Last week we covered how the government successfully convinced Judge Colleen McMahon to order the plaintiffs in the DOGE/National Endowment for the Humanities (NEH) lawsuit to “claw back” the viral deposition videos they had posted to YouTube — videos showing DOGE operatives Justin Fox and Nate Cavanaugh stumbling through questions about how they used ChatGPT to decide which humanities grants to kill, and struggling mightily to define “DEI” despite it apparently being the entire basis for their work.
The government’s argument was that the videos had led to harassment and death threats against Fox and Cavanaugh — the same two who had no problem obliterating hundreds of millions in already approved grants with a simplistic ChatGPT prompt, but apparently couldn’t handle the public seeing them struggle to explain themselves under oath. The government argued the videos needed to come down. The judge initially agreed and ordered the plaintiffs to pull them. As we noted at the time, archivists had already uploaded copies to the Internet Archive and distributed them as torrents, because that’s how the internet works.
The ruling is worth reading in full, because McMahon manages to be critical of both sides while ultimately landing firmly against the government’s attempt to suppress the videos. She spends a good chunk of the opinion scolding the plaintiffs for what she clearly views as a procedural end-run — they sent the full deposition videos to chambers on a thumb drive without ever filing them on the docket or seeking permission to do so, which she sees as a transparent attempt to manufacture a “judicial documents” argument that would give the videos a presumption of public access.
McMahon doesn’t buy it:
When deciding a motion for summary judgment, the Court wants only those portions of a deposition on which a movant actually relies, and does not want to be burdened with irrelevant testimony merely because counsel chose to, or found it more convenient to, submit it. And because videos cannot be filed on the public docket without leave of court, there was no need for the rule to contain a specific reference to video transcriptions; the only way to get such materials on the docket (and so before the Court) was to make a motion, giving the Court the opportunity to decide whether the videos should be publicly docketed. This Plaintiffs did not do.
But if Plaintiffs wanted to know whether the Court’s rule applied to video-recorded depositions, they could easily have sought clarification – just as they could easily have filed a motion seeking leave to have the Clerk of Court accept the videos and place them on the public record. Again, they did not. At the hearing held on March 17, 2026, on Defendants’ present motion for a protective order, counsel for ACLS Plaintiffs, Daniel Jacobson, acknowledged the reason, stating “Frankly, your Honor, part of it was just the amount of time that it would have taken” to submit only the portions of the videos on which Plaintiffs intended to rely. Hr’g Tr., 15:6–7. In other words, “It would have been too much work.” That is not an acceptable excuse.
The Court is left with the firm impression that at least “part of” the reason counsel did not ask for clarification was because they wished to manufacture a “judicial documents” argument and did not wish to be told they could not do so. The Court declines to indulge that tactic.
Fair enough. But having knocked the plaintiffs for their procedural maneuver, the judge then turns to the actual question: has the government shown “good cause” under Rule 26(c) to justify a protective order keeping the videos off the internet? And the answer is a pretty resounding no. And that’s because public officials acting in their official capacities have significantly diminished privacy interests in their official conduct:
The Government’s motion fails for three independent reasons. First, the materials at issue concern the conduct of public officials acting in their official capacities, which substantially diminishes any cognizable privacy interest and weighs against restriction. Second, the Government has not made the particularized showing of a “clearly defined, specific and serious injury” required by Rule 26(c). Third, the Government has not demonstrated that the prospective relief it seeks would be effective in preventing the harms it identifies, particularly where those harms arise from the conduct of third-party actors beyond the control of the parties.
She cites Garrison v. Louisiana (the case that extended the “actual malice” standard from NY Times v. Sullivan) for the proposition that the public’s interest “necessarily includes anything which might touch on an official’s fitness for office,” and that “[f]ew personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation.” Given that these depositions are literally about how government officials decided to terminate hundreds of millions of dollars in grants, that framing fits.
The judge also directly calls out the government’s arguments about harassment and reputational harm, and essentially says: that’s the cost of being a public official whose official conduct is being scrutinized. Suck it up, DOGE bros.
Reputational injury, public criticism, and even harsh commentary are not unexpected consequences of disclosing information about public conduct. They are foreseeable incidents of public scrutiny concerning government action. Where, as here, the material sought to be shielded by a protective order is testimony about the actions of government officials acting in their official capacities, embarrassment and reputational harm arising from the public’s reaction to official conduct is not the sort of harm against which Rule 26(c) protects. Public officials “accept certain necessary consequences” of involvement in public affairs, including “closer public scrutiny than might otherwise be the case.”
As for the death threats and harassment — which McMahon explicitly says she takes seriously and calls “deeply troubling” and “highly inappropriate” — she notes that there are actual laws against threats and cyberstalking, and that Rule 26(c) protective orders aren’t a substitute for law enforcement doing its job:
There are laws against threats and harassment; the Government and its witnesses have every right to ask law enforcement to take action against those who engage in such conduct, by enforcing federal prohibitions on interstate threats and cyberstalking, see, e.g., 18 U.S.C. §§ 875(c), 2261A, as well as comparable state laws. Rule 26(c) is not a substitute for those remedies.
And then there’s the practical reality McMahon acknowledges directly: it’s too damn late. The videos have already spread everywhere. A protective order aimed solely at the plaintiffs would accomplish approximately nothing.
At bottom, the Government has not shown that the relief it seeks is capable of addressing the harm it identifies. The videos have already been widely disseminated across multiple platforms, including YouTube, X, TikTok, Instagram, and Reddit, where they have been shared, reposted, and viewed by at least hundreds of thousands of users, resulting in near-instantaneous and effectively permanent global distribution. This is a predictable consequence of dissemination in the modern digital environment, where content can be copied, redistributed, and indefinitely preserved beyond the control of any single actor. Given this reality, a protective order directed solely at Plaintiffs would not meaningfully limit further dissemination or mitigate the Government’s asserted harms.
Separately, the plaintiffs asked for attorney’s fees, and McMahon denied that too, noting that she wasn’t going to “reward Plaintiffs for bypassing its procedures” even though the government’s motion ultimately failed. So everyone gets a little bit scolded here. But the bottom line is clear: you don’t get to send unqualified DOGE kids to nuke hundreds of millions in grants using a ChatGPT prompt, and then ask a court to hide the video of them trying to explain themselves under oath.
Releasing full deposition videos is certainly not the norm, but given that these are government officials who were making massively consequential decisions with a chatbot and no discernible expertise, the world is much better off with this kind of transparency — even if Justin and Nate had to face some people on the internet making fun of them for it.
Much of last week I had been working on a different article than the one this became. The American Historical Association, the Modern Language Association, and the American Council of Learned Societies — all plaintiffs in a lawsuit against the National Endowment for the Humanities over DOGE’s mass grant cancellations — had uploaded the full video depositions of four government witnesses to YouTube. I had been watching through the many hours of those videos, planning to write specifically about what former DOGE operatives Justin Fox and Nate Cavanaugh actually said under oath about how they decided which grants to kill.
I had already written about what the legal filings revealed back in February, well before the NY Times published its own deep dive into the depositions last week. But the videos added something the transcripts couldn’t fully capture: the demeanor of two young guys with zero government experience who were handed the power to destroy hundreds of millions of dollars in already-approved humanities grants, and who were now forced to sit there, on camera, and attempt (weakly) to explain themselves. Before I could publish my piece, 404 Media’s Joseph Cox covered some of what was found in the depositions and illustrated it with these thumbnails of Fox straight from YouTube that certainly… tell a story.
And then, of course, the government got the videos taken down. Because these alpha disruptors who thought they were saving America by nuking grants for Holocaust documentaries and Black civil rights research turned out to be too fragile to withstand a little internet mockery for their dipshittery.
We’ll get to that part. But first, let’s talk about what made the depositions so devastating, and why the government was so desperate to hide them.
As we covered in February, the actual “process” by which Fox and Cavanaugh decided to terminate nearly every active NEH grant from the Biden administration was, to put it charitably, not a process at all. Fox fed short grant descriptions into ChatGPT with a prompt that read:
“Does the following relate at all to DEI? Respond factually in less than 120 characters. Begin with ‘Yes’ or ‘No’ followed by a brief explanation. Do not use ‘this initiative’ or ‘this description’ in your response.”
That was it. A chatbot verdict in fewer characters than a tweet. As Cox reported after watching all six-plus hours of Fox’s deposition, nobody told Fox to use an LLM for this. He did it on his own. He called it an “intermediary step” — a fancy way of saying he asked the magic answer box to justify what he’d already decided to do.
The depositions revealed the ChatGPT prompt raising flags that would be comedic if the grants hadn’t actually been terminated. As the NY Times reported:
A documentary about Jewish women’s slave labor during the Holocaust? The focus on gender risked “contributing to D.E.I. by amplifying marginalized voices.”
Even an effort to catalog and digitize the papers of Thomas Gage, a British general in the American Revolution, was guilty of “promoting inclusivity and diversity in historical research.”
The Thomas Gage one is really something. The British general who oversaw the colonial crackdown that helped trigger the American Revolution is apparently too “diverse” for Trump’s “America First” humanities agenda. George Washington’s papers got spared, but the papers of the guy Washington fought against? DEI.
A sizable portion of the deposition was spent trying to get Fox to define DEI. He couldn’t. Or wouldn’t. He repeatedly deferred to the text of Trump’s executive order on DEI, while also admitting he couldn’t recall what it actually said.
How do you interpret DEI?
Fox: [sighs and then a very long pause] There was the EO explicitly laid out the details. I don’t remember it off the top of my head.
It’s okay. I’m asking for your understanding of it.
Fox: Yeah, my understanding was exactly what was written in the EO.
Okay, so can you…
Fox: I don’t remember what was in the EO.
So right now do you have an understanding of what DEI is?
Fox: Yeah.
Okay, so what’s your understanding as you sit here today in this deposition?
Fox: Um, well, it it was exactly what was written in the EO. And so anytime that we would look at a grant through the lens of complying with an executive order, we would just refer back to the EO and assess if this grant had relation to it.
Okay. But I guess I’m stepping back from your uh methodology strictly in terminating the grants. Do you have an understanding as you sit here today of what DEI means?
Fox: Yeah.
Okay. So what’s your understanding of what it means?
Fox: Well, I [scoffs] it is it is is exactly what was written in the EO. And I don’t have the EO in front of me, but that was we would always reference back to the EO and make sure that this grant was in compliance with the EO.
I understand that. Okay, but I’m not asking necessarily about what was in the EO. I’m asking very specifically about your present understanding of what… of DEI? Do you have a present understanding of DEI?
Fox: Yeah!
Okay. Can you explain what that present understanding is?
Fox: Um well, it It’s just easier for me to be referencing back to the EO.
Are you refusing to answer the question?
Fox: I’m not refusing to answer the question. I just feel that referencing back to the verbatim executive order was the best way for us to capture all of the DEI language. And so, I think giving a a high-level overview of what I could relay as DEI is not going to do justice what was written in the EO.
And that’s okay. We can look at the EO as well.
Fox: Great.
I’m asking you for I mean this is a deposition. I’m asking you questions. You’re under oath to answer them. So what what is your understanding of what DEI means?
Fox: Well, I I think I would say again that I I would go back to the EO to make sure I’m capturing enough. I don’t I don’t feel comfortable saying a high level overview because it is such a big bucket and there’s just a lot of pieces of the puzzle.
What’s a part of the bucket?
Fox: Um gender fluidity um sort of promoting um like promoting subsets of LGBTQ+ that um might um alienate another part of the community. Um. Again, it was just easier for us to reference back into the EO.
Okay, so …
Fox: And I don’t want to give you a broad overview because it’s at the end of the day it it is capturing… it is all encompassing in the EO. It’s how we it’s how we did our methodology.
Right. Do you always refer to EOs to gain an understanding of words used in your typical daily vernacular?
Fox: What do you mean?
You you say that you have an understanding what DEI means and when I ask you you say you need to reference the EO. Do you need to reference EOs to define every word you use in your everyday life?
Fox: No.
Okay. So, what’s stopping you from defining DEI to your understanding as you sit here today? On January 28th, 2026.
Fox: It wouldn’t be capturing enough of how big the topic is. DEI is a very broad structure. I’m giving giving my limited recall of what’s included is just not…
But his understanding leaked through anyway when specific grants came up.
Take the grant for a documentary about the 1873 Colfax massacre, where dozens of Black men were murdered by former Confederates and Klan members. ChatGPT flagged it as DEI. Fox agreed. Here’s how he explained it during the deposition. The lawyer reads aloud ChatGPT’s output and questions Fox about it:
“The documentary tells the story of the Colfax Massacre, the single greatest incident of anti-black violence during Reconstruction. And it’s historical and leg NAACP for black civil rights, Louisiana, the South, and in the nation as a whole.” Did I read that correctly?
Fox: Yes. Okay.
And then in column B right next to that, it says, “Yes, the documentary explores a historical event that significantly impacted black civil rights, making it relevant to the topic of DEI.” Did I read that correctly?
Fox: Yes.
Is it fair to say that what I just read is the ChatGPT output of the prompts in the first column?
Fox: Yes.
Okay. Do you agree with ChatGPT’s assessment here that a documentary is DEI if it explores historical events that significantly impacted black civil rights?
Fox:Yes.
Okay. Why would that be DEI?
Fox: It’s focused on a singular race. It is not for the benefit… It is not for the benefit of humankind. It is focused on a specific group of or a specific race here being black.
Why would learning about anti-black violence not be to the benefit of humankind.
Fox: That’s not what I’m saying.
Okay, then what are you saying?
Fox: I’m saying it relates to diversity, equity, and inclusion.
You said it’s not to the benefit of humankind. Right?
Fox: Is that what I said?
[Laughs] Yeah.
Then there was the documentary about Jewish women’s slave labor during the Holocaust:
The grant description of column row 252 says, “Production of My Underground Mother, a feature-length documentary that explores the untold story of Jewish women’s slave labor during the Holocaust through a daughter’s search for her late mother’s past, a collective camp diary in which she wrote and interviews with dozens of women survivors who reveal the gender-based violence they suffered and hit from their own families.” Did I read that correctly?
Fox: Yes.
Okay. And then in that row or column, you say “Yes DEI.” Did you write the rationale in that column?
Fox: Could you scroll over, Jacob?
Again, the rationale says, “The documentary addresses gender-based violence and overlooked histories contributing to DEI by amplifying marginalized voices.”
Fox: Yes.
Why is a documentary about Holocaust survivors DEI?
Fox: It’s the… gender-based… story… that’s inherently discriminatory to focus on this specific group.
It’s inherently discriminatory to focus on what specific group?
Fox: The gender-based so females… during the Holocaust.
And you believe that that’s inherently discriminatory?
Fox: I’m just saying that’s what it’s focused on.
Sure.
Fox: And this is related to the DEI.
Right. But you just use the term inherently discriminatory. What did you mean by that?
Fox: It’s focusing on DEI principles, gender being one of them.
So a documentary that’s about women would be DEI. Is that fair to say?
Fox: No.
Okay. So, tell me why what I just said isn’t DEI, but what you just said is DEI.
Fox: It’s a Jewish specifically focused on Jewish cultures and amplifying the marginalized voices of the females in that culture. It’s inherently related to DEI for those reasons.
Because it’s about Jewish culture?
Fox: Plus marginalized female voices during the Holocaust gender-based violence.
Okay. Is this… when we focus on a minority, is that your understanding that, you know, the Jewish people fall into the category of a minority?
Fox: Certainly a culture that could be described as minorities.
Okay. So, how did you go about determining what was a minority and what wasn’t a minority for the for the purpose of identifying DEI in grants?
Fox: Inherently focused on any ethnicity, culture, gender, no matter the sort of race or gender or or religion or… yeah.
So a documentary about anti-Black violence during Reconstruction is “not for the benefit of humankind.” A documentary about Jewish women’s slave labor during the Holocaust is “inherently DEI” because it’s focused on “gender” or “religion.” But remember, the keyword list Fox built to scan grants included terms like “LGBTQ,” “homosexual,” “tribal,” “BIPOC,” “native,” and “immigrants.” Notably absent: “white,” “Caucasian,” or “heterosexual.” When pressed on this, Fox offered the defense that he “very well could have” included those terms but just… didn’t.
Now, about Nate Cavanaugh. If you haven’t heard of Cavanaugh, he’s the college dropout who co-founded an IP licensing startup, partnered with Fox on the DOGE work at NEH, and was subsequently appointed — I am not making this up — president of the U.S. Institute of Peace and acting director of the Interagency Council on Homelessness, among other roles. When asked about DEI in his own deposition, Cavanaugh provided what might be the most inadvertently self-aware definition imaginable. While obnoxiously chewing gum during the deposition, the following exchange took place:
What is DEI referring to here?
Cavanaugh: It stands for diversity, equity and inclusion.
And what is your opinion of diversity, equity, inclusion.
Cavanaugh: My personal opinion?
Well, let’s start with what does it mean to you?
Cavanaugh: It means diversity, equity, inclusion.
Well, that’s the label, but what does what do those words mean?
Cavanaugh: It means uh it means making decisions on a basis of something other than merit.
Irony alert: Nate Cavanaugh — a college dropout with no government experience, no background in the humanities, and no apparent understanding of the grants he was terminating — defined DEI as “decisions on the basis of something other than merit.” He said this while sitting in a deposition about his time holding multiple senior government positions for which he had no qualifications whatsoever. The lack of self-awareness is genuinely staggering.
And what did all of this actually accomplish? By Cavanaugh’s own admission, the deficit didn’t go down. Fox was asked about this too. From 404 Media:
When the attorney then asks if Fox would be surprised to hear if the overall deficit did not go down after DOGE’s actions, Fox says no. In his own deposition, Cavanaugh acknowledged the deficit did not go down.
“I have to believe that the dollars that were saved went to mission critical, non-wasteful spending, and so, again, in the broad macro: an unfortunate circumstance for an individual, but this is an effort for the administration,” Fox says. “In my opinion, what is certainly not wasteful is food stamps, healthcare, Medicare, Medicaid funding,” Fox says. Later he adds when discussing a specific cut grant: “those dollars could be getting put to something like food stamps or Medicaid for grandma in a rural county.”
There is no evidence these funds were directed in that way. The Trump administration has kicked millions of people off of food stamps. It has, just as an example, given ICE tens of billions of more dollars, though.
Sure, kiddo. It was all for grandma’s food stamps. (Though given Fox’s ideological priors, one suspects that food stamps themselves would end up on the ‘wasteful spending’ list soon enough.)
The NY Times piece also revealed some remarkable details about how the process played out internally. Acting NEH Chairman Michael McDonald, who had been at the agency for over two decades and could recall fewer than a half-dozen grant revocations in that entire time — all for failure to complete promised work — went along with the mass cancellation of nearly every active Biden-era grant. When DOGE’s process wasn’t moving fast enough, Fox emailed McDonald:
We’re getting pressure from the top on this and we’d prefer that you remain on our side but let us know if you’re no longer interested.
McDonald expressed some reservations, calling many of the grants slated for termination “harmless when it comes to promoting DEI.” But he rolled over:
“But you have also told us that in addition to canceling projects because they may promote DEI ideology, the DOGE Team also wishes to cancel funding to assist deficit reduction. Either way, as you’ve made clear, it’s your decision on whether to discontinue funding any of the projects on this list.”
Out of all grants approved during the Biden administration, only 42 were kept. The rest — 1,477 grants — were terminated. No appeals were allowed. Termination letters bore McDonald’s signature but were sent from an unofficial email address the DOGE employees created. McDonald himself admitted he didn’t draft the letters and couldn’t tell you how many grants were cut. And when pressed on whether the grants concerning the Colfax Massacre and the Holocaust were actually DEI, McDonald — who, unlike Fox and Cavanaugh, actually has a doctorate in literature — said he didn’t agree they were. But he signed off on their termination anyway.
Oh, and McDonald apparently didn’t even know Fox and Cavanaugh had used ChatGPT to make the determinations.
So that’s the substance. Two unqualified guys, a chatbot, a keyword list built on culture war grievances, and the destruction of a century-old institution’s grant portfolio in about two weeks. We covered the mechanics in February. The depositions just put it all on video, in their own words, in all its arrogant, ignorant glory.
And then the government decided it couldn’t handle the public seeing it.
After the plaintiff organizations uploaded the deposition videos to YouTube and shared materials with the press, the government filed an urgent letter asking the court to order the videos removed “from the internet” — yes, they actually used that phrasing — and to restrict the plaintiffs from further publicizing discovery materials. Their argument was that the videos “could subject the witnesses and their family members to undue harassment and reputational harm.”
A few days later, the government came back even more agitated, reporting that Fox had received death threats and that the videos had circulated widely, with “well over 100,000 X posts circulating and/or discussing video clips” of the depositions. The filing cited media coverage from People, HuffPost, 404 Media, and The Advocate.
“Unfortunately, that risk has now materialized—at least one witness has been subjected to significant harassment, including death threats. Accordingly, we respectfully request that the Court enter the requested order as soon as possible to minimize the risk of additional harm to the witnesses and their families.”
Death threats are genuinely bad and nobody should send them. Full stop. That said, let’s explore the breathtaking asymmetry for a moment.
Fox and Cavanaugh subjected more than 1,400 grant recipients to termination with no warning, no due process, no appeal, and effectively forged the director’s signature on the letters. They didn’t give an ounce of thought to the livelihoods they were destroying — the researchers mid-project, the documentary filmmakers, the archivists, the teachers, the organizations that had planned years of work around these grants. When asked if he felt any remorse, Fox said:
Sorry for those impacted, but there is a bigger problem, and that’s ultimately—the more important piece is reducing the government spend.
But now that people are being mean to them on the internet? Now, suddenly, the government needs an emergency protective order and the videos must be scrubbed from existence.
Judge Colleen McMahon did initially order the plaintiffs to “immediately take any and all possible steps to claw back the videos,” pending further briefing. The plaintiffs responded with an emergency motion pointing out a fairly important detail: the government never designated the deposition videos as confidential under the existing protective order. They had the opportunity to do so and didn’t. From the plaintiffs’ filing:
Defendants never designated the video depositions in question as Confidential under the Protective Order, and Defendants have never alleged in their correspondence with ACLS Plaintiffs that ACLS Plaintiffs violated the protective order presently in place.
In other words, the government had a mechanism to keep the videos under wraps. They chose not to use it. And now they want the court to do retroactively what they failed to do at the time.
The judge’s response to the emergency motion was delightfully terse:
DENIED.
See you Tuesday.
And then there’s the part where the government’s own filing accidentally makes the case for why these videos are important. In arguing that the plaintiffs were acting improperly, the government noted that the MLA’s website had links to the deposition videos alongside a link soliciting donations to its advocacy initiative:
Directly below these materials is a link soliciting monetary donations to the MLA’s advocacy initiative “Paving the Way.” To the extent the MLA or other ACLS Plaintiffs are publicizing these documents as part of their fundraising efforts, that is improper.
Which is an interesting argument to make when the entire lawsuit exists because DOGE used ChatGPT to destroy a hundred million dollars in humanities funding.
Now, finally, about those videos the government wanted removed “from the internet.” As anyone who has spent more than fifteen minutes studying the history of online content suppression could have predicted, the attempt to get the videos taken down had precisely the opposite of its intended effect. The videos were backed up almost immediately to the Internet Archive, distributed as a torrent, and spread across social media. As 404 Media reported:
The news shows the difficulty in trying to remove material from the internet, especially that which has a high public interest and has already been viewed likely millions of times. It’s also an example of the “Streisand Effect,” a phenomenon where trying to suppress information often results in the information spreading further.
We’ve written about the Streisand Effect many, many times over the years here at Techdirt, and the pattern is always the same: someone sees something embarrassing about themselves online, panics, tries to make it go away, and in doing so ensures that orders of magnitude more people see it than ever would have otherwise. The government’s frantic filings, complete with citations to specific media articles and X post counts, served as a helpful reading list for anyone who hadn’t yet seen the videos.
The judge’s order, notably, only directed the plaintiffs to take down the videos. It said nothing about the Internet Archive, the torrent, the clips on X, the embeds in news articles, or the countless other copies that had already proliferated. And, really, given that none of the other sources are parties to the case, and the associated First Amendment concerns, it’s difficult to see those videos going away any time soon.
The government wanted the videos removed “from the internet.” They have now been seeded to the internet in a format specifically designed to be impossible to remove.
This is what happens when you try to suppress something the public has already decided it wants to see.
And that gets to the broader absurdity here. Fox and Cavanaugh walked into a federal agency they knew nothing about, used a chatbot to condemn more than a thousand grants they never read, created spreadsheets labeled “Craziest Grants” and “Other Bad Grants,” planned to highlight them on DOGE’s X account for culture war clout, sent termination letters with someone else’s signature from a private email server, and explicitly told the agency head that no appeals would be allowed.
When asked under oath to justify what they did, Fox couldn’t define DEI, couldn’t explain why documenting anti-Black violence isn’t “for the benefit of humankind,” and could only offer that the money they saved was probably going to food stamps for grandma — which it very much was not. Cavanaugh couldn’t define DEI either, acknowledged the deficit didn’t go down, and gave a definition of DEI that perfectly described his own role in the federal government.
These are the people who DOGE sent to reshape the government. And now that government is asking a federal judge for an emergency protective order because the internet is being kinda mean about it. Poor poor snowflake DOGE boys.
As the ACLS president put it, “DOGE employees’ use of ChatGPT to identify ‘wasteful’ grants is perhaps the biggest advertisement for the need for humanities education, which builds skills in critical thinking.”
She’s right. Though I’d argue watching these depositions is — unlike Fox’s ridiculously bigoted definition of Black history — very much for the benefit of humankind.
As the US government trotted out its latest excuses for illegally trafficking Abrego Garcia to a Salvadoran torture camp, the district court overseeing the case has made it clear that she’s had enough of the government defying her orders. In ȧ hearing followed by an order granting discovery, Judge Paula Xinis has made it clear that she knows the government is defying her orders to help bring Abrego Garcia back to the US, and she’s pretty fed up with their tap dancing and stalling.
At issue is the government’s creative interpretation of what it means to “facilitate” Garcia’s return — an interpretation that seems to consist entirely of doing absolutely nothing while claiming their hands are tied. As Judge Xinis points out, contrary to what the administration has been claiming about the Supreme Court siding with them, it did not. She’s simply enforcing what SCOTUS already said was her right to do:
This Court, in turn, ordered no more than what the Supreme Court endorsed: that Defendants “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible,” because bound within this remedy is Abrego Garcia’s “release from custody” and the assurance that Abrego Garcia’s “case is handled as it would have been had he not been improperly sent to El Salvador.”
While the Trump admin, led by Pam Bondi and Stephen Miller, keeps falsely claiming that “facilitate” only means providing him with a flight to the US if El Salvador wants to release Garcia, Judge Xinis systematically dismantles this bullshit interpretation:
Notably, to “facilitate” means “to make the occurrence of (something) easier; to render less difficult.” Facilitate, Black’s Law Dictionary (12th ed. 2024). Merriam-Webster defines the term as “to make easier or less difficult: to free from difficulty or impediment.” Facilitate, MerriamWebster Dictionary,https://www.merriam-webster.com/dictionary/facilitate(last visited Apr. 14, 2025). And the Oxford English Dictionary defines “facilitate” as “[t]o assist (a person); to enable or allow (a person) to do something, achieve a particular result, etc., more easily.” Facilitate, Oxford English Dictionary,https://doi.org/10.1093/OED/5808503853(last visited Apr. 14, 2025). Defendants therefore remain obligated, at a minimum, to take the steps available to them toward aiding, assisting, or making easier Abrego Garcia’s release from custody in El Salvador and resuming his status quo ante.But the record reflects that Defendants have done nothing at all.
Instead, the Defendants obliquely suggest that “facilitate” is limited to “taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here.” ECF No. 65 at 3 (emphasis in original). The fallacy in the Defendants’ argument is twofold. First, in the “immigration context” as it were, id., facilitating return of those wrongly deported can and has included more extensive governmental efforts, endorsed in prior precedent and DHS publications. Thus, the Court cannot credit that “facilitating” the ordered relief is as limited as Defendants suggest.
Second, and more fundamentally, Defendants appear to have done nothing to aid in Abrego Garcia’s release from custody and return to the United States to “ensure that his case is handled as it would have been” but for Defendants’ wrongful expulsion of him. Abrego Garcia, 604 U.S.— , slip op. at 2. Thus, Defendants’ attempt to skirt this issue by redefining “facilitate” runs contrary to law and logic.
She also notes that the three “daily” status reports the DOJ delivered (late each day) did not meet what she ordered, which is why she is requiring discovery, even as the DOJ insisted she should not order discovery:
Third, the discovery is necessary in light of Defendants’ uniform refusal to disclose “what it can” regarding their facilitation of Abrego Garcia’s release and return to the status quo ante, or present any legal justification for what they cannot disclose.2 Id. Fourth, the burden on the Government is minimal, particularly because, as the Supreme Court underscored, it “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” Id. Fifth, the request for discovery is timely in that Defendants have not yet complied with this Court’s directives, and Abrego Garcia appears to remain inexplicably detained in CECOT. Sixth, discovery must proceed without delay, as Abrego Garcia is indisputably entitled to the due protections that Defendants have denied him—and to be free from the risk of grave injury resulting from his continued detention in CECOT.
As for Stephen Miller’s argument that the Supreme Court sided with the White House and all they have to do is yell “foreign affairs” to get out from under any court judgment, the court’s having none of it:
Again, this Court is ever mindful of the Supreme Court’s directive that the Court’s injunctive relief must be accorded with “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Abrego Garcia, 604 U.S.—, slip op. at 2. But this deference does not mean the Court must ignore the Defendants’ repeated refusal to provide even the most basic information as to any steps they have taken to facilitate “Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” Id. Thus far, the Defendants appear to have taken no steps, and provided no explanation, legal or otherwise, for such inaction
And thus, Judge Xinis has set a very aggressive discovery schedule. The lawyers for Abrego Garcia can depose the various administration officials who filed those status reports, including various ICE officials and a State Department official. But also Joseph Mazzara, the acting general counsel for Homeland Security.
During the hearing, DOJ lawyer Drew Ensign tried to protest that Mazzara, as acting general counsel, shouldn’t be deposed as it would raise privilege issues, but Judge Xinis shut that down, noting the DOJ should have considered that before they had him sign declarations in the case.
The depositions should all be completed by next Wednesday, followed by Garcia’s lawyers being able to supplement their motion for relief based on those depositions by Monday, April 28th, and the DOJ able to respond by April 30.
Some observers were annoyed that this represents two more weeks in which Garcia is left rotting in a Salvadoran torture camp, but Xinis appears to know what she’s doing. As some note, two weeks is the minimum required to hold a party in contempt for failure to comply. Others suggest that this aggressive discovery schedule, in which various government officials will have to go on the record explaining how badly they fucked all this up may be designed to just get the DOJ to get Garcia on a plane back to the US to avoid this process.
Of course, others are predicting that the Trump admin will seek to run back to the warm embrace of John Roberts at SCOTUS, seeking to get Judge Xinis off their back (though as Judge Xinis noted, there’s really no basis for that). But also, it gives Roberts the opportunity to point out how the administration is directly lying about what SCOTUS’s original 9-0 ruling said about how the US should help bring Garcia back.
Obviously, this process is tragically slow for Garcia and his family. Garcia’s wife gave an impassioned and heartfelt statement prior to the hearing which is worth watching:
Abrego Garcia's wife: "I will not stop fighting until I see my husband alive. Kilmar, if you can hear me, stay strong. God hasn't forgotten about you. Our children are asking when you will come home … they miss their dad so much."
This is the family that the Trump admin is destroying because they’ve spent years rotting their own brains with exaggerated nonsense about “violent gangs” from undocumented people who are mostly just seeking a chance to achieve the American dream.
The irony here is striking: the administration that claims to care about law and order is actively defying both the Supreme Court and a federal district court judge, all to avoid admitting they wrongly imprisoned an innocent man. But Judge Xinis’s order may finally be a step towards holding them accountable.
Hopefully, the Trump admin comes to their senses (big ask, I know) and does what Donald Trump himself said they should do last Friday: call up El Salvador and tell them to release Abrego Garcia back to the US where he belongs and where his case should have been handled appropriately, with the required due process.
When your rap track diss battle ends in whiny proto-SLAPP suits, I’m going to suggest you’ve officially lost.
If you ever want to see this dril tweet as a legal filing (two actually), I think it’s in Drake’s semi-SLAPPy demands for discovery and depositions from Universal Music, Spotify, and iHeartRadio for having the temerity to… promote a song from Kendrick Lamar that is the culmination of a back and forth diss track battle between the two.
Both are incredibly stupid, but we’ll get to that.
If you haven’t been living under a rock for the past year, you may be aware that the Canadian rapper/actor Drake and American rapper Kendrick Lamar have been, well, fighting. While it goes back a while, earlier this year it blew up in a series of back and forth diss tracks, with the general consensus being that Kendrick came out of the battle as the clear winner.
We had mentioned that battle twice. Once, to discuss how both sides actually dropped copyright claims and restrictions to ensure the songs traveled far and wide. And another time, to talk about how existing laws already regulated some aspects of AI-generated music.
But this week, Drake took things to a whole new level of stupid.
On Monday, he first filed a pre-litigation discovery motion in New York accusing Universal Music/Interscope and Spotify of doing the RICO in… um… promoting Kendrick’s song. Almost everything about this is ridiculous. Contrary to what some people have said, this isn’t actually a lawsuit. It’s a weird procedure available in New York that allows you to seek discovery before filing the actual lawsuit. As New York-based lawyer Akiva Cohen noted on Bluesky, this is really only supposed to apply to a situation where you need some amount of discovery to find out who a defendant actually is or something like that.
Drake is essentially arguing that Universal Music Group and Spotify engaged in racketeering by… promoting a song. That’s not how any of this works. Heavily promoting a track that’s performing well is standard practice for labels and streaming platforms, not some nefarious scheme. And Drake hired some big-name, high hourly rate lawyers to basically file legal documents that say “the fact that music companies promoted a killer diss track harmed me and should be considered a conspiracy.”
Really.
UMG’s schemes to artificially inflate the popularity of “Not Like Us” were motivated, at least in part, by the desire of executives at Interscope to maximize their own profits. UMG executives have an annual incentive program pursuant to which they are rewarded for meeting and surpassing sales and profits projections, among other metrics. The incentives are largely based on the specific UMG division, rather than the performance of UMG more generally. For example, the annual incentive or bonus of Interscope’s CEO, John Janick, is based 90 percent on the financial success of Interscope and only 10 percent on the financial success of UMG generally. Thus, on information and belief, Mr. Janick and other executives at Interscope have been incentivized to maximize the financial success of Interscope through the promotion of “Not Like Us” and its revitalizing impact on the artist’s prior recording catalog, including his first five studio albums, which are owned by Interscope.
Petitioner has received information that UMG has been taking steps in an apparent effort to conceal its schemes, including, but not limited to, by terminating employees associated with or perceived as having loyalty to Drake. Indeed, UMG has demonstrated that it has no interest in taking responsibility for its misconduct, Over the past several months, Drake has repeatedly sought to engage UMG in discussions to resolve the ongoing harm he has suffered as a result of UMG’s actions. UMG refused to engage in negotiations, and insisted that UMG is not responsible for its own actions. Instead, UMG has pointed the finger at Mr. Duckworth, insisted that Drake should initiate legal action against Mr. Duckworth rather than UMG, and even threatened to bring its own legal claims against Mr. Duckworth if Drake were to pursue claims against UMG.
Streaming and licensing is a zero-sum game. Every time a song “breaks through,” it means another artist does not. UMG’s choice to saturate the music market with “Not Like Us” comes at the expense of its other artists, like Drake. As Drake is Petitioner’s sole owner, and Petitioner owns the copyright to Drake’ entire catalogue, Petitioner suffered economic harm as a result of UMG’s scheme.
Duckworth, by the way, is Kendrick Lamar’s real last name, in case you’re wondering to whom “Mr. Duckworth” refers to here. But, yeah, this all boils down to: UMG promoted the hell out of Kendrick’s song, and it got a ton of engagement and (oh wow!) that was good for Universal and Spotify’s bottom line.
So fucking what? That’s capitalism and marketing, Drake. That’s how it works.
And that last paragraph is particularly stupid. Does this mean that other artists can sue Drake for the times that UMG (yes, also Drake’s label) promoted his music instead of other artists?
The whole thing is garbage.
There are a few arguments in there about some potentially sketchy behavior on the part of UMG in engaging in some payola, but that’s not something where Drake really has much of a leg to stand on. Payola has been happening in the music industry for decades, and every time some piece of it is outlawed, the big labels figure out crafty ways to sidestep the new laws.
Drake also complains about the point we had praised earlier this year, where the copyright restrictions were lifted by UMG:
And in a sea-change for UMG’s internal policy, UMG removed the Song’s copyright restrictions on YouTube and Twitch, thereby “whitelisting” the Song (for the first time in UMG history), which further incentivized influencers to spread the Song
Except that it was reported at the time that the copyright restrictions were also lifted on Drake’s tracks:
But even dumber than all of that is the claim that UMG and Spotify promoting a popular song is “RICO.” You know the Popehat drill: “It’s not RICO dammit.” It’s not. There are a big list of almost impossible to meet conditions to make it RICO and this ain’t it, chief:
Petitioner has a viable cause of action for civil RICO, with predicate acts of wire fraud, mail fraud, and/or bribery for UMG’s payments to unknown third parties in the form of reduced licensing fees to Spotify.
It seems most likely that this lawsuit is “client service.” It is making an angry rich client happy by filing something even if that something is likely to get tossed out of court quickly.
Then, on Tuesday, Drake took things up a notch by seeking a similar kind of pre-complaint discovery against iHeartRadio and UMG in Texas state court. This is using the same big shot lawyers (plus some local counsel). Texas has a rule of civil procedure, 202, that allows for a deposition prior to filing a lawsuit. It’s effectively the same kind of deal as the pre-litigation discovery in New York: in some cases, it may be necessary to use the power of the courts to seek extra info before filing the actual lawsuit.
While Rule 202 is considered pretty broad, it does have limits and I have difficulty seeing how this meets any of the criteria to get such depositions. This time around, it’s basically the same issue as the New York pre-litigation effort, but how iHeartRadio was also… um… helping to get Kendrick’s song listened to:
Here, the limited Rule 202 depositions Petitioner proposes are the most efficient method for him to understand the role of iHeartMedia in UMG’s scheme to unlawfully promote “Not Like Us.” Based on the minimal information already available to Petitioner, the testimony sought is necessary for Petitioner to understand and evaluate his potential claims.
Listen to yourself, man. “Unlawfully promote”? Come on. It’s just promotion, dude. This is pathetic.
And just like the NY filing tried to just throw in a “RICO” like it was an exclamation point, in this Texas filing, Drake throws in a similar “maybe it’s defamation and racketeering” argument with nothing to back it up:
Petitioner has amassed sufficient facts to pursue certain tortious claims against UMG, including, but not limited to, a claim for defamation, but currently lacks factual support necessary to determine whether he may bring claims of civil fraud and racketeering against UMG and its many (as of yet) unidentified co-conspirators who violated payola laws and accepted illicit payments, and other things of value, from UMG without disclosure
At best, this is fishing, and at worst, it’s just a straight up abuse of the courts to scream about how not mad you are that people feel like Kendrick completely destroyed you.
Imagine being such a sore loser in a rap battle that you have to go to court to demand to find out who promoted the song that destroyed you. Imagine being such a sore loser in a rap battle that you had to go to court twice to claim that the song couldn’t possibly be that popular, and it must be a conspiracy against you.
Get a fucking grip.
Perhaps Drake should consider dropping a duet featuring Barbra Streisand, because the Kendrick master diss track is getting a ton of renewed attention, even after breaking records earlier this year. This week, Kendrick was already topping the broader music charts after releasing a surprise album, GNX, a few days ago, but the “Not Like Us” diss track has bounced back up the charts as well.
As I type this, it’s #25 on Apple Music (though there were reports it broke into the top 20 earlier), #42 on Spotify, and #18 on YouTube, and for just Tuesday it was the 8th most watched music video:
Drake’s lawsuits have only served to further humiliate himself. In trying to get revenge on Kendrick through frivolous legal filings, he’s amplified the diss track to a whole new audience, while publicly admitting how much it hurt his feelings. Even worse, you had to legally state, under penalty of perjury, that “Not Like Us” harmed you so much that you could bring two lawsuits about it.
I think that’s one hell of an admission of how much you lost this battle.
It’s getting difficult to keep up with all of the many lawsuits involving Devin Nunes and his family against the media — and that statement alone should raise your eyebrows quite high. As someone who has sworn to protect the Constitution (which includes the 1st Amendment), Nunes seems very interested in using the judicial system repeatedly to intimidate and silence critical reporting from the press. This post will cover three separate lawsuits (out of a much longer list of lawsuits) in which things happened this month. First off, he’s filed yet another lawsuit, this time against NBC Universal over claims that Rachel Maddow made defamatory remarks about him. He’s suing in Texas, which seems like an odd choice for many reasons. After all, he’s a Congressional Representative from California. NBC is based in New York. Many of his previous lawsuits have been in Virginia. Honestly, the complaint makes the most half-hearted attempt to explain why Texas is the proper venue, stating “MSNBC is at home in Texas.” What does that even mean? MSNBC is based in New York.
That said, there are elements of the MSNBC case that may actually be more challenging for MSNBC. The lawsuit is over statements by Rachel Maddow that may have been false, regarding questions about what Nunes did with a package sent by an accused Russian agent. Nunes claims he followed the proper protocols for the handling of such a package, alerting the DOJ and handing it over the the FBI. Maddow accused him of not doing that. Still, to be defamatory, Nunes will have to show that Maddow knew what she was saying was false or had very strong reasons to believe they were false. In the complaint, Nunes’s lawyer, Steven Biss, points to some Breitbart articles as proof, which… does not show that Maddow knew them to be false. However, I will note, that of all the many wacky Biss/Nunes lawsuits, this one actually reads marginally stronger than all the others. That’s progress, I guess.
Separately, Nunes and Biss actually had a minor victory in another lawsuit — one filed in November last year against the Washington Post (not the first time Nunes has sued the Washington Post). This lawsuit argued that two marginally incorrect statements were defamatory, which seemed ridiculous. The judge, however, has taken a very broad reading of the article, and finds that there are possible readings that are defamatory, and at least a plausible argument of actual malice in the fact that the underlying mistake in the article — regarding Nunes’ position regarding claims of the Obama administration surveilling Donald Trump during the 2016 campaign — had been covered accurately in the Washington Post at an earlier date. And thus, there’s enough in here to consider actual malice:
In the article at issue here, the Post reported that Nunes made that
baseless claim himself. A newspaper?s own prior (and correct) reporting that is inconsistent with
its later (and incorrect) reporting could certainly give the paper reason to seriously doubt the truth
of its later publication?just as a source?s pre-publication recantation may be evidence that a
publisher had reason to doubt the source?s original claims….
The Post urges the Court to conclude that its November 9, 2020 article merely misattributed
the baseless claims to Nunes (rather than to President Trump) and was therefore a ?simple
misstatement of the Post?s prior reporting.?… That may very well be true. But
at this stage in the proceedings, where the Court is limited to the allegations in the Amended
Complaint and the reasonable inferences that can be drawn from them, the Court cannot determine
what in fact led to the incorrect statements in the article.
The judge refuses to dismiss the defamation claims, and will allow the case to move forward. This does not mean that Nunes is likely to win, but it will be costly for the Washington Post. They will have to go through discovery, and then can argue there’s no actual malice with additional evidence later (at which point they have a higher likelihood of succeeding). Nunes’ supporters have been cheering this on, and acting like some great evils will be outed through discovery, which… is generally not how this works.
However, that does take us to the final story, which is truly ridiculous. In the long-running saga involving Nunes’ family’s farm’s defamation lawsuit against Hearst publications, Esquire, and reporter Ryan Lizza, something truly bizarre happened last week. We had discussed how the case seemed to go off the rails earlier this summer as the two sides fought over depositions.
And it went even more off the rails last week at a deposition involving Nunes himself. Remember, Nunes’ own lawsuit over the article was dismissed, but a tiny, tiny part of his family’s suit lives on. However, Nunes was deposed last week, and according to a filing from Steven Biss on Friday, it did not go well. Biss claims that the lawyer for Hearst interfered with the deposition saying that lawyer “unceremoniously interrupted, threatened and stopped” the Nunes deposition.
Biss claims that this was “obstruction” as well as “unethical” and finally claims (somewhat laughably) that “it violates every tenet of the Federal Rules of Civil Procedure and the First Amendment.” It’s rather rich for Biss — who regularly makes a mockery of the 1st Amendment via his defamation lawsuits — to argue that a rather understandable objection to attempts to expose protected information “makes a mockery of the 1st Amendment.”
Biss helpfully includes the relevant transcript of the deposition which… does not appear to make Biss/Nunes look good. Indeed, it seems to show how Hearst’s lawyer was doing exactly the right thing.
At issue is that the reporter, Ryan Lizza, turned over some of his reporting notes and recordings as part of the discovery process, but those items were put under a protective order, saying that it is for the attorney’s eyes (and ears) only. This makes sense. Reporters need to be able to protect their sources, and turning them over in a lawsuit should include a protective order to stop them from being viewed or listened to by opposing parties… or those who aren’t even parties in the case. Again, in this case, Nunes’ himself is not a party to the suit, but is being deposed as “a witness.” It seems fairly evident that he should not be able to see Lizza’s notes nor hear his reporting recordings. Yet, that’s exactly what Biss attempted to do in the deposition. Hearst’s lawyer, Jonathan Donnellan immediately objected.
BY MR. BISS:
Q. Counsel asked you during the deposition whether you had ever listened to the audiotapes that Mr. Lizza produced. I think you said no. I want to play two of those audiotapes for you and get your response —
MR. DONNELLAN: Hold on, Steve, I’ll object to that. That goes beyond the scope of my examination. I did not ask the Congressman today about any matters that were covered by the protective order in this case, and he did not testify as to the substance of any matters covered by the protective order in this case, and I want it to stay that way.
So that’s beyond the scope of the examination, so I object to any attempt to introduce to him or to expose him to any of the evidence that’s covered by the protective order.
From there, things get pretty crazy, with a lot of it just being performative nonsense. Biss insists that he should be able to play the recordings, and Donnellan correctly points out that you can’t undo that once it’s done, and he believes it violates the protective order. And then, Nunes just starts butting in and (incorrectly) insisting that Biss can ask him anything. Anything labeled “THE WITNESS” is Nunes:
THE WITNESS: Aren’t I the one being deposed, doesn’t my lawyer have a right to ask me questions? You get to end it without my lawyer having time to ask me questions, is that how this works?
MR. DONNELLAN: It’s beyond the scope of the examination and its evidence that you’re not entitled to hear, Congressman.
MR. BISS: Why isn’t he entitled to hear it?
MR. DONNELLAN: It’s governed by the protective order.
And then… it just gets more and more ridiculous. Nunes then started to build up a head of steam. Biss claims that just because Donellan asked if Nunes had heard the recordings (which Nunes said he did not), that now means that Biss can play Nunes the recordings (which, again, are under a protective order). Nunes seems to think he’s entitled to it all, and he has some, uh, very interesting ideas about what rights he has to information in these situations:
THE WITNESS: You also asked me about some documents, and I said no, I’d like to see them. So, I have that on my testimony to you, that I would like to see them. If they exist, what you’re asking me, I have every right to see them. If not, there needs to be transparency in this process. Because if you’re hiding something from me, like you hid my response of my subpoena, that’s completely outrageous. You can’t do that.
MR. DONNELLAN: Steven, if you look at–
THE WITNESS: You have to show me. You brought it up. If they exist, I get to see them. You don’t get to ask me questions about things that you know and I don’t. You did it once, you got caught, now you’re doing it again. So, now I find out there are audiotapes and there’s — are there documents? What kind of documents have I not see for this — for this —
There’s some back and forth between Biss and Donnellan regarding the protective order, and then suddenly Nunes jumps in to — I kid you not — “object.” Then he claims that he’s going to go to the judge directly himself. That’s not how any of this works, but okay.
THE WITNESS: Wait, I object to that. I have a right, this is my deposition. I totally object to that. They definitely — I do have a reason to know. You’ve stat on this deposition going through conspiracy theory after conspiracy theory after conspiracy theory, whether it’s who’s paying lawsuits, or frivolous ethics violations, and then you do that bogus little game on me where you show me a subpoena and then play some game like I haven’t complied, and now I find out that you had it sitting next to you there as one of the exhibits.
You asked me if I had seen some type of documents. I said no, but I’d like to see them, if I want to see Lizza’s notes or something like that. If there’s notes you’re damn right I want to see them. And it’s wrong, it’s not transparent, it’s totally corrupt, and I’m going to the judge. I want to go to the judge myself. And I’m not ending this deposition. I want Steve to continue to ask me questions.
MR. BISS: You asked him a question —
(Speaking simultaneously)
THE WITNESS: Who do the hell do you think you are?
The sheer entitlement oozing out of Nunes in that exchange is quite eye opening, isn’t it? And while he claims it’s a conspiracy theory about who is funding all of these lawsuits, as far as I can tell there still hasn’t been any public explanation, and there was a request from a watchdog group for the Congressional Ethics Office to investigate if it’s being done legitimately.
Biss then starts grandstanding, claiming that Donnellan is trying to hide the audiotapes from becoming public as if that’s some conspiracy, rather than a key part of journalism. Not revealing journalist sources is not about secrecy. It’s how you have effective journalists who can actually find out things that those in power would like to remain secret. Forcing a journalist to reveal their sources is not about transparency and accountability — it’s the opposite. It acts as an intimidation system to silence whistleblowers.
It goes back and forth this way over and over again, with Donnellan pointing out repeatedly that if Biss’ actual concern is about Lizza’s audiotapes being made public, the proper place to do that is before the judge to remove the protective order and unseal them — not to just randomly play them to Rep. Nunes. There are so many back and forths on this it’s not worth it to cover them all, but here’s a sample that certainly suggests this is much more about getting a narrative out into the public about there being some sort of “hidden” information by Lizza and Hearst that “they just won’t tell you,” rather than doing what’s right here.
MR. BISS: This witness has a right to know what’s on those audiotapes, just like the public does.
MR. DONNELLAN: No, he does not.
MR. BISS: The public has a right —
MR. DONNELLAN: It is subject to a court order —
(Speaking simultaneously)
MR. DONNELLAN: It’s subject to a court order and it should be taken up with the court.
MR. BISS: Jon, what I find most astounding is, you represent a member of the press, and here we have a classic example, maybe another classic example of the press trying to keep the truth from the people, and including this witness, trying to keep the truth from this witness. And he’s entitled to know what’s on the audiotapes and to respond to what’s on the audiotapes, as part of his testimony in this case, including on the question of damages, on the question of —
MR. DONNELLAN: This witness is not even a party to this case —
MR. BISS: He’s a witness.
MR. DONNELLAN: — Steve.
MR. BISS: He’s a witness. He’s a witness and —
MR. DONNELLAN: He has not entitlement under this order to have access to these materials. If you would like to have a discussion offline about lifting the protective order so that all materials subject to the protective order are disclosed, let’s have that discussion.
But for right now, we have a protective order, it’s in place, it’s signed by the judge, and if you were to play this tape right now it would be a violation of that order.
At that point, Biss brings out his proverbial fainting couch.
MR. BISS: Well, I can tell you this, I am– I’m shocked by this response. I’m shocked by it, but I’m not surprised. And I’m not going to put myself or my clients, or the witness, in the position of violating a federal court order. I’m not going to give you the satisfaction of preparing a motion for sanctions, but I will tell you this:
We are definitely, definitely going to the judge on this, and we’re going to seek attorney’s fees and costs for you tying up this deposition.
It goes on in this way for a while, with Biss repeatedly mischaracterizing the point Donnellan is making, and even accusing him of threatening Biss.
And, of course, that gets Nunes himself worked up into a frenzy as well:
THE WITNESS: So, just so I’m clear, so now, Steve, you don’t get to ask me any questions, and anything that he asked of me, he gets to decide whether or not it’s relevant or not. So, I’m being treated differently than all the other people that got deposed, which is totally ridiculous and wrong.
And I don’t know what the hell you guys at Hearst are trying to cover up, but you asked me about audiotapes, you asked me about notes, you asked me about documents, so I get a right to see those documents and hear those tapes, that I now know exist. And if not, you’re keeping them from me, a witness, who you’ve made a witness. And you’re the one that called me for a deposition, not Steve.
You asked me 90 percent of questions that are not relevant at all to this case, that are completely just fishing, things that you want to try to push out to all your fake news people. And now you’re threatening my lawyer with me on the line. You threatened me a couple times with going to the judge. And then you said I didn’t answer your questions and you’re going to the judge, so you’re full of threats.
But I know this much, those tapes need to get out. If you continue to hide them, I don’t know what my legal remedies are, but as far as I’m concerned, this deposition is not complete because of your illegal cover up and activity here, that continues to cover up your lies for the sex predator that you sent out to harass my family.
And now there’s actual tapes that exist of this? I’ve never heard of them. So, why do I not get to hear them? I don’t know what the court’s going to say about this, but this seems totally unfair, that my lawyer doesn’t get to ask me any questions. This is absurd. I don’t know what game you think this is, but maybe you should send ICE out to Hearst Winery and Hearst ranch or something. What a joke.
Almost everything Nunes says above is either wrong or misleading, though the most concerning seems to be him — the former head of the House Intel Committee, and current ranking member of it — appearing to potentially suggest that he can send ICE out Hearst properties. But as for the rest, the nature of the deposition is that the lawyer who called it does get to ask questions, but that doesn’t mean that the lawyer for the other side (who is also the lawyer for the witness) gets to reveal stuff that is under a protective order.
There’s more back and forth, and Donnellan says to wrap things up and tells Biss to take it all up with the judge, leaving Biss to trot out this inane statement:
MR. DONNELLAN: No, no, no, no, if you can get off your soapbox right now, I think we have said what we have to say for the record, let’s close the deposition, we can take it up with the court, and anything that you want to say to the court in terms of playing attorneys’ eyes only material that was not covered by this deposition, you can make those arguments to the court.
MR. BISS: Hey, Jon, so much for the First Amendment.
I am unaware of any reading of the 1st Amendment that requires the exposure of content that was put under a protective order by a judge to a witness in a case, but perhaps I’m missing something. I’m also unaware of any reading of the 1st Amendment that requires a deposition to continue, but again, I may have missed the proper precedent. Unfortunately, Biss doesn’t do much in the way of citing one in his motions to the court. The only citations are to broad statements in cases regarding how the litigation process is “a search for truth.” And while that may be true, that does not speak to the practice of revealing the content of something under a protective order.
Finally, rather than type it out like I typed out all of the above quotes, I’ll just screenshot how the deposition closes, because it’s just the perfect closing. I want John Oliver to get people to re-enact this deposition.
The judge has already seemed somewhat annoyed about how this case is going, so it will be interesting to see how he responds to all of this…
