Criminal Justice & the Rule of Law

Is the FBI Punishing Employees for Their Political Views? Let’s Find Out

Scott R. Anderson, Benjamin Wittes
Friday, December 20, 2019, 1:25 PM

Our latest FOIA lawsuit.

FBI Headquarters (Source: Wikimedia Commons)

Published by The Lawfare Institute
in Cooperation With

One of the many revelations to come out of the Justice Department’s recent inspector general report on the FBI’s investigation into possible Russian interference in the 2016 presidential election is the fact that some FBI personnel appear to have expressed arguably inappropriate political views hostile to the subject of their investigation. But the personnel and views at issue are not the ones that President Trump might have you believe. As the report relates:

On November 9, the day after the election, the [Supervisory Special Agent (SSA) for a Confidential Human Source (CHS)] contacted another FBI employee via an instant messaging program to discuss some recent CHS reporting regarding the Clinton Foundation and offered that “if you hear talk of a special prosecutor…I will volunteer to work [on] the Clinton Foundation.” The SSA’s November 9, 2016 instant messages also stated that he “was so elated with the election” and compared the election coverage to “watching a Superbowl comeback.” The SSA explained this comment to the OIG by saying that he “fully expected Hillary Clinton to walk away with the election. But as the returns [came] was just energizing to me to see...[because] I didn’t want a criminal to be in the White House.”

On November 9, 2016, the Handling Agent and co-case Handling Agent for this CHS also discussed the results of the election in an instant message exchange that reads:

Handling Agent: “Trump!”

Co-Case Handling Agent: “Hahaha. Shit just got real.”

Handling Agent: “Yes it did.”

Co-Case Handling Agent: “I saw a lot of scared MFers on...[my way to work] this morning. Start looking for new jobs fellas. Haha.”

Handling Agent: “LOL”

The irony of this revelation is that, for almost two years, Trump and his allies have denigrated the FBI’s investigation as a partisan “WITCH HUNT!” motivated by a cabal of anti-Trump personnel intent on undermining his presidency. Exhibit A in this claim has been private texts between two FBI employees, Peter Strzok and Lisa Page, criticizing Trump and expressing deep reservations about his eventual election. The inspector general’s report handily dismantles this far-fetched narrative by documenting the valid grounds on which the FBI premised its investigation, even as the inspector general makes valid—and often devastating—criticisms of how a particular Foreign Intelligence Surveillance Act (FISA) request was handled within that investigation. By including the information quoted above, the report also subtly reinforces what should be a self-evident point: that FBI agents have diverse political views and that, however ill advised it may be for them to share those views through official channels, doing so does not automatically compromise any related investigation.

What the inspector general’s report does not do, however, is tell us what happened to the FBI personnel caught joking about Hillary Clinton and celebrating Trump’s victory. Indeed, the inspector general does not even identify them. This was no doubt the right approach, as neither the agents’ identities nor any disciplinary action pursued against them are relevant to the subject of the inquiry. But it stands in stark contrast to the manner in which the Justice Department chose to treat Page and Strzok.

In December 2017, Justice Department officials disclosed Page’s and Strzok’s identities, as well as the text messages between them, to both the media and Congress. Page later resigned and has spent two years being publicly mocked by Trump and his supporters. Strzok was eventually fired for the texts, even though relevant FBI officials recommended that he only be demoted and receive a 60-day suspension. Both are now suing the FBI and the Justice Department for violating the Privacy Act by disclosing their text messages without permission, while Strzok is also suing for wrongful termination and related violations of his constitutional free speech and due process rights. Central to this latter claim is Strzok’s belief that the FBI “treated [him] more harshly than they would have treated similar communications because the content of [his] communications was critical of President Trump”—in other words, that the FBI had discriminated against him for his political views.

The prospect that the Trump administration may be targeting FBI personnel who are critical of President Trump for especially harsh treatment is immensely troubling. And it has a certain prima facie plausibility—given that nobody seems able to identify agents or personnel disciplined, let alone fired, for sending texts praising Trump or critical of other political figures.

Earlier this year, we submitted a series of Freedom of Information Act (FOIA) requests designed to explore whether the disciplinary actions taken in the FBI during this period are viewpoint neutral or not. Specifically, we asked for records of any disciplinary action initiated against FBI personnel for positive or negative statements about recent presidential candidates, as well as any punishments they might have received. In addition, we requested information relating to an ethics presentation that we understand was made to FBI senior officials that singled out Page and Strzok’s conduct in a potentially problematic manner. Several months past the FOIA’s statutory response deadline, the FBI has bothered to reply to only one of these requests and, even then, only to acknowledge that it was received.

So earlier this week we sued the FBI for the responsive documents to which we are entitled. In doing so, we are being represented by Robert Litt, who previously served as general counsel for the Office of the Director of National Intelligence, and Sophie Cash, both of Morrison & Foerster. Our hope is that, as they have in prior cases, the FBI will work with us to respond to our request in a timely fashion. But either way, we will be sure to keep Lawfare readers informed of any developments.

Below is the complaint we filed:

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Subscribe to Lawfare