Filing # 43136682 E-Filed 06/23/2016 11:49:57 AM IN THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT, IN AND FOR DIXIE COUNTY, FLORIDA STATE OF FLORIDA, CASENO.: 2014 CF 201 vs. TERRY G, TRUSSELL, Defendant, | ORDER GRANTING MOTION TO QUASH SUBPOENA AD TESTIFICANDUM OF NON-PARTY THE HONORABLE TED S. YOHO NUNC PRO TUNC This Order is generated sua sponte to clarify the court’s ruling during trial as to the testimony of The Honorable Ted S. Yoho, U.S. Representative. The Court finds as follows: 1. The Court was aware at the time of trial that a motion to quash trial subpoena for Ted S. Yoho had been filed and removed to federal court. 2. The defendant had filed with this Court, his response in federal court to Yoho"s request. Based on this response (Att. A), the Court was aware that Trussell had asked the Federal District Court to stay the state proceeding. However, as of the start of the instant trial, the court was unaware of any ruling by the District Court." 3. Based on the District Court ruling, the Office of General Counsel, U.S. House of Representatives, filed a motion to quash on behalf of Representative Yoho, on June 8, 2016, 4. On June 9, 2016, shortly before he rested, Defendant, for the first time, moved for a stay of proceedings based on the unavailability of Representative Yoho. At that time, * The Court later discovered that on June 3, 2016, the District Court had denied Yoho’s motion to quash, but found that the suggested testimony was neither “relevant nor material” to the state court proceeding. (Att. B) Electronically Filed Dixie Case # 14000201CFAXMX 06/23/2016 11:49:57 AMdefense counsel represented that a motion for rehearing was pending before the District Court, Based on that representation, the Court ruled that it had no jurisdiction to rule on Yoho’s motion to quash. However, the Court denied the stay based ona determination that even if the testimony was available it was hearsay, not relevant and immaterial, . As it turned out, on June 8, 2016, the District Court had denied the defense motion for rehearing. (Att. C) Therefore, the Court did have jurisdiction to rule on Yoho’s motion to quash. . In the June 8 ruling, the District Court reiterated its finding that the proffered testimony was not relevant, nor material to the state proceeding, Essentially, the District Court made this finding as a basis for the House of Representatives to support a motion to quash in the state proceeding, . Representative Yoho's motion to quash asked this Court to find that collateral estoppel barred this court from making a different finding as to relevance and additionally argued that making Yoho appear would interfere with his work as representative. . Now knowing that this Court has jurisdiction, the Court makes a nune pro tune ruling. .. The Court finds that collateral estoppel requires a granting of the motion; that a denial of the motion would unnecessarily interfere with Representative Yoho"s congressional work; and that the proffered evidence is largely hearsay, irrelevant andimmaterial, Itis hereby, ORDERED AND ADJUDGED that the Motion To Quash Subpoega Ad Testificandum Of Non-Party The Honorable Ted S. Yoho is granted this 2-2" Gay of June, 2016, nunc ro tunc June 9, 2016. Lf z co DONE and ORDERED this 2 7 _ day of June, 2016. Copies to: William N. Meggs, State Attorney $a02_leon@leoncountyfl.gov Inger Garcia, Esquire Attomey for Trussell attomey@ingerearcia.com ‘Todd B. Tatelman Senior Assistant Counsel for Honorable Ted S. Yoho, U.S. Representative ‘Todd,Tatelman@mail,house. gov Attachments: ‘A. Defendant’s Response to Motion To Quash Subpoena Testificandum Of Non-Party The Honorable Ted 8. Yoho B. Order On Motion To Quash (June 3, 2016) C. Order On “Notice Of Re-Removal” (June 8, 2016)UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA — STATE OF FLORIDA, ve ‘ase No, 1:16-cv-188-MW-GRJ TERRY G. TRUSSELL, Defendant, RESPONSE TO MOTION TO QUASH SUBPOENA AD TESTIFICANDUM OF NON-PARTY THE HONORABLE TED S. YOHO Pursuant to Rule 45(d)(3) of the Federal Rules of Civil Procedure, Defendant Terry Trussell, files this Response to non-party the Honorable Ted S. Yoho, U.S. Representative for the 3d congressional district of Florida, Motion to Quash Subpoena Ad Testificandum (“Subpoena”) issued to him by defendant Terry G. Trussell. A copy of the Subpoena was attached as Exhibit | to the Motion to Quash filed (DE 3). A response to the memorandum of points and authorities in support of this motion is submitted herewith. A proposed order is not attached, and oral argument is requested ONLY if the court deems fit and proper. I ATTACHMENT A.Respectfully submitted, 4s/ Inger Garcia, Esq. Inger M. Garcia, Esq. 4839 Volunteer Road; #514 Davie, FL 33330 Florida Bar No. 0106917 Tel: (954) 894-9962 Fax: (954) 446-1635 attorney@ingergarcia.com Counsel for Defendant, Terry G. Trussell May 27, 2016 CERTIFICATE OF SERVICE Thereby certify that on May 27, 2016, I filed one copy of the foregoing Response to Motion to Quash Subpoena Ad Testificandum of Non-Party the Honorable Ted $. Yoho in the U.S. District Court for the Norther District of Florida by CMECF. I further certify that I served one copy via electronic mail on: WILLIAM PITTARD, D.C. Bar No. 482949 Acting General Counsel TODD B. TATELMAN, VA Bar No. 66008 Senior Assistant Counsel ELENI M. ROUMEL, N.Y. Bar No. 3978863 Assistant Counsel ISAAC B. ROSENBERG, D.C. Bar No. 998900 Assistant Counsel KIMBERLY HAMM. Assistant Counsel, D.C. Bar No. 1020989 c/o OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (telephone) (202) 226-1360 (facsimile) Todd.Tatelman@mail.house.gov Counsel for the Honorable Ted S. Yoho, U.S. Representative for the 3d congressional district of Florida 2/sLInger Garcia, Esq. Inger M. Garcia, Esq 4839 Volunteer Road; #514 Davie, FL 33330 Florida Bar No. 0106917 Tel: (954) 894-9962 Fax: (954) 446-1635 attorney@ingergarcia.com Counsel for Defendant, Terry G. Trussell May 27, 2016UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA STATE OF FLORIDA, ] ve fae No. 1:16-cv-188-MW-GRJ TERRY G. TRUSSELL, RESPONSE TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE MOTION TO QUASH SUBPOENA AD TESTIFICANDUM Inger M. Garcia, Esq. 4839 Volunteer Road; #514 Davie, FL 33330 Florida Bar No. 0106917 Tel: (954) 894-9962 Fax: (954) 446-1635 attorney @ingergarcia.com Counsel for Defendant Terry Trussell May 27, 2016Ml. TABLE OF CONTENTS TABLE OF AUTHORITIES. INTRODUCTION... BACKGROUND ARGUMENT . ‘The Subpoena Must Not Be Quashed on Sovereign Immunity Grounds... The Subpoena Must Not Be Quashed Because It Does Seek “Material and Relevant” Testimony. The Subpoena Should Not Be Quashed Because Mr. Trussell Can Establish the Extraordinary Circumstances Required to Compel Congressman Yoho’s Testimony 12 CONCLUSION 2023, CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE 24 TABLE OF AUTHORITIES U.S. Constitution and Statutes 28 USC. § 1442... Cases Bardoff v. United States, 628 A.2d 86 (D.C. 1993)... Bogan v, City of Boston, 489 F.3d 417 (ist Cir. 2007) In re FDIC, 58 F.3d 1055 (Sth Cir. 1995) Marisol A. v. Giuliani, No. 95-cv-10533 (S.D.N.Y. Mar. 23, 1998)... Matter of Sheeler v. Buffalo Wire Works, 50 Misc.2d 158, 269 N.Y.S.2d 897... iMatter of Edge Ho Holding Corp., 256 N.Y. 374, 176 N.E. 537... People v. Slochowsky, 116 Misc. 2d 1069, 1071, 456 N.Y.S.2d 1018, 1019-20 (Sup. Ct. 1982). 3, 6, 7, 8, 9, 10, 11, 12 Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575 (D.C. Cir. 1985 Springfield Terminal Ry. Co. v. United Transp. Union, No. 89-0073 (D.D.C. May 18, 1989)... United States v. Ballin, 144 US. 1 (1892)... United States v. Molinares, 700 F.2d 647 (11th Cir. 1983)... United States v. Morgan, 313 US, 409 (1941 United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995)... United States v. Smith, 286 U.S. 6 (1932) Walker v. Jones, 733 F.2d 923 (D.C. Cir. 1984)... Wirtz v, Local 30, Int'l Union of Operating Eng'rs, 34 F.R.D. 13 (S.D.NLY. 1963)....... Legislative Authorities Rule VIII, Rules of the House of Representatives (114th Cong.) (2015)...INTRODUCTION Non-Party the Honorable Ted S. Yoho, U.S. Representative for the 3d congressional district of Florida, moved this Court for an order quashing the subpoena ad testificandum issued by the Circuit Court in and for Dixie County, Florida, Criminal Division and served on him by the defendant, Terry G. Trussell for a State Criminal Trial on June 6, 2016 through June 10, 2016. BACKGROUND The underlying action in this case involves a 14 criminal charges against Mr. Trussell. State of Florida v, Trussell, Case No. 2014-201- CF (Fla. Cir. Ct. 2014), See Yoho Ex. 1. (DE 3-1). Mr. Trussell obtained a subpoena ad testificandum (“Subpoena”) from the state court for a Trial date for the week of June 6, 2016. See Subpoena, Yoho Ex. 2 (De 3-2). On April 28, 2016, Congressman Yoho, through counsel, sent counsel for Mr. Trussell a letter, via electronic and first-class mail, seeking clarification of the subject matter(s) on which Mr. Trussell demands the Congressman’s testimony. See Letter from Todd B. Tatelman, Sr. Ass’t Counsel, Office of Gen. Counsel, to Inger M. Garcia, Esq. (April 28, 2016), Yoho Ex. 3. (DE 3- 3) Mr. Trussell’s counsel responded by forwarding portions of an email written by Mr. Trussell, detailing the rationale for the subpoena. See E-mail from Inger M. Garcia, Esq., to Todd B. Tatelman, Sr. Ass*t Counsel (May 11, 2016), (Yoho DE 3-4). There were 9 follow up e-mails and a telephone callbetween counsels conceming this matter. The undersigned reviewed the file, depositions and exhibits, and located the proof of the urgent need of having Yoho testify at trial. In all fairness to Yoho’s counsel, the undersigned was unable to continue negotiations prior to his having to file this motion and this is the first time Yoho’s counsel may know the extent of Yoho’s importance and knowledge of the Trussell matter. The testimony initially outlines was a May 2014 conversation between Congressman Yoho, Mr. Trussell, and a Colonel Harry Riley (Ret.) that occurred in Washington. However, based upon evidence secured at the two depositions of the purported victim SA Jeff Siegmeister, there are many other issues that are key to this case that Yoho has personal knowledge of. Composite Exhibit 1 are portions of Siegmeister’s two depositions taken January 2016 and April, 2016, wherein there was testimony concerning Yoho. Due to time and schedule constraints, Congressman Yoho removed to this Court on May 25, 2016, see Notice of Removal, and now moves to quash. ARGUMENT Mr. Trussell’s subpoena to Congressman Yoho is enforceable and, therefore, must not be quashed, for at least three, independent reasons: (1) The doctrine of sovereign immunity does not bar enforcement of this Subpoena since it does not seek the protected testimony; (2) the Subpoena does seek material and relevant information; and (3) Mr. Trussell established the extraordinary acircumstances necessary to compel Congressman Yoho’s testimony. Further, in summary, 28 USC section 1442, allows removal in regard to a subpoena, but restricts it to questions relating to the performance of the official duties of Congressman Yoho. Trussell and the undersigned certify that the examination’ will not relate:to the performance of any furiction’as a congressman It will be prejudicial to the Defense’s ability to competently represent Trussell if the undersigned is required to disclose to Congressman Yoho as a witness beforehand and to the prosecutor the questions that the defense intends to ask -- beyond the fact that the Defense will not question Yoho about his congressional duties. To ask for a disclosure would be a denial of procedural due process under the Fourteenth Amendment. People v. Slochowsky, 116 Misc. 2d 1069, 1071, 456 N.Y.S.2d 1018, 1019-20 (Sup. Ct. 1982) held: The reason for the rule is that on a motion to quash a subpoena, the relevancy of the purported testimony cannot be challenged was best stated by Mr. Justice Cardoza in Matter of Edge Ho Holding Corp., 256 N.Y. 374, 176 N.E. 537. The court in discussing the power to issue a subpoena ad testificandum stated, “They (the power to subpoena) will be rendered to a large extent abortive if his subpoenas are to be quashed in advance of any hearing at the instance of unwilling witnesses upon forecasts of the testimony and nicely balanced arguments as to its probable importance.” (pg, 381, 176 N.E. 537) (emphasis 3supplied). The court thus felt that prophesying the probable importance of a witness would in effect destroy the very power to subpoena. (See also Matter of Sheeler v. Buffalo Wire Works, 50 Misc.2d 158, 269 N.Y.S.2d 897) ‘The Subpoena Must Not Be Quashed on Sovereign Immunity Grounds. . ‘The’ subpoena served on Congressman’ Yoho is dirécted to him for his eis 4 personal knowledge of facts, meetings, telephone calls and e-mails, at relate TO” to him personally; 45 well:as under his authority’ to speak to’his constituents, 35 Aiese mails at issue are from his personal e-mail and the meetings took place on hit inhis official-capacity.-It does not relate to ‘any official:duties:avalli The e- personal time and location choice, outside his workplace. Congress has no : need to waive sovereign immunity in this case since there are no official oe actions at issue in this case. The House Rule VIIL.8, Rules of the House of Representatives (114th Cong.) (2015), does not apply to this case as it does not have a privilege in relation to Yoho’s personal knowledge, personal e- mail and personal conversations. There is no action to be taken by the House in relation to Yoho’s testimony in this matter. His designation as Congressman was a professional courtesy and one letter at issue was addressed to him as such. Accordingly, the Subpoena must not be quashed based on sovereign immunity.I The Subpoena Must Not Be Quashed Because It Does Seek “Material and Relevant” Testimony. House Rule VIII does not apply as the requested testimony of Yoho, as it does not relate to the official functions of the House. House Rule VII.1. House Rule VIII. There is no challenge to the House or its official actions, as distinguished from United States v, Ballin, 144 U.S. 1, 5 (1892); see also United States v. Smith, 286 U.S. 6, 33 (1932) cited by Yoho’s counsel. House Rule VIII.3 authorizes congressional employees to respond to properly issued subpoenas only if, among other things, the information sought is “material and relevant.” Here the requesting testimony is material and relevant. See United States v. Molinares, 700 F.2d 647, 653 (11th Cir. 1983) (“In this circuit, [tJhe test for materiality is whether [the information at issue] was capable of influencing the tribunal on the issue before it.”). The testimony requested of Yoho here will clearly be relevant to the underlying tribunal and jury deciding the matter. If it is determined, although it is not, and the Subpoena relates to Congressman Yoho’s official functions, Congressman Yoho is authorized by House Rules to comply with the Subpoena if the testimony sought is “material and relevant.” House Rule VILL.3. All testimony Congressman Yoho is relevant, and material, to the criminal indictment against Mr. Trussell, as set forth below. The extent of Yoho’s knowledge and involvement is much more than one conversation in 5DC. It goes to the heart of the intent, credibility, injury, impeachment of victim, the numerous defenses, including good-faith and immunity, and the first amendment rights to assemble and express opinions, as well as potential improper arrest and incarceration of Trussell. Congressman Yoho has personal knowledge related to the ‘necessary’ conduct of Trussell and Siegmeister. The allegation that ‘since the criminal information has been filed, Yoho has not had any significant contact with Mr. Trussell’ is in contradiction of the documents produced by, and the deposition testimony of Siegmeister, as well as the testimony of Dowdell and others who were present at meetings, and the e-mails and letters. See Composite Exhibit 2 for the relevant E-mails and letter. Yoho’s testimony will produce admissible evidence at trial. Relevancy- Slochowsky Case In Slochowsky, “the County district attomey brought a motion to quash a subpoena served upon her by attorneys for defendants on grounds that the testimony was irrelevant and privileged. The Supreme Court, Trial Term, Kings County, Gerald Adler, J., held that: (1) privilege is not a proper issue raised on a motion to quash a subpoena ad testificandum; (2) relevancy is not an issue which may be raised by a motion to quash a subpoena ad testificandum; and (3) defendants had a right to adduce the relevant and 6material evidence that the district attorney might have.” People v. Slochowsky, 116 Mise.2d 1069 (1982), 456 N.Y.S.2d 1018, Kings County, New York, Trial Term, Part 24, “Privilege is not a proper issue raised on a motion to quash a subpoena ad testificandum since privilege may not be asserted in advance of question actually propounded; rather, proper method of asserting privilege is upon witness taking the witness stand and being asked questions regarding any privileged matter.” Id. In Slochowsky, ‘the court further found that the proper method of asserting privilege is upon the witness taking the witness stand and being asked questions regarding any privileged matter.’ (\ Jus 1043, 1 of Bonanno v, Ryan, N.Y.S.2d 508, ONS Further, “relevancy is not an issue which may be raised by a motion to quash a subpoena ad testificandum, since a motion to quash can only raise validity of the subpoena or jurisdiction of the issuing authority.” Id. In Slochowsky, “the County district attormey was not entitled to have quashed subpoena ad testificandum served upon her by attorney for defendants on ground that testimony was irrelevant where it could not be said that the subpoena was issued for purposes of harassment, there was good-faith basis for issuance of the subpoena, and affidavit of district attorney was insufficient to show that she lacked relevant evidence, since defendants had a right to adduce relevant and i”material evidence which district attorney might have.” Id. “With regard to relevancy the court in stated at page 539, 381 N.Y.S.2d 472, 344 N.E.2d 404, “A motion to quash is limited in scope, challenging only the validity of the subpoena or the jurisdiction of the issuing authority...” (emphasis supplied) It would appear that a motion to quash can only raise the validity of the subpoena or the jurisdiction of the issuing authority.” Id. “The reason for the rule that on a motion to quash a subpoena the relevancy of the purported testimony cannot be challenged was best stated by Mr. Justice Cardoza in Morter 0 Ho Ho 1. 256 N.Y.374, 17 The court in discussing the power to issue a subpoena ad testificandum stated, “They (the power to subpoena) will be rendered to a large extent abortive if his subpoenas are to be quashed in advance of any hearing at the instance of unwilling witnesses upon forecasts of the testimony and nicely balanced arguments as to its probable importance.” (pg. 381, 176 N.E. 537) (emphasis supplied). The court thus felt that prophesying the probable importance of a witness would in effect destroy the very power to subpoena Wire Works. (See also Sorter N.Y.S, vid““In this regard the court notes the cases of / 100, 428 N.Y.S.2d 6! leave to appeal denied, ‘bes, 87 A.D.2d 8 9, 449 N.YS.2d 9. In both those cases the Appellate Division stated that “The right to present evidence by witnesses of one’s own han, 395 choosing is a fundamental ingredient of due process (/evrkins v. McK U.S. 411, 429, 89 S.C. 1 404), and the testimony of a defendant's witness should not be prospectively excluded unless it is offered in 29, 449 N.Y.S.2d palpably bad faith...” (People v. Forbes, 87 A.D.2d at p 9and People v. McClinton, 75 A.D.2¢ at 900, 428 N.Y.S.2d 61). In effect what the District Attorney is attempting to accomplish is to have this court prospectively exclude testimony of a defendant's witness. This appears to be a violation of the right of a defendant to present evidence by witnesses of his own choosing. In both of the above cases the Appellate Court criticized the trial court for requiring a showing of relevance regarding a defendant's witness. In this case the District Attorney seeks to quash the subpoena on the grounds of relevance. This court does not see any distinction between what the District Attomey seeks to do and that which the Appellate Division, 2d Department has criticized and found to be unacceptable. The court found that a claim of irrelevancy cannot be used on a motion to quash a subpoena.” Id.“However, since there is apparently a legitimate reading of /”2 sand dicta in Cri 0, 347 N.F.2d 915, supra that may indicate that relevancy is a proper issue for a motion to quash, this court will address that issue. In DeiVeechio v, White Unit, 64 A,D.2d 975, 408 N.Y.S.2d 802, the Mayor and Council Members were subpoenaed to appear in an Administrative proceeding. The Mayor and Council Members petitioned Special Term to quash the subpoena, and the motion to quash was granted. The Appellate Division, 2d Department in reversing Special Term, stated at page 976, 408 N.Y.S.2d 802, “We therefore do not agree with Special Term's conclusion that there is ‘credence to the charge that [the union's purpose] was to harass the busy men and women who are the Mayor and Council Members of the City of White Plains’, But even if it could *1074 be plausibly argued that this were 0, that in itself would ‘not justify suppression of the subpoenas asa matter of law at this time’ (See Matter of Cenininghanr ), 347 N.E.2d 915). An attomey has a presumptive right to issue a subpoena (PR 2302) and this applies to attendance in an administrative as well as a judicial proceeding (citations omitted)”.” Id. “To require the defendants under these conditions to accept the affidavit without giving the court the opportunity to observe the witness and without giving the opportunity to the attorneys to question the witness would appear to 10this court, to be in violation of the defendants' right to confront witnesses against them.” Id. “This court, from the outset, has also stated that it considers the claim made in the moving papers in the first allegation of prosecutorial misconduct to include a claim not only under the Fifth and Sixth Amendments but under both State and Federal due process. In this regard, the court has, on several occasions early in the proceedings, stated that it considered this N.Y.2d proceeding in the nature of an Isaacson hearing, Site v. {sccicsor » 406 N.Y.S.2d 714, 3 8, Isaacson is not limited to the particular facts of the case as claimed by the District Attorney. In Pe A.D.2 5S N.Y.S.2d $23, the court extended the /saacson doctrine to impropriety by the special prosecutor. In People v. Ale N.Y.S.2d 970, the court extended the /saacson doctrine to a situation whether there was interference with a right to counsel.” Id. “The court notes that a written motion has been submitted to amend the defendants’ papers to reflect all previous discussions in this area. The People have had notice for almost six weeks of the very nature of this proceeding. In this regard it is relevant to an Isaacson hearing whether there has been a pattern of misconduct on the part of the District Attorney not only in this matter but in other similar matters. 55 N.Y.S.2d 50). Many authors have attributed the leading case of Miranda to the fact that the court considered prior situations where police abused the defendants' rights. The court, after considering other 11i. cases, decided that corrective action was necessary. The policies both before and after the plea herein are relevant in determining the sanctions to be imposed, if in fact there is a violation of the defendants’ rights. This court at this time, has not determined whether there has been such a violation. The court further finds, after seven weeks of hearings, that the District Attorney may have relevant and material evidence which the defendants have a right to adduce at this hearing. For all reasons herein, the motion to quash the subpoena is denied.” Id. Based on the relevancy argument as set forth above, Trussell has met his burden of proof as to the relevancy. The Subpoena Should Not Be Quashed Because Mr. Trussell Can Establish the Extraordinary Circumstances Required to Compel Congressman Yoho’s Testimony. As cited by Yoho’s counsel, United States v. Morgan, 313 U.S. 409, 422 (1941) is distinguishable in that we are not seeking any testimony in relation to any proceeding or administrative orders. As cited by Yoho’s counsel, Jn re United States (Kessler), 985 F.2d 510, 513 (11th Cir. 1993) ordered district court to quash subpoena of high- ranking government official called to testify as witness; “Because of the time constraints and multiple responsibilities of high officials, courts discourage parties from calling them as witnesses and require exigent circumstances to justify a request for their testimony.” 12In this matter the Defendant Trussell willabsolutely agree'to this Court Staying the’ State’case until Yoho is availablé-anid it doesnot interfere with his »duties as‘a*high’official’: Further, to distinguish Bogan v. City of Boston, 489 F.3d 417, 423 (Ist Cir. 2007), Trussell is not seeking the reasons for Yoho taking official action, we are seeking the personal knowledge of Yoho in relation to at least four known conversations, numerous e-mails, deposition testimony of the victim, and a letter addressed to Yoho concerning Trussell. The relevant conversations are summarized herein and in the Exhibits attached, as Composite Exhibits 1 and 2. There are extraordinary circumstances requiring the discovery sought from Yoho in that he is the only one that can testify to the four conversations he partook in with Trussell, Siegmeister, and Dowdell, can authenticate documents, can express Trussell’s statements to him and his to others; can explain the ‘sovereign citizen’ theory that he was told by Siegmeister, which may have changed his position or ‘warned him off”, as well as other relevant and necessary testimony. These witnesses cannot testify to hearsay comments at a criminal trial and the only one who can testify to Yoho’s knowledge and documents is Yoho. Brief Summary of Conversations And Evidence First conversation of May 2014 in D.C. is summarized in the Exhibit to Yoho’s Motion which was addressed, which goes to the intent of Trussell. 13The second relevant conversations was in a meeting with Ted Yoho, around 7 P.M., October, 14 2014, between Rodger Dowdell, Marie Trussell, Canetha Dodd, and Rodger Dowdell, an administrator for Florida’s Common gs Law Grand Jury movement, They met with Yoho and presented him with the SK. \ _gieomstances of Trssell's ares for falure to appear in cout, while standing 0° in court, five minutes before court was noticed to begin. More than 50 witness affidavits (previously filed with a motion to recuse and otherwise with administrative agencies) confirm the events of October 9, 2014, when Trussell was effectively deprived of his constitutional rights by order of the judge, forcing his absence from his noticed court appearance. Subsequent discovery has revealed a possible concerted effort involving numerous persons to affect the possible pre-planned arrest in the courtroom, in front of more than a hundred witnesses. Ted Yoho at that meeting, emphatically committed to Mr. Dowdell, that he would help Trussell. A third meeting took place with Yoho at the Brass Monkey, oh Gainesville, FL, on or about May 23, 2015, Trussell’s wife, Marie, and yor Trussell met with Ted Yoho to bring him up to date on the progress of the defense against State’s prosecution. During the discussion, many details of how the defense were developing and how discovery was revealing State had not conducted any substantive investigation of the case, or had any understanding of the circumstances surrounding the charges were discussed, 14since the grand jury information was hidden. Yoho was very attentive and understood the points made. Again, Yoho expressed his sympathy to the Trussell family plight and offered to consider anything he could do to help. There were also two coniversations with the purported victim asso v & C Siegmeistersas testified by. him in his two deposition excerpts attached, as well oe as the documents (e-mails, letter, promises to assist) produced to the Defense in this matter by Siegmeister. See Composite Exhibits | and 2 attached. Siegmeister testified to Yoho’s involvements and knowledge, which is extremely important to numerous defenses and negating elements of the the criminal charges in the state case. Further,’ Yoho is the only one that can confitin his é-mail agreeing to et sist Trussell; to the now deceased witness Roy Callahan: This e-mail was Ke produced to the Defense from the purported victim Jeffrey Siegmeister, who is also the State Attorney of the 3“ Judicial Circuit in Florida. Callahan was previously listed as a Defense Witness. Yoho is the only witness who can verify and testify to the authenticity of this e-mails due to the death of the recipient. Further, in his deposition, Siegmeister testified to ‘warning of ‘Yoho from helping Trussell, due in part to ‘philosophy’ and Siegmeister provided e-mails and a letter to Yoho from now deceased Callahan. Attached as Composite Exhibit | is the E-mail chain, and the letter to Yoho, including 15Yoho’s assistance offer to Trussell. Apparently, Yoho was ‘warned of? helping Trussell by the purported victim, Siegmeister, in this fourteen felony count criminal case in which Trussell is looking at the potential of 70 years in prison. This issue goes to intent and credibility and potential violations of interference with the Defense. Also attached are excerpts from the two deposition of Jeff Siegmeister (Composite Exhibit 1), in which Yoho and (Composite Exhibit 2 the related documents) are discussed, The undersigned apologizes for the darkness of the letter, but this is how the production, via camera, was reproduced. This case is distinguishable from Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985), in that we are seeking Yoho’s personal knowledge of relevant conversations with Trussell and Siegmeister, as well as his resulting personal actions due to the ‘warning off by Siegmeistér}inot any official actions of the Government. Yoho is the local representative of Dixie County, where Trussell resides, and he is up for re-election in a newly defined district, not including Dixie County. However, at the time of the conversations, e-mails and potential threats to, or ‘warning off’, Yoho was the representative of Dixie County. The circumstances are extraordinary in that the knowledge is personal to ‘Yoho, and the ‘warning off may have significantly influenced Yoho’s personal actions. Yoho also has personal knowledge of Trussell’s case, from 16meeting with Trussell again, after Trussell was arrested in court at his arraignment, for ‘failure to appear’, five minutes prior to the noticed hearing. Yoho was shown the video of this ‘in-court arrest’ for ‘failure to appear’ and Yoho’s testimony is crucial. According to, Wirtz v. Local 30, Int'l Union of Operating Eng’rs, 34 F.R.D. 13, 14 (S.D.N.Y. 1963), a clear showing is made herein that Yoho’s attendance at Trial is essential to prevent prejudice or injustice to Trussell. Yoho's testimony goes to the intent of Trussell, Trussell’s statements to Yoho, authentication of Yoho’s statements and e-mails, to the potential impeachment of the only purported victim who is attending the trial, and to Yoho’s conversations with Siegmeister; all of which may exonerate Trussell. For Trussell to be forced to continually disclose this much information, over and over again, is a clear violation of Trussell’s due process rights. However, to respond this this Motion, Trussell has once again disclosed relevant Defense information to protect Trussell’s rights, although it violates Trussell’s due process rights. Because this is a case involving mostly Public Officials, Trussell is continually denied his due process rights by being forced to disclose, in advance, his strategies and anticipated witness testimony and areas of questioning. This is yet again, another example of Trussell being deprived of his due process rights and proper trial preparation, by compelling Trussell to address peripheral issues. 17Members of Congress may be covered in a matter as to which he has only a tangential association would unduly burden his ability to fulfill his governmental responsibilities, however, the exceptional circumstances have been presented herein. As cited by Yoho’s attomey, Springfield Terminal Ry. Co. v. United Transp. Union, No. 89- misc-0073, 1989 WL 225031, at *2 (D.D.C. May 18, 1989) is distinguishable as that related to a deposition or producing documents because discovery would “disrupt [his] work as the ranking Minority Member of the House Appropriations Committee”. However, this is a major criminal Trial wherein Trussell will die in prison if he loses at trail due to the deprivation of his due process and ability to subpoena witnesses, and as a result is sentenced to 22 or 70 years, as Trussell is 72 years old. This subpoena is not to inconvenience the work schedule of Yoho. Trussell again states unequivocally that he requests that the Trial be stayed by this Honorable Court until such time witness Yoho is available, and it does not interfere with his important work schedule. Trussell needs Yoho at his trial. Contrary to Yoho’s position, Bardoff v. United States, 628 A.2d 86, 90 (D.C. 1993) is not applicable as there are not others who were present at the meetings, telephone call or e-mail, who did not hold such high office and who could testify to Yoho’s knowledge. The policy reason that “the practice of calling high officials as witnesses should be discouraged” is that “[h]igh 18ranking government officials have greater duties and time constraints than other witnesses.” Jn re United States (Kessler), 985 F.2d at 512 does not apply to this circumstance of Yoho’s personal knowledge, meetings, e-mails and involvement. There should be no greater duty than protecting the life and liberty of his constituents. Additionally, the e-mail used by Yoho is his personal e-mail address o@eos.net, and his actions, meetings, and promises were of a more personal nature and not involved with Government operations, decision- making, or sovereignty. See Exhibit 1 page 3. The meetings all took place in arenas outside of Yoho’s official scope of business as set forth above. As to the Three factors in the case law set forth by Yoho’s Counsel, at least three factors must be present before extraordinary circumstances can be found: (i) the information sought must not be obtainable elsewhere; (ii) the information sought must be essential (not merely relevant) to the party’s case; and (iii) provision of the testimony must not interfere with the official's government responsibilities. See, e.g., In re FDIC, 58 F.3d at 1060-62; Marisol A. v. Giuliani, No. 95-cv-10533, 1998 WL 132810, at *2-3 (S.D.N.Y. Mar. 23, 1998) Mr. Trussell has shown his special need or situation compelling Yoho’s testimony is essential to Trussell’s case and that this evidence is not available through any alternative source or less burdensome means. 19In response to Yoho’s attorneys’ first factor, Mr. Trussell has demonstrated above that Congressman Yoho possesses material and relevant information, not obtainable elsewhere. The representations that ‘Yoho has no first-hand, personal knowledge that bears on the alleged conduct at issue is incorrect. Yoho’s attorneys’ comments that ‘common sense dictates that any such information more readily would be available from other individuals, including, but not limited to, Mr. Trussell himself or Colonel Harry Riley (Ret.),’ who Mr. Trussell indicated was a participant in the referenced conversation’ is incorrect. Hearsay is not admissible in the criminal case without proper exception or exemption and Yoho’s statements, e-mails, conversations are exclusively his testimony. Mr. Trussell has met the burden of making the necessary showing that the information is not available elsewhere. Once again, in all fairness to Yoho’s counsel, this is the first time he is receiving these documents in the Exhibit 1, due in part to time constraints preparing for an imminent trial in order to save the life of Trussell, and due in part to Trussell’s due process rights being violated by having to disclose information in advance again and again and again in this criminal matter. With respect to the second factor, Yoho has personal knowledge of the actions for which Mr. Trussell has been charged, he has had numerous conversations, reviewed the video of previous court hearings, met with 20Trussell and Dowdell for hours discussing this matter directly, has had conversations with Siegmeister, sent an e-mail he was going to assist Trussell, has received letters from others in relation to Trussell, etc. Mr. Trussell has demonstrated why the testimony he seeks from Congressman Yoho is “essential” (and not merely relevant) to his case. With respect to the third factor, there is no dispute that compliance with the Subpoena would interfere with the official responsibilities of Congressman Yoho. The D.C. Circuit has noted that “service in the United States Congress is not a job like any other.” United States v. Rostenkowski, 59 F.3d 1291, 1312 (D.C. Cir. 1995), “[T]he life of a congressman-as incumbent legislator and perpetual candidate for office” is one in which the Member's “official day ends only after a round of nominally ‘social’ events at which he is obliged to appear, and whose weekends and holidays are only an opportunity to reconnect with his constituents.” /d. This aptly pertains to Congressman Yoho. However, this does not excuse Yoho from testifying, it only changes the potential time of the testimony. Tiiissell requests this? Honorable Court'to Stay, the State Case or to Remove the State Case in order’ that Yohio'can honor his obligations and Trusseil'can havea fair trial: According to Yoho’s counsel, during the week of June 6, 2016, the date for which Congressman Yoho is subpoenaed to testify, Congress is scheduled to be in session, meaning that Congressman Yoho is required by House Rule ea)to be present to cast votes on the floor of the House. See House Rule III.1. Again, Trussell reiterates that Yoho’s testimony is needed at trial and Trussell requests that this Honorable Court stay the State Case to allow Yoho to complete his duties and then when available, the trial can be either removed to federal court or reset. The State Court has been quashing subpoenas constantly without regard to Trussell’s constitutional rights, and without regard to Trussell’s due process rights, mostly without properly noticed hearing, without hearing, without an opportunity to be heard, and demanding very specific factual nature and line of information against Trussell’s due process rights. Trussell will never have a fair trial under the circumstances given the political nature, the venue, the constant deprivation of his constitutional and due process rights. All Trussell is seeking is the ability to present a case, examine and cross examine relevant witnesses, effective assistance of counsel, and his constitutional rights not being trampled as they have been. Even in this response Trussell has been forced to disclosure information he should never have been forced to disclose, as it violates his due process rights. However, to aid this Court in understanding the extend and necessity of Yoho’s testimony, it has been disclosed to Trussell’s detriment, if the case remains in the State Court, where the prosecutor and purported victim can prepare using this information that would have never been disclosed except for this response. 22For all these reasons, Mr. Trussell has demonstrated, that sufficiently “extraordinary circumstances” are present here, and, therefore, the Subpoena should not be quashed; however the state criminal trial should be stayed to allow Yoho to perform his duties as required by law. CONCLUSION For the foregoing reasons, this Court should deny Non-Party Congressman Ted Yoho’s motion to quash in part and grant it in part. It should be granted as to the timing, by ‘ordering the trial’court to stay the trial’ iintil such time Yoho is available to testify, however the subpoena must not be quashed in full. 23CERTIFICATE OF COMPLIANCE This memorandum complies with the type-volume limitations of Local Rule 7.1(F) because it contains 6,652 words, excluding parts of the memorandum exempted by Local Rule 7.1(F). This memorandum also has been prepared in 14- point Times New Roman type and is double-spaced between lines under Local Rule 5.1(C). (s/Inger Garcia, Esa, Inger M, Garcia, Esq. 4839 Volunteer Road; #514 Davie, FL 33330 Florida Bar No. 0106917 Tel: (954) 894-9962 Fax: (954) 446-1635 attorney @ingergarcia.com Counsel for Defendant, Terry G. Trussell May 27, 2016 24CERTIFICATE OF SERVICE Thereby certify that on May 27, 2016, I filed one copy of the foregoing Response to Motion to Quash Subpoena and Memorandum of Points and Authorities in Support of Motion to Quash Subpoena Ad Testificandum in the USS. District Court for the Northern District of Florida by CM/ECE. | further certify that I served one copy via electronic mail on: WILLIAM PITTARD, D.C. Bar No. 482949 Acting General Counsel TODD B. TATELMAN, VA Bar No. 66008 Senior Assistant Counsel ELENI M. ROUMEL, N.Y. Bar No. 3978863 Assistant Counsel ISAAC B. ROSENBERG, D.C. Bar No. 998900 Assistant Counsel KIMBERLY HAMM Assistant Counsel, D.C. Bar No. 1020989 c/o OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (telephone) (202) 226-1360 (facsimile) Todd.Tatelman@mail.house.gov Counsel for the Honorable Ted S. Yoho, U.S. Representative for the 3d congressional district of Florida /s/Inger Garcia Inger Garcia, Esq.UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION In RE SUBPOENA AD TESTIFICANDUM ISSUED TO REPRESENTATIVE TED YOHO CASE NO. 1:16-CV-188-MW/GRJ / ORDER ON MOTION TO QUASH! Ted Yoho represents Florida's Third Congressional District in the United States House of Representatives (“House”). One of his constituents, Terry Trussell, has been charged with a number of crimes in state court and is set to go to trial in Dixie County next week. Trussell seeks to compel Yoho to appear in state court and testify on his behalf. A subpoena issued by Mr. Trussell’s attorney commands Representative Yoho to appear in state court beginning dune 6, 2016. ECF No. 3-3, at 2. Yoho filed a notice removing the subpoena to this Court under 28 U.S.C. §1442, the federal officer removal statute. ' This Court has endeavored to issue an order in this matter as quickly as possible, but has been overseeing a civil trial in Gainesville all week. 1 ATTACHMENT BYoho makes three arguments as to why the subpoena cannot be enforced against him. First, he claims that sovereign immunity bars the enforcement of the subpoena. Second, he argues that, gen- erally speaking, “high-ranking government officials may not be re- quired to provide testimony in litigation in which they are not a party, absent compelling or extraordinary circumstances.” ECF No, 3-1, at 11. Third, he argues that the testimony sought is not “relevant and material,” and that therefore he need not respond to the subpoena under the Rules of the House of Representatives. These arguments will be considered in turn, but first there's a need to ensure that this Court has subject-matter jurisdiction over this case. fs PROPER REMOVAL AND JURISDICTION The removal of the subpoena is based on 28 U.S.C. §1442(a),? which says in relevant part that (a) A civil action or criminal prosecution that is com- menced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or 2 Representative Yoho did not specify under which subsection he bases removal, though it seems either (a)(1) or (a)(4) could be implicated. 2individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collec- tion of the revenue. (4) Any officer of either House of Congress, for or relating to any act in the discharge of his official duty under an order of such House. Section 1442 also provides that the terms “civil action’ and ‘crimi- nal prosecution’ include any proceeding (whether or not ancillary to another proceeding) to the extent that in such proceeding a ju- dicial order, including a subpoena for testimony or documents, is sought or issued.” Id. §1442(d)(1). For removal to be proper, there must be a “civil action” or a “criminal proceeding.” Here there is. Before the 2011 amendments to §1442, removal at this stage might have been premature. See Stallworth v. Hollinger, 489 F. Supp. 2d 1305, 1311-12 (S.D. Ala. 2007). Now, though, it seems clear that there is a removable pro- ceeding within the meaning of §1442(d)(1). There also needs to be a “colorable federal defense” asserted by the federal officer. See, e.g. Batchelor v. Am. Optical Corp., —F. Supp. 3d—, 2016 WL 2637354, at *2-8 (S.D. Fla. May 9, 2016). For reasons discussed later, Representative Yoho has asserted such a defense. Removalwas therefore proper, and this Court has subject-matter jurisdic- tion. Il, SOVEREIGN IMMUNITY Representative Yoho first argues that sovereign immunity bars enforcement of the subpoena. The problem with this argu- ment is that it reads “sovereign immunity” too broadly. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). It also shields federal officers from suit in many instances, because “the sovereign can act only through agents and, when the agents’ actions are restrained, the sovereign itself may, through him, be restrained.” Larson v. Domestic & Foreign Commerce Corp., 337 US. 682, 688 (1949). But sovereign immunity does not shield all federal officers from all suits—the relevant question is “whether, by obtaining relief against the officer, relief will not, in effect, be obtained against the sovereign.” Id. Forcing a federal officer to testify over the objections of his superior or in contravention of federal law is usually impermissi- ble. See, e.g., Smith v. Cromer, 159 F.3d 875, 879-80 (4th Cir. 1998). Whether this is properly thought of as a matter of sovereign immunity under any circumstances is questionable. See generally 4Gregory 8. Coleman, Note, Touhy and the Housekeeping Privilege: Dead But Not Buried?, 70 Tex. L. Rev, 685, 696-702 (1992) [here- inafter Coleman]. In the particular context of members of Con- gress, however, the better analytical framework is probably that of privilege, not sovereign immunity. See Nixon v. Sirica, 487 F.2d 700, 739-40 (D.C. Cir. 1973) (MacKinnon, J., concurring in part and dissenting in part) (“[T]he House or the Senate itself judges and controls the extent to which its members and documents should be produced in courts and before grand juries in response to subpoenas. Congress since 1787 has claimed that it has the ab- solute privilege to decide itself whether its members or employees should respond to subpoenas and to determine the extent of their response. As far as I have been able to discover, that practice has never been successfully challenged.”). Whatever the proper framework—privilege or sovereign im- munity—it’s clear that any objection on these grounds is prema- ture. The House’s own procedure for having its members respond to subpoenas suggests that sovereign immunity and privilege don’t come into play at this stage, where a subpoena has been issued but no effort to enforce the subpoena (through, say, contempt proceed- ings) has been commenced. “The rules and precedents of the House 5require that no Member . . . may, either voluntarily or in obedience to a subpena, testify regarding official functions, documents, or ac- tivities of the House without the consent of the House being first obtained.” 3 Lewis Deschler, Deschler’s Precedents of the United States House of Representatives ch. 11, §14 (1994) (emphasis added) [hereinafter Deschler’s Precedents]; see also Rules of the House of Representatives, 114th Cong., Rule VIII {hereinafter House Rule VIII]. That procedure—which will be discussed more thoroughly later on—would be wholly unnecessary if a member of the House could simply claim sovereign immunity as a defense upon the issuance of a subpoena. Perhaps there is still a role for immunity—once a testimo- nial privilege is properly invoked by the House or Senate or one of its members, then a subsequent effort to get the member of Con- gress to testify over that privilege is in effect an effort to get the body to act in a certain way, implicating sovereign immunity. But that comes in after a proper determination of whether the privilege is properly invoked. Cf. Exxon Shipping Co. v. U.S. Dep't of Inte- rior, 34 F.3d 774, 778 (9th Cir. 1994) (The . . . court [in Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir.1989)] held that the doc-trine of sovereign immunity precludes the state court, and the fed- eral court that gained limited jurisdiction on removal, from com- pelling Downie, an EPA investigator, to testify contrary to his agency's instructions.”) (emphasis supplied). Allowing sovereign immunity to be claimed at the outset—before a determination of whether the House actually objects to its member testifying—sub- verts the mechanism set up by the House for determining whether its members should respond to subpoenas. In short, Representative Yoho's invocation of sovereign im- munity is premature. The determination of whether the testimony sought is material and relevant, etc. must necessarily precede the House’s decision of whether to allow Yoho to testify under the House Rules (again, more on that later). If the House were to allow Representative Yoho to tes! it’s possible that sovereign immun- ity would be an issue—though it’s hard to see how such an allow- ance would not amount to a waiver of that immunity.9 Ill. “EXTRAORDINARY CIRCUMSTANCES” Representative Yoho further argues that “as a matter of fed- eral common law, high-ranking government officials may not be ® Put a different way, if the House were to allow Yoho to respond to the subpoena and testify, then enforcement of the subpoena wouldn't be “restrain- ing the sovereign’ at all, and thus wouldn't implicate sovereign immunity. 7required to provide testimony in litigation in which they are not a party, absent compelling or extraordinary circumstances.” ECF No. 3-1, at 11. This is the kind of abstract principle that can only be distilled from the case law when one ignores the factual contexts of cases. The Eleventh Circuit case cited by Yoho, In re United States (Kessler), 985 F.2d 610 (11th Cir. 1993) (per curiam), in- volved a subpoena directed to the Commissioner of the Food and Drug Administration that sought testimony relating to selective prosecution, Id. at 511. The Eleventh Circuit granted a writ of mandamus and quashed the subpoena, noting along the way that “{blecause of the time constraints and multiple responsibilities of high officials, courts discourage parties from calling them as wit- nesses and require exigent circumstances to justify a request for their testimony.” Id. at 513. One exigency might be the unavaila- bility of other witnesses who could provide the same testimony— something that wasn't present in Kessler. See id. at 512 (‘In order to protect officials from the constant distraction of testifying in lawsuits, courts have required that defendants show a special need or situation compelling such testimony. . . . This case does not pre- sent extraordinary circumstances or a special need for the Com-missioner’s testimony; on the contrary, the facts weigh against al- lowing the subpoena. The record discloses that testimony was available from alternate witnesses . . .”). Kessler, like many of the cases on which it relied, involved the head of an agency, a gigantic bureaucracy in need of continual oversight and management. There are multiple reasons to limit the availability of such persons to testify about matters of agency policy. First, such information can normally and easily be obtained elsewhere, as in Kessler. Second, the deprivation suffered by these persons’ agencies and the government as a whole would be great if such persons had to respond to all subpoenas because (1) they over- see large, complex bureaucracies with many officials under them and (2) their agencies are involved in activities across the nation. If, for instance, every person unhappy with a NPDES permitting decision could compel testimony from the head of the EPA to in- quire about NPDES permitting policy, the BPA’s operations would be severely impaired. ‘These reasons do not apply with equal force to members of the House. Each individual member of the House oversees a staff, to be sure, but the size of that staff pales in comparison to that of an agency like the Food and Drug Administration or the EPA. The 9member's activities, localized as they are to his district and Wash- ington, D.C., are far less likely to subject him to subpoena than the head of a major administrative agency, who oversees activities that occur throughout the nation. Simply put, a “federal common- Jaw” rule such as the one used for agency heads seems inappropri- ate for members of the House when one considers the policy ration- ales behind the rule. Despite the many differences between agency heads and members of Congress, a number of courts have applied the “excep- tional circumstances” rule to members of Congress, as Representa- tive Yoho points out. See ECF No. 3-1, at 18-19. This Court is not persuaded by the reasoning of these cases, both for the reason al- ready discussed—members of Congress are not like agency heads or other executive officials—but also because the House already has a procedure for determining whether its efficient functioning demands that a member not respond to a subpoena. Of course the procedure set up by the House is mostly about protecting privi- leged information, but there’s also an interest in the effective func- tioning of the body that might make the House reluctant to let one of its members testify. Consider the following, taken from the sum- mary of a report of a House committee tasked with determining 10“whether the service of a subpena or any other process by a court or a grand jury purporting to command a Member of this House to appear and testify invades the rights and privileges of the House of Representativesf:] . . . It is recognized that this privilege of the House of Rep- resentatives referred to is a valuable privilege insur- ing the opportunity of its Members against outside in- terference with their attendance upon the discharge of their constitutional duties. At the same time it is appreciated that there is at- tached to that privilege the very high duty and respon- sibility on the part of the House of Representatives to see to it that the privilege is so controlled in its exer- cise that it not unnecessarily interferes with the dis- charge of the obligations and responsibilities of the Members of the House as citizens to give testimony be- fore the inquisitorial agencies of government as to facts within their possession.” 2 Deschler’s Precedents ch. 7, §15.1 (quoting 87 Cong. Rec. 8933 (Nov. 17, 1941) (statement of Rep. Sumners). For a court to per- form the same balancing under what amounts to a “federal com- mon-law rule” would be an intrusion into the affairs of a co-equal branch. In short, the “extraordinary circumstances” rule is premised on policy considerations not implicated here and would, if applied, amount to a judicial intrusion into a co-equal branch of the federal ngovernment's affairs. For these reasons, Representative Yoho's ar- gument on these grounds is unpersuasive. IV. THE HOUSE RULES A. Legal Background ra The House Rules, “Rights and Privileges,” and The Speech or Debate Clause Representative Yoho's remaining argument has to do with the Rules of the House of Representatives, or the “House Rules.” As alluded to earlier, the House Rules provide a mechanism by which the House deals with subpoenas served on its members. “Upon receipt of a properly served judicial or administrative sub- poena or judicial order,” a member of the House is supposed to “no- tify the Speaker of its receipt in writing,” after which point the Speaker notifies the House. House Rule VIII.2. “Once notification has been laid before the House, the Member . . . shall determine whether the issuance of the judicial or administrative subpoena or judicial order . .. is a proper exercise of jurisdiction by the court, is material and relevant, and is consistent with the privileges and rights of the House. Such Member . . . shall notify the Speaker be- fore seeking judicial determination of these matters.” House Rule VIIL.3. Here there's a slight ambiguity: does the member have to 12seek a judicial determination, or may he instead make the deter- mination on his own? The House Rules are not clear on this point. The one court to consider the matter seems to have construed Rule VIII as allowing a member the choice of whether to seek a judicial determination. See Shape of Things to Come, Inc. v. Kane Cty., 588 F. Supp. 1192, 1193 (ND. Ill. 1984). At any rate, once a determi- nation is made, the member notifies the Speaker of the determina- tion, House Rule VIII.4, and the Speaker informs the House, “gen- erally describ[ing] the records or information sought” to the House in the process, House Rule VIII.5. After the determination has been reported to the House, [e]xcept as specified in paragraph (b) [which is not re- ally relevant here] or otherwise ordered by the House, upon notification to the House that a judicial or admin- istrative subpoena or judicial order . . . is a proper ex- ercise of jurisdiction by the court, is material and rel- evant, and is consistent with the privileges and rights of the House, the Member, Delegate, Resident Com- missioner, officer, or employee of the House shall com- ply with the judicial or administrative subpoena or ju- dicial order by supplying certified copies. House Rule VIII.6 (emphasis added). ‘This is an entirely sensible procedure—one that ensures that, unless otherwise ordered by the House, a member must tes- tify about “material and relevant” matters. True, the testimony 13sought must be “consistent with the privileges and rights of the House,” but this seems mostly circular—if the House has given the green light to a member to testify, then it seems by definition it has decided to waive its relevant privileges and rights. To see why this is true—why the decision on the part of the House to allow a member to respond to a subpoena necessarily means that the House has waived its “privileges and rights” (sub- ject, perhaps, to certain conditions)—it’s necessary to delve a bit into the history of how the House has dealt with subpoenas di- rected to its members. Deschler describes one such incident as fol- lows: On Nov. 17, 1941, the House authorized by resolution (H. Res. 340) Mr. Hamilton Fish, Jr., of New York, to appear and testify before a grand jury of the United States Court for the District of Columbia at such time as the House was not sitting[,] ... The authorizing res- olution was adopted pursuant to the report of a com- mittee that the service of a summons to a Member to appear and testify before a grand jury while the House is in session does invade the rights and privileges of the House of Representatives, as based on article I, section 6 of the Constitution, providing immunities to Mem- bers against arrest and against being questioned for any speech or debate in either House, but that the House could in each case waive its privileges, with or without conditions . . . 2 Deschler’s Precedents ch. 7, §15.1 (emphasis added). This case- by-case treatment of subpoenas was the norm until the late 1970s 14and early 1980s, when a mechanism similar to the one described above was adopted. See Ethan L. Carroll, Note, The Institutional Speech or Debate Protection: Nondisclosure as Separation of Pow- ers, 63 Duke L.J. 1153, 1187-89 (2014) (hereinafter Carroll] Against the historical case-by-case backdrop, and consider- ing the House’s own interpretation of allowing a member to re- spond to a subpoena as a form of waiver, it’s difficult to see how the House's decision to allow a member to testify is anything other than a waiver of its privileges and rights.* House Rule VIII does go on to state that “[nJothing in this rule shall be construed to de- prive, condition, or waive the constitutional or legal privileges or rights applicable or available at any time to a Member . . . or of the House itself, or the right of such Member . . . or of the House itself, to assert such privileges or rights before a court in the United States,” House Rule VIIL8, but this is the kind of boilerplate res- ervation of rights that must yield in the face of a contrary intent “It would be an interesting case if a member of the House wanted to testify but was forbidden from doing so. Can the House prevent one its mem- bers from waiving his Speech or Debate Clause privilege? Does the privilege belong to the individual legislator or the body as a whole? These are unresolved questions that this Court need not resolve today given that Representative Yoho does not wish to testify. For more, though, see Carroll, supra, at 1180- 89, and United States v. Helstoski, 442 U.S. 477, 492-94 (1979) 15expressed elsewhere in House Rule VIII's text and certainly man- ifest in its history. Cf. United States v. Anglin, 215 F.3d 1064, 1068 (Sth Cir. 2000). (“The government's failure to remove from a plea agreement boilerplate language that reserves a defendant's right to appeal her conviction does not necessarily vitiate other language in the plea agreement that clearly waives that right.”). This construction does raise a question. The House Rules seem to suggest that waiver will only occur if the information sought is “consistent with the privileges and rights of the House,” but of course it’s hard to see why there would even need to be a waiver in such cases. The way to make sense of this oddity is to recognize two things. First, the universe of subpoenas or judicial orders that trigger House Rule VIII—that is, those “judicial or ad- ministrative subpoena|s] or judicial order{s] directing appearance as a witness relating to the official functions of the House or for the production or disclosure of any document relating to the official functions of the House,”> House Rule VIII.1—is broader than the 5 ‘The parties dispute whether the testimony Trussell seeks to elicit from Representative Yoho “relatles] to the official functions of the House.” This Court thinks it does. The testimony relates to Yoho's communications with ‘Trussell as his Representative. This is not a case of Yoho being subpoenaed to testify about a car crash he witnessed while mowing his lawn; rather, he is being called to testify about conversations he had with Trussell in which his status as a member of Congress clearly played an important role 16universe of subpoenas or orders seeking privileged information. Af- ter all, the Speech or Debate Clause does not cover everything that legislators do, and there may be many things “related to” the offi- cial functions of the House that are not covered. See generally Gravel v. United States, 408 U.S. 606, 616-21 (1972). ‘The second thing to recognize is that House Rule VIII is best read as requiring a member (or a court) to determine whether a given subpoena implicates the Speech or Debate Clause (or some other “privilege and right” of the House), but then allowing the House as a body to nonetheless allow compliance with the sub- poena—that is, to waive its privileges and rights. This reading is admittedly a stretch given the plain text of House Rule VIII, but (2) it is consistent with the historical practice of the House dis- cussed above and (2) it frankly makes much more sense. Moreover, putting too much stock in the text of House Rule VIII is dangerous given that it’s hardly a fine specimen of draftsmanship.® Note, for instance, that the first section mentions both subpoenas “directing appearance as a witness” and requiring “production or disclosure © Which is somewhat distressing given that it is written by lawmakers to govern the internal affairs of lawmakers. But sometimes chefs at fine res- taurants, returning home late after a night serving up haute cuisine, prefer a simple grilled cheese sandwich. The House Rules are the legislative equivalent ofa grilled cheese sandwich, though perhaps less appetizing. wrof any document” relating to the official functions of the House, but by the time we get to Rule VIII.6(a) only subpoenas seeking docu- ments seem to be at issue. House Rule VIII.6(a) (‘the Member . . . shall comply with the judicial or administrative subpoena or judi- cial order by supplying certified copies”). Note also the wonky grammar throughout: “the Member . . . shall determine whether the issuance of the judicial or administrative subpoena or judicial order . . . is a proper exercise of jurisdiction by the court, is material and relevant, and is consistent with the privileges and rights of the House.” House Rule VIII.3. How can a subpoena itself—or its issu- ance—be “material and relevant?” What this clearly means is that the subpoena must call for the production of documents or testi- mony that is material or relevant. And yet what it means is not what it says. No doubt “it is the ‘duty of the judicial department to say what the law is.’.. . But it is equally true that the longstanding ‘practice of the government’ . . . can inform our determination of ‘what the law is.” NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 18(2014) (citations omitted).7 Here, the “precedents of the House re- quire that no Member . . . may, either voluntarily or in obedience toa subpena, testify regarding official functions, documents, or ac- tivities of the House without the consent of the House being first obtained.” 3 Deschler’s Precedents ch. 11, §14. House Rule VIII sets up a procedure for obtaining (or not obtaining) that consent, though it does so using somewhat imprecise language. 2 The Role of the Courts What role, then, do the courts play? Rule VIII seems to con- template that a member may seek a judicial determination of whether the testimony sought is privileged, material and relevant, ete., but need not seek such a determination. Provided that a party seeking to enforce a subpoena would be able to challenge the mem- ber’s (and the House's) determination in court, this seems con- sistent with the principle that a branch of the federal government cannot by itself determine the scope of one of its own privileges or immunities. See, e.g., United States v. Nixon, 418 U.S. 683, 703-05 (1974). In other words, assuming the possibility of subsequent ju- dicial review of the privilege determination, Rule VIII can be read 7 {I]t is perfectly clear that the Rulemaking Clause is not an absolute bar to judicial interpretation of the House Rules.” United States v. Rostenkow- ski, 59 F.3d 1291, 1904 (D.C. Cir. 1995). 19as authorizing a member to either (1) seek a judicial determination of whether a subpoena is material and relevant, etc. and then re- port that determination to the House or (2) make the determina- tion himself. What this suggests is that when a member of the House comes to court seeking to quash a subpoena before the House has determined whether to allow him to respond to the subpoena, qua- shal is premature. The proper course is for a court to make a “ju- dicial determination,” as contemplated by the House Rules, and then send the matter back to the House to determine whether to allow the member to testify. One of the few cases that this Court has found dealing with House Rule VIII supports this interpretation of the court's role at this stage. In Shape of Things to Come, a party in a civil action served a subpoena to produce documents on a nonparty member of the House. 588 F. Supp. at 1193. The House member opposed pro- duction, prompting the party seeking the documents to file a mo- tion to compel. Jd. The court refused to compel production, reason- ing as follows: This motion raises questions of relevancy and privi- lege. Neither issue is properly before the court. Rep. Corcoran is empowered to decide whether the material 20sought from him is relevant to this case and whether production is consistent with his rights and privileges as a member of the House. Until he informs the Speaker and properly seeks a ruling from this court, the court cannot, consistent with House Rule L, decide these questions... . Rep. Corcoran has expressly re- served the right to determine whether any of the ma- terial sought is privileged. . . . He invites the court to decide the relevancy issue but apparently has not in- formed the Speaker of his intention to do so. Neither question is, therefore, properly before the court. Due deference to the Rules of the House of Represent- atives requires the court to deny STC’s motion to com- pel production at this time. Rep. Corcoran must follow Rule L and either decide whether the documents sought are privileged and inform the House of his de- termination, or inform the Speaker of his intention to seek a judicial determination. Ad, at 1194. This Court agrees with the court in Shape of Things to Come in its analysis of the proper procedure in a case such as this one, with one exception. A member of the House’s failure to comply with the requirement that notice be given to the Speaker before seeking a judicial determination of relevance, privilege, etc. does not de- prive a court of the ability to make such a determination. This Court cannot enforce the House's internal rules. Representative ‘Yoho has not indicated whether he notified the Speaker of the sub- poena; even if he hasn't, though, this Court can entertain a request for a judicial determination as to relevance, etc. Representative 21Yoho’s motion to quash can fairly be construed as such a request, and so this Court will make a determination. This determination, in turn, may very well lead the House to not allow Representative Yoho to respond to the subpoena, a choice which would provide Yoho with a likely defense to any at- tempt to enforce the subpoena, at least in state court.® He therefore comes to this Court with a “colorable defense” to having to respond to the subpoena, giving this Court jurisdiction under §1442(a). 3. Relevance and Materiality One final question remains before turning to the facts of this case. What does “material and relevant” mean in the context of House Rule VIII? One federal court has construed this require- ment to be coterminous with the scope of civil discovery, but that was in the context of subpoenas issued to members of the House in the course of a civil lawsuit in federal court. See Jewish War Vet- erans v. Gates, 506 F, Supp. 2d 30, 41 n.1 (D.D.C. 2007). It seems clear that the meaning of “material and relevant” depends on the 4 For a discussion of some of the odd differences between the role of sovereign immunity when subpoenas are issued to federal officials in actions in state versus federal courts, see Coleman, supra, at 699-700, and Exxon Shipping Co., 34 F.3d at 778-80. 22nature of the underlying action for which a House member's testi- mony is sought. Here, then, “materiality” and “relevance” would be given their meaning under Florida law in the context of a criminal defendant seeking testimony from a witness. Happily, these very terms are often used in describing which types of witnesses may be compelled to testify under the Sixth Amendment and Florida law. See Washington v. Texas, 388 U.S. 14, 23 (1967) (“We hold that the petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.”) (emphasis added); Vann v. Florida, 85 So. 2d 133, 136 (Fla. 1956) (a “subpoena should not be quashed or set aside, on the ground that the evidence called for by it is not relevant or material, in a close or doubtful case, but only where the futility of the process to uncover anything useful or legitimate is inevitable or obvious”) (ci- tation and quotation omitted) (emphasis added). And this, of course, makes sense—if a subpoena seeks irrelevant and immate- rial information such that a court would quash the subpoena on 23those grounds, there's no need for the House to assert a privilege. ‘The member of the House can simply go to court and quash the subpoena on the grounds that the testimony sought “could shed no light on the issues of [the underlying] case.” See Kridos v. Vinskus, 483 So. 2d 727, 731 (Fla. 4th DCA 1986) (“One who could shed no light on the issues of a case, civil or criminal, did not have to testify at deposition or trial, long before there was a constitutional privacy provision in Florida.”). B. Analysis 1 Trussell’s Alleged Crimes Trussell is charged with committing three different kinds of crimes: impersonating a public officer, unlawful use of simulated legal process, and unlawful retaliation against a public officer. ECF No. 3-2, at 2.9 The events giving rise to these charges occurred in August of 2014. Id. at 2-3. The three crimes Trussell is charged with all fall under the heading of “[c]riminal actions under color of law or through use of simulated legal process.” §843.0865, Fla. Stat. (2013). “A person who deliberately impersonates or falsely acts as a public officer or ° These are categories. The information charges 14 separate counts. ECF No. 3-2. 24employee in connection with or relating to any legal process affect- ing persons and property, or otherwise takes any action under color of law against persons or property, commits a felony of the third degree . . ..” Id. §843.0855(2). “A person who simulates legal process, including, but not limited to, . . . indictments, subpoenas, warrants, injunctions, liens, orders, judgments, or any legal docu- ments or proceedings, knowing or having reason to know the con- tents of any such documents or proceedings or the basis for any action to be fraudulent, commits a felony of the third degree ....” Id. §843,0855(8). “A person who falsely under color of law attempts in any way to influence, intimidate, harass, retaliate against, or hinder a public officer or employee involving the discharge of his or her official duties by means of, but not limited to, threats of or actual physical abuse or harassment, or through the use of simu- lated legal process, commits a felony of the third degree .. . .” Id. §843.0855(4). 2. Testimony Sought from Yoho ‘Trussell claims that Yoho will testify to the following mat- ters: (2) “[A] May 2014 conversation between Congressman Yoho, Mr. Trussell, and a Colonel Harry Riley (Ret.) that occurred 25in Washington.” ECF No. 9, at 8, At this meeting, Trussell claims that Representative Yoho “told me my best strategy to effect change in federal government would be to return home, and work to ‘fix’ my local government. The People would then have more lev- erage to affect our state; thereby giving us more force to impact the corruption (my term) in D.C.” ECF No. 3-5, at 2. (2) “[A] meeting . . . around 7 P.M., October, 14 2014, be- tween Rodger Dowdell, Marie Trussell, Canetha Dodd, and Rodger Dowdell, an administrator for Florida’s Common Law Grand Jury movement. They met with Yoho and presented him with the cir- cumstances of Trussell’s arrest for failure to appear in court, while standing in court, five minutes before court was noticed to begin. . . . Ted Yoho at that meeting, emphatically committed to Mr. Dow- dell, that he would help Trussell.” ECF No. 9, at 20. (8) “A third meeting [that] took place with Yoho at the Brass Monkey, Gainesville, FL, on or about May 28, 2015, [during which] Trussell’s wife, Marie, and Trussell met with Ted Yoho to bring him up to date on the progress of the defense against State's prosecution. During the discussion, many details of how the de- fense were developing and how discovery was revealing State had not conducted any substantive investigation of the case, or had any 26understanding of the circumstances surrounding the charges were discussed, since the grand jury information was hidden. Yoho was very attentive and understood the points made. Again, Yoho ex- pressed his sympathy to the Trussell family plight and offered to consider anything he could do to help.” Id. at 20-21. (4) Communications between Yoho and the “alleged vie- tim” of Trussell’s crimes, Jeffrey Siegmeister, including one in- stance in which “Yoho was ‘warned off helping Trussell by . Siegmeister.” Id. at 21-22. (5) An October 2014 e-mail from Yoho to a Roy Callahan (now deceased) in which Yoho stated that he would “work to get Terry out.” ECF No. 9-2, at 4. 3 Relevance and Materiality Trussell claims that the testimony sought from Yoho “goes to the heart of the intent, credibility, injury, impeachment of vic- tim, the numerous defenses, including good-faith and immunity, and the first amendment rights to assemble and express opinions, as well as potential improper arrest and incarceration of Trussell.” ECF No. 9, at 8. Trussell makes a number of other arguments about why the testimony sought from Yoho is material and rele- vant. See ECF No. 9, at 19-29. None is worth addressing in any 27detail. It’s clear that Yoho has nothing to say that would have any relevance to the charges against Trussell. For one thing, with the exception of the May 2014 meeting in Washington, D.C., all of the communications involving Representative Yoho occurred ajter the alleged crimes—indeed, many of them occurred after Trussell was arrested. It appears that what Trussell wants to have Yoho testify about is the perceived unfairness of the manner of Trussell’s arrest and prosecution, not the underlying criminal charges. The one conversation involving Yoho that predates the al- leged criminal activity has no relevance to any element of the charged offenses or any legally cognizable defense. Presumably Trussell will try to argue that he cannot be convicted because he lacked the requisite fraudulent intent or knowledge of falsity— that is, he actually thought he possessed the legal authority to take the actions he took. But all Yoho told him in May 2014 was that he should go home and try to “fix’ [his] local government.” How could. ‘Yoho's testimony to that effect plausibly be relevant to the ques- tion of Trussell’s mental state? Trussell states that he “firmly be- lieve[s] Ted’s verification of the . . . conversation would show a jury, had the most honorable intentions by fighting corruption, in de- fense of the people in my county.” ECF No. 3-5, at 2. “Honorable 28intentions” is not a defense to the charges against Trussell. One| can act in a subjectively “honorable” way and also act with the req- uisite fraudulent intent or knowledge of falsity to violate the sim- ulated legal process statute. Such intentions might be relevant at sentencing, but they are not legally relevant to the question of whether Trussell committed the charged crimes or has a cogniza- ble defense. Frankly, the theories of relevance advanced by Trussell only, make sense if one adopts Trussell’s philosophy of government. The State's actions in connection with his arrest and prosecution are illegitimate, according to Trussell, and this amounts to a defense. ‘Yoho can corroborate that Trussell actually holds these beliefs, and that Trussell seeks only to “defen{d] . . . the people in [his] county.” But none of these are defenses. Trussell is going to be tried in a court of the State of Florida, not a court of the government of his imaginings. Yoho’s testimony might be relevant and material given the law as Tressel believes it to be, but his testimony is im- material and irrelevant given the law as it actually is. What is happening here is clear: though Yoho could not offer any testimony that would be legally relevant and material, his mere presence at the trial might very well help Trussell. A jury 29informed of Trussell and Yoho’s relationship might be more willing to credit any claim by Trussell that he legitimately believed he had. the legal authority to take the actions he was taking—after all, how crazy could someone's beliefs be if that person is so chummy with a sitting member of Congress? And Yoho is apparently very popular in Dixie County—he won his seat with nearly 75% of the vote in 2014.10 Trussell is seeking to curry favor with the jury by calling as a witness the community’s quite popular sitting Repre- sentative. But Representative Yoho has nothing relevant to say, and certainly nothing “material and relevant” to say. Given this finding, it’s unnecessary to determine whether the testimony sought is privileged. Even if he weren't a member of Congress, Representative Yoho could avoid the subpoena because it seeks irrelevant testimony. See Kridos, 483 So. 2d at 731. Vv. CONCLUSION A defense based on sovereign immunity or privilege is prem- ature since the House of Representatives is in the middle—not at the end—ofits decisionmaking process as to whether to allow Rep- " Unofficial Results, 2014 General Election, Dixie County Supervisor of Elections, http:/enr.electionsfl.org/DIX/Summary/1215/. 30resentative Yoho to respond to the subpoena. The “exceptional cir- cumstances” doctrine is not applicable under these particular cir- cumstances. Insofar as Representative Yoho seeks to quash the subpoena, that request is premature; however, construed as a re- quest for a judicial determination of the relevance and materiality of the testimony sought by the subpoena, the motion is proper. This Court finds that the subpoena seeks testimony that is neither ma- terial nor relevant. What happens now is up to the parties, the House and the state court. Representative Yoho can move to quash the subpoena in state court. The trial judge may very well grant the motion, ei- ther because he feels bound by collateral estoppel to do so or be- cause an independent review of the evidence convinces him that the testimony sought is irrelevant, The House may not consent to Yoho testifying, in which case an effort to enforce the subpoena would likely run up against the wall of sovereign immunity. In any event, this Court doubts that Representative Yoho will have to tes- tify at Trussell’s trial. IT IS ORDERED: 1. The motion to quash, ECF No. 3, is GRANTED IN PART and DENIED IN PART. This Court does not quash the 31subpoena issued to Representative Yoho. However, this Court finds that the subpoena seeks testimony that is nei- ther relevant nor material to the state-court proceedings. 2. This case is DISMISSED with prejudice. 3. The Clerk shall close the file. SO ORDERED on June 3, 2016. /Mark E. Walker United States District Judge 32UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION In RE SUBPOENA AD TESTIFICANDUM ISSUED TO REPRESENTATIVE TED YOHO CASE NO. 1:16-CV-188-MW/GRJ —/ ORDER ON “NOTICE OF RE-REMOVAL” Terry Trussell has filed something called a “notice of re-re- moval” and a “motion to vacate” one of this Court’s prior orders. ECF No. 11. To the extent the motion really is an attempted re- moval of a state-court subpoena to this Court, it fails—Trussell is not a federal officer and is, in any event, not subject to the sub- poena. In substance, though, the motion is a motion for reconsider- ation of this Court's prior ruling that the testimony Trussell seeks from Representative Ted Yoho is immaterial and irrelevant to Trussel’s case. Much of the motion is incomprehensible and/or evinces a deep miscomprehension of the meaning of the Petition Clause of the First Amendment. The one cogent point raised by Trussell is that the House Rules should never have come into play ATTACHMENT Cbecause the subpoena issued to Yoho does not seek testimony “re- lating to the official functions of the House.” Id. at 3-5. Trussell argues that this phrase should be interpreted to cover only those matters that are of “general House concern.” Id. at 5. This is certainly a colorable argument. However, Trussell has not convinced this Court that the phrase “relating to the offi- cial functions of the House” should be so narrowly construed. As noted by this Court in its prior Order, “the procedure set up by the House is mostly about protecting privileged information, but there's also an interest in the effective functioning of the body that might make the House reluctant to let one of its members testify.” ECF No. 10, at 10. Where the testimony sought is wholly unrelated toa member's role as a member of Congress—such as a member of the House being called to testify about a robbery she witnessed— perhaps this interest alone would be insufficient to render the sub- poena one seeking testimony “relat{ed] to the official functions of the House.” But, as noted before, Yoho “is being called to testify about conversations he had with Trussell in which his status as a momber of Congress clearly played an important role.” Id. at 16. ‘That, together with the House’s interest in its effective function- ing, brings the subpoena within the scope of House Rule VIII. And 2none of Trussell’s arguments about the materiality or relevance of Yoho's testimony are convincing, so this Court will not reconsider its prior ruling on that issue. For these reasons, the construed motion for reconsideration, ECF No. 11, is DENIED. SO ORDERED on June 8, 2016. s/Mark E. Walke United States District Judge