch of government, the court should be particularly meticulous to ensure that the standards of rule 17(c) have been correctly applied. (quoting Nixon, 418 U.S. at 702)). Here, the Subpoena lacks the requisite specificity because Mr. Bundy seeks to compel the production of a broad category of information encompassing any and all... correspondence... regarding the Malheur National Refuge Occupation, the staff, the occupants and visiting 9 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH

10 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 10 of 12 citizens... from December 2015 to present[.] Subpoena, attached as Ex. A. Such a demand for any and all correspondence regarding the events at issue demonstrates that the Subpoena is not a particularized demand for specific documents material to his defense, but rather a fishing expedition. See Nixon, 418 U.S. at (expressly disapproving use of criminal subpoena for general fishing expedition ); see also Libby, 432 F. Supp. 2d at 31 ( [I]f the [subpoenaing] party cannot reasonably specify the information contained or believed to be contained in the documents sought but merely hopes that something useful will turn up, this is a sure sign that the subpoena is being misused. (quotation marks omitted)). Mr. Bundy s failure to specify particular documents admittedly makes the relevance and admissibility inquiries more difficult, but that only underlines the importance of the specificity requirement. See Libby, 432 F. Supp. 2d at 32 ( It is important to remember that one of the major purposes of the specificity requirement is to provide the subpoenaed party or other party having standing with enough knowledge about what documents are being requested so as to lodge any objections on relevancy or admissibility. (punctuation omitted)). Accordingly, Mr. Bundy has failed to establish that the demanded documents would be relevant and admissible at this trial both of which elements Mr. Bundy must satisfy to enforce his subpoena. See, e.g., Libby, 432 F. Supp. 2d at 30 ( Rule 17(c) may be used to obtain only evidentiary materials. The Rule is designed as an aid for obtaining relevant evidentiary material that the moving party may use at trial. (punctuation omitted)). For these reasons, Mr. Bundy s demand for the production of documents fails to satisfy the prerequisites for such subpoenas. CONCLUSION For all the foregoing reasons, the Court should grant this motion to quash the Subpoena. 10 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH

11 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 11 of 12 Respectfully submitted, /s/ Thomas G. Hungar THOMAS G. HUNGAR General Counsel, DC Bar # TODD B. TATELMAN Associate General Counsel, VA Bar #66008 ELENI M. ROUMEL Assistant General Counsel, NY Bar # SARAH E. CLOUSE, Attorney, MA Bar # Office of General Counsel 5 U.S. House of Representatives 219 Cannon House Office Building Washington, D.C Phone: Fax: Thomas.Hungar@mail.house.gov Counsel for the Honorable Greg Walden, U.S. Representative for the 2nd Congressional District of Oregon August 31, Attorneys for the Office of General Counsel for the U.S. House of Representatives are entitled, for the purpose of performing the counsel s functions, to enter an appearance in any proceeding before any court of the United States or of any State or political subdivision thereof without compliance with any requirements for admission to practice before such court. 2 U.S.C

12 Case 3:16-cr BR Document 1163 Filed 08/31/16 Page 12 of 12 CERTIFICATE OF SERVICE I certify that on August 31, 2016 a copy of the foregoing Motion of Non-Party The Honorable Greg Walden to Quash Subpoena, and Memorandum in Support, was filed electronically. Notice of this filing will be sent to all parties by operation of the Court s electronic filing system. /s/ Sarah Clouse Sarah Clouse