Sunday, March 16, 2008

will u.s. district court judge wiley y. daniel allow cheney to be served with a subpoena?


this post wonders whether the
vice president is truly above the law.

[the background on this is here.]

remember, of course, that our 42nd
president of the united states accepted
service of a subpoena, and actually sat for
a deposition, in a civil matter, while he
was the sitting president -- because he
understood that the rule of law applied
even to a sitting president, and he had
knowlege of matters that the plaintiff
was entitled, as a matter of law, to
ask after -- and receive answers.

wow, how much the world
has changed, eh?

vice president cheney
has, thus far, avoided
service of the below-
subpoena, and his lawyers
have refused, thus far,
to allow his deposition
to be scheduled by consent.
this is the case brought
by a colorado man, after
cheney had the secret
service arrest him for
touching dick on the
shoulder, while voicing
opposition to the war
in iraq.

several of the secret service agents,
and various factions of the local police,
are at odds about what exactly happened in
the encounter -- thus, dick cheney, as the
eye-witness with the most information about
the encounter (save only mr. howards himself),
is an entirely proper party to depose.

click on the subpoena to enlarge it;
below the subpoena is the full-text
motion supporting the notion that the
united states marshals should be ordered,
by judge wiley y. daniel, to serve the
subpoena upon the vice president. will
this colorado federal district court
judge follow the law? we shall see.

the subpeona for cheney's dep -- to
be taken at the ACLU's office in DC,
no less! -- is here:


~~~~~~~~~~~~~~~~~~~~~~~~
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., in his
individual and official capacity;
KRISTOPHER MISCHLONEY, in his
individual and official capacity;
DANIEL MCLAUGHLIN, in his
individual and official capacity;
DAN DOYLE, in his individual
and official capacity;
ADAM DANIELS, in his
individual and official capacity,

Defendants.

~~~~~~~~~~~~~~~~~~~~~~~~
UNOPPOSED MOTION FOR UNITED
STATES MARSHALS TO SERVE SUBPOENA

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


PLEASE TAKE NOTICE that the Plaintiff, Steven Howards, by and through counsel David A. Lane of Killmer, Lane & Newman, LLP, hereby moves this Court for an Order authorizing the United States Marshal to serve a subpoena on the Vice President of the United States in order to compel him to sit for a deposition in the above-captioned matter. The grounds for this motion are set forth fully herein:

1. The Complaint in this case alleges that Mr. Howards was wrongfully arrested by the Defendant Agents of the United States Secret Service ten minutes after approaching the Vice President of the United States, Richard Cheney, on the mall in Beaver Creek, Colorado, and telling him that he thought that his “policies in Iraq were disgusting.” Howards was arrested by Defendant Reichle and informed that he was “under arrest for assaulting the Vice President of the United States.” Ultimately, no federal charges of any kind were filed however state court harassment charges were filed with the named victim being Richard Cheney. The District Attorney in Eagle County, Colorado, dismissed those charges and this lawsuit ensued.

2. Extensive deposition testimony has occurred with all Defendants having been deposed and there is a shocking lack of consistency among the defendants and other by-stander witnesses as to what occurred.

3. Defendant Agent Reichle has accused defendant Agents McLaughlin and Daniels of lying under oath, engaging in a cover-up of the truth and committing the federal offenses of filing false reports regarding this incident. Agents McLaughlin and Daniels have accused Agent Reichle of committing the federal offense of soliciting them to change their reports and file false reports concerning this incident.

4. Mr. Howards, in his deposition, swears that he lightly touched Mr. Cheney on his arm after delivering his message. Mr. Cheney’s personal aid, Mr. Charles Durkin testified that he was standing approximately 6-8 feet away and witnessed only a light touch and a hand shake. Hearsay testimony from Agent Reichle at his deposition indicates that the Vice President told the D.C. Agent in Charge that “there was no assault.”

5. No witness has been clear, save for Steve Howards, about the precise words spoken by Howards in his statement to Mr. Cheney. All agree that Howards “said something about Iraq” but no one has elaborated on the words spoken.

6. Because Mr. Cheney is clearly the best eye-witness to the events in question, he is a critical witness for deposition in this case. This is especially true in light of the scandalous testimony by the individual Agent/Defendants who are literally accusing one another of lying about what happened on the day in question.

7. Counsel for the Vice President, Ms. Kathryn Wheelbarger, and counsel for the United States Department of Justice, Mr. James Gilligan, have been present for the depositions in this matter. Both have been repeatedly asked to accept service of a subpoena for the Vice President and invited to then file a motion to quash. Both have steadfastly refused to even accept service of a subpoena, thus necessitating undersigned counsel to serve the Vice President. Undersigned counsel has repeatedly explained to the Vice President’s lawyers that he will not view acceptance of a subpoena for the Vice President as a waiver of any kind of his right to file a miscellaneous case in the District of Columbia seeking to quash the subpoena. Acceptance of service will simply expedite these proceedings and avoid the needless expenditure of resources. Despite these entreaties, the Office of the Vice President and the Department of Justice, refuse to cooperate.

8. Given the nature of trying to send a private process server to serve the Vice President of the United States, it is requested that this Honorable Court Order the United States Marshal to serve the attached subpoena on the Vice President. Clearly, given the complete lack of cooperation by the Vice President, sending a private process server to find him is neither practicable nor desirable.

9. This motion is solely designed to obtain an Order of this Court to the United States Marshal to serve the Vice President and is not designed as an effort to argue to this Court the merits or lack thereof of any anticipated motion to quash which the Vice President will undoubtedly file.

10. Pursuant to Local Rule 7.1 undersigned counsel has conferred with opposing counsel for Defendants who do not oppose this motion.

WHEREFORE, undersigned counsel respectfully requests that the Court grant this Motion and for any other further relief which this Court deems just and proper.

Respectfully submitted,

KILLMER, LANE & NEWMAN, LLP

s/ David A. Lane
~~~~~~~~~~~~~~~~

David A. Lane
KILLMER, LANE & NEWMAN, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
Attorneys for Plaintiff

UPDATED: the magistrate in the colorado
u.s. district court has taken the above motion
"under advisement" -- as of march 12, 2008,
even though the motion is entirely un-
opposed by any party
, in the case:
ORDERED: The Unopposed
Motion for United States Marshals
to Serve Subpoena [filed January 24, 2008;
doc. 73] is taken under advisement. . .

this one seems obvious -- order the
u.s. marshals to serve mr. cheney, as
all section 1983 lawsuits allow service
of government witnesses -- the very nature
of a 1983 claim is government mistreatment -- then
allow mr. cheney's lawyers to move to quash.

but for judge daniel to allow
this -- in effect, the veep pulls
a harriet miers "no show" -- would
be to subvert the rule of law,
and suggest that one rule applies
to democratic presidents, while
entirely another applies to re-
publican vice presidents who once
happened to be the c.e.o. of an
important defense contractor.

we are all watching -- yes, the
entire world is now watching, judge
wiley y. daniel -- what will you do?

p e a c e

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p e a c e

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