... I expect the board and staff really really would not want to have to answer questions under oath like "who did you talk to at the US Department of Commerce about the .XXX application and what did you say?" and "why did you vote against .XXX when they followed the same rules as the TLDs you voted for?"
The first assumes that a beneficiary should exist that is distinct from the applicant-sponsor.
On the contrary. Since it is clear that all of the other sTLDs have failed to attract the predicted support from their nominal communities, why should a similar lack of support for .XXX make any difference?
The second assumes the principle liability that exists is specific to a single application.
While possible, this fails to place a controversy in its complete context, and assumes an implied pattern of conduct by an agency of government at a point in time reflects a continuous primary issue of that agency.
Heck no. I expect that were a case to bring documents to light, they would show that what ICANN said to the US government was at odds with what they were saying in public. I know none of us would find that at all surprising, but we're not a judge looking at the contracts. R's, John