Government

Maybe Trump Will Go Under Oath For Pete Strzok And Lisa Page. But Don't Hold Your Breath.

Privilege is a bitch.

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(Photo by Drew Angerer/Getty Images)

On December 12, 2017, Deputy Attorney General Rod Rosenstein did a truly filthy thing. He was about to testify before a House Judiciary Committee which was furious over the Mueller Investigation, and he knew he was about to get his ass kicked by Reps. Jim Jordan and Devin Nunes. So he decided to throw a couple of his colleagues to the dogs, with the help of his comms flack Sarah Isgur.

So Isgur (then Sarah Flores) invited a bunch of reporters over to the DOJ to view 375 hand-selected personal texts between FBI attorney Lisa Page and Special Agent Peter Strzok, feeding a media narrative that there was something suspect about the FBI’s investigations into the Trump campaign’s ties to Russian agents. DC being DC, the only journalist who pushed back at the time was Natasha Bertrand, who published the details of Isgur’s media ploy at Insider.

“It’s appalling behavior by the department,” former DOJ spokesman Matthew Miller told Bertrand. “This is an ongoing investigation in which these employees have due-process rights, and the political leadership at DOJ has thrown them to the wolves so Rosenstein can get credit from House Republicans at his hearing today.”

Questioned about the leak by Rep. Hakeem Jeffries, Rosenstein claimed, “We consulted with the inspector general to determine that he had no objection to releasing the material. If he had, we would not have released it.” That was a lie.

Page and Strzok, who had a brief extramarital affair, quickly found themselves at the center of a MAGA maelstrom because of disparaging comments they’d made about Trump in their private messages. The sitting president spoke about them in the most degrading terms and publicly demanded their firing on multiple occasions. And indeed, they were both terminated in short order.

In 2019, Strzok sued the Justice Department for wrongful termination, due process violation, and violation of the Privacy Act for disclosing his texts. Page followed suit shortly thereafter, and both cases are ongoing.

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Unsurprisingly, the Justice Department has put up a hell of a fight to block discovery. Citing Trump’s public statements, in which he first called for the plaintiffs’ firing and then later took credit for it, the plaintiffs demanded to depose top-ranking officials about the circumstances surrounding their termination. And they appear to have had some success, deposing Rosenstein, Isgur, and former Deputy FBI Deputy Director David Bowdich, among others. But they haven’t yet been able to secure testimony from FBI Director Chris Wray or from Trump himself.

Citing the apex doctrine, Judge Amy Berman Jackson forced Page and Strzok to work their way up the food chain, proving that they can’t get the information they need without putting the highest officers under oath. But yesterday, after a sealed hearing on the topic, the court issued a minute order partially denying the FBI’s motion to quash subpoenas for Trump and Wray.

“The Court authorized the plaintiffs to conduct depositions of each witness that do not exceed two hours and are limited to the narrow set of topics specified on the record at the hearing,” Judge Jackson wrote. But she cautioned that the ruling applied to “apex doctrine issues only and did not resolve any questions related to either the Presidential communications prong or the deliberative process prong of the executive privilege.”

Essentially, she agreed that the issue of whether the plaintiffs were fired because of Trump’s order can only be addressed by deposing Trump and Wray. But that’s not the end of the story, because the administration may still invoke privilege to block the depositions.

“For the reasons stated on the record, the government must inform the Court whether the current President will invoke the executive privilege with respect to the specified topics by March 24, 2023,” the court went on.

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Let’s take a wildass guess that the Justice Department has no intention of putting Chris Wray on the stand to talk about conversations he had with Donald Trump. DOJ gonna DOJ …

And anyway, we don’t have to guess, because the DOJ has made its position clear in an October 2022 memo regarding its motion to quash.

“If the Court were to determine, however, that Mr. Strzok had made the showing required by the ‘apex doctrine’ to depose former President Trump or Director Wray, the Court should allow either or both of the depositions to go forward only with the understanding that the government may instruct the witness(es) not to divulge information potentially subject to the Presidential Communications Privilege or the Deliberative Process Privilege,” the Department argued.

So, it’s pretty clear that the Biden administration is going to respond with a definitive “HELL, YES!” when it complies with the court’s order to say whether it intends to invoke executive privilege.

And, we can’t help but notice that Judge Jackson didn’t ask the former president to weigh in with his own residual privilege invocation. But Trump is currently attempting to block testimony by multiple members of his administration to the grand jury investigating the January 6 Capitol Riot. Indeed, no president in history has relied more heavily on privilege, either in or out of office. So it’s a pretty safe bet that the former president will scream bloody murder about privilege if he actually winds up getting hauled in to testify in this civil case.

In short, don’t hold your breath that these plaintiffs are ever going to get Trump or Wray under oath.

Strzok v. Garland [Docket via Court Listener]
Page v. DOJ [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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