Newly Released FBI Documents Show Troubling Double Standard on Political Speech

This morning, we received more than 30 pages of material from the FBI illustrating a remarkable disparity in its treatment of its employees: Five employees, the documents show, have been disciplined for private communications using government devices in which they have criticized President Trump. But none, at least not since 2011, has been disciplined for similar conduct with respect to presidential candidates Hillary Clinton or Mitt Romney, or President Barack Obama—or for praising Trump.

It’s not because politically loaded communications with respect to those political figures have not taken place among agents and other employees. At least with respect to enthusiasm for Trump and opposition to Clinton four years ago, the Justice Department inspector general has found communications that arguably imply similar bias by people working on campaign-related investigations:

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 [Office of the Inspector General] by saying that he “fully expected Hillary Clinton to walk away with the election. But as the returns [came] in ... it 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”

We also have trouble imagining that Barack Obama entirely escaped such disparagement on government devices during his two terms in office.

Yet the only cases in which people are known to have been disciplined for such conduct involved political criticism of President Trump—most notably the firing of former FBI counterintelligence official Peter Strzok, who exchanged text messages critical of candidate Trump with FBI lawyer Lisa Page during the 2016 election. Was this because the similar messages involving other recent presidential candidates were not made public by the Justice Department, as Strzok’s were? Or was it because the FBI has had something of a double standard in meting out discipline for such indiscretions?

The verdict is now in, at least for the past four major-party presidential candidates, one of whom served as president of the United States for eight full years. FBI employees who voiced political sentiments in favor of or opposed to Clinton, Obama and Romney did not face consequences—nor did those who praised Trump. Those who criticize the current president appear to be the only people subject to discipline.

As Lawfare readers may recall, we first requested the documents in question in August 2019—and then brought suit in December 2019 after the FBI failed to respond to our request. Aided by our pro bono counsel, Robert Litt and Sophie Cash of Morrison & Foerster, we requested a carefully structured set of documents: any records from the FBI’s Case Management System—an internal database used to track disciplinary cases—of cases in which an FBI employee was accused of or became the subject of disciplinary measures for positive or negative statements regarding Barack Obama, Mitt Romney, Hillary Clinton or Donald Trump, dating back to November 2011. Our logic was that this should cover any recent cases in which FBI employees were considered for or received disciplinary action as a result of improper political statements about people in circumstances similar to the one Trump was in during the time of Strzok and Page’s conversations: a presidential candidate for one of the two major parties. We also filed a backstop request seeking underlying records on any such disciplinary action held by relevant offices within the FBI, as well as any information on the overall number of comparable cases.

These Freedom of Information Act requests were prompted by an allegation Strzok made in his lawsuit against the Justice Department about viewpoint discrimination in FBI discipline with respect to Trump:

During the Trump Administration ... viewpoint discrimination has infected the FBI. ... While Special Agent Strzok and others who expressed negative opinions of President Trump have been subject to administrative punishments of various degrees of severity, no actions have been taken against agents who expressed harsh criticism of Secretary Clinton during the 2016 campaign, or those in the New York Field Office who leaked negative information about Secretary Clinton to the Trump campaign in the weeks before the election.

This allegation turns out to be true, though proving it required litigation on our parts. It also required persistence on the part of our lawyers to get this material prior to Election Day, which the FBI seemed curiously keen to get past before validating Strzok’s claim.

We received our first set of responsive documents this past summer. It consisted of five summary “precedent reports” from a database that appears to have been maintained by the FBI’s Office of Professional Responsibility (OPR). Four of the reports were almost entirely redacted on personal privacy grounds, but they all related to FBI Offense Code 5.22 (unprofessional conduct while on duty), were closed out in the summer of 2018 (three on July 18, one on August 22) and resulted in either 10- or 14-day suspensions. The fifth entry was largely unredacted and—while the case summaries are stripped of identifying information—clearly involved Strzok based on the conduct alleged, the back-and-forth regarding punishment, and the ultimate disciplinary action issued by the FBI brass in lieu of the OPR’s recommendation. (In Strzok’s case, the OPR recommended that he be demoted and suspended for 60 days, but FBI leadership overrode this and fired Strzok instead.)

This material was interesting and suggestive, but it was not dispositive. At a minimum, it was notable that no FBI employees had been punished for comparable conduct prior to 2018. And based on the dates alone, the material strongly implied that these cases related to Trump, who was the only political figure of the four about whom we inquired who was still in the news regularly during that period. This was especially true because a recent report by the FBI’s Office of the Inspector General had identified a similar number of FBI employees who had also made comments critical of Trump through work channels during the Clinton email investigation.

Absent the redacted information, however, we couldn’t be sure of who the people identified were or what they had said—and thus whether the manner in which they were punished reflected anything about their viewpoints. Consequently, we refrained from publishing this material until we secured additional documents that could clarify what these records meant.

The 30 pages we received consist of excerpts from five letters outlining the factual allegations behind disciplinary actions against five FBI employees. All personal identifiable information is once again redacted (as it should be), but the dates of the letters and the offense codes referenced line up with the original OPR summaries we received. The letters suggest that all five employees were involved to some degree in the investigation into Clinton’s emails. The disciplinary actions appear to have arisen from messages exchanged by the five individuals over email, text or the FBI’s internal messaging system.

It’s not clear from the letters precisely what these communications said, since much of the material is redacted—though the inspector general’s report details exchanges at some length that may well cover some of the same ground as is redacted in these letters. Among the messages we can see are several that are critical of the Trump campaign and of Trump the candidate. At times, the individuals in question also express frustration with their colleagues, their supervisors, the Justice Department and their roles in the investigation. After the 2016 election, several express dismay at what they perceived to be their own roles in Trump’s victory.

Most of the messages are the type of exchange you might expect to see between friends who share political views—though it is unnerving to see such comments from people who are working a relevant case. A few make remarks that could be perceived as more actively partisan, such as the infamous “Viva le Resistance” remark many attribute to Clinesmith—but in the context we can see, these seem to be expressions of sarcasm or gallows humor. Having these sorts of personal conversations on work communications platforms is undoubtedly ill-considered, and may indeed have violated the FBI’s policies in a manner that warrants a degree of disciplinary action. Yet we doubt it’s the sort of conduct that’s isolated to these five individuals in this small slice of the nearly 10-year period for which we requested records. The fact that these types of comments may have been inappropriate doesn’t alone explain why these five people are the ones—and apparently the only ones—who have been punished for such conduct.

What we do know is that all five of these cases involve FBI employees who worked on the Clinton email investigation and used government devices to make negative remarks about Trump. None involves people expressing enthusiasm about Trump. Nobody, it appears, has been subjected to discipline for, say, expressing eagerness to get assigned to an investigation of the Clinton Foundation or disparaging Clinton personally—even though the inspector general report shows that other FBI employees made such comments. And apparently, over the course of the Obama presidency, nobody ever used FBI devices to make disparaging remarks about either Obama or his 2012 Republican opponent—or else nobody at the FBI thought that such comments warranted this sort of disciplinary action.

Asked for comment on the production, Strzok’s lawyer, Aitan Goelman, emailed: “This confirms the double standard practiced in the Trump Administration. If you text something critical of the President, you are subject to discipline and punishment. But you can express support for President Trump or criticize his political opponents with impunity. This viewpoint discrimination is blatantly unconstitutional.”

Page’s attorney, Amy Jeffress, responded: “These records prove what we suspected: that the FBI applied one standard for critics of President Trump and another for everyone else. This unfair double standard pervaded the Justice Department too, leading [it] to violate Lisa's rights under the Privacy Act. We have sued them for this egregious violation and we expect to win.”

Federal District Judge Amy Berman Jackson recently rejected the government’s motion to dismiss and for summary judgment in both Strzok’s and Page’s lawsuits, meaning that both claims will be litigated on their merits. (Full disclosure: Both Lisa Page and Peter Strzok are personal friends of one of the authors.)

As for the FBI itself, we reached out to the press office for comment but have received no response so far. We will, of course, supplement this article with any statement the FBI provides.

In addition, it warrants mention, we also requested and sued for a copy of—and information relating to—a presentation we understand was given to members of the Senior Executive Service at the FBI that may have misrepresented certain aspects of Page’s and Strzok’s cases. Copies of several of the relevant PowerPoint slides were redacted on the grounds that they contained information about law enforcement techniques, but a slide on Strzok was left entirely intact, including with his name. A subsequent slide that seemed likely to relate to Page was redacted in its entirety on privacy grounds. We aren’t sure what explains this discrepancy in privacy standards, or the apparent gap between how Strzok’s information was handled here and in the initial OPR summary reports. We followed up seeking additional information, including a video recording of the presentation that we were told might exist. But we were ultimately told—somewhat implausibly, given that each appears to have received their own slide in the PowerPoint deck—that neither Page nor Strzok were discussed in the recording. Regardless, we’re still exploring our options in regard to those documents, and will keep Lawfare readers informed of any further developments.

People will come to their own conclusions about whether disciplinary action is appropriate for what amounts to politically loaded water-cooler conversation among people working a case about matters within the scope of their investigation. Reasonable minds will disagree on the subject. It’s actually a hard question what the rule should be. What isn’t a hard question is whether there should be one rule for comments about Donald Trump or for people who worked the Clinton email investigation and a completely different set of standards for everyone else.

That just seems like the FBI running scared of presidential tweets and congressional tantrums.