Starr, Greenberg: Bernanke must respond to questions

The federal government later paid the Federal Reserve for the stock, and then sold off its AIG holdings by September 2012 through a series of initial public offerings. The Fed has also sold off the securities held in the facilities it created.

The DOJ said in its appeal of the Wheeler order that, "It is axiomatic that high-ranking federal officials — such as the chairman of the Board of Governors, a Cabinet-level officer of the United States — should not be compelled to provide testimony at the behest of civil litigants absent extraordinary circumstances."

In asking the appeals court to reject the government's effort to bar the deposition, lawyers for Greenberg said the government "wrongly suggests that plaintiff seeks 'to probe the basis for his vote in favor of the transaction (which was a foregone conclusion).'"

Instead, the Greenberg memo said, "What Plaintiff seeks to probe is Bernanke's knowledge of the material issues of this case as reflected in his own statements delivered not in formal administrative findings, but rather in contemporaneous communications and a range of subsequent public settings from Congress to the PBS NewsHour with Jim Lehrer."

"Because Wheeler's decision was a sound exercise of his discretion, and because the government does not account for the need for this testimony or the demanding standard of review that applies in this context, the petition should be denied," lawyers for Greenberg said.

An industry lawyer familiar with the proceedings said the standard the Appeals Court must meet in granting the government's request is that Wheeler "abused his discretion" in ordering Bernanke to submit to the deposition. "That is a pretty high standard for them to meet, a higher standard than they would need to reach on an ordinary appeal."