As Trump Howls About Witch Hunt, DOJ Pitches Hissy Fit To Protect Him From Having To Testify

(Photo by Win McNamee/Getty Images)

"Crooked Joe Biden's Targeted, Weaponized DOJ & FBI are a grave threat to our Democracy!" the former president screeched into the airless void of his social media site yesterday.

"They are doing Crooked's DIRTY WORK in attacking and persecuting 'TRUMP,'" he ranted, calling the prosecution for retaining classified documents "planned Election Interference of the highest magnitude, and used to only happen in Third World Countries."

This would probably be news to former Deputy Assistant Director of the FBI's Counterintelligence Division Peter Strzok, who is currently suing the Justice Department for wrongful termination and violation of his privacy rights.

Strzok led the investigations into the Trump campaign's ties to Russia and Hillary Clinton's homebrew email server. He was booted off Special Counsel Robert Mueller's team due to intemperate texts criticizing Trump exchanged with Lisa Page, a DOJ lawyer with whom he was having an extramarital affair. In a truly filthy episode in 2017, Deputy AG Rod Rosenstein leaked those messages to reporters in an effort to curry favor with congressional Republicans, painting a giant red target on Strzok and Page's backs. Trump tweeted about them constantly, demanding their termination, and subjecting them to years of harassment and threats.

While Page voluntarily resigned, Strzok was eventually terminated by FBI Deputy Director David Bowdich, over an allegedly binding deal Strzok had accepted from the disciplinary investigator assigned to his case. Page and Strzok both sued in 2019, and since then have been seeking to persuade the court to allow them to depose Donald Trump, who publicly took credit for Strzok's termination.

Citing the apex doctrine, Judge Amy Berman Jackson has made the plaintiffs work their way up the food chain at the FBI, deposing lower level personnel before they could interview Bowdich, Director Christopher Wray, and Trump himself.

In stark contrast with Trump's constant howling about the corrupt Justice Department, Attorney General Garland has aggressively defended the prerogatives of the executive branch. With the exception of five minutes in March when it informed the court that the Biden administration would not invoke executive privilege to block it, the DOJ has done everything it could to block Trump from being deposed, even threatening to seek mandamus from the DC Circuit. In contrast, Trump's lawyer Alina Habba cheerfully calendared her client for testimony months ago, before the DOJ demanded that Wray be interviewed first.

On July 6, the Justice Department filed a motion for reconsideration, asking Judge Jackson to prettyplease call off Trump's deposition, since none of the the other deponents had fingered him as the ultimate instigator of Strzok's termination. Judge Jackson nixed their request in a terse minute order:

While to the extent the individuals deposed to date recalled the events in question, their testimony did not advance plaintiffs' theory that the former President was involved in the decision making at issue in this case, the fact remains that the former President himself has publicly boasted of his involvement. Given the limited nature of the deposition that has been ordered, and the fact that the former President's schedule appears to be able to accommodate other civil litigation that he has initiated, the outcome of the balancing required by the apex doctrine remains the same for all of the reasons previously stated.

So now the Department has actually done it, filing a writ of mandamus with the appellate court seeking to block Trump's testimony.

The government argues that Judge Jackson abused her discretion "in light of the significant separation of powers and institutional concerns raised by permitting unnecessary discovery from a former President relating to his official duties." The petition takes the bizarre petition that Trump's constant carping about Strzok makes it irrelevant whether he actually leaned on his deputies to fire him.

The former President's repeated public statements criticizing Strzok and expressing his strong desire that Strzok be dismissed undermine any basis for the deposition. The former President's statements made his views on the matter pellucidly clear, "broadly communicated," and widely known.

The petition also makes the bizarre claim that Rosenstein's deputy Sarah Isgur invited reporters to the Justice Department under cover of darkness with the express agreement that they claim they got a hand-curated selection of the most embarrassing text messages to avoid embarrassing Page and Strzok.

After confirming with the Department's privacy expert that doing so would not violate the Privacy Act, Rosenstein agreed with the Department's Office of Public Affairs' recommendation to also "provid[e] the text messages to the media because otherwise, some congressional members and staff were expected [to] release them intermittently before, during, and after [a hearing with Rosenstein scheduled the following day], exacerbating the adverse publicity for Mr. Strzok, Ms. Page, and the Department." Id. ?15. Rosenstein later explained that, "[i]f [he] had believed that the disclosure was prohibited by the Privacy Act, [he] would have ordered Department employees not to make the disclosure."

That is ... not the story that the DOJ put out in the immediate aftermath of the disclosure.

It remains to be seen what the DC Circuit will do with these pleadings. And it's not clear why the government didn't just settle with Strzok and Page, as it did with former Deputy FBI Director Andy McCabe, approximately five seconds after Garland was confirmed. But it's more than a little ironic that Garland has gone full court press to protect Trump, even as he screams daily that the Department of Justice is out to get him by any means possible.

Strzok Mandamus
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 and appears on the Opening Arguments podcast.