Doughty has issued unusual orders demanding the disclosure of thousands of pages of government documents and sworn depositions from senior US officials, even though the states’ lawsuit is still in preliminary stages. The Justice Department asked the New Orleans 5th Circuit Court of Appeals to block some, but not all, of Doughty’s deposition orders for senior officials.
Psaki’s attorneys argued that the deposition would place an “undue burden” on her, in part because it would take her away from her family for several days and interfere with her new job at MSNBC. But during a series of heated exchanges with Psaki’s lead attorney, Jeannie Rhee, Davis said documents filed in the case showed no unusual impact she was likely to suffer.
“I don’t see any,” Davis said. “I have a hard time seeing how it’s different from any other depositor.”
Rhee told Davis that Psaki would have to be prepped for deposition by two different groups of attorneys: Rhee’s team and Department of Justice attorneys. The DOJ would not allow Rhee’s team to be present during the prep with government attorneys, said Rhee, a former federal prosecutor and veteran of Special Counsel Robert Mueller’s Russia investigative team. .
Davis also said that PSAki’s claims that she has no relevant information about the lawsuit could make the deposition a short work. “How much does it take to prepare a witness for a testimony where he has nothing to say? It’s confusing,” the judge said.
Davis acknowledged that the courts have applied a so-called apex doctrine to make it difficult to remove current and former top officials lest they be systematically drawn into all sorts of time-consuming litigation. But the judge said those concerns are most acute for current officials, not former ones like Psaki, who left the White House in May. “It takes them away from their current obligations to the American people based on this work,” Davis said.
However, Rhee argued that the concern also applies to former public servants.
“It’s the chilling effect,” she said, saying people may be reluctant to take government office if they get embroiled in litigation after doing so.
Rhee also argued that the states weren’t really exploring the details of specific cases of alleged censorship, but were trying to probe the very general statements Psaki had made about the administration.
Davis’ decision seems certain not to be the final word on whether Psaki should sit for a deposition in the lawsuit. DOJ attorney Indraneel Sur told Davis the government plans to ask U.S. District Court Judge Patricia Giles to overturn her decision. The maneuver means that it is almost certain that Psaki will not be deposed next week as the states had requested.
Even if a deposition of Psaki takes place, states can get little information from Psaki, at least initially. That’s because Justice Department lawyers seem willing to argue that many of his White House conversations are covered by executive privilege. These claims are likely to produce more rounds of litigation.