dick cheney to be deposed — and then on trial — beginning september 11 2009

[do note the irony of that date.]

steven howards won an important set
of victories, in court, today. the dickster
(cheney) will likely be feelin’ a pinch, tonight.

earlier, the court had granted howards
the right to take former vice-president
cheney’s deposition — today’s order allows
howards’ lawyers ample time to get that scheduled
and completed, well before a now-extended (to a
final september 11, 2009 conference) and a
september 9, 2009 trial date.

today’s orders also prevented the dismissal
of several of the officer-defendants (on the grounds
of imunity). that is a very strong hint that this
one is going to turn on the particular facts dick
cheney either admits to, or has cross-examined out
of him — at the coming civil deposition. were i
a betting man, and i am, i’d bet real money that
dick cheney will be counseled to settle — before
the new trial date comes. i bet he’ll sit for his depo,
but i think he’ll get sufficiently “tangled up” there,
that he’ll have few real option beyond agreeing to
pay mr. howards — or end up being humiliated in a
very public five-day trial in the federal courthouse
in denver, colorado. and that is the way it should
probably go, afterall. take a look:

HEARING: Motions
9:00 a.m. Court in session.

Argument.

10:25 a.m. Court in recess.

10:37 a.m. Court in session.

Oral findings of facts, conclusions of law made of record.

ORDER: Defendants Reichle and Doyle’s Motion for Summary Judgment on the Basis of Qualified Immunity (155) is denied.

ORDER: Motion of Defendants Daniels and McLaughlin for Summary Judgment (156) is denied.

ORDER: Plaintiff Motion for Continuance of Trial (185) is granted. . . .

DEADLINES/HEARINGS:

Final Trial Preparation Conference reset to September 11, 2009 at 9:00 a.m.

Five-day jury trial reset to September 28, 2009, at 9:00 a.m.

10:56 a.m. Court in recess/hearing concluded.

Total in-court time: 1:44

dick cheney may be served — for a deposition — in howard’s 2006 colorado first amendment case

in a 16-page order, entered today (PDF),
federal district court judge christine m.
arguello has ruled that dick cheney must
allow the plaintiff’s lawyers to serve him
with a subpoena — and eventually sit for a
sworn deposition — about the events in beaver
creek, colorado, on the afternoon of june 16, 2006.

this is all about whether we, ordinary citizens of
these united states, do still possess the fundamental
right to dissent from our government’s policies,
and petition it — for the “redress of [our] grievances. . .”

. . .The cases do not involve, as the present case does, situations where the high-ranking official to be deposed was an eyewitness or physical participant in an event which precipitated the lawsuit.

Furthermore, and perhaps more obviously, Mr. Cheney is no longer a high-ranking government official, so the Court questions whether these cases are still applicable. In any event, the Court believes that Mr. Cheney should be deposed because he has relevant testimony that is unavailable from any other source in this case. . .

no doubt, cheney’s lawyers will appeal
this order allowing the service, and
therefore, the sworn deposition of the dick.

so — it will be a while, but he will
eventually have to answer — under oath — why
he ordered his guards to arrest steven howard
for simply expressing his first amendment pro-
tected views about the administration’s policies
in iraq. one small one for the good guys.

is this old man potter? who is this guy?

this, i suppose, is fitting:

in many ways, dick cheney crippled
our once proud nation’s commitment
to individual liberty and privacy — so,
it seems ironic that he would hurt his
back (moving a “man-sized” safe, all by
his lonesome — in secret — perhaps?) — and
leave office in a wheelchair, looking suspiciously
like the second runner-up in the “old man potter“
look-alike-contest (reference capra’s “it’s a wonderful life“):

even if cheney is not deposed (pre-trial), he may yet be called, at trial — as a witness. . .

as mr. howard’s appeal from the denial
of his request to depose the vice president
(about the circumstances of their conversation,
in the moments before he was arrested) wends its
way through the courts, the parties continue to
prepare for trial on the merits. to that end, page
12 of a proposed agreed final pre-trial order is
rather illuminating — as it makes plain that mr.
howard’s lawyers intend to call mr. cheney, as
a witness, at trial. by then, he will be a private
citizen — and no longer able to assert that he
is too busy with “affairs of state” — to appear.

in fact, he’ll likely be just up the road (north
a few hundred miles, on i-25), in wyoming –
jackson hole, or casper, actually. cool.

in retirement — but still in league with evil.

do take a look — 2009 could provide this goofy gift:

namaste.

colin powell denounces xenophobia — endorses obama — says republicans have “lost their way”. . .

this is a towering figure — making a clean
break from the politics of division and hate:

the more cynical side of me wonders
whether former general powell will now
throw his hat in the ring for secretary
of state, or defense, in the emerging
obama cabinet for 2009. . .

i do not want to detract from his courage
in making this break, though — he has done
so on first principles – saying the republicans
have shifted too far right, and toward division,
rather than inclusion, in beating the drum
on the (clearly dead) ayers story — as just
one small example.

good bye, and good riddance, messrs. cheney,
bush — and your sidekick (not maverick) mccain.

btw — was sarah palin’s appearance in the
rap scene on s.n.l., last night the closest thing
you’ve ever seen to an admission that she’d
rather be on “the real world“, garner her
15 minutes — than to actually be no. 2 in line
to run the country — or, even be no. 1, in
alaska? i think it was her concession “speech“.

she’s knows she’s burnt toast — and now she’s
angling for a fox-news style analyst gig, post
nov. 2008 — i suspect even alaska will no longer
want her as the helicopter hunting, high-powered,
scoped rifle barbie, after troopgate is fully
understood. the “first dude” ought to prepare
to live in knoxville, or new jersey. or wear an
orange jumpsuit — for his lies in signed, sworn
statements to the alaska bi-partisan commission.

19 days until our regime changes — up 14 points, nationwide.

it would appear that. . .

“yes, we can. . .”

we can change the politics of
deceit, and fear, and secrecy. . .

to the politics of common decency,
shared ground, open discussion, and
respect for our differences — while
still moving inexorably forward. onward.

upward.

yes, we can:

CREW wins a preliminary injunction against cheney’s tossing official records. . .

in a special saturday order, d.c. federal
district court judge colleen kollar-kotellly
has issued a preliminary injuction in CREW
v. Cheney, et al. — running in favor
of CREW, to prevent the vice president’s
offices from dumping any [more] records that
dick cheney unilaterally decides need not be pre-
served under his highly dubious narrowed-inter-
pretation of the presidential records act.

cheney had argued that he need only preserve
records he deemed central to duties directly
assigned him by the president in an official
capacity, or generated in an official capacity
in his (largely ceremonial) legislative role — in
other words, almost no records, at all. . .

the able judge believes there is substantial
doubt about whether cheney’s view is correct — given
that the PRA was specifiaclly amended to deal
expressly with shenanigans attempted by dick
cheney’s old boss at a former white house — one
richard m. nixon — (when dick was a welp), and to
definatively put an end to attempts made, on
nixon’s behalf, to shield many of the records
of that ignoble presidency, from public view.

quoth judge kollar-kotellly:

. . .the Court is guided by the Supreme Court’s discussion of the purposes underlying the PRA’s enactment in Nixon v. Administrator of General Services, as explained above. The PRA serves to “preserve [Presidential and Vice-Presidential] materials for legitimate historical and governmental purposes” and to ensure that future members of the executive branch can access historical records as necessary in carrying out their duties. 433 U.S. at 452-53. The PRA also serves the public interest by ensuring the “preservation of an accurate and complete historical record” by “trusted and disinterested professionals,” and thus enhances “the public confidence in our political processes.” Id. at 452-53 and n.14 (quoting Nixon v. Administrator of General Servs., 408 F. Supp. 321, 338-39 (D.D.C. 1976)).

These public interests are of the utmost significance and, as discussed above, are not and will not be fully protected if Defendants’ narrowed interpretation of the PRA’s statutory language is incorrect as a matter of law. Defendants admit that they have only preserved under the PRA those records that they have unilaterally determined to be encompassed in the phrase “documentary material . . . created or received by the [Vice] President . . . in the course of conducting activities which relate to or have an effect upon the carrying out of [his] constitutional, statutory, or other official or ceremonial duties . . . .” 44 U.S.C. § 2201(2). The American public, however, has a right to the preservation of all records encompassed by the PRA’s statutory language. As such, until the Court is able to determine whether Defendants’ narrowed interpretation is legally supported, the public interest favors the issuance of a preliminary injunction. . .

For the foregoing reasons, the Court shall GRANT Plaintiffs’ [3] Motion for Preliminary Injunction. As set forth in the Order accompanying this Memorandum Opinion, the Court shall order all Defendants to preserve throughout the pendency of this litigation all documentary material, or any reasonably segregable portion thereof created or received by the Vice President, his staff, or a unit or individual of the Office of the Vice President whose function is to advise and assist the Vice President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the Vice President, without regard to any limiting definitions that Defendants may believe are appropriate. . .

any violation of this order is punishable
by immediate contempt — including the power
to promptly jail the offender, to deter additional
violations of these preservation orders. cool.

steven howard sets out his case — essentially in full, in eight pages — against dick cheney. . .

i seem to be one of the very
few bloggers following, or ever
even mentioning this matter — so,
as a public service, and to complete
the freely-searchable record, here, i
will now reproduce the entire-text of
mr. howard’s latest motion to depose the
dick (i’ve only redacted internal foot-
notes, and internal references to other
court-filed exhibits, for clarity, in this case).

this was filed only yesterday — and it
very comprehensively, yet succinctly,
sets forth howard’s case against the vice
president — for false arrest, and
restraint of his constitutionally-guaran-
teed rights of free political speech, and
expression. this may well serve as
an apt reminder of what an unchecked
unitary executive theory will inexorably,
inevitably engender (or, put more plainly,
“absolute power corrupts — absolutely“).

in any event, here it is:

IN THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT
OF COLORADO

Civil Action
No. 06-cv-01964-WYD-CBS

STEVEN HOWARDS,
Plaintiff,

v.

VIRGIL D. “GUS” REICHLE, JR., et al.,
Defendants

~~~~~~~~~~~~~~~

PLAINTIFF’S REPLY REGARDING
THE OPPOSITION TO THE RENEWED
MOTION FOR UNITED STATES
MARSHALS TO SERVE SUBPOENA

~~~~~~~~~~~~~~~~~

PLAINTIFF, Steven Howards, by and through counsel David A. Lane and Althea S. Licht of Killmer, Lane & Newman, LLP, respectfully submits his Reply to the Office of the Vice President’s Opposition to Plaintiff’s Renewed Motion for United States Marshals to Serve Subpoena, as follows:

I. INTRODUCTION

Pursuant to this Court’s order, Plaintiff Steven Howards has re-filed a motion to depose Vice President Dick Cheney regarding the interaction between Plaintiff and the Vice President giving rise to Plaintiff’s arrest for assault. Since Plaintiff’s original motion was filed, Mr. Howards has complied with the Court’s order to depose additional Secret Service agents. Despite having deposed three additional agents, the deposition of the Vice President remains necessary to this litigation.

Plaintiff Steven Howards has set forth three claims for relief: (1) a violation of his Fourth Amendment right to be free from unreasonable seizures, (2) a violation of his Fourth Amendment right to be free from unreasonable searches, and (3) violations of his First Amendment rights of free speech and to petition his government. See, First Am. Compl. The Vice President’s testimony, as the victim of the “crime,” is necessary to the determination of these claims. However, the necessity of the deposition is not premised solely upon the fact that the eye witnesses (of whom there is only a limited number) have provided conflicting stories about the incident, as the OVP would have the Court believe. As Plaintiff has previously established, exceptional circumstances exist in this case by virtue of the fact that some of these witnesses, officers of the United States, are allegedly lying under oath.

II. ARGUMENT

A. The Deposition of the Vice President Remains Necessary to Plaintiff’s Fourth Amendment claims.

Mr. Howards’ Fourth Amendment claims hinge upon whether the arresting agents had probable cause to make the arrest, and the Vice President is in the single best position to aid the Court in making this determination. Notably, only two of the eight agents deposed testified that they had probable cause to arrest Mr. Howards, one of whom -– the actual arresting agent –- did not even witness the encounter with the Vice President. See, Exh. A, Reichle Depo. 9:2-5; Exh. B, Doyle Depo. 68:4-10. The primary arresting officer, Defendant Gus Reichle, despite not observing Mr. Howards approach the Vice President, decided to arrest Mr. Howards because of “his premeditation, Mr. Howards would not talk to me, the fact he’s walking around with a bag in his hand in an unmagged area, and the fact that you’re telling me that he had unsolicited contact, I had probable cause, so I decided to make an arrest and I went after Mr. Howards.” Exh. A, Reichle Depo. 34:15-35:1. Remarkably, the other agents testified that probable cause did not exist to arrest Mr. Howards. See, Exh. C, Daniels Depo. 47:3-10 (“I personally did not have probable cause”); 48:4-5 (“[p]robable cause did not exist to make an arrest”); Exh. D, McLaughlin Depo. 69:12-18; 87:3-6 (affirming that probable cause did not exist to arrest Mr. Howards); Exh. E, Lee Depo., 20:3-4 (stating that he did not believe that an assault had taken place); Exh. F, Wurst Depo. 11:15-18; 18:13-19:2; 22:19-23:6 (stating that he did not see a crime – neither assault nor any other crime – committed in his presence). The two other agents that have been deposed did not see the interaction between Mr. Howards and the Vice President at all. Exh. G, Mischloney Depo. 8:1-5; 14:21-22; Exh. H, Rosales Depo. 8:11-16.

Indeed, the probable cause determination does not rest upon whether the Vice President personally felt he was slapped. However, this case does not simply involve the differing testimonies of eye witnesses, as can be expected in any litigation. This is the exceptional case in which some of the Secret Service agents alleged that other agents were lying under oath. Defendant Reichle testified that Defendant McLaughlin changed his testimony regarding what he saw between Mr. Howards and the Vice President. Exh. A, Reichle Depo. 47:22-48:13. Defendant McLaughlin then testified that he was told by Defendant Reichle to change his story about what he had observed. Exh. D, McLaughlin Depo. 134:13-135:17. Thus, with the victim of the crime having yet to testify, the parties are left with the testimony of five agents, at least one of whom has been accused of changing his story. Whether other agents also altered their stories remains uncertain.

Certainly, a more reliable record must be developed in order for Mr. Howards’ Fourth Amendment claims to be properly adjudicated. Beck v. Ohio, 379 U.S. 89, 93 (1964) (finding that the poorly developed record precluded the Court from finding that the arrest was made within the confines of the Fourth Amendment).

B. The Deposition of the Vice President is Necessary to Plaintiff’s First Amendment Claim

Plaintiff’s Third Claim for relief involves Defendants’ acts “of intimidating, threatening, searching, and falsely arresting Mr. Howards” because of Mr. Howards’ exercise of constitutionally protected conduct. First Am. Compl. ¶¶ 31-36. In the April 15, 2008 Order, this Court briefly addressed Plaintiff’s First Amendment claim in the context of deposing the Vice President. Relying solely on Defendant Reichle’s testimony — that he did not discuss the incident with the Vice President — the Court stated that “it is difficult to see how a deposition of the Vice President would be relevant to Plaintiff’s third claim for relief.” Order, p.17 However, Defendant Reichle, was not in the vicinity of Mr. Howards when he approached the Vice President and did not hear what was said. In fact, seven of the eight Secret Service agents who have been deposed did not hear what Mr. Howards said to the Vice President. Exh. I, Daniels Statement, p. 2 (stating that Mr. Howards’ statements were inaudible from where he was standing); Exh. J, McLaughlin Statement, p. 2 (stating that, from across the street, he could not hear what Mr. Howards said); Exh. B, Doyle Depo. 49:9-50:6 (“I saw Mr. Howards make a statement. I don’t know what statement he made to the Vice President.”); Exh. F, Wurst Depo., 10:14-18 (stating only that Mr. Howards said “something” to the Vice President); Exh. G, Mischloney Depo. 19:22- 20:7 (stating that he solely relied on what other agents had told him, not what he had seen or heard himself); Exh. H, Rosales Depo. 8:11-16 (confirming that he did not hear (or observe) the interaction).

The only witnesses who testified to hearing Mr. Howards’ statement were Agent Lee, OVP aide Charles Durkin, and White House photographer David Bohrer. See, Exh. E, Lee Depo. 16:21-17:4 (stating that Mr. Howards said something along the lines of “You guys messed up Iraq”); Exh. K, Durkin Depo.18:14-19:4 (stating only that Mr. Howards made a statement “regarding Iraq policy”); Ex. L, Bohrer Depo., 10:6-15 (testifying that he heard “someone yelling about the Vice President’s Iraq policy”).

Whether Mr. Howards was arrested in violation of his First Amendment rights depends on the precise words that he spoke to the Vice President, and only the Vice President himself can verify what was said. Given the severity of Mr. Howards’ treatment and the significance of the potential constitutional violation at stake, a determination of what exactly transpired is critical to this case.

C. It is Within This Court’s Discretion to Allow the Deposition to Proceed

It is within the trial court’s discretion to allow a deposition of a high-ranking official to proceed so long as the party seeking the deposition has shown that the official has first-hand knowledge of the claims being litigated and the information cannot be obtained from any other source. Bogan v. City of Boston, 489 F.3d 417, 423-424 (1st Cir. 2007); Fed.R.Civ.P. 26(b)(1) (“For good cause the court may order discovery of any matter relevant to the subject matter involved in the action”). To be sure, the limitations in deposing a senior government official are not absolute. Id. at 423. Indeed, the Vice President, no less than the President himself, is “scarcely immune from judicial process.” Halperin v. Kissinger, 606 F.2d 1192, 1211 (D.C.Cir.1979); Clinton v. Jones, 520 U.S. 681, 703 (“it is also settled that the President is subject to judicial process in appropriate circumstances”).

The Vice President’s position alone, therefore, will not insulate him from litigation, particularly when the constitutional rights of a citizen are denied at his expense.

Moreover, the trial court has the discretion to manage the deposition so as not to overly interfere with the official’s busy schedule. See, Jones, 520 U.S. at 702 (“if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time”). Thus, the Court may properly address the OVP’s concerns regarding the Vice President’s time constraints by limiting the deposition to a time period shorter than that allowed by Federal Rule of Civil Procedure 30 (d)(2). The OVP’s argument that the “preparation and the to-and-fro involved with any deposition” will take more than an hour’s time is wholly unavailing. In light of the fact that the Vice President will be asked questions related to an incident that lasted mere seconds, it is hard to imagine that any lengthy “preparation” time is required of him. Moreover, undersigned counsel has stated that he will travel to a location convenient for the Vice President in order to avoid the “to-and-fro” of a deposition that the OVP protests.

Additionally, although the OVP poses an argument grounded in the separation of powers doctrine, “[t]he litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President [or, in this case, the Vice President] poses no perceptible risk of misallocation of either judicial power or executive power.” Jones, 520 U.S. at 701. While certainly this Court must adhere to the moving party’s burden in order to require the Vice President’s deposition, constitutional principles do not “require” the court to protect the Vice President from a deposition if warranted.

Here, there is no protective order in place preventing the deposition to go forward, and it is within this Court’s discretion to order discovery from the Vice President.

WHEREFORE, Plaintiff respectfully requests that the deposition of the Vice President proceed.

Respectfully submitted this 3rd day of September 2008.

KILLMER, LANE & NEWMAN, LLP

cheney: the past. obama-biden: the future. deal with it.

does dick cheney deserve to be
tried for war crimes? does george
bush? of course, in both cases.

but both of them are – after
senator obama’s speech, this
very night, on the 45th anni-
versary of the march on wash-
ington — the increasingly ir-
relevant past.

this is the future, then:

we can afford to look backward
no longer. barring something truly
astonishing, it is not likely that
i’ll post very much content here any longer.

these two men — cheney and bush — will
very soon now be consigned to the
ash-bin of history for the shambles
they’ve made of the promise that
once was the great american dream. . .

barack obama — and you(!) – can re-
vive that dream, resurrect that hope,
and restore that faith — faith in a
world not bounded by fear, and by ignorance.

we need change. we need it now.

make it so.

help get out the vote, wherever you are.

n a m a s t é

steven howard renews his motion to depose dick cheney. . .

[for some background, read this. or this.]

as colorado district court judge wiley
b. daniel had much earlier indicated, steven howard
should be free to renew his motion to depose the
vice president — dick cheney — about what dick
claims happened that justified his 2006 arrest, after
disagreeing face-to-face with the vice president,
in beaver creek, colorado, at a smaller, “hand-
shaking, meet and greet” type of public appearance,
in front of some local shops — in short — in public.

judge daniels held, in preliminarily-denying
howard lawyers’ much earlier motion, that if plain-
tiff howard could not obtain the evidence he
was seeking elsewhere, he could always renew his
motion to depose the dick, when all other avenues
had been exhausted. mr. howard’s lawyers now
effectively swear, as of august 12, 2008, that
moment has arrived — it is upon us:

. . .A party seeking the deposition of a high-ranking government official must establish that the official has firsthand knowledge of the claim being litigated and the information cannot be obtained from any other source. Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007). Indeed, there is substantial case law in which courts have acknowledged that the deposition of a high-ranking government official is warranted where the government official has personal knowledge of the matter and the information cannot be contained elsewhere. Alexander v. FBI, 186 F.R.D. 1, 4 (D. D.C. 1998) (“high ranking government officials are generally not subject to depositions unless they have some personal knowledge about the matter and the party seeking the deposition makes a showing that the information cannot be obtained elsewhere”); Church of Scientology v. IRS, 138 F.R.D. 9, 11 (D.Mass 1990) (“[a]n exception to th[e] general rule exists concerning top officials who have direct personal factual information pertaining to material issues in an action”); Community Federal Sav. & Loan Assoc. v. Federal Home Loan Bank Bd., 96 F.R.D. 619 (D. D.C. 1983) (holding that the deposition of an agency official may be permitted when the official has relevant first-hand knowledge of matters material to the decision and not available from some other source); Warzon v. Drew, 155 F.R.D. 183, 185 (E.D. Wis. 1994) (“[a]n exception to th[e] general rule exists concerning top officials who have direct personal factual information pertaining to material issues in an action . . . [and] where the information to be gained . . is not available through any other source.”); see also, Halperin v. Kissinger, 606 F.2d 1192, 1211 (D.C.Cir.1979) (“Presidents are scarcely immune from judicial process”).

Clearly, as the victim of Plaintiff’s alleged “assault,” the Vice President has personal knowledge of the claims at issue in this litigation. Mr. Howards approached and spoke directly to the Vice President, and it was this act that led to Mr. Howards’ arrest. . .

indeed — we shall see.