More Things not to Do If You Represent Yourself

In the continuing saga of the prosecutions raising out of the Malheur National Wildlife Refuge occupation, the judge is probably having second thoughts about her recent decision to allow Ryan Bundy to continue representing himself. (For a discussion of the judge’s threat to order Mr. Bundy to accept his standby attorney, see <;.) Before the judge issued that threat, Mr. Bundy had sent subpoenas to the governor of Oregon, both of Oregon’s senators, and the representative for the congressional district in which the refuge is located. The subpoena against the governor has already been thrown out, and on August 31, 2016, a week before trial is to start, the judge also quashed the subpoenas to the Senators. The representative’s motion is pending, but that subpoena also is unlikely to survive. A look at the senators’ motion (Motion of Senator Ron Wyden and Senator Jeff Merkley to Quash Subpoenas, United States v. Bundy, No. 3:16-cr-00051-BR (Aug. 31, 2016), <>) shows several basic mistakes by Mr. Bundy that would be sufficient to stop subpoenas to almost any witness, and two other problems specifically relating to these subpoenas.

The subpoenas direct the senators to testify on Mr. Bundy’s behalf and to provide a large class of documents: all e-mails and memos relating to the occupation. The first issue raised was whether the senators can provide any useful testimony. They assert that they have no firsthand knowledge of the occupation or anything else related to the indictment or any asserted defenses. Generally speaking, if you want to call a witness at a trial, they have to be able to testify to something relevant to the case. That generally requires firsthand knowledge. If the witness doesn’t have that knowledge, they can usually get out of the subpoena, so you should be ready to explain with some specificity what you want from your witnesses. A good way to find out in advance is to hold a deposition, for which you generally only need to show that the witness knows something that may lead to admissible evidence, even from another source.

A second issue is related to the scope of the documents requested. Federal procedure and the procedure of most states limits trial subpoenas to allow provision of documents only if they can be identified with specificity in the subpoena. The idea is that when you’re going to trial, you should already know what you’re going to bring up, and if you need an exhibit that’s held by a witness and which you couldn’t get in advance, you ask for it to be brought to trial. That doesn’t mean you can demand a broadly defined set of documents in the hope that you’ll find a needle in the haystack. (Besides, if you are relying on that, you won’t have the time to search for it when the witness shows up.) Pretrial discovery is the remedy for this flaw.

The two specific problems deal with the senators’ status. First, senior government officials – which includes members of Congress, major executive officials, top level judges, governors, and probably a few others – are allowed to object to subpoenas that interfere with their official duties. The Senate is scheduled to be in session at the same time as the trial, so it would disturb the senators’ work to be called away. Furthermore, because they had no helpful evidence, they didn’t really need to be there. Usually, subpoenas to high officials are upheld only if they are the only source of important evidence. If this could be obtained through discovery, that would give an indication of how useful the senators’ testimony would be. Generally, unless there is personal involvement, the officials won’t be required to testify. If a senator hits your car, that would be a different issue.

Finally, members of Congress have a special privilege in the Constitution. Members are Congress are free from being questioned in court about their legislative activities. This means not only are they immune from prosecution and suit arising out of the business of Congress, but also that they can’t even be required to testify or undergo discovery on those subjects in other cases. There aren’t many ways around this. If the member of Congress is a friend, they might be willing to testify on your behalf. You’d be better off to look for another witness.

Of course, the failings of Mr. Bundy’s subpoena appear to stem from the fact that he is trying to make a political show of the trial. Most cases don’t permit that. The real lesson, whether you have a lawyer or you’re representing yourself, is to be careful in gathering evidence in advance so that you can prepare detailed subpoenas to the right witnesses.

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