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Releasing the texts of two members of the Trump-Russia probe was an astonishing breach of privacy.


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Eli Lake

If you’re looking for a Justice Department scandal regarding Robert Mueller's investigation into Russia's influence of the 2016 election, it's hiding in plain sight. Look no further than the government's release of the private texts between Peter Strzok and Lisa Page.


Both Strzok, an FBI counter-intelligence agent, and Page, an FBI lawyer, were involved in the 2016 investigation into Hillary Clinton's private email server, and were both briefly on Mueller's team investigating Russia's influence of the 2016 election. In the texts from 2015 and 2016, they complained about the Republican presidential nominee's intelligence and demeanor (including in unprintable terms). In July, those private texts came to the attention of the Justice Department's inspector general. The FBI reassigned Strzok to human resources, while Page left the special counsel's probe.

The inspector general’s investigation is ongoing. Perhaps more evidence will emerge that the privately held opinions of two investigators contributed to then-FBI director James Comey's decision in July 2016 not to charge Clinton with a crime. (That was when the Republicans said the FBI was pro-Clinton. Before Comey called the finality of that inquiry into question just days before the 2016 election and the Democrats said the FBI was anti-Clinton.) Until charges are pressed and evidence is considered, however, Page and Strzok are owed some due process.   

They aren’t getting it. This week, the Justice Department not only disclosed to Congress their private texts during an ongoing investigation, but then briefed their private texts to the media. This last point was first reported Wednesday by Natasha Bertrand of Business Insider. I was also able to confirm it.  

When I asked Ian Prior, a Justice Department spokesman, about the due process rights of Strzok and Page, he said: "The Department ensures that its release of information from the Department to members of Congress or to the media is consistent with law, including the Privacy Act." He went on to say that the information the Department provided to Congress in response to requests for the information was not subject "withholding exceptions," that lawyers for Congress and relevant parties were informed of this beforehand and that "career officials determined that the text messages could be released under both ethical and legal standards."  

If that is the case, then the Justice Department is in need of reform. Let's start with an obvious point. Publication of someone's private texts -- even if they are conducted on government phones -- is an astonishing breach of privacy. How many of us say or write things intended for one person that we would not say in a public forum? Also consider how a snippet of one's conversation in private can be taken out of context to misconstrue its meaning.  

It’s not relevant whether the investigators held private political opinions. We should assume that all federal employees do. FBI officers and lawyers are American citizens with the same free speech rights as the rest of us. 

Deputy Attorney General Rod Rosenstein acknowledged this on Wednesday before the House Judiciary Committee. He said: “We recognize we have employees with political opinions. It’s our responsibility to make sure those opinions do not influence their actions."

Former assistant U.S. attorney Andrew McCarthy, a withering critic of the investigation into Trump, told me that he had problems with the way this case has been handled. "I think it's wrong that their texts have been massively released to the public,” he said. “I do think they should have been vetted so that only stuff that was relevant to whether there was bias in Mueller's investigation was sent to Congress. Congress is entitled to look at that, just as Mueller was entitled to look at that. But in an investigation, the public usually doesn't have a right to know about this until charges are brought."

McCarthy's point is well taken. It's hard to know what to make of all of this until all of the facts come in. The most damning text to emerge from the batch was where Strzok wrote to Page: "I want to believe the path you threw out for consideration in Andy’s office — that there’s no way he 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 this text, "Andy" is deputy FBI director, Andrew McCabe.

That doesn't look great. It's also inconclusive. It's something the Justice Department's inspector general should be running down. It's also something that would be appropriate for oversight committees in Congress to examine. What is this "insurance plan? Is this a reference to the FBI's investigation, which started a few weeks earlier, into the Trump campaign's possible collusion with Russian efforts to influence the election? From that text alone, it's impossible to know. 

What is possible to know in this case is that officials more senior than Strzok and Page did appear to exercise influence on the Clinton email probe. There was the instruction from President Barack Obama's attorney general, Loretta Lynch, to former FBI director James Comey, for example, to refer to his investigation as a "matter." There was also Obama's own statement to the media before that "matter" was closed, saying that none of the material on Clinton's private server amounted to a serious breach of classified information.

Finally there are bits and pieces of what we know about Strzok himself. U.S. intelligence officials that I talked to about him tell me he is an outstanding counter-intelligence officer who worked well with both the Obama and Trump administrations. What's more, Strzok was one of the FBI agents who interviewed Michael Flynn, Trump's former national security adviser, about his phone calls to the Russian ambassador in January. Multiple news outlets reported that the FBI officials who interviewed Flynn did not conclude he had deliberately lied, even though this month Flynn pleaded guilty to lying to the FBI in that interview. If Strzok had allowed his anti-Trump bias to influence his work, why wouldn't he report that Flynn had intentionally deceived him?

That is another good question for the oversight committees and the Justice Department's inspector general. All of this is to say that we should reserve judgment about Strzok and Page.

The Justice Department’s decision to instead release private communications is reminiscent of the weeks before the 2016 election, when FBI officials leaked their own complaints about how the investigation into the Clinton Foundation was stymied -- when documents involving former attorney general Eric Holder's handling of former President Bill Clinton's pardon of Marc Rich were mysteriously tweeted out from a long-dormant FBI account. Back then, the same Republicans who now accuse the FBI of trying to destroy Trump were cheering the bureau's last-minute intervention in the election on his behalf.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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