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Case 2:16-cr-01012-SRB Document 178 Filed 06/27/17 Page 1 of 3

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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 United States of America, No. CR-16-01012-001-PHX-SRB
10 Plaintiff, ORDER
11 v.
12 Joseph M. Arpaio,
13 Defendant.
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15 At issue is the Government’s Motion to Quash Defendant’s Trial Subpoena to U.S.
16 Attorney General Jefferson Beauregard Sessions (“Mot.”) (Doc. 161).
17 The Government moves to quash the subpoena Defendant served on Attorney
18 General Jefferson Beauregard Sessions arguing that his testimony is neither relevant nor
19 meets the demanding standard required to compel the testimony of a high-ranking
20 official. (Mot. at 2.) Defendant argues that the Attorney General’s testimony is necessary
21 because he “makes all determinations with respect to ‘all questions of law’ on behalf of
22 the Department of Homeland security (Border Patrol and ICE)” and his statements
23 constitute admissions of a party opponent. (Doc. 167, Def.’s Resp. to Mot (“Resp.”) at 2-
24 3.) Defendant further argues that this is an extraordinary case because “Plaintiff is
25 prosecuting the former head of law enforcement in the fourth most-populous county in
26 the United States, for merely cooperating with Plaintiff in federal law enforcement.” (Id.
27 at 3-4.)
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Case 2:16-cr-01012-SRB Document 178 Filed 06/27/17 Page 2 of 3

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It is a settled rule in [the Fifth Circuit] that “exceptional circumstances must
2 exist before the involuntary depositions of high agency officials are
permitted.” In re Office of Inspector General, 933 F.2d 276, 278 (5th Cir.
3 1991) (per curiam) (citing EEOC v. K–Mart, 694 F.2d 1055, 1067–68 (6th
Cir. 1982)). “[T]op executive department officials should not, absent
4 extraordinary circumstances, be called to testify regarding their reasons for
taking official actions.” Id. (quoting Simplex Time Recorder Co. v.
5 Secretary of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985)). “High ranking
government officials have greater duties and time constraints than other
6 witnesses.” In re United States, 985 F.2d 510, 512 (11th Cir.) (per
curiam), cert. denied, 510 U.S. 989, 114 S.Ct. 545, 126 L.Ed.2d 447
7 (1993). “[T]he Supreme Court has indicated that the practice of calling high
officials as witnesses should be discouraged.” Id. (citing United States v.
8 Morgan, 313 U.S. 409, 61 S. Ct. 999, 85 L.Ed. 1429 (1941)).
9 In re F.D.I.C., 58 F.3d 1055, 1060 (5th Cir. 1995).
10 The Court is unaware, and Defendant has not supplied, any support for his legal
11 proposition that exceptional circumstances need not be shown by him before permitting
12 the subpoena of the Attorney General and Defendant has not met that burden here. First,
13 this case encompasses the actions of Defendant arising out his alleged violation of a 2011
14 preliminary injunction order and its alleged continued violation until 2013. Defendant has
15 not shown the relevance of the current Attorney General’s position on federal
16 immigration policies from 2011 to 2013 when he was not appointed until February 2017.
17 Attorney General Sessions’ 2017 statements regarding the United States’ current policy
18 are irrelevant to the United States’ policy between 2011 and 2013. Furthermore,
19 Defendant has not argued or shown that Attorney General Sessions has knowledge of the
20 United States’ policy on immigration during the relevant 2011 to 2013 timeframe. In re
21 U.S., 542 F. App’x 944, 948 (Fed. Cir. 2013) (“In deciding whether that burden has been
22 met, courts have held that the government official must have personal involvement or
23 first-hand knowledge of the underlying dispute.”). The Court therefore quashes
24 Defendant’s trial subpoena for Attorney General Jeffrey Beauregard Sessions.
25 IT IS ORDERED granting Government’s Motion to Quash Defendant’s Trial
26 Subpoena to U.S. Attorney General Jefferson Beauregard Sessions (Doc. 161).
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Case 2:16-cr-01012-SRB Document 178 Filed 06/27/17 Page 3 of 3

1 IT IS FURTHER ORDERED quashing Defendant’s Trial Subpoena to U.S.
2 Attorney General Jefferson Beauregard Sessions.
3 Dated this 27th day of June, 2017.
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