MOBILE, Ala. (CN) — Former U.S. Attorney General Jeff Sessions wants to quash a subpoena to testify in a lawsuit over the Trump administration’s “zero tolerance policy,” which for a time included the practice of separating immigrant children from their parents at the U.S.-Mexico border. The non-party subpoena, which was served on Sessions personally Oct. 9 and initially sought an Oct. 26 deposition, was approved by U.S. Magistrate Judge Kandis Westmore of the Northern District of California.
There, the plaintiffs are three pairs of parents whose children — aged 6,11 and 13 — were taken from them without government officials communicating where they were, where they were going, or if they would ever be unified. The complaint refers to the practice as a “policy of unprecedented and unmatched barbarity” and suggests the policymakers intentionally separated families and withheld information with the belief they would “give up on their asylum applications and agree to be deported from the United States.”
The lawsuit, which is one of more than 40 nationwide now targeting the policy, includes claims of intentional infliction of emotional distress, negligence, negligent supervision or breach of fiduciary duty, abuse of process and loss of consortium.
Subpoenas for both Sessions and former Secretary of Homeland Security Kristjen Nielsen were granted Sept. 25 after attorneys for the government, on the final day of discovery, amended an interrogatory to note the policy, adopted and enacted by Sessions and Nielsen in April and May 2018, respectively, represents “goals [the] defendant sought to achieve in adopting those policies are solely the goals for which [Sessions and Nielsen] adopted those policies.”
The plaintiffs claim the amended interrogatory opened the doors to deposing the former cabinet members, arguing they each “have unique personal knowledge of their own intent.” Since Sessions was served at his home in the Southern District of Alabama, he filed a motion to quash the subpoena in Mobile Oct. 13, and the plaintiffs then filed their motion to transfer the hearing to Northern California.
Thursday morning, Chief U.S. District Judge Jeffrey U. Beaverstock, a Donald Trump appointee, denied the motion to transfer, agreeing it would place undue burden on Sessions. Attorney Joshua Briskman of Briskman & Binion PC, who was representing the California plaintiffs in Alabama, argued that because the case was complex, two years old and well past the initial discovery and deposition period, the hearing should be moved.
Briskman also noted Nielsen’s subpoena was transferred from the Southern District of California to the Northern District on Oct. 31, but acknowledged that decision should not bind Beaverstock. Briskman said if Beaverstock’s ruling is appealed, it “could create chaos” in the litigation as a consequence of being in the 11th Circuit and Ninth Circuit simultaneously.
Sessions’ attorney and fellow University of Alabama law school alum, Charles J. Cooper of Cooper & Kirk PLLC, argued the motion to transfer failed to meet the burden of “exceptional circumstance” required in civil procedure. Further, Cooper said courts have consistently denied so-called “apex depositions” of senior cabinet-level officials if the same information can be obtained from their subordinates.
“This is no ordinary subpoena,” Cooper said. “This is a subpoena to a former cabinet-level official in the United States government seeking that cabinet officers' mental processes in a decision that reflected the most protected discretionary decision that anyone in the United States government makes and that is prosecutorial discretion.”
In his motion to quash, Sessions says that if granted, “Sessions will be the first cabinet officer compelled to provide deposition testimony since the Supreme Court effectively prohibited such ‘apex’ depositions over 80 years ago in United States v. Morgan, 313 U.S. 409 (1941).”
But in granting the subpoenas, Judge Westmore determined the plaintiffs satisfied the Ninth Circuit’s three-prong test requiring “a showing of agency bad faith; the information . . . is essential to the case; and the information . . . cannot be obtained in any other way.”
“Here, plaintiffs satisfy the first prong, because they allege that the agency acted in bad faith by implementing the zero tolerance policy as pretext to separate undocumented immigrants from their minor children,” Westmore found. “The second and third prongs are also satisfied, because Sessions and Nielson have unique personal knowledge of their own intent, and defendant contends in its amended response that only their intent matters, rendering the information not otherwise attainable and essential to the prosecution of the case.”
Cooper leaned on precedent to support the motion to quash, adding the deposition of high-ranking government officials in civil cases could violate the separation of powers.
“This is the summit of the apex for a cabinet secretary, particularly a former attorney general,” he said.
Briskman said Sessions’ bad faith was evidenced in 2018 conference call with federal prosecutors in border states in which he was quoted as saying, “We need to take [immigrants’] children away.”
“That is suggestive of a pretty specific intent of carrying out that policy … for an unconstitutional purpose,” Briskman argued, adding only Sessions alone could “speak to what was in his mind” when the policy was conceived and enacted.
Beaverstock said he hasn’t been in the position to consider apex depositions of cabinet officials before and found it “shocking” the proceeding was in his courtroom. He questioned whether there had been “less intrusive” attempts to gather information, including submitting written questions to cabinet officials.
Briskman said putting a witness on the stand or subjecting them to deposition is preferable. Sessions himself did not attend the hearing. Beaverstock said he would take the arguments under submission before issuing an order.
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