Former FBI lawyer Lisa Page is suing the FBI and Department of Justice for violating the Federal Privacy Act in the release of their test messages to former FBI Counterespionage Chief Peter Strzok. President Donald Trump has made repeated and mocking references to the texts, including salacious and romantic messages between the two former FBI employees who engaged in an extramarital affair. Many of us have recoiled at the level of disclosure of this affair and particularly the President’s inappropriate taunts, including last night at a rally in Pennsylvania. The lawsuit could raise some interesting questions of the privacy affords such records, but it is unlikely to prevail.
The complaint states that Page, 39, has had to deal with a “permanent loss of earning capacity due to reputational damage” as well as “the cost of therapy to cope with unwanted national media exposure and harassment” caused by the disclosure. On its face, it is not clear that the release of the emails were the cause in fact for that damage. The affair was a matter of investigation and, even without the release of the emails, that fact would have likely generated much of the damaging (and often disturbing) commentary.
The most interesting factual representation however is found on page 2:
On December 12, 2017, Defendants violated the Privacy Act by unlawfully disclosing agency records pertaining to Plaintiff—namely, a 90-page document reflecting 375 text messages between Plaintiff and another FBI employee—to a group of reporters. At the time, the messages were part of a larger set of materials under review by the DOJ’s Office of the InspectorGeneral (“DOJ OIG” or “OIG”) for evidence of potential bias in the FBI’s investigation of formerSecretary of State Hillary Clinton’s use of a private e-mail server for government communications(known internally as the “Midyear Exam” or “Midyear” investigation). Although the OIG review was not yet complete, the officials who authorized the disclosure and their allies sought to use, and ultimately did use, the messages to promote the false narrative that Plaintiff and others at the FBI were biased against President Trump, had conspired to undermine him, and otherwise had engaged in allegedly criminal acts, including treason.
On Dec. 12, 2017, Page said in the complaint, “DOJ and/or FBI officials disclosed” her sensitive text messages “directly to a select group of reporters to ensure they would become public.” Page alleged that after discovery, she would be able to prove that senior officials knew they were violating the law, and that their conduct was “willful and intentional.”
The Privacy Act covers official material and records, including personal information, private conversations, and other sensitive material. There is no exception for “newsworthy” facts.
Worse yet, the complaint alleges:
On information and belief, DOJ and/or FBI officials disclosed the messages to reporters for multiple improper reasons, including to elevate DOJ’s standing with the President following the President’s repeated public attacks of the Department and its head, Attorney GeneralJefferson B. Sessions III. They did so by summoning DOJ beat reporters to the Department to review the messages at night, prohibiting the reporters from copying or removing the set of messages from the building, and instructing them not to reveal DOJ as the source. This clandestine approach is inconsistent with the disclosure of agency records for transparency purposes or to advance the public interest
The problem for the court is that the emails were part of various investigations that concluded that both Page and Strzok acted improperly. Moreover their motivations and relationship has become part of the wider discussion on the foundations for the Russian investigation.
Nevertheless, if the lawsuit survives the inevitable motion to dismiss, it could lay bare internal motivations or statements within the Justice Department in discovery. The Justice Department is not keen on such discovery and this litigation would take years to be successful.
It will however raise some very difficult legal issues and we will be following it.
The Complaint can be read here.