Peter Strzok, the former FBI agent who launched the bureau’s Russia probe in 2016 and was fired two years later for sending text messages critical of Donald Trump, has alleged in a new court filing challenging his dismissal that the FBI and Justice Department violated his rights to free speech and privacy.
The document was filed on Monday in response to the Justice Department’s motion to dismiss the lawsuit, which Strzokfiled in August. It raises pointed questions about the ability of rank-and-file government employees, as opposed to high-ranking officials, to share personal political opinions on matters of public interest — including on government-issued devices, as Strzok did.
In its motion to dismiss filed last month, the Justice Department argued that Strzok’s role in high-profile FBI investigations “imposed on him a higher burden of caution with respect to his speech.” But Strzok’s legal team retorted that “roughly eight thousand other SES-level managers are similarly situated to Strzok in the federal workforce in that they supervise employees, but the vast majority of those employees are not policy-makers.”
“The government’s argument would leave thousands of career federal government employees without protections from discipline over the content of their political speech,” they wrote in the new filing. SES refers to the Senior Executive Service, a cadre of key officials who serve as a liaison between political appointees and the rest of the workforce.
Strzok became a lightning rod for efforts to undermine the Russia investigation when the texts he wrote to FBI lawyer Lisa Page — calling Trump an “idiot” and discussing an “insurance policy” in the event he was elected, among other things — were publicly released by the Justice Department, leading Trump to tweet about Strzok nearly two dozen times beginning in January 2018.
The president called the veteran agent a “sick loser,” “a fraud,” “incompetent” and “corrupt,” and ultimately praised his firing from the FBI. He also made Strzok’s relationship with Page, with whom the former FBI agent had an extramarital affair, a regular feature of his campaign rallies, a routine Page has described as “like being punched in the gut.”
Strzok has lambasted the administration for defending the free speech rights of its employees only when they are praising Trump, noting in Monday’s court filing that “there is no evidence of an attempt to punish” the FBI agents who, according to a newly released Justice Department inspector general report, celebrated Trump’s election victory in private texts and volunteered to work on a probe of the Clinton Foundation.
“Plaintiff does not contend that they should be punished,” the filing says. “But this vignette is yet additional evidence of this Administration’s pattern of treating critics of President Trump more harshly than his supporters.”
At the time they exchanged the texts, both Strzok and Page were working on the investigation into Russia’s election interference. They had also previously worked on the probe into Hillary Clinton’s use of a private email server, and Strzok would later join special counsel Robert Mueller’s team. He was removed from that team once Mueller was briefed on the existence of the texts.
Inspector General Michael Horowitz did not find evidence that Strzok or Page’s political opinions influenced their work, according to two IG reports that examined the FBI’s conduct in the Russia and Clinton probes in 2016.
Horowitz was investigating the text messages when DOJ disclosed them to the press in December 2017, leading Strzok to argue that the release — which generated blaring headlines — was “deliberate and unlawful,” a violation of the Privacy Act.
The Justice Department argued last month that he and Page never should have had an expectation of privacy, since they communicated on their FBI-issued phones. “The communications between Plaintiff and the Government Attorney took place, not on personal devices, but on Department-issued mobile devices, which contained clear banner warnings that inform users of the lack of any reasonable expectation of privacy,” the filing reads.
But Strzok’s legal team countered on Monday that just because workplace speech is being monitored doesn’t mean it shouldn’t be protected. “Nearly every aspect of a modern workplace, and for that matter nearly every non-workplace aspect of employees’ lives, can be monitored,” the filing says. “The fact that a workplace conversation can be discovered does not render it unprotected.”
They also argued that the FBI and DOJ’s burden in demonstrating that the texts were disruptive—and therefore warranted Strzok’s removal—is made heavier by the fact that DOJ made the exchanges public voluntarily.
The Justice Department argued last month that Strzok was removed “because of those text messages, and the paramount importance of preserving the FBI’s ability to function as a trusted, nonpartisan institution … not because of any alleged disagreement with Plaintiff's viewpoints on political issues or Tweets from the President.”
But it was the Justice Department itself “that first leaked and later officially publicized Strzok’s speech by giving a selected subset of his texts to the media,” Strzok’s lawyers argued in the new filing. “Defendants should not be heard to complain about the notoriety and putative damage to the FBI’s reputation from Strzok’s speech when it was their own illegal disclosures, magnified and distorted by the false attacks made by the President and his allies, that placed a spotlight on Strzok’s opinions.”
Page also recently filed a lawsuit against the Justice Department alleging a Privacy Act violation over the release of the texts. The former FBI lawyer, who worked closely with former FBI Deputy Director Andrew McCabe, broke her silence in recent weeks.
“I sued the Department of Justice and FBI today,” Page tweeted earlier this month. “I take little joy in having done so. But what they did in leaking my messages to the press was not only wrong, it was illegal.”
The Justice Department has not disclosed who authorized the disclosure. Strzok’s legal team has said in court filings that it hopes to learn that in the discovery process, which the Justice Department has attempted to preempt by filing a motion to dismiss the lawsuit.
Documents released to the government watchdog organization CREW under a Freedom of Information Act request show that the Justice Department’s spokeswoman at the time, Sarah Isgur, invited a group of reporters to DOJ headquarters to review the texts but instructed them to source the messages to Congress — which was set to receive its own copies of the texts — rather than to DOJ.
Isgur has not commented on the FOIA’d documents. But she tweeted in December 2017 that “senior career ethics advisors determined that there were no legal or ethical concerns, including under the Privacy Act, that prohibited the release of the information to the public either by members of Congress or by the Department.”