Morrison & Foerster. (Photo: Diego M. Radzinschi/ALM)

Lawyers for web giant Amazon.com Inc. want to depose President Donald Trump in a suit that alleges he asserted "improper pressure" in the Pentagon's decision to award a $10 billion cloud-computing contract to rival Microsoft Corp.

Amazon's intent to depose Trump was revealed in newly released court papers Monday in the U.S. Court of Federal Claims in Washington, where Amazon's lawyers at Morrison & Foerster and Gibson, Dunn & Crutcher sued the U.S. Defense Department in December.

The suit, filed by Amazon Web Services Inc., or AWS, confronts Trump's public animus toward Amazon and its chief executive, Jeff Bezos. Trump has often lashed out at Bezos and his ownership of The Washington Post, as the president lambastes news coverage that raises questions about his leadership.

Any deposition of Trump would examine, among other things, his statements regarding Amazon and the Post, Amazon's lawyers said in the new filings. Amazon's lawyers said they also wanted to talk to Trump about any communication he had with Oracle and Microsoft, two rivals who bid on the Joint Enterprise Defense Infrastructure contract. The deposition, if the court ultimately agrees to it, would take place in the Washington offices of Gibson Dunn.

"President Trump has well-documented personal animus towards Mr. Bezos, Amazon, and the Washington Post," Amazon's lawyers said. "He specifically instructed then-Secretary [James] Mattis to 'screw Amazon' out of the JEDI Contract, and he has made other public and private statements reflecting his desire that AWS not be awarded the contract."

The White House did not immediately comment Monday morning on Amazon's desire to depose Trump. A Microsoft corporate representative said in a statement: "We're ready to get to work so the men and women in uniform who serve our country can access the critical new technology they urgently require. We have confidence in the qualified staff at the Department of Defense, and we believe the facts will show they ran a detailed, thorough and fair process in determining the needs of the warfighter were best met by Microsoft."

Amazon said it recognized "that a deposition of a sitting president of the United States presents unique circumstances and will work with the court and the Department of Justice to develop appropriate protocols and safeguards, including to evaluate possible alternative methods, to ensure that the testimony is procured in a manner sensitive to the unique position of the executive office of the president."

Amazon's new filings said the company wants to add to the administrative record statements that Trump's made on Twitter about Bezos and the Post.

"These unfiltered statements straight from the Commander in Chief himself, who has a penchant for making policy via Twitter are critically important to understanding the bias that permeated the procurement process from the top of the chain of command," Amazon's lawyers said in court papers.

The deposition of a sitting president indeed would be rare, as are depositions of high-ranking government officials. Forcing a sitting Cabinet official to testify requires "extraordinary circumstances," a standard that is challenging to meet.

Amazon's lawyers also said they want to depose James Mattis, a former defense secretary. Amazon said it wants to discuss, among other things, Secretary Mattis's communications and interactions with President Donald Trump, President Trump's advisors, White House officials, and/or any individuals employed by or acting on behalf of President Trump."

Kathryn Ruemmler speaking in Washington. (Photo: Diego M. Radzinschi/ ALM)

Lawyers from Latham & Watkins—including former Obama White House counsel Kathryn Ruemmler and partners Roman Martinez and Abid Qureshi—are on the team defending Microsoft in Federal Claims court. Microsoft is also represented by Robert Metzger of the Washington litigation boutique Rogers Joseph O'Donnell. Metzger declined to comment Monday.

Prominent Gibson, Dunn & Crutcher lawyers in Washington and Los Angeles, including Theodore Boutrous Jr. and Andrew Tulumello are working with Morrison & Foerster on behalf of Amazon. Kevin Mullen, co-chair of Morrison & Foerster's government contracts and public procurement practice, is lead counsel for Amazon.

"Irrespective of any artificial steps the administration might have taken to sterilize the record, it was impossible to shield DoD from the bias exhibited and undue influence exerted by President Trump and others," Amazon's lawyers said in court filings. "That improper and unlawful intervention contributed directly to an arbitrary and capricious award that is contrary to procurement law and contrary to the interests of our national security."

Amazon's attorneys said Trump's open bias against Amazon is a textbook example of such improper influence.

Defense Secretary Mark Esper last year denied that any bias played into the Pentagon's decision to award the contract to Microsoft. "I am confident it was conducted freely and fairly, without any type of outside influence," Esper said.

Amazon said in its new filings that the company also will seek to depose Esper.

 

Read more:

Amazon Confronts Trump's 'Relentless' Criticism in $10B Contract Suit Against Pentagon

Amazon Hires Gibson Dunn, MoFo Teams to Sue Pentagon Over $10B Cloud Contract

Government Contracts Lawyers Prep After Microsoft Snags $10B Pentagon Order

'Extraordinary Circumstances': A Brief History of Top Federal Officials Ordered to Testify