new court filing in steven howards' CONTINUING attempt to depose dick cheney

well -- this is more like it!

[the background on all of this, here. . .]

with the scottie mcCee revelations
increasing the pressure on the vice-
president -- by rather directly asserting
dick cheney oft-times has a problem
with his "truth-i-ness", i think mr. howards'
lawyers have struck the perfect tone, here.

next up: a ruling on this reply motion.

do check back, in just a few weeks -- we'll
bring it -- as it breaks. . .

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 OBJECTION TO THE ORDER
REGARDING THE UNITED STATES
MARSHALS TO SERVE SUBPOENA
~~~~~~~~~~~~~~~~~~~~

. . .The issue presently before this Court arises out of the Magistrate Judge’s Order requiring Plaintiff to depose “identifiable sources” who may have information relating to the incident that gave rise to Mr. Howards’ arrest for assault. This event –- which involved an interaction lasting only seconds between the Vice President and Mr. Howards -– lies at the very core of this case; however, despite taking depositions of the few known eyewitnesses to the interaction, the circumstances resulting in the assault charge remain unclear at best. Because Mr. Howards’ underlying claims depend largely on whether the arresting officers had probable cause to initiate the arrest, uncovering the facts leading up to his arrest is essential to this case.

Plaintiff now seeks to depose the single best source of this information –- the victim of the “crime,” Vice President Dick Cheney. At this stage in the litigation, the Vice President is the only other known eyewitness (and certainly the only other participant) to the interaction, yet the Magistrate Judge has required Plaintiff to first depose four other individuals before considering Plaintiff’s request to depose the Vice President. Plaintiff filed his Objection to this Order on April 29, 2008.

The nonparty Office of the Vice President (“OVP”) submitted a Response on May 20, 2008. This Reply follows. . .

To date, ten depositions have already been taken in this case. Because the primary issue presently before this Court is whether Plaintiff has met his burden of showing that the deposition of the Vice President is warranted, and because the OVP has painted a somewhat slanted picture of this testimony, the relevant testimony of the witnesses is summarized below. . . [Ed.: redacted for brevity's sake.]

. . .Plaintiff does not disagree with the burden of proof as set forth by the OVP: the party seeking the deposition bears the burden of establishing that the Vice President has firsthand knowledge of the claim begin litigated and that the information cannot be obtained from any other source. [Citations ommitted.]

At this stage in the litigation, the question before this Court is whether Plaintiff has established sufficient need to warrant discovery directly from the Vice President. Bogan, 489 F.3d at 423. As the OVP concedes in the response brief, it well-established that the Vice President has first-hand knowledge of the facts at issue. OVP’s Response, p. 10. The crux of the OVP’s argument is that the information sought is available from other sources. Because all known witnesses have already been deposed, several of whom may very well not be telling the truth, and because no other eyewitnesses have been identified, at this stage in the litigation, the Vice President is the only person from whom this information can be obtained. . .

As set forth above, Defendant Reichle did not observe what happened; Defendant McLaughlin’s written statement is nearly a word-for-word reproduction of Defendant Daniels’ statement; and Defendant Doyle’s testimony completely differs from that of the other arresting agents. More important, however, is the fact that the agents are accusing one another of lying or changing their stories.

Indeed, these are exceptional circumstances necessitating the deposition of the Vice President. The Vice President has information that cannot be obtained elsewhere: an accurate account of what happened, unmarred by allegations of lies and cover-ups. . .

The OVP asserts that “a number of other witnesses at the scene” may be able to provide first-hand accounts of what happened, but does not provide any evidence to counter Plaintiff’s argument that these four agents did not actually observe the interaction. OVP Response, p. 12. The only argument set forth by the OVP is that there were other Secret Service agents present at Beaver Creek, Colorado on June 16, 2006. OVP Response, p. 12-13. However, as the Magistrate Judge noted, “Plaintiff should not be required to identify, locate and interview every person who was present on the Beaver Creek Mall on June 16, 2006 and potentially in the position to observe the interaction between Mr. Howards and the Vice President.” Order, pp. 20-21. In his Objection, Plaintiff has already set forth substantial evidence that these four agents did not actually observe the interaction between Mr. Howards and the Vice President, including the fact that none of these agents submitted written witness statements after the event. The arguments set forth in that briefing do not “turn the legal standard on its head” (see OVP Response, p. 13); rather, they show that Plaintiff has met his burden of establishing that the deposition of the Vice President is warranted.

The OVP’s assertion that Plaintiff has “asked to depose” these four individuals is absurd. See, OVP Response, p. 14. Plaintiff has made it very clear that these depositions are pursuant to the Magistrate Judge’s Order only, and that if the deposition of the Vice President were to go forward, these depositions would likely be unnecessary. See, OVP’s Exh. 1, Letter from Althea S. Licht, dated May 14, 2008. . .

The OVP admonishes this Court from exercising its own powers in a way that may impair another institution of government. OVP Response, p. 17. However, “[s]itting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty.” Clinton v. Jones, 520 U.S. 681, 704 (1997). “The 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.” Id. at 70. 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, 520 U.S. at 703 (“it is also settled that the President is subject to judicial process in appropriate circumstances”). While certainly this Court must adhere to the moving party’s burden set forth above 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. To the contrary, if a party has met its burden (as Plaintiff has done) of establishing that exceptional circumstances exist to depose a high-ranking
government official, a court should require that the deposition go forward.

The holding in Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367 (2004) does not prevent the discovery sought in this case. In Cheney the Court precluded the discovery sought because in Cheney, “the discovery requests … ask[ed] for everything under the sky.” Id. at 387 (distinguishing that case from United States v. Nixon where the subpoena orders had “‘precisely identified’ and ‘specific[ally] . . . enumerated’ the relevant materials” (citing Nixon, 418 U.S. 683, 688 (1974)). In addition, Cheney involved issuing a writ of mandamus, which according to the Court is “one of the most potent weapons in the judicial arsenal.” 542 U.S. at 380.

In this case Plaintiff, by no means, seeks “everything under the sky.” In fact, Plaintiff’s counsel has offered to travel to Washington D.C. at a time and place convenient for the Vice President, and has conceded that the will likely last no more than an hour. The OVP’s argument that the preparation time for this deposition will add up to more than an hour’s time holds no merit. See, Clinton v. Jones, 520 U.S. 681, 702 (1997) (“if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time”). As noted by the Magistrate Judge at the March 11, 2008 hearing, it can only take so much time to prepare the Vice President to truthfully testify to the mere seconds of interaction he had with Mr. Howards on June 16, 2006.

WHEREFORE, Plaintiff respectfully requests that the Magistrate Judge’s Order be set aside, and the deposition of the Vice President proceed with service by the United States Marshals Service or, in the alternative, a private process server. . . .

Filed: June 4, 2008

as senator patrick leahy is fond
of saying -- "in america, no man
is above the law. . ." president clinton
plainly was not, when he sat for the
paula jones deposition -- so, mr. vice
president -- how long can it take to
testify, truthfully, about a twenty-second encounter?

really, how long? mr. clinton testified
about multiple months' worth of interactions, in
his -- and he managed to get the commander-in-
chief's daily-duties done, with time to
spare -- on those days. . .

you are merely a vice-president -- not the
commander-in-chief, as mr. clinton was, at the time.

what, exactly is so complicated about
telling the truth regarding a twenty-second public
encounter?

especially when you, mr. vice president, are
the sole reason mr. howards was arrested. his
claim flies -- or falls -- depending on whether there
was good probable cause to arrest him. who, better
than you -- the so-called "victim" of his
would-be assault, to tell the world, and the court,
whether you perceived "an imminent threat of
lawlessness," from his words.

c'mon -- dick -- cowboy-up; be a man, and
tell the truth -- that is all we ask of you.

you wore that stetson (above, right) at the u.s.
coast guard academy's graduation ceremonies
last weekend, in new london -- can you fill it?

can you?