The DOJ hasn’t answered a key question about its ‘highly unusual’ decision to release FBI agents’ private texts

Deputy Attorney General Rod Rosenstein with Daniel Coats, right, the director of national intelligence, and Andrew McCabe, left, then the acting FBI director, before a Senate Intelligence Committee hearing on June 7 on the Foreign Intelligence Surveillance Act.

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Deputy Attorney General Rod Rosenstein with Daniel Coats, right, the director of national intelligence, and Andrew McCabe, left, then the acting FBI director, before a Senate Intelligence Committee hearing on June 7 on the Foreign Intelligence Surveillance Act.
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Kevin Lamarque/Reuters

  • The Department of Justice recently released 375 text messages that were exchanged between two FBI employees during last year’s presidential election.
  • The department has still not explained how it chose which texts to release out of the 10,000 it obtained earlier this year.
  • Critics of the DOJ’s decision to release the texts say the move has compromised an ongoing investigation and needlessly exposed career FBI officials.

The Justice Department recently released 375 text messages to Congress and the press that were exchanged between two career FBI employees during last year’s presidential election.

But the department has failed to answer a significant lingering question stemming from that release: how it chose which texts, of the more than 10,000 the department obtained over the summer, to unveil publicly. Nor has it released additional messages that could provide context to the ones that were shared with lawmakers and reporters last week.

Many of the texts, which were obtained as part of an investigation by the DOJ inspector general into how the bureau handled the investigation into Hillary Clinton’s private email server, have since been weaponized by the most vehement critics of the special counsel Robert Mueller. Those more sympathetic to the agents have interpreted the texts differently, characterizing them as flirtations whose intent has been purposefully misconstrued.

William Yeomans, a former deputy assistant attorney general, said the debate had raised fair questions about whether the DOJ “produced all the relevant information” to Congress and the media about the two FBI employees’ conversations or whether the department “selectively released only the most inculpatory texts.”

“In my experience, it is highly unusual to release raw evidence in an ongoing investigation,” Yeomans said on Wednesday. “Avoiding the premature release of information is important as a matter of fairness to those involved in the investigation.”

A Justice Department representative didn’t return requests for comment for this story.

‘Nothing is worse for morale’

Many of the texts were overtly critical of President Donald Trump. The two employees, Peter Strzok and Lisa Page, mocked him at various points throughout the campaign, calling him an “idiot.” They also disparaged other political leaders like the Democratic candidate Bernie Sanders and former Attorney General Eric Holder.

But the two texts that have sparked the most controversy – one sent by Page in April 2016 and another sent by Strzok four months later – are also among the most ambiguous.

“So look, you say we text on that phone when we talk about Hillary because it can’t be traced, you were just venting, bc you feel bad that you’re gone so much but that can’t be helped right now,” Page wrote on April 2, according to a text released by the DOJ last week.

Fox News said that text appeared “to show efforts by Strzok and Page to conceal some of their conversations about Clinton during the height of the email investigation,” on which they both worked.

The Washington Post also characterized the text as an instance in which the pair “expressed strong political opinions.”

There is another plausible explanation for the texts, however, when all relevant context is taken into consideration. Page could have been suggesting how Strzok could hide their extramarital affair from his wife and plausibly explain why he was frequently texting on his government-issued phone.

Releasing the messages that preceded and followed Page’s text could shed more light on what she meant. The DOJ – which said it released the texts to reporters in an effort to be transparent with the press – has not responded to requests from Business Insider for either the context of the conversation or an explanation for why that context was not provided.

Robert Mueller.

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Robert Mueller.
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Aaron Bernstein/Reuters

Another text that has drawn significant scrutiny was sent by Strzok to Page in August.

“I want to believe the path you threw out for consideration in Andy’s office – that there’s no way he gets elected – but I’m afraid we can’t take that risk,” he wrote. “It’s like an insurance policy in the unlikely event you die before you’re 40.”

In the view of Chuck Grassley, the Republican Senate Judiciary Committee chairman, that text was an example of Strzok appearing to “cross the line into taking some official action to create an ‘insurance policy’ against a Trump presidency.”

But The Wall Street Journal reported on Tuesday that Strzok was referring in the text to the FBI’s investigation into potential collusion between the Trump campaign and Russia, which had been opened by James Comey, then the FBI director, in July 2016.

Strzok’s text, according to people familiar with his thinking who spoke with The Journal, “was meant to convey his belief that the investigation couldn’t afford to take a more measured approach because Mr. Trump could very well win the election … It would be better to be aggressive and gather evidence quickly, he believed, because some of Mr. Trump’s associates could land administration jobs and it was important to know if they had colluded with Russia.”

Deputy Attorney General Rod Rosenstein received a partisan haranguing from Republican lawmakers on Wednesday of last week that partly focused on that text. And Strzok and Page received what some have characterized as a gratuitous public shaming.

“This episode is especially troubling because DOJ generally goes to great lengths to protect its career attorneys and FBI agents from political interference, including this kind of premature exposure that foreseeably resulted in very visible embarrassment to agents and the FBI,” said Yeomans, who spent 26 years at the DOJ.

“Nothing is worse for morale and more likely to chill neutral and aggressive law enforcement than hanging agents and attorneys out to dry,” he added.

‘He is not the sort of man with whom you want to share your foxhole’

Rosenstein testifying to the House Judiciary Committee hearing on oversight of the Justice Department.

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Rosenstein testifying to the House Judiciary Committee hearing on oversight of the Justice Department.
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Thomson Reuters

Benjamin Wittes, the editor-in-chief of Lawfare and senior fellow in governance studies at the Brookings Institution, made a similar point last week.

“In throwing a career FBI agent and career FBI lawyer to the wolves by authorizing the release to the public of their private text messages – without any finding that they had done anything wrong – he once again sent a message to his workforce that he is not the sort of man with whom you want to share your foxhole,” Wittes wrote of Rosenstein.

“The DOJ and FBI workforces will not forget that,” he said. “Nor should they.”

The DOJ’s inspector general, Michael Horowitz, said in a letter to House Judiciary Committee Democrats last week that, absent any legal or ethical issues, he gave the DOJ a green light last month to release the texts to Congress.

Horowitz said his office was not consulted before the DOJ shared the same texts with the press. But the DOJ has insisted it followed proper protocol before doing so.

“Senior career ethics advisers determined that there were no legal or ethical concerns, including under the Privacy Act, that prohibited the release of the information to the public either by members of Congress or by the Department,” the DOJ spokeswoman Sarah Isgur Flores said last week.

Even so, Yeomans said, “cutting out the middle person and giving the texts directly to the press is an unusual step that is inconsistent with law enforcement norms and raises concerns that the purpose was political.”

“The bottom line,” he added, “is that a release of raw evidence during an ongoing investigation breaches important norms and is a very bad idea.”