DOJ Decides That It Won't Let Pete Strzok Depose Trump After All

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The Justice Department has decided that it will not be letting former FBI agent Pete Strzok depose Donald Trump after all. This should not be news -- the DOJ is famously protective of the office of the presidency. But in a February minute order, Judge Amy Berman Jackson authorized Strzok and former DOJ lawyer Lisa Page to take limited depositions of Trump and FBI Director Chris Wray, and after hemming and hawing for almost two months, the government is now threatening to ask the DC Circuit for a writ of mandamus to protect Trump.

This case arises out of one of the most shameful episodes of the Trump administration (and that's saying something). Strzok and Page worked on both the Crossfire Hurricane investigation into the Trump campaign's contacts with Russia and the subsequent Mueller investigation. They also had a brief affair in which they'd criticized Trump via text.

On December 12, 2017, the night before Deputy Attorney General Rod Rosenstein was due to testify before the House Judiciary Committee, his comms flack Sarah Isgur (then Sarah Flores) invited reporters over to the DOJ to review 375 of the most damaging personal texts between Page and Strzok. By stoking a media narrative that there was something suspect about the FBI investigations and ensuring that the texts would be on every front page before he testified, Rosenstein hoped to curry favor with Republicans in Congress. But journalist Natasha Bertrand published the details of Isgur's media ploy at Insider, which rather ruined the effect.

When questioned about the leak by Rep. Hakeem Jeffries, Rosenstein insisted that the DOJ had "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 an outright lie.

Page and Strzok found themselves at the center of a Republican conspiracy theory, attacked in the most vulgar terms by the sitting president, who continues to mention them even now. Page resigned, and Strzok was eventually fired, despite the recommendation of internal disciplinary officials that he face a demotion. Trump, who had publicly called for Strzok's head, took credit for his termination on Twitter.

In 2019, Strzok sued the Justice Department for wrongful termination, due process violations, and violation of the Privacy Act for disclosing his texts. Page followed suit with her own Privacy Act claim shortly thereafter, and both sought to depose Trump and FBI Director Chris Wray. Citing the apex doctrine, Judge Jackson has made the plaintiffs work their way up the food chain and depose lower level officials first. But in February she finally ordered limited depositions of Trump and Wray, and in March the DOJ informed the court that neither the Biden administration nor former president Trump would be asserting executive privilege as to the authorized topics.

But now, seven weeks later, the government is moving for either reconsideration of the February order or a stay of Trump's deposition pending a motion for writ of mandamus to the appeals court. Their theory is that, although Judge Jackson's order was silent on this point and they never filed a motion to clarify, they were entitled to read into it an implicit obligation for Strzok and Page to depose Wray first, and then, only if necessary, to put the former president under oath.

"Contrary to the request of the United States, Mr. Strzok seeks to depose former President Trump before Director Wray, thereby making it impossible to determine if the Director's deposition might obviate the need to depose the former President," they write.

An accompanying declaration by trial attorney Christopher Lynch attaches correspondence which shows the testy negotiations.

Immediately after the government's waived executive privilege, Strzok's attorney Christopher McColl sought to coordinate Trump's deposition with the DOJ. On March 30, DOJ lawyer Michael Gaffney put him in contact with Trump's lawyers Alina Habba and David Warrington, but cautioned that the DOJ wanted Wray to go first:

We think it is premature to discuss our availability for former President Trump's deposition since we expect his schedule will more likely be the driving factor on when the deposition takes place. After you speak with Mr. Trump's representative and understand his availability, please let us know and we will then do our best to also be available as well. Note also that it is Defendants' position that Director Wray should be deposed before Mr. Trump. So please let us know your thoughts on when you would like to take Director Wray's deposition and we will consult with the FBI about his availability.

Within an hour McColl responded:

Respectfully, Mike, we are entitled to set the order and to set the date for the third party depositions we notice. We noticed former President Trump's deposition sixteen months ago, and we would like to proceed with it. If, as the Department of Justice has suggested, it intends to petition for a writ of mandamus with respect to Judge Jackson's order governing President Trump's deposition, we would like that to happen sooner rather than later. I reiterate our request for your availability in late April and early May. We will certainly consider your availability if you provide it.

I am sure we are all familiar with President Trump's current employment situation and ample resources.

That was seven weeks ago, and the DOJ is only now following through on its threat to seek a writ of mandamus from the DC Circuit. In a footnote, it offers several explanations as to why this petition is timely, most notably that "less than one week has passed since Defendants learned that Plaintiffs had scheduled former President Trump's deposition for May 24, and because no deposition of Mr. Trump or Director Wray has been taken to date and the case remains pending."

Apparently the former president has no objection to the deposition, and his "current employment situation" allows him the time to sit down for a two hour interview. And so it falls to the DOJ to convince Judge Jackson to reconsider her previous ruling or persuade the appeals court that an extraordinary writ of mandamus is in fact ordinary in such a circumstance.

Ironically, the strongest case against deposing Trump involves Trump's pal Tom Fitton of Judicial Watch, who was blocked by a writ of mandamus issued by the DC Circuit from deposing Hillary Clinton about Benghazi. Similarly strong is a Ninth Circuit decision in which the panel granted mandamus to block a deposition of former Secretary of Education Betsy DeVos, extending the protection for the important work of high officials even after they leave office on the theory that, "If allowed the minute cabinet secretaries leave office, overwhelming and unnecessary discovery could also discourage them from taking that office in the first place or leaving office when there is controversy."

It's unclear whether Judge Jackson will let the government force Strzok to depose Wray first, or tell them to go take their chances with an appeals panel. But the DOJ has requested that she rule by Tuesday, so ... looks like we'll find out soon.

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.