Fed Chair Bernanke Must Testify In AIG Takings Case

Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Remember that “audaciouscase filed in the Court of Federal Claims by überlawyer David Boies on behalf of Starr International seeking $35 billion in just compensation for the federal takeover of AIG?

Well, it’s moving along, and apparently is in discovery (every lawyer’s favorite part of the case). Boies sought the deposition testimony of Fed Chair Ben Bernanke about his “personal involvement in the Government’s decision to bail out American International Group, Inc. (‘AIG’) in September 2008, and his knowledge of the specific governmental actions taken to implement the bailout.” Mr. Bernanke didn’t want to testify, claiming that as a “high-level government official,” the plaintiffs had to show that the information sought was not merely relevant under the usual discovery rules, but essential to the case, not not obtainable elsewhere. I’ve got better things to do, so stop bothering me and get this information from someone else, argued Bernanke.

The CFC didn’t see it that way, and in this order held that the practice is “relatively routine” in the CFC which, after all, is the court where “private citizens … sue the federal government for monetary redress.” Order at 3. Mr. Bernanke should not be surprised, as it “is unremarkable that high-level government officials will play a role in the litigation.”

He’s a key witness and his testimony “will be highly relevant.” He was a central figure and personally involved in the bailout decision, and it is “improbable” that the same evidence is available elsewhere. “Indeed, the Court cannot fathom having to decide this multi-billion dollar claim without the testimony of such a key government decision-maker,” and these are the requisite “extraordinary circumstances.”

A strong reminder of the role of the Court of Federal Claims and that we are a nation beholden to the rule of law in which everyone — even “high-level government officials” — must answer to the lowest citizen.

And guess what: “[i]n order to provide appropriate judicial oversight for the deposition of this high-level government offficial, Judge Wheeler plans to attend Mr. Bernanke’s deposition.” Order at 3.

Now that my friends, is truly an “extraordinary circumstance.”
Order Regarding the Deposition of Ben S. Bernanke, Starr International Co. v. United States, No. 11-779C (Fed. Cl. July 29, 2013)

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