In the next few weeks, the U.S. Supreme Court could issue a decision that puts a crimp in the investigation schedule of special counsel and former FBI director Robert Mueller III.
Mueller, leading the investigation of any Russian influence in the 2016 presidential election, and former U.S. Attorney General John Ashcroft are defendants in a long-running suit that alleges senior government officials unlawfully detained immigrants, some of them Muslim, in the aftermath of the Sept. 11 attacks.
A ruling against Mueller, Ashcroft and other officials would put the case back on track in New York federal district court—and expose Mueller to the possibility of depositions or even trial testimony. All of this hinges on how the Supreme Court rules—and whether, if the case is revived, Mueller can successfully fight any attempt by the plaintiffs to depose him. Courts have set the bar high for depositions of senior officials.
“I imagine the district court would exercise discretion to ensure our discovery plan was very deferential to Mueller’s responsibilities,” said Rachel Meeropol of the Center for Constitutional Rights, who argued for the former detainees in January at the Supreme Court. “I don’t think that means we wouldn’t take a deposition.”
Meeropol said she would expect the case to move “incrementally” with interrogatories. “A deposition could conceivably be cabined in some ways,” she said. “We would have to work with the court.”
A six-justice high court heard arguments in Ashcroft v. Abbasi and two related cases on Jan. 18. Justices Sonia Sotomayor and Elena Kagan did not participate because of previous work on the cases before joining the court, and the seat of the late Justice Antonin Scalia was still vacant.
To move forward with their lawsuit, the men must prevail on three key questions: whether they can pursue a so-called Bivens damages remedy; whether the federal officials were entitled to qualified immunity; and whether their allegations are plausible that Mueller and Ashcroft personally condoned the detention policies because of animus against Arabs and Muslims.
A majority of the justices during the arguments did not seem persuaded by Meeropol’s legal arguments. The government argued that national security concerns were the main motivating factor.
The lawsuit was filed in 2002 by a different group of former detainees, five of whom settled their claims against the United States for $1.26 million. Other former detainees intervened and the complaint triggering the high court case was filed in 2010.
Meeropol said that discovery had begun in the district court but was stopped because of various appeals. She said there had been some discovery of lower-level officials, and depositions were being noticed for some staff members in the offices of Mueller and Ashcroft.
There’s no certainty that Mueller, formerly a partner at Wilmer Cutler Pickering Hale and Dorr, would ever be deposed.
Some federal circuit courts have set a high bar for those seeking to depose high-ranking federal officials. A common test is whether the plaintiffs can show “extraordinary circumstances” or “special need” justifying the request to depose an official or to require the appearance of an official in court.
In a 2010 decision by the U.S. Court of Appeals for the Eleventh Circuit, Judge William Pryor wrote:
Compelling high executive officials to appear in a judicial proceeding implicates the separation of powers regardless of whether the appearance is compelled initially by a party or sua sponte by the court. In either event, the appearance of the executive official must be, in the end, compelled by an order of the judiciary, which implicates the separation of powers. For that reason, in both circumstances, there must be a showing of special need before a high-ranking executive official can be compelled by the judiciary to appear.
There are practical reasons for that high threshold. Those reasons, according to the courts, include concerns about monopolizing the time of high-ranking officials by preparing and testifying in every case which they administer or prosecute.
In the Ashcroft-Mueller case, federal officials arrested and detained 762 people on immigration charges. In their lawsuit, the immigrants, primarily of Arab and South Asian descent, charge they were held in solitary confinement in a super-maximum security federal prison for months where they endured harsh restrictions, harassment and physical abuse in violation of their substantive due process and equal protection rights under the Fifth Amendment.
The complaint alleges Mueller, Ashcroft and the then INS commissioner crafted a policy knowingly consigning the men to extreme punishment and without any individualized suspicion that they had any connection to terrorism.
The U.S. Court of Appeals for the Second Circuit allowed the lawsuit to go forward in June 2015, ruling against Mueller and Ashcroft. The Obama Justice Department represented their interests in the appeal and in the Supreme Court.
“The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy,” the appeals panel wrote.
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