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Full-text: November 6 2003
Protest zones: “No War for Oil” (October 24 2002)

United States District Court for the District of South Carolina Columbia Division

Filed, NOV 6 2003, Larry W. Propes, Clerk, Columbia S.C.


Criminal No.: 3:03-309

United States of America)
Brett A. Bursey)

Motion to Quash

On November 4, 2003, the United States Department of Justice accepted service of a trial subpoena from the defendant which commands the appearance of Attorney General John Ashcroft at the defendant’s trial at 9:30 a.m. on November 12, 2003. The subpoena also commands the Attorney General to bring with him certain documents. The United States moves to quash this subpoena on the grounds that the defendant has failed to make the requisite showing for such a subpoena, and timing and service of this subpoena is an outrageous and abusive use of the process of this court.

The law applicable to such a subpoena is clear. In quashing a subpoena served upon the Attorney General and Deputy Attorney General of the United States, the court in In re United States {33kb.pdf}, 197 F.3d. 310, (8th Cir. 1999) stated:

The need for controlling the use of subpoenas against high government officials was recognized by the Supreme Court in United States v. Morgan, 313 U.S. 409, 421-22, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). In that case ... the Court stated that regular examination of high officials concerning the reasons for their official actions would undermine the integrity of the administrative process. Id. at 422, 61 S.Ct. 999. Other courts have reasoned similarly. Because ¶

“[h]igh ranking government officials have greater duties and time constraints than other witnesses ... [they] ‘should not, absent {p.2} extraordinary circumstances, be called to testify regarding their reasons for taking official actions.’” ¶

In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993) (per curiam) (quoting Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985)). If other persons can provide the information sought, discovery will not be permitted against such an official. Id. at 513; see also In re FDIC {30kb.html}, 58 F.3d 1055, 1062 (5th Cir. 1995).

* * *

[a party] must therefore establish at a minimum that the [high government officials] possess information essential to his case which is not obtainable from another source. Kessler, 985 F.2d at 512-13; see also In re FDIC {30kb.html}, 58 F.3d at 1062. This means both that the discovery sought is relevant and necessary and that it cannot otherwise be obtained. Kessler, 985 F.2d at 512-13. Without establishing this foundation, “exceptional circumstances” cannot be shown sufficient to justify a subpoena. See id.

199 F.3d at 313-14. See also In re United States, 985 F.2d 510, 512 (11th Cir. 1993) (“the Supreme Court has indicated that the practice of calling high officials as witnesses should be discouraged,” citing Morgan, supra).

The defendant in this case has made no showing whatsoever about the relevance and necessity of the information sought from the Attorney General, nor has the defendant shown that this material “cannot otherwise be obtained.” The defendant has made no effort to determine the material he seeks even exists.

In addition, the defendant has utterly failed to even address, much less comply with, the regulations governing subpoenas issued to Department of Justice employees. See 28 C.F.R. §§ 16.21-16.28 {July 1 2003: 22kb.txt, 34kb.pdf; current rule: 22kb.txt, 34kb.pdf}; United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); and United States v. Williams {17kb.html, 25kb.pdf}, 170 F.3d 431 (4th Cir. 1999). Thus, by law, compliance {p.3} with this subpoena cannot even be considered.

Furthermore, the subpoena should be quashed because the defendant’s issuance and service of this subpoena is a clear, contemptuous abuse of the process of this court. Despite the many months this trial has been pending, despite numerous conversations between counsel for the defendant and the government about the presence of other witnesses and discovery matters, and despite the pre-trial conferences held in this case at which this serious matter could have been addressed by the court, the defendant has chosen to wait until the last minute to serve a trial subpoena upon the Attorney General of the United States. The government asserts that issuance and service of this subpoena was vexatious and done in bad faith, and as evidence thereof asks the court to consider:

(1)  the last minute timing of the subpoena;

(2)  the apparent total ignorance and clear disregard of the legal requirements a party must establish before such a subpoena can be considered valid;

(3)  the fact that no such subpoena was issued when this case was originally scheduled for trial;

(4)  the fact that the defendant failed to bring this subpoena to the attention of the court;

(5)  upon information and belief, the defendant has issued and is seeking service of similar subpoenas the week before trial upon high ranking officials of the White House and United States Secret Service; {p.4}

(6)  upon information and belief, the defendant has scheduled a “news conference” for November 6, 2003, to “announce” the issuance of the subpoenas referenced herein.

On the eve of trial, the defendant seeks to engage in a “fishing expedition” with the Attorney General of the United States and compel his appearance at a non-jury trial of a petty offense. The defendant’s counsel unquestionably knew such a subpoena would be a seriously and vigorously contested issue, yet rather than seek the court’s review of their actions, rather than expending even a modicum of effort to comply with the law, a “news conference” is scheduled. Clearly the defendant and counsel have no legitimate reason for issuing this subpoena and are only interested in grandstanding. This conduct is so outrageous on its face and makes such a mockery of the judicial system that the defendant and counsel simply cannot credibly claim any belief that the subpoena was valid or that their actions were in good faith.

Thus, the government asks the court to consider imposition of sanctions pursuant to both 28 U.S.C. § 1927 and the court’s inherent power “to impose sanctions on counsel who ‘willfully abuse[s] judicial processes.’” United States v. Blodgett, 709 F.2d 608, 610 (9th Cir. 1983) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, (1980)). See also: Chambers v. NASCO, {501 U.S. 32, 42-51,} 111 S.Ct. 2123, 2133 (1991) (recognizing a court’s inherent power to “assess attorney’s fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons”); United States v. Williams, 894 F.2d 215, 217 (7th Cir. 1990) (court has inherent power to sanction attorney in a criminal case); {p.5} and United States v. Wallace, 964 F.2d 1214 (D.C. Cir. 1992) (recognizing both statutory and inherent power of a court to sanction counsel).

Therefore, for the above reasons, the government asks that the subpoena in question be quashed and sanctions be imposed.

Respectfully submitted,

Signature: John M. Barton

J. Strom Thurmond, Jr.
United States Attorney

by: { Signature }


John M. Barton
Assistant U.S. Attorney
(Federal I.D. # 1226}
1441 Main Street, Suite 500
Columbia, S.C. 29201
(803) 929-3000

November 6, 2003 {p.6}


Certificate of Service

{Case caption, omitted}

I hereby certify that I am an employee in the Office of the United States Attorney for the District of South Carolina, and on November 6, 2003, I served one true and correct copy of the Motion to Quash, in the above-captioned case via first class United States Mail, return address clearly stated, proper postage affixed thereto, addressed as follows:

John H. Blume, Esquire
1247 Sumter Street, Suite 202
Columbia, SC 29202

Rauch Wise, Esquire
305 Main Street
Greenwood, SC 29646

Pascal Lewis Pitts, Jr., Esquire
1030 Carolina Avenue
Durham, NC 27705

Signature: Tracey S. Donaldson


{ Signature }

Tracey S. Donaldson

Columbia, South Carolina


Source: Photocopy of a duplicate original (the court’s file copy), scanned to pdf.

By CJHjr: Converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, added paragraphing (for ease of reading) marked with this trailing paragraph symbol:  ¶ .

This case: United States v. Brett A. Bursey (D.S.C., No. 3:03cr309 {175kb.html}, criminal information filed March 7 2003, jury trial denied June 4 2003, bench trial Nov. 12-13 2003, bench trial Nov. 12-13 2003, verdict Jan. 6 2004: guilty, $500 fine (Bristow Marchant, U.S. Magistrate Judge), district appeal docketed Jan. 13 2004, affirmed Sept. 14 2004 (Cameron McGowan Currie, U.S. District Judge), circuit appeal docketed Oct. 7 2004, affirmed July 25 2005 {64kb.pdf, 64kb.pdf}, rehearing denied Sept. 8 2005 (4th Cir., No. 04-4832), petition for certiorari docketed Dec. 14 2005, certiorari denied Jan. 17 2006 (U.S., No. 05-767).

Next: Court’s Order Granting U.S. Motion to Quash Subpoena (Nov. 7 2003).

See alsoOther Secret Service protest zone cases” on the docket-sheet page. Brett Bursey

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.


Posted Jan. 3 2004. Updated Jan. 3 2004.


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