Psaki, DOJ fight social-media speech suit subpoena

Former White House press secretary Jen Psaki and the Justice Department are fighting an effort to force her to testify in a lawsuit accusing the Biden administration of violating the First Amendment by pressuring social media companies to block or remove certain content about the coronavirus pandemic and election security issues.

Lawyers for Psaki filed a motion Thursday in federal court in Alexandria, Va., seeking to quash a subpoena the states of Missouri and Nebraska issued to her in connection with the suit they filed in May against Psaki and a slew of other administration officials.

Last month, a federal district court judge in Monroe, La., Terry Doughty, issued an unusual order requiring Psaki and six other officials to sit for sworn depositions about federal authorities’ interactions with social media firms. The order was rare because it came as the suit remains at an early stage, with the states pushing for a preliminary injunction that would prevent the administration from trying to encourage the social media platforms to limit some speech. It’s also uncommon for courts to require high-level federal appointees to testify.

Now, Psaki and the Justice Department are asking the federal court in Virginia to essentially countermand Doughty, an appointee of President Donald Trump, and excuse Psaki from testifying.

Psaki, who left her White House post in May and is preparing to host a new show on MSNBC, said requiring her to testify in the case would be “extremely burdensome” for her.

“Among other things, I understand that I would need to devote several days preparing for the deposition, as well as attending the deposition itself, and that would be highly disruptive to both my work and my family,” Psaki said in a declaration filed with the Alexandria federal court.

Psaki has retained a high-powered attorney to represent her in the court battle, Jeannie Rhee, a veteran of Special Counsel Robert Mueller’s investigation.

Justice Department attorneys have also weighed in, arguing that if her deposition proceeds it will almost certainly to lead to a prolonged fight over executive privilege, due to her role as a top adviser to President Joe Biden.

“If permitted to proceed, the deposition of Ms. Psaki would inevitably set the Executive and Judicial Branches ‘on a collision course’ through adjudications of executive privilege, thrusting the court into ‘the awkward position of evaluating the Executive’s claims of confidentiality and autonomy,’ and ‘difficult questions of separation of powers and checks and balances’ would quickly be pushed to the fore,” Justice Department lawyers wrote, quoting from a 2004 Supreme Court case involving Vice President Dick Cheney.

“Plaintiffs have not identified any evidence showing or even suggesting that Ms. Psaki ever communicated with any social-media company in her capacity as Press Secretary about misinformation, much less that she ‘exercised coercive power’ to compel a social-media company to take any action,”the DOJ brief says.

Under federal court rules, Psaki is permitted to ask the Virginia-based court to quash or limit the subpoena because she lives in Virginia. Her motion was assigned to Judge Patricia Giles, a Biden appointee.

In recent years, such motions have often been transferred to the court handling the original suit, but the Justice Department said it opposes such a move this time. DOJ lawyers also noted that Psaki is no longer a defendant in the suit, since she was replaced by Karine Jean-Pierre when Jean-Pierre took over in May.

“The issuing district has not addressed arguments Ms. Psaki may raise as a nonparty … regarding undue burden,” Justice Department attorneys wrote.

Justice Department officials have agreed to make some current and former officials available for depositions but they have asked a New Orleans-based federal appeals court to block Doughty’s order requiring testimony from three officials: Surgeon General Vivek Murthy, Cybersecurity and Infrastructure Security Agency director Jen Easterly and White House director of digital strategy Rob Flaherty.

The 5th Circuit Court of Appeals has yet to rule on the request.

Missouri Attorney General Eric Schmitt, who’s running for the U.S. Senate, is spearheading the suit, joined by Louisiana Attorney General Jeff Landry. Former President Donald Trump filed three similar suits against the major social media firms last year, but has not managed to get discovery in connection with any of them.

Rhee, Psaki and Schmitt’s office did not respond to messages seeking comment on the dispute.