On Tuesday, former FBI agent Peter Strzok filed a lawsuit to get his job back. The 27-page complaint touted Strzok’s public service record and painted his firing as a politically motived vendetta pushed by President Trump’s tweets and public pressure from Trump’s “political allies.”
Strzok’s complaint ignored or downplayed his own misconduct, but with the Office of Inspector General’s report on FBI misconduct expected to drop any time, there will soon be a public airing of those details—which likely explains the timing of Strzok’s spin-filled filing.
However, for those wishing to finger through the fluff, here’s your lawsplainer to understand Strzok’s case. First, though, the facts as alleged by Strzok, which he claims establish violations of his First Amendment right to free speech, his Fifth Amendment right to due process, and his rights under the federal Privacy Act.
Peter Strzok, Public Servant Extraordinaire
Strzok opens his complaint by detailing his “exceptional career in public service” that began with his service for the Army Reserve (including a stint in active duty) before he started his “career as an analyst in what was then known as the National Security Division.” Strzok then detailed his various positions and accolades as he moved up the rank, highlighting the high-profile cases he worked on along the way.
Then, before mentioning any of the details about his own firing, Strzok segues to the Trump administration and Kellyanne Conway: “The Trump Administration has consistently tolerated and even encouraged partisan political speech by federal employees, as long as this speech praises President Trump and attacks his political adversaries,” Strzok alleges.
“For example, President Trump rejected the recommendation of his own Office of Special Counsel that advisor Kellyanne Conway be removed from her job for repeatedly violating the Hatch Act by attacking former Vice President Biden and publicly advocating for and against various U.S. Senate candidates,” the former FBI agent adds in his complaint.
Musings to My Mistress of Profound Public Importance
Ten pages later, Strzok finally gets to his own speech, which he claims resulted in his firing in violation of the First Amendment. That speech included his text exchanges with his former mistress, Lisa Page, and another DOJ employee, including these:
February 12, 2016: Oh, [Trump’s] abysmal. I keep hoping the charade will end and people will just dump him.”
March 3, 2016: “Omg [Trump’s] an idiot.”
June 11, 2016: “They fully deserve to go, and demonstrate the absolute bigoted nonsense of Trump.”
July 18, 2016: “And f-ck the cheating mother-cking Russians. B-stards. I hate them.”
July 21, 2016: “Trump is a disaster. I have no idea how destabilizing his Presidency would be.”
August 6, 2016: “[Trump] appears to have no ability to experience reverence, which is the foundation for any capacity to admire or serve anything bigger than self, to want to learn about anything beyond self, to want to know and deeply honor the people around you…”
August 8, 2016: In response to Lisa Page’s text, “[Trump’s] not ever going to become president, right? Right?!” Strzok replied: “No. No he’s not. We’ll stop it.”
August 15, 2016: “I want to believe the path you threw out for consideration in [Andrew McCabe’s] office-that there’s no way [Trump] gets elected-but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40…”
In his complaint, Strzok claimed these “text messages concerned a matter of profound public importance – namely the 2016 Presidential election,” and as such were speech protected by the First Amendment. Strzok also argued that because employees such as Conway were not punished for pro-Trump statements, the federal government was impermissibly discriminating against him based on his viewpoint.
Did the FBI Use a Flawed Process in Firing Strzok?
Next, Strzok challenged the “process” of his firing. Here, he focused on the fact that the Office of Professional Responsibility Assistant Director (AD) Candice Will had issued a decision rejecting the proposal that the FBI terminate Strzok, and instead suspended him for 60 days and demoted him to a non-supervisory position.
Here’s an interesting tidbit discovered by the attorney who goes by Undercover Huber on Twitter: Former special counsel Robert Mueller appointed Will to serve as the assistant director of the Office of Professional Responsibility in August 2004. Before then, she had “completed a detail to the Justice Department’s Office of Intelligence Policy and Review (OIPR), where she represented the government before the Foreign Intelligence Surveillance Act (FISA) Court.
Strzok alleged that he was only fired because ‘President Trump directly and indirectly pressured FBI Director Wray and then-Attorney General Sessions.’
Will also required Strzok to agree to a “Last Chance Agreement,” in which he acknowledged he would be summarily dismissed if he later engaged in additional misconduct. In that agreement, Strzok agreed that Will’s decision would be final and he would waive his right to appeal to the FBI’s internal disciplinary entity or to the Merit Systems Protection Board.
Will’s decision, however, was overturned the following day, on August 9, 2018, when Deputy Director David Bowdich announced that he had “reconsidered the AD’s punishment and conclude that dismissal is appropriate under the facts of this case.” Bowdich explained his decision: “Though the Office of Inspector General found no evidence that your bias impacted your investigative actions or decisions, your sustained pattern of bad judgment in the use of an FBI device called into question the decisions made during both the Clinton E-mail investigation and the initial stages of the Russia collusion investigation.”
Then, as Strzok noted in his complaint, Bowdich declared his decision was “final” and is “not subject to further administrative review.” When Strzok attempted to appeal his firing, the Merit Systems Protection Board refused to review his termination.
The second count in Strzok’s federal lawsuit asserts that his firing by Bowdich violated his due process rights because Bowdich “deprived him of the standard internal due process afforded to other FBI employees, and which was promised to Special Agent Strzok in the initial proposed removal.” He also alleged that he was only fired because “President Trump directly and indirectly pressured FBI Director Wray and then-Attorney General Sessions to fire Special Agent Strzok.” Here he included a slew of Trump tweets to support his claim.
Strzok’s third claim was based on the Privacy Act, which prohibits federal agencies from disclosing “any record which is contained in a system of records by any means of communication to any person or to another agency, except pursuant to a written request,” or consent of the parties. His complaint complains: “In the midst of the investigation, many of these text messages were intentionally and willfully leaked to reporters on two separate occasions.”
Strzok alleges that his text messages detailed above were “records” contained in a “system of records” that employees of the DOJ and FBI leaked to the press, and that the later official “public release” of these messages violated the Privacy Act. Ironically, in making this claim, Strzok stresses that the messages were “sent to or received by FBI issued mobile devices, including the FBI’s Enterprise Security Operations Center (ESOC),” thereby highlighting his own misuse of government property.
Some Procedural Basics
The Trump administration has yet to comment on Strzok’s filing, and a response from the government is not due for 60 days. Yet there are several things to glean from Strzok’s complaint already.
On the surface, it appears Strzok has alleged enough to prevent the court from tossing his case at this early junction.
The first thing to know is that, at this procedural posture, Strzok’s case won’t get tossed—or at least much of it won’t. When a plaintiff files suit, a court must accept the complaint’s allegations as true and ask itself whether those facts, and all reasonable inferences flowing from those facts, state a legal claim. In other words, can Strzok sue for what he claims happened?
In this case, as detailed above, Strzok alleges facts that he claims state three separate “causes of actions,” or legal bases to sue: (1) First Amendment; (2) due process; and (3) Privacy Act. And he sued four defendants: Attorney General William Barr, in his official capacity; the Department of Justice; FBI Director Christopher Wray, in his official capacity; and the Federal Bureau of Investigation.
Most likely the first thing the government will do is have the claims against Barr and Wray dismissed, because when a government employee is sued in his “official capacity,” that is effectively a suit brought against the entity, here the DOJ and FBI respectively. In other words, Strzok is not maintaining that Barr and Wray are personally liable—in which case they would be sued in their individual capacities—but that the organizations they oversee violated the law. Similarly, the court will likely substitute the DOJ as the sole defendant because the FBI is a component of the DOJ.
The next step will be for the DOJ to respond to Strzok’s complaint. The DOJ might choose to answer the allegations, or instead could file a motion to dismiss, arguing the facts are insufficient to establish a legal basis to sue. It is impossible to fully assess the outcome of such a motion, but on the surface, it appears Strzok has alleged enough to prevent the court from tossing his case at this early junction.
You Don’t Have a Right to Politicize Justice
However, once litigation proceeds, Strzok’s claims will be on much shakier grounds because after the early pleading stage, the DOJ can present evidence to the court to argue that the undisputed facts doom Strzok’s case. For instance, Strzok’s First Amendment claim will likely falter because, while he argues that his political speech was protected speech, the DOJ will counter with evidence that Strzok’s speech was not protected and was not the basis for his firing.
Here, the Supreme Court’s decision upholding the constitutionality of Hatch Act—the federal statute limiting political activities of government employees—provides the perfect language to defend Strzok’s termination. “It is not only important that the Government and its employees in fact avoid practicing political justice,” the court wrote, “but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.”
The anti-Trump messages Strzok sent while investigating Trump create the appearance that Strzok (and others!) were ‘practicing political justice.’
While Strzok attempted to explain away the significance of his texts, the anti-Trump messages Strzok sent while investigating the then-candidate and now-president create the appearance that Strzok (and others!) were “practicing political justice.” In fact, the Office of Inspector General recognized as much when it concluded that it “did not have confidence that Strzok’s decision to prioritize the Russia investigation over following up on the Midyear-related investigative lead discovered on the Weiner laptop was free from bias.”
Strzok’s attempt to compare his situation with Conway will also likely end in defeat because there are different decisionmakers at issue. While viewpoint discrimination, which is treating individuals differently based on the viewpoint they express, is verboten, there were two different individuals making the decisions here. So that Trump refused to axe Conway for her pro-Trump speech won’t establish that the DOJ committed viewpoint discrimination when Bowdich fired Strzok.
Strzok may fare better on his due process claim because, at least from the complaint, it appears the FBI has specific procedural protections that were not afforded Strzok. However, we only have Strzok’s version of the procedures, and if FBI policy provides Bowdich the right to override Will’s decision and render a final, non-appealable decision, that will gut part of Strzok’s due process claim.
The most interesting question here is whether the last-chance agreement Strzok entered into with Will, which promised him eventual reinstatement, bound the FBI. We’ll know more on these aspects when the DOJ responds to Strzok’s complaint.
The DOJ’s response to the Privacy Act count will also be informative. A couple of possibilities to watch for: First, the DOJ may argue that leaking by rogue agents does not constitute an intentional decision by the agency to violate the Privacy Act. And since the Privacy Act’s civil remedies are only available for an agency’s “intentional or willful” refusal or failure to comply with the act, a court may refuse to impute the unauthorized conduct of one employee to the DOJ. Another possible argument will be that the private text messages were not “records” within the meaning of the Privacy Act.
Of course, before the DOJ’s 60-day response period is up, the landscape may have significantly changed if, in the interim, the OIG has released its report on FISA abuse connected to the Russia collusion investigation—a report likely to revisit and expand on Strzok’s misconduct. When that comes to pass, Strzok self-declared “exceptional career in public service” may not seem so exceptional after all.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame.
The views expressed here are those of Cleveland in her private capacity.