Magistrate Judge "Openly Scoffed" at Former 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."

Josh Gerstein (Politico) reports:

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, [U.S. Magistrate Judge Ivan] 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." …

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.

The judge "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."

Comments

[great Unknown]

Why would a Press Secretary fall under the apex doctrine in the first place?

[BadLib]

It takes them away from their current obligations they have to the American people based on that job,

If she were still the Press Secretary it would seem that she would have had some obligations to the American people that a deposition could distract her from.

After all, how would society survive without watching someone at the podium artfully¹ spewing pablum and promoting misguided agendas while dodging questions and knowing nothing about the actual issues about which they are speaking?

Without that, how would children learn to become politicians?

Without politicians how would we staff the Legislative and Executive branches? Distracting the Press Secretary could lead to the downfall of the entire system of government enshrined in the Constitution.
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[1] I do not mean to imply that Psaki was actually artful but sometimes bad examples are as valuable as good examples of behavior.

[Rev. Arthur L. Kirkland]

Disaffected, cynical losers are among my favorite culture war casualties.

And the core audience of a white, male, faux libertarian blog that continues to sink.

[Mr. Bumble]

...and yet you refuse to abandon ship.

[Frank Drackman]

as opposed to an affected (probably infected to) white, faux, male, who continues to stink. Do you get to watch "Escape at Dannemora"
at https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx???
boy, those 2 ruined it for everyone else....

Frank

[Flight-ER-Doc]

Exactly.

[Mr. Bumble]

Time to disabuse Peppermint Psaki of the idea that she is someone special.

[Noorondoor]

Liberals do indeed think they're special.

[Nige]

Everyone's special. Except you.

[David Nieporent]

Well, Psaki made a routine argument, and lost. I mean, I understand she's a prominent figure and this is a prominent case, but this doesn't really feel very newsworthy.

[Don Nico]

She just suffers from excessive white privilege

[Alpheus W Drinkwater]

ginger privilege

[Don Nico]

"Gingers don't have souls." Check it out on YouTube

[rloquitur]

There is, you know, the J6 committee (Dem-controlled) subjecting numerous people with nothing to do with anything to its BS subpoenas.

[David Nieporent]

I don't know that, no, but what does it have to do with this post?

[ThomasD]

You are saying your lack of specific knowledge prevents you from drawing and connections between the two proceedings?

Well ok then.

[rloquitur]

Like, for example, Michael Flynn and a bunch of lawyers.

[David Nieporent]

Which of those people, mostly unnamed, do you think had "nothing to do with anything"?

[rloquitur]

Flynn and Navarro for starters. And nice move by the thug DoJ arresting Navarro and putting him in leg irons.

[Life of Brian]

Well, Psaki made a routine argument, and lost.

Maybe you handle all sorts of cases where someone argued the apex doctrine based on the supposed prominence of a prior position, not their current one. But I suspect not. I’d say part of the reason the magistrate (politely) shot it down so hard was because that is indeed NOT a routine way to invoke the doctrine.

While an actual transcript would be awesome, even in Politico’s rendition Psaki’s lawyer’s argument comes across as borderline sheepish:

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.

As opposed to the rest of us commoners, I guess. Maybe not the most frivolous argument ever, but one she had to know was a loser. Hopefully she does mostly defense work and won’t need to try to subpoena any former government officials herself down the road.

[David Nieporent]

Based on the Politico article, it sounds more like she said this orally than that she put it in a brief. Not a compelling argument, obviously, but it's not objectively frivolous. Like I said: she made the argument that it would be burdensome to sit for a deposition, and lost. Ho hum.

(But wait until — as the article says she intends to do — she invokes executive privilege. Then we'll see the fun of all the MAGA people declaring that this is something made up by Psaki and doesn't exist.)

[Life of Brian]

Then we’ll see the fun of all the MAGA people declaring that this is something made up by Psaki and doesn’t exist.)

Ah, but once she makes that argument, the entire legion of frothing lefties will descend upon her and scream unrelentingly that the privilege only belongs to the CURRENT administration and she'll withdraw it in shame, right? So I'm confident there'll be no need or opportunity to point out the rank hypocrisy.

[Michael P]

It's not like there is already any hypocrisy in a former administration official claiming that some judicial doctrine about the executive branch protects her after she leaves government service, am I right?

[Darth Buckeye]

When one considers that this was a strategy used by the Democrats and the Never-Trumpers to keep people from taking jobs with the Trump administration, I am not impressed.

[MaddogEngineer]

Maybe because we've been subjected to years of outrage when other former government officials resisted such questioning under oath etc. If you've got nothing to hide, you shouldn't be afraid to be questioned, amirite?

If we didn't have double standards, we'd have none at all.

[Sarcastr0]

They didn’t resist, they refused.

I don’t love resisting as a first move either, but the pretzels some in here are tying to equate Trumps people ignoring the law with this legal argument says a lot about what the law means to some.

[Michael D]

Pathetic argument that sounds like a coverup attempt.

I will add that the idea behind the “apex doctrine” holds no water with me. The higher-ups in government should absolutely be held to the highest level of accountability and their responsibilities rarely, if ever, can be labeled as greater than those of any other person who a court would demand at any deposition.

Consider the fact that these people take vacations, are sick, or not working for whatever reason (eg: SecTrans Buttigieg on family leave during a series of shipping problems at many west coast ports). There is no reason why they cannot be held to the same standard as any business leader who might also be deposed.

[David Nieporent]

The apex doctrine applies to business leaders also. In fact, it's much more commonly invoked there. You generally can't depose the CEO of a company unless you've exhausted the knowledge of lower level people first.

[Rev. Arthur L. Kirkland]

Did Prof. Volokh write anything about the gymnastics in which disgraced lawyer John Eastman is engaging in an attempt to avoid provision of evidence to authorities investigating un-American insurrectionists?

Something seems to incline Prof. Volokh to be remarkably quiet about John Eastman . . . these days, anyway.

Carry on, clingers.

[Frank Drackman]

C'mon Jerry (Man!) it's only Monday, you got a whole new supply of "Klingers" to use, let em fly!!!!
and as of today, Jerry Sandusky's been convicted of more crimes than Eastman (love his Cameras), as you well know, Jerry.

Frank

[Rev. Arthur L. Kirkland]

You are the defender Prof. Volokh deserves with respect to his treatment of John Eastman at this blog, Frank Drackman.

Ouch. Very ouch.

#ConservativeCowardice

[John F. Carr]

We have a ruling from a judge not involved in the case saying that the judge who is involved in the case can make a routine decision on evidence that will be put on hold for a year while the order to appear for a deposition is appealed (apex appellant) then put on hold for another year while the claim of executive privilege is appealed.

[The Margrave of Azilia]

The American legal system is like Beyoncé - full of appeal.

[Darth Buckeye]

Well, good luck with trying to duck out of depositions. The judge is probably going to be less impressed than the magistrate. I tried to keep the Director of Internal Revenue out of a deposition in a standard (though procedurally weird) tax refund case. Plaintiff was going on a fishing expedition and the District Court judge let them do that. Plaintiff/taxpayer was arguing that the denial of a refund was unconstitutional. Very strange in a tax refund case, especially where the taxpayer refused to provide his books and records to prove that he was entitled to the refund.

[The Margrave of Azilia]

The federal government is using powerful private corporations to censor the people, and it seems the plaintiff wants to learn more details about this.

Turning this into a partisan issue won’t work, since I doubt the Republicans are particularly civil-libertarian on this, except for some backbencher Republicans without much influence.