Judge punts Psaki social-media subpoena fight

A federal magistrate judge in Virginia openly scoffed Friday at White House press secretary Jen Psaki’s efforts to escape a deposition in a suit over alleged pressure on social media firms to censor posts on topics like Covid-19 vaccines and election fraud.

But even after roundly rejecting and even ridiculing arguments Psaki’s attorneys and the Justice Department presented against forcing her to testify, U.S. Magistrate Judge Ivan Davis ruled that the issue of Psaki’s testimony be sent to Louisiana to be resolved by the federal judge overseeing the case filed in May by the states of Louisiana and Missouri. That suit alleges that President Joe Biden and his appointees are violating the First Amendment by urging Facebook, Twitter and other firms to limit access to posts on controversial subjects.

During a brutal argument session that stretched to more than an hour Friday morning, Davis accused Psaki’s high-powered lawyers and the Justice Department of trying to make an “end-run” around U.S. District Court Judge Terry Doughty, a Monroe, La.-based appointee of President Donald Trump.

Doughty has issued unusual orders requiring disclosure of thousands of pages of government records and sworn depositions from top U.S. officials, even though the states’ suit is still in a preliminary stage. The Justice Department has asked the New Orleans-based 5th Circuit Court of Appeals to block some, but not all, of Doughty’s deposition orders for top officials.

Psaki’s lawyers argued that the deposition would be 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 prickly exchanges with Psaki’s lead attorney, Jeannie Rhee, Davis said the filings in the case didn’t demonstrate any unusual impact she was likely to suffer.

“I don’t see any,” Davis said. “I’m finding it difficult to see how that’s different than any other deponent.”

Rhee told Davis that Psaki would have to be prepared for the deposition by two different sets of attorneys: Rhee’s team and Justice Department lawyers. DOJ would not permit Rhee’s team to be present while the preparation with the government lawyers took place, said Rhee, a former federal prosecutor and veteran of Special Counsel Robert Mueller’s Russia investigation team.

Davis also said Psaki’s claims that she doesn’t have any information relevant to the suit could make short work of the deposition. “How much does it take to prepare a witness for a deposition where she doesn’t have anything to say? That’s confusing,” the judge said.

Davis acknowledged that courts have applied a so-called apex doctrine to make it difficult to depose current and former senior government officials, lest they be routinely dragged 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 they have to the American people based on that job,” Davis said.

However, Rhee argued that the concern is equally applicable to former officials.

“It’s the chilling effect,” she said, arguing that people may be reluctant to take up government service if they become embroiled in litigation after doing so.

Rhee also contended that the states weren’t really exploring the details of specific instances of alleged censorship but trying to probe highly general statements Psaki made about the administration.

Davis’ ruling seems certain not to be the final word on whether Psaki must sit for a deposition in the suit. DOJ lawyer Indraneel Sur told Davis that the government plans to ask U.S. District Court Judge Patricia Giles to overturn his decision. The maneuvering means it is nearly certain that Psaki will not be deposed next week as the states had requested.

Even if a deposition of Psaki takes place, the states may get little information out of Psaki, at least in the first instance. That’s because Justice Department lawyers seem poised to assert that many of her conversations in the White House are covered by executive privilege. Those claims are likely to produce more rounds of litigation.