If you’ve followed the story of the Russia investigation for any period at all, just the thought of Donald Trump talking about FBI agent Peter Strzok or attorney Lisa Page is enough to set your teeth on edge—if for no other reason than how Trump invariably slips either “lover” or “lovely” in when describing Page. The personal text messages between Page and Strzok have been the go-to for Republicans looking for evidence of some “deep state conspiracy” out to unseat Trump. The messages have been diced into fragments, misquoted, and taken out of context in an effort to somehow invalidate the entire Russia investigation.
But the question before the court of Judge Amy Berman Jackson on Friday was whether or not those text messages should have been seen at all. Not only did release of the messages, complete with names and dates, damage the personal lives and careers of the two now-former FBI employees, it also appears to represent a direct violation of the Privacy Act which was meant to protect just such communications. When Strzok and Page filed a suit complaining about both the release of the messages and Strzok’s firing, the Department of Justice (DOJ) tossed back a series of reasons that the whole thing should be dismissed. That … didn’t work out so well on Friday. Not only did Judge Jackson go through, in detail, what she thought was wrong with the government’s motion for dismissal, she also made it clear that there were some serious issues with the way the messages had been handled.
Coming just a day after Judge Randolph Moss denied an attempt by the Justice Department to dismiss a lawsuit from former deputy director Andrew McCabe, Attorney General William Barr just had two decisions handed back to him with clear signals that his efforts to deride and dismiss everyone who stood up to Trump are not going to fly in court.
The Thursday ruling from Judge Moss involves a lawsuit in which McCabe alleges that he was both wrongly demoted for his “perceived” political positions and terminated on the brink of his retirement because he didn’t swear personal loyalty to Trump. Barr had sought to dismiss the suit, claiming that everything that happened to McCabe was because he “lacked candor” in describing his actions related to the Russia investigation. Moss did not rule that Barr and the DOJ were lying, or provide McCabe with any kind of judgement. However, he did determine that there were more facts in question than were being acknowledged by Barr, and the motion to dismiss was denied.
“Plaintiff’s allegations that he had completed his tour of duty, earned his retirement benefits as a consequence of twenty years of service, and retired from the FBI, only to be denied those benefits against the backdrop of pointed, public denunciation by the President of the United States suggests a plausible claim that Defendants ‘deliberately flouted’ the law in order to deprive Plaintiff of his retirement benefits.”
The Friday ruling on the lawsuit initiated by Page and Strzok was similar, though as documented by Lawfare’s Benjamin Wittes, Judge Jackson took the time to not only go through the government’s claims in detail but to carefully explain why she was not going to dismiss the suit.
To get around requirements of the Privacy Act, the government argued that the text messages between Strzok and Page represented a risk to the FBI’s interests. Jackson did not rule on this point. However, she expressed fairly extreme skepticism about the way DOJ disclosed the information. Part of the claim from the DOJ involves showing that what they did was “regular use” of materials obtained in an internal investigation. But somehow, Jackson did not think that leaking select messages to both Republicans in Congress and the press, while telling them to deny that the DOJ was the source of their information, met that “routine use” standard. The Judge declared that the government’s claim "doesn't cut it" and ultimately that they were "nowhere near” the point where there were no facts in contention.
Like McCabe, Strzok and Page didn’t exactly win anything on Friday, other than the right to carry on with their lawsuits. But the way in which Barr’s case was dismissed by both judges shows that how he runs the DOJ mirrors his own personal statements: sloppy, arrogant, and legally indefensible.
