Former President Donald Trump gets ready to speak during a rally on Oct. 1, 2022 in Warren, Michigan. (Photo by Emily Elconin/Getty Images.) Inset left: Peter Strzok, the FBI agent facing criticism following a series of anti-Trump text messages, walks to gives a deposition before the House Judiciary Committee on Capitol Hill in Washington, Wednesday, June 27, 2018 (AP Photo/Alex Brandon). Inset right: Former FBI lawyer Lisa Page leaves following an interview with lawmakers behind closed doors on Capitol Hill in Washington, Friday, July 13, 2018. (AP Photo/Manuel Balce Ceneta)
The Justice Department has asked a federal judge to block a fired FBI agent from taking Donald Trump’s deposition in his wrongful termination case against the agency.
In a motion filed Thursday, the DOJ — headed Attorney General Merrick Garland, appointed by President Joe Biden — argued that U.S. District Judge Amy Berman Jackson may have erred in her February ruling that former FBI agent Peter Strzok could depose the Trump and FBI Director Christopher Wray. Strzok sued the Justice Department over his 2018 firing. The Justice Department is arguing that Jackson, a Barack Obama appointee, may have erred in that ruling, and is seeking an order from the judge that Wray’s deposition must be taken first — or an order staying the deposition entirely until the DOJ’s appeal on issue is resolved.
Strzok was terminated following the discovery of text messages between him and FBI lawyer Lisa Page in 2016 expressing concerns over a potential Trump presidency. Strzok claims he was unlawfully terminated for expressing his political opinions. Page has sued the Attorney General over alleged privacy violations.
Strzok has said that he wants to depose the former president “about whether he met with and directly pressured FBI and DOJ officials to fire Plaintiff . . . and whether he directed any White House staff to engage in similar efforts,” the DOJ’s motion says. Strzok has set Trump’s deposition for May 24, while Wray’s deposition has not been scheduled, according to the motion.
“In its ruling on Defendants’ motion to quash, the Court acknowledged that former President Trump’s deposition may be unnecessary if Director Wray testified first,” the motion says. The timing of Strzok’s planned deposition of Trump, however, makes it “impossible to determine if the Director’s deposition might obviate the need to depose the former President.”
The Justice Department argues that discovery in the case has already indicated that Trump may not even be able to offer testimony relevant to Strzok’s case.
“Mr. Strzok argued that he should be permitted to take the former President’s deposition ‘about whether he met with and directly pressured FBI and DOJ officials to fire Plaintiff . . . and whether he directed any White House staff to engage in similar efforts,”” the DOJ’s motion says. “But this line of inquiry is potentially relevant only if any such meeting or pressure (a) included [former FBI Deputy Director David Bowdich, who made the decision to fire Strzok] or (b) was reported to Mr. Bowdich by Director Wray, who also had authority to discipline Mr. Strzok. Mr. Bowdich has already testified that he made the decision himself, without any input from former President Trump.”
Bowdich testified that he made the decision to fire Strzok “without any input” from Trump, and that he was in fact trying to keep Wray “removed from th[e] particular adjudication” of Strzok’s “misconduct.”
“If Director Wray’s deposition establishes that Director Wray either did not receive the alleged pressure from the former President or did not convey any such pressure to Deputy Director Bowdich,” the motion says, anyone who was allegedly pressured to fire Strzok wouldn’t have been involved in disciplining him anyway — and, presumably, wouldn’t be relevant to Strzok’s lawsuit.
The DOJ notes that the judge had apparently conceded that it was possible Trump’s deposition may not be necessary.
“As the Court itself acknowledged, Director Wray’s testimony could obviate the need for any deposition of former President Trump,” the motion says, requesting that Jackson not allow Trump’s deposition to proceed “until the Court has the benefit of the transcript of Director Wray’s deposition.”
The DOJ makes an alternative request for a stay on Trump’s deposition entirely, as the department believes a higher court will rule in its favor.
“For decades, the D.C. Circuit and virtually every other court of appeals have recognized that subjecting high-level government officials — to say nothing of current or former Presidents — ‘to oral deposition is not normally countenanced,’” the motion says, adding Strzok has the legal burden of showing that “extraordinary circumstances” exist that would justify deposing the former president.
Jackson’s reasoning as to how Strzok met that burden is redacted from the motion, but the DOJ says it disagrees that the circumstances “do not rise to the ‘extraordinary circumstances’ necessary to authorize the deposition of a current or former high-ranking government official, much less a former President.
The DOJ also argued that the department — “and accordingly the public interest” — would suffer irreparable damage if Strzok is allowed to depose Trump, while only causing “at most only a limited burden on Mr. Strzok.” The former FBI agent, according to the motion, has other depositions pending and has indicated that he may seek additional discovery, the implication being that Trump’s deposition does not need to be taken in the coming weeks, if it needs to be taken at all.
“In light of Mr. Strzok’s ongoing efforts to take discovery in this case, which has already been pending for nearly four years, the modest delay occasioned by a stay of a single deposition will not significantly burden Mr. Strzok,” the Justice Department says.
The DOJ has asked Jackson to rule on the motion by Tuesday.
Attorneys for Page and Strzok did not immediately respond to Law&Crime’s request for comment.
Even as its special counsel’s office has two active criminal investigations into Trump, the Justice Department repeatedly backed the former president that may implicate executive power. Garland continued his predecessor Bill Barr’s efforts to take over a lawsuit filed by E. Jean Carroll, whom a jury recently determined was sexually abused and defamed by Trump. Carroll’s first lawsuit took issue with Trump’s denial of her account at a press conference, and the Justice Department has insisted that Trump was immune from those statements during his presidency. Carroll scored a $5 million judgment in connection with her second lawsuit, brought under New York’s Adult Survivors Act and also suing over statements he made after his presidency.
The latest Justice Department motion continues its tradition of broad interpretations of executive power, whether the beneficiary is Trump or one of his successors.
Read the filing here.
Have a tip we should know? [email protected]
