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Judicial Watch • JW v State Motion to Compel Bentel 01363

JW v State Motion to Compel Bentel 01363

JW v State Motion to Compel Bentel 01363

Page 1: JW v State Motion to Compel Bentel 01363

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Number of Pages:11

Date Created:November 1, 2016

Date Uploaded to the Library:November 02, 2016

Tags:Compel, Bentel, Bekesha, questions, amendment, deposition, 01363, motion, Benghazi, filed, michael, State Department, plaintiff, document, department, FOIA, Washington


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Case 1:13-cv-01363-EGS Document 140 Filed 11/01/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 13-cv-1363 (EGS)
PLAINTIFF MOTION COMPEL
TESTIMONY JOHN BENTEL
Plaintiff Judicial Watch, Inc., counsel and pursuant Rule the Federal Rules
Civil Procedure, respectfully moves compel the testimony John Bentel. Mr. Bentel
opposes this motion; the State Department takes position. grounds therefor, Plaintiff states follows:
STATEMENT POINTS AND AUTHORITIES
Introduction. response questions, Mr. Bentel invoked his Fifth Amendment rights. date,
Mr. Bentel has not demonstrated has legitimate fear that answers all questions present danger him. Nor has demonstrated any such fear more than fanciful merely
speculative. Mr. Bentel therefore must answer all questions asked him during his deposition.
II.
Background.
The Court granted Plaintiff request depose Mr. Bentel for four reasons. First, the
record this case appears contradict his sworn testimony before the Benghazi Committee.
Memorandum Opinion 24. Second, Mr. Bentel declined assist the Rule 30(b)(6) deponent
Case 1:13-cv-01363-EGS Document 140 Filed 11/01/16 Page preparation for her deposition. Id. 25. Third, the OIG May 2016 report found that Mr.
Bentel told employees his office that Secretary Clinton email arrangement had been
approved the State Department legal staff and also instructed his subordinates not discuss
the Secretary email again. Id. Fourth, Mr. Bentel informed State Department staff person
that anything sent the Secretary her state.gov Blackberry address would subject
FOIA searches. Id. 26. Because the record suggests Mr. Bentel has knowledge the
operation the clintonemail.com system, which within the scope discovery authorized
the Court (Id.), the Court authorized Plaintiff depose Mr. Bentel.
Plaintiff conferred with counsel for Mr. Bentel and the State Department and scheduled
Mr. Bentel deposition for October 24, 2016. October 20, 2016, Mr. Bentel counsel
informed Plaintiff that intended decline answer all substantive questions concerning the
topic upon which [the Court] has ordered his deposition taken, reliance his rights under
the Fifth Amendment. See Exhibit Because the Court court must review assertions
privilege question-by-question basis (Anton Prospect Cafe Milano, Inc., 233 F.R.D. 216,
218 (D.D.C. 2006)), Plaintiff deposed Mr. Bentel October 24, 2016. Mr. Bentel declined
answer questions and instead asserted, advice from legal counsel, decline answer
the question and invoke Fifth Amendment rights. See Deposition Transcript John
Bentel pp. 9-83.1 Mr. Bentel counsel also instructed Mr. Bentel not answer nine questions
based objection that the questions were outside the scope discovery. Although Plaintiff
does not concede that these questions exceeded the scope permissible discovery, Plaintiff does
not move compel Mr. Bentel answer these questions.
The transcripts and the audiovisual recording the deposition have already been
provided the Court.
-2-
Case 1:13-cv-01363-EGS Document 140 Filed 11/01/16 Page
After reviewing the deposition transcript, Plaintiff informed Mr. Bentel counsel that
intended move compel Mr. Bentel testimony because failed substantiate his
invocation his Fifth Amendment rights. October 31, 2016, Mr. Bentel counsel stated,
Mr. Bentel stands the invocation his Fifth Amendment rights. did not identify any
reasonable fear prosecution. See Exhibit
III.
Argument.
The Fifth Amendment protects person against being incriminated his own
compelled, testimonial communications. Anton, 233 F.R.D. 218. applies any
proceeding disclosures which the witness reasonably believes could used [against him
her] criminal prosecution could lead other evidence that might used. Id.
(quoting Kastigar United States, 406 U.S. 441, 444-45 (1972). Stated another way,
[t]he privilege afforded not only extends answers that would themselves
support conviction under federal criminal statute but likewise embraces those
which would furnish link the chain evidence needed prosecute the
claimant for federal crime. But this protection must confined instances
where the witness has reasonable cause apprehend danger from direct answer.
Hoffman United States, 341 U.S. 479, 486 (1951) (internal citations omitted). addition,
[t]he witness not exonerated from answering merely because declares that doing
would incriminate himself his say-so does not itself establish the hazard incrimination. for the court say whether his silence justified. Id. determine whether the invocation proper, the Court must review assertions
privilege question-by-question basis. Anton, 233 F.R.D. 218. When doing so, the Court
must determine whether there reasonable basis for believing danger the witness might
exist answering particular question. Id. The danger cannot merely speculative,
however. sustain the invocation, the witness must demonstrate fear prosecution which
-3-
Case 1:13-cv-01363-EGS Document 140 Filed 11/01/16 Page more than fanciful merely speculative. Corrugated Container Antitrust Litigation,
662 F.2d 875, 883 (D.C. Cir. 1981).
Mr. Bentel has invoked his Fifth Amendment rights without providing any justification
whatsoever. has not identified let alone demonstrated fear prosecution answering
any the questions asked him during his deposition. Nor has demonstrated any such
fear more than fanciful merely speculative. Mr. Bentel has not provided Plaintiff the
Court with any pertinent information allow assess the validity the invocation for each the questions Mr. Bentel declined answer.
IV.
Conclusion.
Plaintiff respectfully requests the Court compel Mr. Bentel answer the questions
asked him during his deposition.
Dated: November 2016
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
JUDICIAL WATCH, INC.
425 Third Street S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.
-4-
Case 1:13-cv-01363-EGS Document 140 Filed 11/01/16 Page
Certification hereby certify that Plaintiff has good faith conferred with John Bentel and the U.S.
Department State effort obtain Mr. Bentel testimony without court action.
/s/ Michael Bekesha
Case 1:13-cv-01363-EGS Document 140-1 Filed 11/01/16 Page
EXHIBIT
Case 1:13-cv-01363-EGS Document 140-1 Filed 11/01/16 Page
BAKER BOnS L.LP
THE WARNER
1299 PENNSYLVANIA AVE..
WASHINGTON. D.C.
200042400
TEL 202639.7700
FAX 202.639.7890
BakerBotls.com
AUSTIN
BEUING
BRUSSELS
DALLAS
DUBAI
HONG KONG
HOUSTON
LONDON
MOSCOW
NEW YORK
PALO ALTO
RIYADH
SAN FRANCISCO
WASHINGTON
October 20, 2016
Kyle Clark
TEL: 2026391320
FAX: 2025851034
VIA E-MAIL (MBEKESHA@JUDICIALWATCH.ORG)
kyle.clark@bakerbotts.com
Michael Bekesha
Judicial Watch, Inc.
425 Third Street, S.W.
Suite 800
Washington, D.C. 20024
Re:
Judicial Watch, Inc. Us. Department a/State, Case Number 13-cv-1363 (EGS)
Dear Michael: write confirm that our client, Mr. John Bentel, will decline answer all
substantive questions concerning the topic upon which Judge Sullivan has order his deposition taken, reliance his rights under the Fifth Amendment. See Doc. 124, Memorandum
Opinion, 13-cv-1363 (DD.C., Aug. 19,2016). hope that confirming Mr. Bentels intentions writing, Judicial Watch will
conserve court reporter time and avoid unnecessary court reporter fees and attorney time and fees withdrawing the deposition request. look forward your reply.
Respectfully,
Kyle Clark
Case 1:13-cv-01363-EGS Document 140-2 Filed 11/01/16 Page
EXHIBIT
Case 1:13-cv-01363-EGS Document 140-2 Filed 11/01/16 Page
BAKER BOlTS l.L.P.
THE WARNER
1299 fENNSYLVANi/ AVE.,
WASHINGTON, D.C.
20004-2400
TEL 202.639.7700
FAX 202.639 ,7890
AUSTIN
BEUIllG
BRUSSELS
DillAS
DUBAI
HONG KONG
HOUSTON
LONDON
MOSCOW
NEW YORK
PALO ALTO
RIYADH
SAN FRANCISCO
WASHINGTON
BC1kerBo~s.com
October 31, 2016
Kyle Clark
TEL: 2026391320
FAX: 2025851034
VIA E-MAIL (MBEKESHA@JUDICIALWATCH.ORG)
kyle.clark@bakerbotts,com
Michael Bekesha
Judicial Watch, Inc.
425 Third Street, S.W.
Suite 800
Washington, D.C. 20024
Re:
Judicial Watch, Inc. Department oiState, Case Number 13-cv-1363 (EGS)
Dear Michael: are receipt your October 26, 2016 letter and also your follow-up email
October 28, 2016, appreciate you seeking our input before moving compel Mr. Bentel
answer any the questions asked him.
Mr. Bentel stands the invocation his Fifth Amendment rights during the October 24,
2016 deposition. told you advance the deposition, Mr. Bentel declined answer
all substantive questions concerning the topic upon which Judge Sullivan has ordered his
deposition taken, reliance his rights under the Fifth Amendment.
Your October letter claims that Mr. Bentel must demonstrate that has reasonable
belief that his answers would support conviction under federal criminal statute furnish
link chain evidence needed prosecute. That not the correct legal standard. The
conect standard for the court determine only whether there reasonable basis for
believing danger the witness might exist. Anton Prospect MiI Iuc 233 F.R.D.
IlO,
216,218 (D.D.C 2006) (emphasis added). doing, the witness specifically not required
prove incrimination testimony otherwise demonstrate risk prosecution because that
would surrender the very protection which the privilege designed guarantee.
Corru gated Conlainer Antit rus( Litig., 662 F.2d 875,882-83 (D.C. Cir. 1981).
Given Judge Sullivans observations the record and his Memorandum Opinion
ordering the deposition Mr. Bentel (Mem. Order, ECF No. 124 24-26), coupled with Judge
Sullivans sound legal observation that another nonparty deponent, Bryan Pagiiano, had the right invoke his own Fifth Amendment protections response the same type substantive
questions posed Mr. Bentel (July 18, 2016 Tr. 6), ask that Judicial Watch
reconsider its intention file such motion compel where the law does not support it.
Case 1:13-cv-01363-EGS Document 140-2 Filed 11/01/16 Page
BAKER BOns ll,P
Michael Bekesha
-2-
October 31,2016
believe filing such motion under these circumstances would needlessly waste court resources
and attorney time and fees.
Respectfully.
Kyle Clark
Case 1:13-cv-01363-EGS Document 140-3 Filed 11/01/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 13-cv-1363 (EGS)
[PROPOSED] ORDER
Upon consideration Plaintiff Motion Compel Testimony John Bentel and the
entire record herein, hereby ORDERED that: Plaintiff motion GRANTED. ORDERED.
DATE:
The Hon. Emmet Sullivan, U.S.D.J.