The stench of politics emanating from the DOJ’s recent $2 million settlement with the ex-FBI employees is unmistakable.
The stench of politics emanating from the DOJ’s recent $2 million settlement with the ex-FBI employees is unmistakable.
S ummer Friday afternoons are the time to watch for the release of news the government must disclose but would prefer that you not notice. So it was on July 26, when the Department of Justice signed and filed court documents settling claims by former FBI employees Peter Strzok and Lisa Page that their rights under the federal Privacy Act had been violated when text messages they exchanged on FBI communication devices in 2016 were disclosed to the press in December 2017. The two received, in the aggregate, $2 million from the settlement.
At the times relevant to the lawsuit, Strzok was one of the FBI’s principal national-security agents — chief of the FBI’s Counterespionage Section. Page was counsel to the FBI’s deputy director. Both were involved in two investigations that captured headlines at the time: one a criminal investigation involving Hillary Clinton’s storage of confidential information relating to her role as secretary of state on an unauthorized private email server, the other a counterintelligence investigation of allegations that Donald Trump had “colluded” with the Russians — a category unknown to lawyers but familiar to editorial writers. Strzok and Page were also romantically involved well before 2016, but if you have surmised by now that they claimed the texts at issue revealed that relationship, you would be wrong; those texts conveyed nothing about it.
The texts in question, merely hundreds out of the thousands the two had exchanged over the years, had been subpoenaed by a congressional committee conducting oversight of the Justice Department. They fell into two categories: those showing that Strzok and Page shared a loathing of Donald Trump that was obviously not unique in the upper reaches of the FBI bureaucracy; and those showing how that view appeared to play into how the two saw and did their jobs.
In the former category, consider their exchange on March 7, 2016, when Trump was building momentum toward becoming the Republican nominee and while they were investigating whether Secretary Clinton had willfully violated her duty to safeguard national secrets and destroyed government records:
Page: God trump is a loathsome human.
Strzok: Omg an idiot.
Page: He’s awful.
Strzok: God Hillary should win 100,000,000 – 0.
A mere sample hardly conveys the intensity of their disgust. Strzok wrote on August 26 that he had visited a “southern Virginia Walmart” where “I could SMELL the Trump support.” After the election, Page wrote that she had just bought All the President’s Men: “Figure I need to brush up on watergate.”
The second category of information in the texts is less pervasive, but more insidious. On May 4, 2016, when Page texted Strzok that Ted Cruz had dropped out of the race for the Republican nomination and it became clear the Trump would win, Strzok’s reaction was, “Now the pressure really starts to finish MYE.” MYE stood for Mid Year Exam, the code name for the FBI’s desultory investigation of Hillary Clinton, which was in fact terminated with James Comey’s press conference where he described charges that he said “no reasonable prosecutor” would bring, a conclusion he had started drafting even before the perfunctory interview that the FBI conducted with Clinton. As to that interview, Page had warned Strzok not to go into it “loaded for bear,” lest the FBI suffer as a result. “She is going to be our next president. You think she is going to remember that it was more doj than fbi?”
Their attitude toward Donald Trump was dramatically different. When the FBI started the counterintelligence investigation of Trump a month later, Page texted “He’s [Trump’s] not going to become president, right?” Strzok’s response was, “No. No he won’t. We’ll stop it.” And in case they couldn’t, they contrived to ensure that the authorization to surveil Trump would expire only after the election, meaning surveillance could continue into his administration.
The DOJ inspector general, Michael Horowitz, found that the text messages suggested “that Strzok might be willing to take official action to impact presidential candidate Trump’s electoral prospects.” Miraculously for Strzok and Page, the IG did not find enough evidence that political bias “directly affected . . . specific investigative decisions,” although Strzok was eventually fired because his texts undermined public confidence in the FBI, and his lawsuit challenged that dismissal as based on protected expression of a political viewpoint.
The settlement covers only the claim that disclosure of the texts violated the Privacy Act. As noted, the texts had been subpoenaed and were about to be turned over to a congressional committee, whose staff members were already aware of them and preparing a gradual release so as to do maximum damage to Page, Strzok, and the then-still-ongoing investigation of Donald Trump.
At the time, Deputy Attorney General Rod Rosenstein consulted the Justice Department’s expert on Privacy Act compliance, appointed by the Obama administration to serve as DOJ’s chief privacy and civil-liberties officer. He reviewed the texts and advised that the public interest in disclosure outweighed whatever privacy interests there might be, which is the statutory standard justifying disclosure. Whether or not that finding survived a court challenge, the standard justifying payment for a violation is stricter: A plaintiff must prove that the violation was willful. This would have been an insuperable hurdle for Strzok and Page because the privacy officer swore he approved the disclosure believing the public interest in disclosure outweighed any privacy interest, and Rosenstein testified that absent the privacy officer’s approval, he “would have ordered Department employees not to make the disclosure.” There is no evidence to the contrary.
Attorney General Merrick Garland prepared the ground for the July 26 filing in testimony at a House hearing on June 4, when word of the settlement had already started to leak. In response to aggressive questioning by Representative Jim Jordan (R., Ohio) suggesting that the government was rewarding Strzok and Page, Garland first misstated the legal standard for recovery under the Privacy Act, omitting the willfulness element: “If somebody in the government discloses personal information protected by the Privacy Act, that’s the way the law is.” He then denied that it was a question of reward: “It’s a question of the government paying for violating the law.”
The government did not violate the law with these disclosures. The Privacy Act expert who authorized the disclosure is still employed in the same position at the Justice Department and is also a member of President Joe Biden’s Federal Privacy Council. He would not have continued in either position if he had violated the law. Throwing him and Rosenstein under the proverbial bus in aid of an unjustified settlement may help keep discussion of the farcical Russia investigation out of the news. Perhaps the amount involved — $2 million — is relatively small, and perhaps, given everything else that is making headlines at the moment, the whole matter won’t garner much mainstream-media attention. But when the head of the Justice Department so casually damages the reputations of its current and former officials, the stench of politics is unmistakable; not even the miasma of current events can hide it.