Former Deputy Attorney General Rod Rosenstein authorized the release to the media of text messages between two highly placed FBI employees who exchanged criticism of then-candidate Donald Trump during the 2016 presidential campaign, the Justice Department has revealed in a new court filing.
Rosenstein also said in the court filing submitted shortly before midnight Friday that he made the decision to share the messages with the press in part to protect FBI agent Peter Strzok and FBI attorney Lisa Page from the drip effect of incremental releases of the texts by lawmakers or others.
In the messages, Strzok and Page regularly disparaged Trump and appeared to seek to reassure each other he could not be elected. Both called Trump an “idiot” and said Democratic nominee Hillary Clinton deserved to win.
The texts also included murky discussions of an “insurance policy” to guard against Trump’s election. Trump backers have interpreted the reference as a plan to use the then-ongoing investigation into ties between Trump advisers and Russia as way to prevent him from taking office or undermine his presidency, but Strzok and Page have denied any such intent.
In the two years since the first disclosure of the politically charged texts between Strzok and Page, Trump has subjected the pair to frequent public attacks, excoriated the two for bias and asserted that their actions at the FBI amounted to “treason.”
Trump has also made crude salvos against them for engaging in an extramarital affair a staple of his campaign events. At a rally last month, he appeared to imitate Page having an orgasm. She responded by calling Trump’s attacks “sickening” and saying they have devastated her life.
On Saturday, Page tweeted: "All I can say is this: I very much look forward to Rod’s deposition."
Strzok and Page filed separate lawsuits against the Justice Department last year, alleging that the release of their text messages violated the Privacy Act — an almost half-century-old statute that safeguards information federal agencies hold about private individuals.
Despite the litigation, until Friday it remained unclear just who at Justice gave the final OK to give about 375 Strzok-Page texts to journalists — including a POLITICO reporter — on the evening of December 12, 2017.
In a formal declaration submitted as part of the government’s defense to Strzok’s suit, Rosenstein owned up to being the one who made the call. He said he did so in part because the texts' public release by members of Congress was inevitable in connection with testimony he was set to give to the House Judiciary Committee the following day.
“With the express understanding that it would not violate the Privacy Act and that the text messages would become public by the next day in any event, I authorized [Justice’s Office of Public Affairs] to disclose to the news media the text messages that were being disclosed to Congressional committees,” Rosenstein wrote in a five-page statement signed Friday.
In November, the Justice Department asked U.S. District Court Judge Amy Berman Jackson to throw out Strzok’s suit, which challenges both his firing from the FBI and the release of the texts. However, Strzok’s attorneys countered in a court filing last month that one reason to allow the suit to proceed was that Justice Department was being vague about just who made the final call to give the messages.
Arguing that an air of mystery continued to surround the disclosure, Strzok lawyer Aitan Goelman called “revealing” Justice’s decision to seek dismissal of the suit without identifying the responsible official.
“An agency cannot avoid Privacy Act liability for a disclosure actually made for an improper purpose by eliciting a sanitized after-the-fact rationale from an official who does not have all of the facts,” Goelman wrote.
Rosenstein, who stepped down from his position as Justice’s No. 2 official last May, said in his new submission that his aides initially suggested he might want to delay sending the texts to Congress until after his House testimony. But the veteran prosecutor said he concluded it would be “inappropriate” to hold them back, even briefly, for that reason.
Rosenstein also said he decided to give the messages to the media before his testimony because of concerns that they would be cherrypicked in a manner that could be detrimental to the Justice Department, as well as Strzok and Page.
“The Department’s Office of Public Affairs … recommended providing the text messages to the media because otherwise, some congressional members and staff were expected to release them intermittently before, during and after the hearing, exacerbating the adverse publicity for Mr. Strzok, Ms. Page and the Department,” Rosenstein wrote. “Providing the most egregious messages in one package would avoid the additional harm of prolonged selective disclosures and minimize the appearance of the Department concealing information that was embarrassing to the FBI.”
While Rosenstein said the disclosure to the media was aimed at putting the messages in context, Strzok and Page have noted that the set of fewer than 400 texts sent to the Hill and shared with reporters that night was just a tiny fraction of the tens of thousands of messages the pair exchanged on work topics as well as personal matters.
Justice officials say that selection was done by the Office of Inspector General, which tracked down the messages after FBI officials initially said they had been deleted. Some of the messages released in December 2017 showed Strzok and Page taking verbal shots at politicians and public figures of various stripes including Attorney General Eric Holder, Sen. Jeff Sessions (R-Ala.) and Gov. Martin O’Malley (D-Md.)
Rosenstein’s statement does not indicate whether he consulted with Page, Strzok or their attorneys to seek their views on the planned release, but he had them informed that night that the disclosure was forthcoming. The former DOJ No. 2 official said he did have one of his top aides confirm with Justice’s top privacy official that the disclosure would not run afoul of the Privacy Act.
That official, Civil Liberties and Privacy Officer Peter Winn, has said in a prior court filing that he opined that the release of the texts would be legal.
Justice Department lawyers argue that Rosenstein’s consultation with Winn — a career official — effectively nullifies the Privacy Act portion of Strzok’s suit. Under the law, officials can only be liable for monetary damages for a Privacy Act violation if they broke the law intentionally or willfully.
Rosenstein’s filing does not discuss why journalists were initially told they could not identify the Justice Department in their stories as the source of the messages. Justice officials later lifted that condition.
Special Counsel Robert Mueller removed Strzok from his senior role on the Trump-Russia probe after learning of the texts in the summer of 2017. Page, who worked on the earlier stages of the investigation, had already moved on to another assignment.
The FBI fired Strzok in 2018, while Page ultimately resigned from the agency.
In a statement published last month by the Daily Beast, Rosenstein argued the Justice Department was not responsible for the criticism Page has endured. However, without getting into detail or directly challenging Trump, the former DOJ official said some of the attacks on her had gone too far.
“Ms. Page received more opprobrium than she deserved for her mistakes … but the Department of Justice is not to blame,” Rosenstein said.
Strzok’s suit filed last April also challenges the circumstances of his firing. His attorneys contend that the Justice Department violated established FBI procedures when he was dismissed in 2018, dismissing him in a legally improper effort to kowtow to Trump.
A top FBI official who handles internal discipline initially proposed demoting Strzok and suspending him for 60 days, but Deputy Director David Bowdich decided to fire Strzok instead.
Page’s suit, which is before U.S. District Court Judge Tanya Chutkan, was only filed last month and is still in its early stages.
The suits also argue that the hasty disclosure of the messages was made at the behest of the White House, while Justice Department officials were scrambling to improve their rapport with Trump.
Goelman did not immediately comment on Rosenstein’s submission. Page’s lawyer, Amy Jeffress, declined to comment.