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Case 3:16-cr-00051-BR

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THOMAS G. HUNGAR, General Counsel, DC Bar #447783


TODD B. TATELMAN, Associate General Counsel, VA Bar #66008
ELENI M. ROUMEL, Assistant General Counsel, NY Bar #3978863
SARAH E. CLOUSE, Attorney, MA Bar #688187
Office of General Counsel
U.S. House of Representatives
219 Cannon House Office Building
Washington, D.C. 20515
Phone: 202-225-9700
Email: 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-00051-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 defendants trial and to produce a
broad category of documents. For the reasons set forth in the Memorandum in Support below,

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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 email 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 Congressmans 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
http://clerk.house.gov/legislative/house-rules.pdf, Congressman Walden asked Mr. Bundy, via
his standby counsel, to confirm whether the Subpoena encompasses matters within the
Congressmans 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, Asst Gen. Counsel, to Lisa Ludwig,
Esq., (Aug. 26, 2016) (Ex. B) (Roumel Letter). Mr. Bundys 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

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circumstances not present here. There is no basis to believe that Congressman Walden
possesses any information relevant to Mr. Bundys 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 Engg Co. v. Kleppe, 600 F.2d 226, 231-32 (9th Cir. 1979); Coleman v.
Schwarzenegger, 2008 WL 4300437, at *2 (E.D. Cal. Sept. 15, 2008); Trunk v. City of San
Diego, 2007 WL 1110715, 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. Appx 944, 948 (Fed. Cir. 2013); accord In re United States (Reno &
Holder), 197 F.3d 310, 313-16 (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. Assn v. Ryan, 922
F.2d 209, 211 (4th Cir. 1991); Simplex Time Recorder Co. v. Secy of Labor, 766 F.2d 575, 586
(D.C. Cir. 1985).
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512 (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 Dept 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 11-61-M-DLC, 2012 WL 3061519, at *1 (D. Mont. July 26, 2012)
(quashing subpoena by criminal defendant to U.S. Attorney General); Reno & Holder, 197 F.3d
at 310-11, 313-14, 316 (quashing criminal defendants subpoenas seeking to compel testimony
of Attorney General Janet Reno and Deputy Attorney General Eric Holder in support of
defendants motion to set aside jurys death verdict); Kessler, 985 F.2d at 511-13 (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 courts 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. 89-0073, 1989 WL 225031, at *2 (D.D.C. May 18, 1989) (refusing to compel

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, 184-85 (E.D. Wis. 1994) (similar), affd, 60 F.3d 1234 (7th Cir. 1995).
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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 1665873, 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-08477 (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 Members governmental responsibilities;
(ii) the information sought is essential not merely relevant and material to the subpoenaing
partys case; and (iii) the information sought cannot be obtained elsewhere. See Coleman, 2008
WL 4300437, at *2; Lederman, 731 F.3d at 203; Bogan, 489 F.3d at 423; In re F.D.I.C., 58 F.3d
at 1061-62; Simplex, 766 F.2d at 587; McNamee, 2012 WL 1665873, 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 Congressmans testimony.

See also Marisol A. v. Giuliani, No. 95-cv-10533, 1998 WL 132810, at *2-3 (S.D.N.Y. Mar.
23, 1998) (collecting cases); Hankins v. City of Phila., No. 95-cv-1449, 1996 WL 524334, at *1
(E.D. Pa. Sept. 12, 1996) (collecting cases).

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A.

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Compelling Congressman Waldens 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 rehg, 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 Members 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. Bundys trial. See generally House Calendar,
114th Cong. (2d sess.) (2016), http://www.majorityleader.gov/wp-content/uploads/2011/07/
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 partys conference to discuss
legislative issues and policies; and (v) meeting with constituents and other stakeholders about
pending legislation.

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Congressman Waldens 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 Waldens schedule is heavily booked with official activities.
Thus, requiring him to appear to testify at Mr. Bundys 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 Congressmans 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 313-16)). 4
4

Accord Warren v. Washington, No. 11-civ-5686, 2012 WL 2190788, 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 1665873, at *1 (similar); Dobson v. Vail, No. 10-cv5233, 2011 WL 4404146, 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. Dept of Treasury, No. 08-cv7 MOTION OF NON-PARTY U.S. REPRESENTATIVE GREG WALDEN TO QUASH
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As explained above, Mr. Bundy so far has not responded to Congressman Waldens
request, pursuant to House Rule VIII, that he explain with specificity how the Congressmans
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. Bundys 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. Bundys 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.
Browns Mot. to Quash Subpoena (Aug. 23, 2016) (ECF No. 1096). Such generic information
may not even be relevant or material to Mr. Bundys 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 1980850, at *3-6 (E.D. Mich. May 18, 2010) (similar); Buono, 249 F.R.D. at
471 n.2 (similar).
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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 Congressmans testimony about his official conduct would
interfere with his governmental responsibilities, (ii) the information about which he would testify
is not essential to Mr. Bundys case, and (iii) that information is available from other sources, the
Court should quash the ad testificandum aspect of the Subpoena.
II.

Defendant Bundys 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. Bundys

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, 699-700 (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
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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 699-700 (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. Bundys 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 trialboth 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. Bundys 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.

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Respectfully submitted,
/s/ Thomas G. Hungar
THOMAS G. HUNGAR
General Counsel, DC Bar #447783
TODD B. TATELMAN
Associate General Counsel, VA Bar #66008
ELENI M. ROUMEL
Assistant General Counsel, NY Bar
#3978863
SARAH E. CLOUSE, Attorney, MA Bar #688187
Office of General Counsel 5
U.S. House of Representatives
219 Cannon House Office Building
Washington, D.C. 20515
Phone: 202-225-9700
Fax: 202-226-1360
Email: Thomas.Hungar@mail.house.gov
Counsel for the Honorable Greg Walden, U.S.
Representative for the 2nd Congressional District
of Oregon

August 31, 2016

Attorneys for the Office of General Counsel for the U.S. House of Representatives are
entitled, for the purpose of performing the counsels 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. 5571.

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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 Courts
electronic filing system.

/s/ Sarah Clouse___


Sarah Clouse