Strzok V Barr 12-30-19

Case 1:19-cv-02367-ABJ Document 36 Filed 12/30/19 Page 1 of 53
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
)
PETER P. STRZOK, )
)
Plaintiff, )
)
v. ) Case No. 1:19-CV-2367-ABJ
)
WILLIAM P. BARR, in his official capacity )
as Attorney General of the United States, et al., )
)
Defendants. )
)
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

AND FOR SUMMARY JUDGMENT (ECF No. 30)
TABLE OF CONTENTS
Page
STATEMENT OF FACTS AND LEGAL STANDARDS ............................................................ 4
ARGUMENT .................................................................................................................................. 6
I. THE COURT SHOULD DENY THE MOTION FOR SUMMARY JUDGMENT OR

DEFER RULING UNTIL AFTER DISCOVERY ............................................................. 6
II. THE MOTION TO DISMISS THE FIRST AMENDMENT CLAIM MUST BE

DENIED .............................................................................................................................. 8
A. The Complaint Plausibly Alleges Retaliatory Firing Based on Strzok’s

Viewpoint ................................................................................................................ 8
B. Concerns Over Disruption Did Not Actually Motivate Strzok’s Termination ..... 10
C. Pickering Balancing Favors Strzok’s Right to Free Speech ................................. 15
1. Strzok Engaged in the Most Protected Type of Speech ............................ 15
2. Private Speech on a Matter of Public Concern Is Presumptively

Protected ................................................................................................... 18
3. There Is Little on the Employer’s Side of the Pickering Ledger .............. 20
(a) There Is No Actual Evidence of Disruption ................................. 20
(b) Strzok’s Position in the FBI Does Not Leave Him Unprotected .. 23
III. MR. STRZOK HAS STATED A VIABLE FIFTH AMENDMENT CLAIM ................. 27
IV. MR. STRZOK HAS PLEADED AND WILL ULTIMATELY PREVAIL ON HIS
PRIVACY ACT CLAIM .................................................................................................. 33
A. Strzok Must Be Afforded Discovery on His Privacy Act Claim .......................... 34
B. Defendants’ Legal Arguments Are Either Wrong or Subject to Refutation by

Evidence to be Obtained in Discovery.................................................................. 36
1. The Privacy Act Applies to the Disclosure of DOJ Records to the

White House and through the White House to Others .............................. 37
2. Disclosing Employees’ Private Communications to the Press Is Not a

“Routine Use” of OIG’s Investigative Records ........................................ 38
i
3. Plaintiff Will Show that the DOJ Willfully and Intentionally Violated
the Privacy Act. ......................................................................................... 41
V. CONCLUSION ................................................................................................................. 43
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Alexander v. F.B.I.,
691 F. Supp. 2d 182 (D.D.C. 2010) .......................................................................................... 38
Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv.,

830 F.2d 294 (D.C. Cir. 1987) .................................................................................................. 23
Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .................................................................................................................... 6
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................... 4
Bland v. Roberts,
730 F.3d 368 (4th Cir. 2013) .................................................................................................... 17
Boddie v. Dep’t of Navy,

827 F.2d 1578 (Fed. Cir. 1987) ................................................................................................ 31
Britt v. Naval Investigative Serv.,

886 F.2d 544 (3d Cir. 1989) ............................................................................................... 38, 39
Bross v. Dep’t of Commerce,

389 F.3d 1212 (Fed. Cir. 2004) ................................................................................................ 31
Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532 (1985) .................................................................................................................. 31
Connick v. Myers,
461 U.S. 138 (1983) ........................................................................................................... passim
Convertino v. U.S. Dep’t of Justice,

684 F.3d 93 (D.C. Cir. 2012) ............................................................................................. passim
Czekalski v. Peters,
475 F.3d 360 (D.C. Cir. 2007) .............................................................................................. 5, 33
Czurlanis v. Albanese,
721 F.2d 98 (3d Cir. 1983) ....................................................................................................... 22
Davis v. Billington,
51 F. Supp. 3d 97 (D.D.C. 2014) ........................................................................................ 20, 26
iii
Dinh Tran v. Dep’t of Treasury,

351 F. Supp. 3d 130 (D.D.C. 2019) .......................................................................................... 39
Doe 2 v. Esper,
No. CV 17-1597 (CKK), 2019 WL 4394842 (D.D.C. Sept. 13, 2019) .................................... 43
Doe v. Stephens,
851 F.2d 1457 (D.C. Cir. 1988) ................................................................................................ 39
Dougherty v. Sch. Dist. of Phila.,

772 F.3d 979 (3d Cir. 2014) ........................................................................................... 8, 15, 22
Durham v. Jones,
737 F.3d 291 (4th Cir. 2013) .................................................................................................... 22
Elec. Frontier Found. v. U.S. Dep’t of Justice,

739 F.3d 1 (D.C. Cir. 2014) ...................................................................................................... 43
Evans v. Sebelius,
716 F.3d 617 (D.C. Cir. 2013) ........................................................................................ 5, 33, 42
First Chi. Int’l v. United Exchange Co.,

836 F.2d 1375 (D.C. Cir. 1988) .................................................................................................. 7
Foster v. Ripley,
645 F.2d 1142 (D.C. Cir. 1981) ................................................................................................ 16
Gerstein v. C.I.A.,
No. C 06-4643 MMC, 2011 WL 89337 (N.D. Cal. Jan. 11, 2011) .......................................... 40
Goldstein v. Chestnut Ridge Volunteer Fire Co.,

218 F.3d 337 (4th Cir. 2000) .................................................................................................... 22
Gonzalez v. Benavides,
774 F.2d 1295 (5th Cir. 1985) .................................................................................................. 22
Gordon v. Town of Hunter,

No. 91-CV-0305, 1996 WL 77391 (N.D.N.Y. Feb. 16, 1996) ................................................... 7
Gustafson v. Jones,
117 F.3d 1015 (7th Cir. 1997) .................................................................................................. 15
Hall v. Ford,
856 F.2d 255 (D.C. Cir. 1988) ...................................................................................... 21, 23, 24
Haverda v. Hays County,

723 F.3d 586 (5th Cir. 2013) .................................................................................................... 17
iv
Herron v. Fannie Mae,

861 F.3d 160 (D.C. Cir. 2017) .................................................................................................... 4
Iancu v. Brunetti,
139 S. Ct. 2294 (2019) .............................................................................................................. 14
Ideal Elec. Sec. Co. v. Int’l Fid. Ins.,

129 F.3d 143 (D.C. Cir. 1997) .................................................................................................. 42
Janus v. Am. Fed’n of State, Cty., & Mun. Employees, Council 31,
138 S. Ct. 2448 (2018) ................................................................................................................ 9
Kelley v. F.B.I.,
67 F. Supp. 3d 240 (D.D.C. 2014) ............................................................................................ 38
Khan v. Parsons Glob. Servs., Ltd.,

428 F.3d 1079 (D.C. Cir. 2005) .................................................................................................. 7
Kissinger v. Reporters Comm. for Freedom of the Press,

445 U.S. 136 (1980) .................................................................................................................. 38
Lamb v. Miller,
660 F.2d 792 (D.C. Cir. 1981) ...................................................................................... 33, 40, 42
Lerner v. District of Columbia,

362 F. Supp. 2d 149 (D.D.C. 2005) .......................................................................................... 30
Lesar v. U.S. Dep’t of Justice,

636 F.2d 472 (D.C. Cir. 1980) .................................................................................................. 40
Link v. Dep’t of Treasury,

51 F.3d 1577 (Fed. Cir. 1995) .................................................................................................. 28
Locurto v. Giuliani,
447 F.3d 159 (2d Cir. 2006) ..................................................................................................... 11
Lopez v. FAA,
318 F.3d 242 (D.C. Cir. 2003) .................................................................................................. 30
Matherne v. Wilson,
851 F.2d 752 (5th Cir. 1988) .................................................................................................... 22
Maydak v. United States,

630 F.3d 166 (D.C. Cir. 2010) ............................................................................................ 41, 42
McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) .................................................................................................................. 17
v
Meyer v. Grant,
486 U.S. 414 (1988) .............................................................................................................. 8, 15
N.Y. Times v. Sullivan,

376 U.S. 254 (1964) .................................................................................................................. 26
Nagle v. Marron,
663 F.3d 100 (2d Cir. 2011) ..................................................................................................... 10
Navab-Safavi v. Broad. Bd. of Governors,

650 F. Supp. 2d 40 (D.D.C. 2009) ............................................................................................ 18
Navab-Safavi v. Glassman,
637 F.3d 311 (D.C. Cir. 2011) .................................................................................................. 27
Ortiz-Diaz v. U.S. Dep’t of Housing & Urban Dev., Office of Inspector Gen.,
867 F.3d 70 (D.C. Cir. 2017) ...................................................................................................... 5
Parkinson v. Dep’t of Justice,

874 F.3d 710 (Fed. Cir. 2017); ................................................................................................. 30
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37 (1983) .................................................................................................................... 14
Perry v. Sindermann,
408 U.S. 593 (1972) .................................................................................................................. 28
Pickering v. Board of Education,

391 U.S. 563 (1968) ........................................................................................................... passim
Pilon v. U.S. Dep’t of Justice,

73 F.3d 1111 (D.C. Cir. 1996) .................................................................................................. 39
Rankin v. McPherson,
483 U.S. 378 (1987) .................................................................................................. 9, 10, 18, 19
Reed v. Dep’t of the Navy,

910 F. Supp. 2d 32 (D.D.C. 2012) ............................................................................................ 43
Richardson v. Bd. of Governors of Fed. Reserve Sys.,

248 F. Supp. 3d 91 (D.D.C. 2017) ............................................................................................ 40
Richardson v. Bd. of Governors of Fed. Reserve Sys.,

288 F. Supp. 3d 231 (D.D.C. 2018) .......................................................................................... 40
Rosenberger v. Rector & Visitors of the University of Virginia,

515 U.S. 819 (1995) .................................................................................................................. 14
vi
Safeco Ins. Co. of Am. v. Burr,

551 U.S. 47 (2007) .................................................................................................................... 42
Sagar v. Lew,
309 F.R.D. 18 (D.D.C. 2015)...................................................................................................... 7
Sheppard v. Beerman,
94 F.3d 823 (2d Cir. 1996) ......................................................................................... 2, 8, 10, 11
Steele v. Mattis,
899 F.3d 943 (D.C. Cir. 2018) .................................................................................................... 5
Stone v. F.B.I.,
727 F. Supp. 662 (D.D.C. 1990) ............................................................................................... 40
Stough v. Gallagher,
967 F.2d 1523 (11th Cir. 1992) .......................................................................................... 15, 17
Tao v. Freeh,
27 F.3d 635 (D.C. Cir. 1994) ...................................................................................................... 9
Thompson v. District of Columbia,

428 F.3d 283 (D.C. Cir. 2005) .................................................................................... 8, 9, 15, 21
Tijerina v. Walters,
821 F.2d 789 (D.C. Cir. 1987) .................................................................................................. 41
U.S. Postal Serv. v. Nat’l Ass’n of Letter Carriers, AFL-CIO,

9 F.3d 138 (D.C. Cir. 1993) ...................................................................................................... 34
United States v. Nat’l Treasury Emps. Union,

513 U.S. 454 (1995) .................................................................................................................. 17
Waters v. Churchill,
511 U.S. 661 (1994) .................................................................................................. 2, 10, 16, 21
Waters v. Thornburgh,
888 F.2d 870 (D.C. Cir. 1989) .................................................................................................. 42
Winder v. Erste,
566 F.3d 209 (D.C. Cir. 2009) .................................................................................................. 25
Statutes
5 U.S.C. § 552 ............................................................................................................................... 37
5 U.S.C. § 552a ..................................................................................................... 34, 35, 37, 39, 41
5 U.S.C. § 7511 ............................................................................................................................. 29
vii
5 U.S.C. § 7513 ............................................................................................................................. 29
Rules
72 Fed. Reg. 36,725 ................................................................................................................ 35, 39
Fed. R. Civ. P. 56(d) ....................................................................................................................... 6
viii
“These were dirty people. These were bad people. These were evil people, and I hope
that someday I’m going to consider it my greatest, or one of my greatest achievements, getting
rid of them.” SOGI1 ¶ 59u. These were the words that President Trump used just last week to
describe to reporters his pride in ensuring the termination of FBI employees, including Plaintiff
Peter Strzok, who played significant roles in the investigation of the Russian Government’s
efforts to undermine the 2016 Presidential elections in Trump’s favor. Those recent comments
echoed vitriolic statements President Trump made about Mr. Strzok before and after he was fired
in settings from press conferences to Twitter to campaign rallies. Mr. Strzok’s Complaint alleges
that his firing by the Deputy Director of the FBI after Mr. Strzok had already entered into a
binding agreement to accept demotion and suspension was indeed a politically-motivated
achievement of President Trump and his political allies tied to a politically-motivated effort to
use Mr. Strzok’s text messages to discredit investigations of the President and his campaign. Yet
Defendants’ Motion to Dismiss or for Summary Judgment (“Motion”) ducks the whole question
of whether, in violation of the First Amendment, Mr. Strzok was fired because of the content of
his speech.
In fact, Defendants’ Motion is as notable for what it doesn’t include as for what it does.
Although Defendants attach declarations from officials who played no role in Mr. Strzok’s
termination, they omit any Declaration from Deputy Director Bowdich, the man who actually
fired Mr. Strzok, or the as-yet-unidentified high-ranking Department of Justice official who
approved the release of the text messages to the media. Although the Complaint in this case
clearly alleges unconstitutional discrimination based on viewpoint for the disparate manner in
1
“SOGI” refers to Plaintiff’s Response to Defendants’ Statement of Undisputed Material
Facts and Plaintiff’s Statement of Genuine Issues.
1
which this Administration treats speech praising and speech criticizing the President, this goes
entirely unaddressed in Defendants’ Motion.
As an initial matter, the First Amendment claim here cannot be dismissed based on the
balancing framework supplied by Pickering v. Board of Education, 391 U.S. 563 (1968), as
Defendants argue, because firing an employee for the content of his or her non-public
communications is unconstitutional, irrespective of any balancing of interests. As the Second
Circuit has aptly stated, “even if the potential disruption to the office outweighs the value of the
speech, the employer may fire the employee only because of the potential disruption, and not
because of the speech. That is to say, it matters not that the potential disruption outweighs the
value of the speech if the employer subjectively makes the speech the basis of his termination
decision: such ‘retaliatory’ discharge is always unconstitutional.” Sheppard v. Beerman, 94 F.3d
823, 827 (2d Cir. 1996) (emphasis in original) (citing Waters v. Churchill, 511 U.S. 661, 681–82
(1994)).
The Complaint describes an orchestrated campaign by the President of the United States
to pressure the FBI into firing Strzok because of the content of his speech (i.e., his viewpoint).
That claim is unquestionably plausible; indeed, it is bolstered by a seemingly endless stream of
decidedly unpresidential tweets, President Trump’s accusations that Strzok committed “treason,”
and by contemporaneous news accounts of the President personally imploring the Attorney
General and the FBI Director to fire Strzok. Compl. ¶¶ 45–47. That campaign succeeded when
the Deputy Director of the FBI, David Bowdich, overturned the final decision of the duly
designated “deciding official,” Office of Professional Responsibility (“OPR”) Assistant Director
Candice Will (“AD Will”), who had been meting out punishment at the FBI for over a decade,
and who had determined that the FBI’s mission was best served by not firing Strzok. Compl.
2
¶¶ 32–36, 48. Before the President’s public demonization of Strzok, Bowdich had reassured
Strzok that the disclosure of the texts would not end his career with the FBI. Compl. ¶ 44; SOGI
Ex. N ¶ 4. Thus, even if the government could show that the Pickering balancing of interests
governs this case and tips in its favor (and it does not), there is still a material dispute over
whether Bowdich actually fired Strzok due to genuine concerns about disruption, or instead to
bow to the retaliatory animus of a vengeful President.
Further, Defendants’ alternative motion for summary judgment is premature. Mr. Strzok
is entitled to develop a full factual record through discovery before the court weighs the
competing interests or addresses the disputed motives for Defendants’ disregard of Strzok’s
rights. Once a motion seeking summary judgment is actually ripe for review, the Court must
view all disputed facts and inferences in Strzok’s favor, an obligation the government pays lip
service to, then ignores.
The Court should also deny the Motion with respect to the denial of due process and
Privacy Act claims. Defendants refused to afford Strzok the appeal procedures set forth in their
own policies, and refused to abide by the final decision of the duly designated appointed official
who was responsible for determining the level of discipline that best served the agency’s
interests. These facts state a plausible claim under the Fifth Amendment. Defendants’ motion
for summary judgment on Strzok’s Privacy Act claim raises more questions than it answers
about the government’s unprecedented disclosures of records about Strzok to the media.
Defendants’ rather bizarre Privacy Act arguments aim to protect the White House from liability
(although it is not a Defendant) and assert that the disclosures to the press were “routine” (they
weren’t) on the basis of two pre-discovery declarations from DOJ lawyers who did not make the
decision to release the texts to the media. Moreover, the extremely limited information that the
3
Department has previously released in response to FOIA requests suggests that the relevant
portions of these declarations are misleading, at best.
Defendants’ Motion is a remarkable document. Defendants contend that they should win
at the starting gate. They demand victory not only without a trial, but without even allowing
Strzok to obtain discovery, even on the count that they concede states a claim. If Defendants are
correct, there is no remedy, and indeed no administrative or judicial review, for a career federal
employee who is fired for privately expressing political opinions deemed to be disloyal to the
President even after the FBI official responsible for the Bureau’s disciplinary process decided
that termination was not the appropriate consequence. This would subject thousands of mid-
level managers in the federal government to punishment for expressing their opinions about
candidates for national office in private water cooler conversations. There is no precedent
supporting this terrifying argument.
STATEMENT OF FACTS AND LEGAL STANDARDS
The facts of this case pertinent to the instant motion to dismiss are fully set forth in the
Complaint and must be accepted as true. The only question raised by Defendants’ motion to
dismiss is whether those facts raise plausible claims under the First and Fifth Amendments. A
Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff’s claims, not the merits,
the facts, or the defenses. See Herron v. Fannie Mae, 861 F.3d 160, 173 (D.C. Cir. 2017). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). All of the claims pled in the Complaint here are plausible.
As noted, Defendants also move for summary judgment with respect to all three claims,
introducing into the record a few documents and two self-serving declarations. No discovery has
4
been taken in this case, and the law in this Circuit is clear that a party must be afforded the
opportunity to develop a complete factual record where necessary to respond to a summary
judgment motion, as it is here. See Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C.
Cir. 2012). Accordingly, the Court should deny the motion for summary judgment or defer
ruling until discovery has been completed and Plaintiff is able to oppose the motion with the
benefit of a fully developed record. Pursuant to Local Civil Rule 7(h), Plaintiff is also filing a
Statement of Disputed Material Facts, which demonstrates the scope of the factual disputes that
exist.
In ruling upon any motion for summary judgment, the Court must resolve all factual
disputes in Plaintiff’s favor and draw all inferences from those facts on his behalf. This is
particularly important where, as here, issues of motive and intent predominate. Ortiz-Diaz v.
U.S. Dep’t of Housing & Urban Dev., Office of Inspector Gen., 867 F.3d 70, 80 (D.C. Cir. 2017)
(reversing summary judgment on Title VII race claim and hoping its decision “will serve as a
shot across the bow that courts in this Circuit must adhere to the summary judgment standard and
not prematurely reject evidence that a jury could reasonably credit”); Evans v. Sebelius, 716 F.3d
617, 622–23 (D.C. Cir. 2013) (where evidence offered two “competing views” of motive, “this is
precisely the type of factual dispute that ‘must be resolved in a jury room rather than in the pages
of the Federal Reporter.’” (quoting Czekalski v. Peters, 475 F.3d 360, 362 (D.C. Cir. 2007)));
Steele v. Mattis, 899 F.3d 943, 952 (D.C. Cir. 2018) (overturning the erroneous grant of
summary judgment, and emphasizing that its “humble” task is to “ask only whether, taking all of
the evidence together, it would as a matter of law be irrational for jurors to disbelieve the
College’s assorted rationales and to credit Dr. Steele’s version of events”).
5
ARGUMENT
I. THE COURT SHOULD DENY THE MOTION FOR SUMMARY JUDGMENT

OR DEFER RULING UNTIL AFTER DISCOVERY
This case presents critical issues of intent, motive, and, according to Defendants, the
balancing of constitutional rights. To the extent that the government seeks to dispose of the case
through a Rule 12(b) motion to dismiss, those issues can be resolved on the well-pleaded facts in
the Complaint. As explained infra at Sections II–III, Plaintiff has raised plausible claims and
Defendants’ motion should be denied. But to the extent that Defendants also ask the Court to
find that no material dispute of fact exists that would ever warrant a trial, it is far too early for the
Court to address that argument.
Generally speaking, “summary judgment [must] be refused where the nonmoving party
has not had the opportunity to discover information that is essential to his opposition.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). Ordinarily, a defendant waits until after the
close of discovery to move for summary judgment, and even then, the rules permit the opposing
party to seek additional discrete information needed to address the arguments by filing a Rule
56(d) declaration. See, e.g., Convertino, 684 F.3d at 102. Here, of course, the Court has not yet
even set up a discovery schedule, no discovery has been taken, and Plaintiff has had no
opportunity to develop a factual record to counter the government’s premature bid for judgment
without a trial.
Federal Rule of Civil Procedure 56(d) provides that “[i]f a nonmovant shows by affidavit
or declaration that, for specified reasons, it cannot present facts essential to justify its opposition,
the court may: (1) defer considering the motion or deny it; [or] (2) allow time to . . . take
discovery . . . .” Convertino explains that a Rule 56(d) motion must be granted where the
nonmovant submits an affidavit that satisfies three criteria:
6
First, it must outline the particular facts he intends to discover and describe why
those facts are necessary to the litigation. Second, it must explain why he could
not produce the facts in opposition to the motion for summary judgment. Third, it
must show the information is in fact discoverable.
684 F.3d at 99–100 (brackets, quotation marks, and citations omitted). The Goelman
Declaration, submitted with this opposition, outlines the central areas of discovery that are
necessary to respond to the instant motion for summary judgment and easily meets the applicable
Rule 56(d) standard. The D.C. Circuit has explained that a “motion requesting time for
additional discovery [under Rule 56(d)] should be granted ‘almost as a matter of course unless
the non-moving party has not diligently pursued discovery of the evidence’” and that “summary
judgment is premature unless all parties have ‘had a full opportunity to conduct discovery.’” Id.
at 99; see also Khan v. Parsons Glob. Servs., Ltd., 428 F.3d 1079, 1087 (D.C. Cir. 2005)
(overturning a district court’s grant of summary judgment and noting “[t]he court has long
recognized that a party opposing summary judgment needs a ‘reasonable opportunity’ to
complete discovery before responding to a summary judgment motion and that ‘insufficient time
or opportunity to engage in discovery’ is cause to defer decision on the motion.”); First Chi. Int’l
v. United Exchange Co., 836 F.2d 1375, 1380–81 (D.C. Cir. 1988); Sagar v. Lew, 309 F.R.D. 18,
20 (D.D.C. 2015).
As set forth in the Goelman Declaration, there is a wealth of information that Strzok has
not yet had access to, but which will be discoverable. Until a full factual record is developed to
adequately address the rationale of the DOJ official who made the decision to disclose the texts
to the media, the actual motivation behind Strzok’s firing, and the appropriate balancing of
interests under Pickering that Defendants contend is necessary, the Court should defer ruling on
the motion for summary judgment. See, e.g., Gordon v. Town of Hunter, No. 91-CV-0305, 1996
WL 77391, at *8 (N.D.N.Y. Feb. 16, 1996) (denying summary judgment in Pickering case and
7
noting “[t]he amount of disruption that [plaintiff] may have caused and the impact his behavior
had on his working relationships are complex issues that must be determined after listening to
witnesses and after plaintiff has had an opportunity for cross-examination.”).
II. THE MOTION TO DISMISS THE FIRST AMENDMENT CLAIM MUST BE

DENIED
A. The Complaint Plausibly Alleges Retaliatory Firing Based on Strzok’s

Viewpoint
Plaintiff has alleged viewpoint discrimination based on Defendants’ retaliatory
termination of his employment. “To establish a First Amendment retaliation claim, a public
employee must show that (1) his speech is protected by the First Amendment and (2) the speech
was a substantial or motivating factor in the alleged retaliatory action.” Dougherty v. Sch. Dist.
of Phila., 772 F.3d 979, 986 (3d Cir. 2014). If both elements are proven, the burden “shifts . . .
to the employer to prove that . . . the same action would have been taken even if the speech had
not occurred.” Id. Retaliatory discharges are “always unconstitutional.” Sheppard, 94 F.3d at
827 (emphasis added).
Federal employees do not lose the ordinary protection against government punishment
for speech when they accept employment, and Mr. Strzok’s private text messages expressing
political views are protected by the First Amendment. See Meyer v. Grant, 486 U.S. 414, 422–
425 (1988); Thompson v. District of Columbia, 428 F.3d 283, 285 (D.C. Cir. 2005). The
complaint alleges, and it is far more than plausible given President Trump’s public statements,
that Strzok was fired, rather than suspended and demoted by agreement, because of the views he
expressed. There is little doubt that if Strzok’s text messages had expressed animus toward
Secretary Clinton and reverence for Candidate Trump, he would still be employed by the FBI.
Defendants have offered no response to the allegation of viewpoint discrimination because they
have none.
8
Instead, Defendants’ motion is centered on Pickering balancing, but even had Defendants
not committed the standalone First Amendment violation by practicing viewpoint discrimination,
the Pickering balancing test is intended to apply where an employee speaks out publicly, which
did not occur here. Pickering and its progeny do not apply (or must invariably favor the
employee and therefore need not be applied) where a public employee is terminated based on a
private conversation about matters of public concern.2 As Justice Powell explained in an opinion
concurring in a decision to allow a First Amendment challenge to the firing of an employee for
political speech (in a case where the parties had assumed the applicability of Pickering):
There is no dispute that McPherson’s comment was made during a private

conversation with a co-worker who happened also to be her boyfriend. She had
no intention or expectation that it would be overheard or acted on by others.
Given this, I think it is unnecessary to engage in the extensive analysis normally
required by Connick v. Myers and Pickering v. Board of Education. If a statement
is on a matter of public concern, as it was here, it will be an unusual case where
the employer’s legitimate interests will be so great as to justify punishing an
employee for this type of private speech that routinely takes place at all levels in
the workplace.
Rankin v. McPherson, 483 U.S. 378, 393 (1987) (Powell, J., concurring) (emphasis added)
(citations omitted). Notably, Defendants cite no cases applying Pickering’s balancing test to the
type of private conversation at issue here.
2
This Circuit has applied a four-factor Pickering analysis in determining when public
employees’ speech is protected for the purpose of retaliation claims, but only where the speech
was public or directed to workplace superiors or the government. See Thompson v. District of
Columbia, 428 F.3d 283, 285 (D.C. Cir. 2005); Tao v. Freeh, 27 F.3d 635, 638, 640 (D.C. Cir.
1994); cf. Janus v. Am. Fed’n of State, Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448,
2472 (2018) (“[T]he Pickering framework was developed for use in a very different context—in
cases that involve ‘one employee’s speech and its impact on that employee’s public
responsibilities.’”). Here, Strzok’s speech was intended to remain private and, on its own, had
no impact on his professional responsibilities.
9
B. Concerns Over Disruption Did Not Actually Motivate Strzok’s Termination
The Pickering balancing of interests allows a government employer to avoid liability if it
fired an employee due to genuine concerns about the disruptive influence of his speech on a
matter of public concern, but only if the employer’s interests in the efficiency of its operations
outweighed the plaintiff’s interest in free speech. Pickering, 391 U.S. at 568. That is a fact-
based and context driven exercise; but the exercise presumes that the employer actually was
motivated by concerns about disruption. If it were not—if the professed concerns were merely a
pretext to cover retaliatory animus over the content of the employee’s speech about a matter of
public importance—then Pickering balancing provides no shield. See Nagle v. Marron, 663 F.3d
100, 115 (2d Cir. 2011) (“no reasonable official could think that such speech-retaliatory conduct
was constitutionally permissible”). As the Supreme Court cautioned in Rankin v. McPherson,
483 U.S. 378, 384 (1987), “[v]igilance is necessary to ensure that public employers do not use
authority over employees to silence discourse, not because it hampers public functions but
simply because superiors disagree with the content of employees’ speech.” See also Waters, 511
U.S. at 681 (reversing a grant of summary judgment where a jury could have found that the
government employer “actually fired Churchill not because of the disruptive things she said . . . ,
but because of nondisruptive statements about cross-training that they thought she may have
made in the same conversation”).
In the wake of Rankin and Waters v. Churchill, 511 U.S. 661 (1994), courts have held
that regardless of Pickering balancing, an employer who asserts disruption as a pretext to punish
a worker because of the content of the speech violates the First Amendment. In Sheppard v.
Beerman, 94 F.3d 823 (2d Cir. 1996), for example, a court clerk spoke out about concerns
regarding corruption by his employer, a New York State Supreme Court judge, and claimed to
have notes that he would release to the public. The judge contended that the employee had been
10
insubordinate and disruptive during the confrontation in which the speech occurred, and that it
could lawfully fire him for the disruptive speech (an interest outweighing any free speech
concerns). The district court agreed and granted summary judgment. The Court of Appeals
reversed, noting:
According to Sheppard’s complaint, Beerman expressed deep concern over

Sheppard’s claim to have kept notes detailing Beerman’s instances of public
corruption, and the possibility that those notes would be made public. And, after
firing Sheppard, Beerman seized Sheppard’s personal files, and inspected them
before returning them to Sheppard. If substantiated through discovery, these facts
may tend to show that Beerman’s actual motive for firing Sheppard was the
content of his speech, and not Beerman’s fear that Sheppard would disrupt the
office working environment.
Sheppard, 94 F.3d at 828. Based on this, the Court held that “even if the potential disruption to
the office outweighs the value of the speech, the employer may fire the employee only because
of the potential disruption, and not because of the speech. That is to say, it matters not that the
potential disruption outweighs the value of the speech if the employer subjectively makes the
speech the basis of his termination decision: such ‘retaliatory’ discharge is always
unconstitutional.” Id. at 827 (emphasis modified). The Second Circuit applied the same test in
Locurto v. Giuliani, 447 F.3d 159, 172–73 (2d Cir. 2006), also cited by Defendants: A
government employer may fire an employee for speaking on a matter of public concern if: “(1)
the employer’s prediction of disruption is reasonable; (2) the potential disruptiveness is enough
to outweigh the value of the speech; and (3) the employer took action against the employee based
on this disruption and not in retaliation for the speech.” (emphasis added).
Here, Strzok has plausibly pled that the concern about disruption professed by Deputy
Director Bowdich was not the actual motivation for his discharge, and that it was a pretext for
reprisal. More precisely, the President was irate over what he considered to be disloyal and
11
unflattering remarks about his fitness for office, and demanded Strzok’s head, and Bowdich
decided that he had to fire Strzok to placate the President. Compl. ¶ 44.
Strzok is only required to show that his claim is plausible at this stage, but the limited
available evidence suggests that his claim will succeed. He had a distinguished career that
spanned more than twenty years during which, Defendants note, he “performed with distinction
and gained the respect of his superiors.” Compl. ¶¶ 14–16; Motion at 1.3 Two lengthy and
exhaustive investigations by the DOJ Office of the Inspector General (“OIG”) concluded that
Strzok’s political opinions had no impact on his work. Compl. ¶ 32; SOGI ¶¶ 53, 59c, 59p. The
authority to discipline Strzok was held by Candice Will, the Assistant Director of the FBI’s
Office of Professional Responsibility. The FBI’s published disciplinary policies call for a
standard penalty of a 5-day suspension for a first infraction of its policy. Compl. ¶ 28. Will
carefully considered the entire record, determined that a 60-day suspension and demotion of
Strzok out of the SES was the appropriate disciplinary action, presented a “Last Chance
Agreement” (“LCA”) memorializing those terms to Strzok (which he accepted), and issued a
final decision to that effect on August 8, 2018. Compl. ¶¶ 30, 33–36.
Deputy Director David Bowdich initially assured Strzok that the text messages would not
end his career with the FBI. Compl. ¶ 44. Bowdich reversed course and fired Strzok on August
9, 2018. Compl. ¶ 37. This was after a sustained and public campaign by the President
demanding that the FBI fire Strzok, as well as at least one reported non-public demand that FBI
Director Wray and Attorney General Sessions explain why Mr. Strzok and Ms. Page “were still
in their jobs despite allegations made by allies of the President that they had been disloyal to him
3
“Motion” refers to the Memorandum in Support of Defendants’ Motion to Dismiss or, in
the Alternative, for Summary Judgment, as to Count One and Two, and Motion for Summary
Judgment as to Count Three. ECF No. 30-1.
12
and had unfairly targeted him and his administration.” Compl. ¶¶ 45–47. As recently as last
week, President Trump bragged about his “achievement” of purging the FBI of the employees
who led the investigation into his campaign’s contacts with Russia. SOGI ¶ 59u. Nevertheless,
Defendants’ Motion implicitly asks the Court to conclude, without discovery, that the public
pressure was not accompanied by any undisclosed interference in the FBI’s process by the
President or his allies and that Bowdich’s about-face was entirely unrelated to these demands,
both known and (currently) unknown.
This argument is particularly difficult to credit when the government has used AD Will’s
experience and credibility to support its Motion to Dismiss and for Summary Judgment in
another case pending in this District. In McCabe v. Barr, the government has argued, among
other things, that AD Will’s involvement in the decision to fire McCabe is evidence of the
apolitical nature of that decision. See Motion to Dismiss and For Summary Judgment at 21, 28,
No. 1:19-CV-2399-RDM (D.D.C. Nov. 1, 2019). Here, of course, AD Will decided that Mr.
Strzok should not be terminated.
Moreover, the Trump administration’s treatment of Strzok cannot be considered in a
vacuum; the administration has taken a decidedly uneven approach to expressions of political
views by government employees, seeking to punish perceived adversaries like Strzok while
actively protecting its allies even when their political speech in support of the President or
against his political rivals constitutes a clear violation of federal law. Compl. ¶ 23.
Even since the filing of the Complaint additional evidence of this double standard has
surfaced, in the form of the revelation in the OIG’s Crossfire Hurricane Report that certain FBI
agents working on the Russia investigation had celebrated President Trump’s election victory
with texts volunteering to work on an investigation of the Clinton Foundations and (apparently
13
without irony) proclaiming that Secretary Clinton’s defeat ensured that there would not be a
“criminal . . . in the White House.” SOGI ¶ 59q. There is no evidence of an attempt to punish
these agents, and Plaintiff does not contend that they should be punished. But this vignette is yet
additional evidence of this Administration’s pattern of treating critics of President Trump more
harshly than his supporters.
Based on these facts, the inference that Bowdich acted in accordance with President
Trump’s desire for political retribution as a result of Strzok’s political views is not merely
plausible, it is highly probable. If proved out, it is also dispositive. As Justice Kennedy
explained in Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 828–
29 (1995), “[d]iscrimination against speech because of its message is presumed to be
unconstitutional. . . . When the government targets not subject matter, but particular views taken
by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint
discrimination is thus an egregious form of content discrimination.” See also Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 61–62 (1983) (Brennan, J., dissenting)
(“Viewpoint discrimination is censorship in its purest form and government regulation that
discriminates among viewpoints threatens the continued vitality of ‘free speech.’”); Iancu v.
Brunetti, 139 S. Ct. 2294, 2302 (2019) (holding Lanham Act’s bar on the registration of
“immoral” or “scandalous” trademarks discriminates on the basis of viewpoint). Had Strzok
espoused the view that Secretary Clinton was a criminal and deserved to be “locked up” rather
than criticizing Candidate Trump, he never would have been fired. That is textbook viewpoint
discrimination, and Defendants’ failure to even address these allegations in their Motion should
be treated as an admission.
14
C. Pickering Balancing Favors Strzok’s Right to Free Speech
Even if the FBI was not kowtowing to the retaliatory animus of the President, and instead
fired Strzok over a genuine determination that his speech was unduly disruptive, Strzok has still
stated a viable claim under the First Amendment. As noted, with rare exceptions, Pickering
balancing is fact-intensive and premature in advance of discovery and unnecessary to apply in
the circumstances here. See Thompson, 428 F.3d at 286 (“The district court could not conduct
this ‘searching review’ based on this record, nor can we.”); Gustafson v. Jones, 117 F.3d 1015,
1019 (7th Cir. 1997) (Pickering balancing requires discovery). If the Court is inclined to engage
in a Pickering balancing analysis, it should find that Strzok’s strong interests in speaking
privately about the political events of the day outweighed any actual or potential disruption to the
operation of the FBI.
1. Strzok Engaged in the Most Protected Type of Speech
The expression of political views and commentary on the merits or demerits of
candidates for high public office is among the most valued speech and is afforded the highest
degree of protection under the law. Meyer v. Grant, 486 U.S. 414, 422–425 (1988) (recognizing
constitutional protection of “core political speech” as being “at its zenith”). This type of speech
“is more than self-expression; it is the essence of self-government” and occupies the “highest
rung of the hierarchy of First Amendment values” entitling it to special protection. Stough v.
Gallagher, 967 F.2d 1523, 1529 (11th Cir. 1992). This is crucial, because “[t]he more tightly the
First Amendment embraces the employee’s speech, the more vigorous a showing of disruption
must be made by the employer.” Dougherty, 772 F.3d at 991.
The government concedes that Strzok’s speech was on a “matter of public concern.”
While this conclusion is obvious, it is not sufficient to properly assess the relative weight his
speech enjoys in Pickering balancing. An employee’s interests in speech “is entitled to more
15
weight when the employee is commenting on a matter of general interest or acting as a
whistleblower exposing corruption among public officials rather than merely trying to advance
his own interests as an employee, interests that would be no different if his employer were not
the government.” Foster v. Ripley, 645 F.2d 1142, 1148 (D.C. Cir. 1981).
In Connick v. Myers, 461 U.S. 138, 154 (1983), for example, the speech at issue arose out
of the employee’s grievances about internal office policies and “touched upon matters of public
concern in only a most limited sense.” Waters involved similar issues specific to the training of
employees and operation of a public hospital. 511 U.S. at 681. Because the speech at issue in
both cases fell on the low end of the protection spectrum, the Court held the employers to
relatively low burdens to justify regulating (i.e., punishing) the speech, and did not require proof
of actual disruption: “The limited First Amendment interest involved here does not require that
Connick tolerate action which he reasonably believed would disrupt the office, undermine his
authority, and destroy close working relationships.” Connick, 461 U.S. at 154. Because Myers’
speech primarily involved her own workplace grievances, the Supreme Court did “not see the
necessity for an employer to allow events to unfold to the extent that the disruption of the office
and the destruction of working relationships is manifest before taking action.” Id. at 151–152.
In the next breath, however, the Court emphasized, “We caution that a stronger showing may be
necessary if the employee’s speech more substantially involved matters of public concern.” Id.
The Court reiterated the importance of this relative balancing of interests in Waters: “[A]
government employee, like any citizen, may have a strong, legitimate interest in speaking out on
public matters. In many such situations, the government may have to make a substantial
showing that the speech is, in fact, likely to be disruptive before it may be punished.” Waters,
511 U.S. at 674.
16
Here, Strzok was not complaining about some workplace slight, or seeking to advance his
own interests on the job. Instead, his opinions about the fitness of a candidate for President is the
type of core political expression that enjoys the highest degree of protection under the First
Amendment. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995) (“Discussion of
public issues and debate on the qualifications of candidates are integral to the operation of the
system of government established by our Constitution. The First Amendment affords the
broadest protection to such political expression in order to assure the unfettered interchange of
ideas for the bringing about of political and social changes desired by the people.”).
Because the value of this type of speech is so high, federal courts have consistently held
that speech by employees regarding elections and candidates for office are entitled to the greatest
protection under Pickering. See, e.g., Haverda v. Hays County, 723 F.3d 586, 598 (5th Cir.
2013) (“Letters to the editor, supporting a candidate during a campaign, are a unique form of
speech that embody the very essence of the First Amendment and require its full protection.”);
Bland v. Roberts, 730 F.3d 368, 387–88 (4th Cir. 2013) (“[T]he public’s interest in Carter’s
opinions regarding the election may have had particular value to the public in light of his status
as a Sheriff’s Office employee.”); Stough, 967 F.2d at 1529 (“On Stough’s side of the Pickering
scale is his interest in commenting on the qualifications of political candidates. This type of
speech ‘is more than self-expression; it is the essence of self-government’ and occupies the
‘highest rung of the hierarchy of First Amendment values’ entitling it to special protection.”).
“As the magnitude of intrusion on employees’ interests rises, so does the Government's burden
of justification.” United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 483 (1995). And
because the nature of core political speech is so highly valued under Pickering, a government
employer’s attempt to punish such speech faces the highest level of scrutiny and requires a
17
strong justification. See Navab-Safavi v. Broad. Bd. of Governors, 650 F. Supp. 2d 40, 57
(D.D.C. 2009) (explaining where plaintiff had protested the U.S. involvement in the Iraq War,
that the “Defendants must make a particularly ‘strong[ ] showing’ that they had a legitimate
interest in terminating plaintiff’s contract because her speech ‘substantially involved matters of
public concern’”).
2. Private Speech on a Matter of Public Concern Is Presumptively Protected
This case is nothing like those on which Defendants rely in their motion. Mr. Strzok did
not intend to speak publicly about his views on the candidates for the election. He did not write
a letter to the editor of a newspaper seeking publication, hold a press conference, send an email
to all of his contacts, or even post on social media. He shared his political views with someone
he trusted, and they remained the personal correspondence of two government employees until
high ranking officials in the DOJ or White House leaked the communications to the press.
In this respect, this case is most similar to Rankin. In Rankin, a deputy clerk in a
Sheriff’s office made a private statement to her boyfriend, after hearing a news report on the
radio about the attempted assassination of President Reagan, that “if they go for him again, I
hope they get him.” Another employee overheard McPherson’s remark and reported it to the
employer, who fired McPherson. In assessing whether the speech was protected and whether the
firing violated the First Amendment, Justice Powell, in his concurring opinion, observed:
There is no dispute that McPherson’s comment was made during a private

conversation with a co-worker who happened also to be her boyfriend. She had no
intention or expectation that it would be overheard or acted on by others. Given
this, I think it is unnecessary to engage in the extensive analysis normally required
by Connick v. Myers and Pickering v. Board of Education. If a statement is on a
matter of public concern, as it was here, it will be an unusual case where the
employer’s legitimate interests will be so great as to justify punishing an
employee for this type of private speech that routinely takes place at all levels in
the workplace.
18
Rankin, 483 U.S. at 393 (citations omitted). The remaining members of the majority expressly
endorsed this view: “We agree with Justice Powell that a purely private statement on a matter of
public concern will rarely, if ever, justify discharge of a public employee.” Id. at 388 n.13
(Marshall, J., opinion of the Court).
Defendants may reply that Mr. Strzok knew that any texts sent or received on an FBI-
issued phone were not truly “private,” because communications on these phones could be
monitored. There are two problems with that response. First, nearly every aspect of a modern
workplace, and for that matter nearly every non-workplace aspect of employees’ lives, can be
monitored. The fact that a workplace conversation can be discovered does not render it
unprotected. Rankin illustrates this principle, as the deputy clerk’s comments took place at work
and were overheard and reported to management, but the Supreme Court still found the firing
unlawful. If this Court were to hold otherwise, it would chill a tremendous amount of core
political speech (water-cooler conversations, emails, text messages, and idle conversations at any
time). There is no legitimate government interest in regulating this type of privately expressed
political speech. At a minimum, Rankin stands for the proposition that communications at the
workplace which are intended to be private, and which touch upon a matter of public concern are
presumptively protected, and require a heavy burden—i.e., “an unusual case”—before the
government can “justify punishing an employee for this type of private speech that routinely
takes place at all levels in the workplace.” Id. at 393.
Second, that burden should be even heavier for the government to carry here, because it
was the DOJ itself that first leaked and later officially publicized Strzok’s speech by giving a
selected subset of his texts to the media. As paragraph 62 of the Complaint alleges, “On
December 12, 2017, DOJ willfully and intentionally disclosed to numerous news outlets
19
approximately 375 text messages to, from, and about Special Agent Strzok. In a press release,
DOJ called this act a ‘public release’ of the messages.” Defendants should not be heard to
complain about the notoriety and putative damage to the FBI’s reputation from Strzok’s speech
when it was their own illegal disclosures, magnified and distorted by the false attacks made by
the President and his allies, that placed a spotlight on Strzok’s opinions.
3. There Is Little on the Employer’s Side of the Pickering Ledger
The two factors discussed above—the paramount protection afforded Strzok’s speech
under the First Amendment and that he expressed his views privately—weigh heavily on
Strzok’s side of the Pickering balancing. As explained below, Defendants do little to counter
that. They offer no actual evidence of any disruption to the mission of the FBI caused by
Strzok’s speech, and indeed the IG found that Strzok’s decisions and actions in the relevant
investigations were not impacted by his political views. Instead, the government argues that it
can act entirely on speculation about disruption. But the cases the government relies upon
involved speech that barely nudged across the threshold of “public interest” because they
concerned employees’ grievances about their workplaces, falling on the low-end of the spectrum
of protected speech. See Davis v. Billington, 51 F. Supp. 3d 97, 114 (D.D.C. 2014) (such cases
“involve markedly different factual contexts than this case”). The Supreme Court has
emphasized that “a stronger showing [of disruption] may be necessary if the employee’s speech
more substantially involve[s] matters of public concern,” as is clearly at issue here. Connick,
461 U.S. at 152. No such showing of disruption has been made.
(a) There Is No Actual Evidence of Disruption
The government does not even try to show that it suffered any actual disruption or harm
from Strzok’s highly protected speech. It offers no contemporaneous records of complaints from
co-workers, no representation from his supervisors that Strzok’s speech created any substantial
20
disharmony or conflict at the workplace, and no indication that his speech in any way actually
influenced or interfered with Strzok’s performance of his duties. Cf. Thompson, 428 F.3d at 286
(“district court erred in” concluding that government’s interest in efficiency outweighed First
Amendment rights where it could not “conduct an individualized and searching review of the
factors asserted by the employer to justify the discharge” without a fully developed record).
Nor did Deputy Director Bowdich rely upon any evidence of actual disruption at the time
he fired Strzok. And, of course, all of the contemporaneous evidence pointed in the opposite
direction. The IG determined that Strzok’s political views did not influence any of his actions in
the investigations and noted that Strzok’s co-workers, whom the IG interviewed, confirmed that
they didn’t even know Strzok’s political views. Compl. ¶ 32; SOGI ¶ 53. In any event, even
after Strzok’s political speech was disclosed, his supervisors went on record supporting his
retention by the Bureau, attesting that he was “an extremely talented and intelligent investigator,
gifted agent, and hard-working employee, [whose] Division believes [he] will never again
engage in misconduct.” Compl. ¶ 34.
Rather than actual disruption, the government relies entirely on “reasonable inferences”
of harm (Motion at 17), and insists that such amorphous justifications have been blessed by the
Supreme Court’s decisions in Connick and Waters, and the D.C. Circuit’s decision in Hall v.
Ford, 856 F.2d 255 (D.C. Cir. 1988). But those cases dealt with speech on the low end of the
spectrum, and the Court’s admonition that a comparatively higher burden may be applied when
the speech involves core political speech like Strzok’s here. See supra Section II.C.1. The
government faces a far more demanding burden here:
Occasionally, the state’s burden to justify its actions may be as light as merely
proving that the employer “reasonably believed the employee’s speech was
likely to disrupt its operations.” However, where, as here, “the employee’s
21
speech more substantially involves matters of public concern,” the burden

increases to require objective evidence of disruption.
Matherne v. Wilson, 851 F.2d 752, 761 n.53 (5th Cir. 1988) (quoting Gonzalez v. Benavides, 774
F.2d 1295, 1302 (5th Cir. 1985)); see also Durham v. Jones, 737 F.3d 291, 302 (4th Cir. 2013)
(“[I]t is not enough that there is some disruption; the amount of disruption has to outweigh the
importance of the speech and its concern to the public.”); Goldstein v. Chestnut Ridge Volunteer
Fire Co., 218 F.3d 337, 356 (4th Cir. 2000) (holding that “generalized and unsubstantiated
interests” “in maintaining morale and efficiency” within the fire department did not outweigh
plaintiff’s speech interest); Dougherty, 772 F.3d at 991 (“The more tightly the First Amendment
embraces the employee’s speech, the more vigorous a showing of disruption must be made by
the employer.”). In Dougherty, the Third Circuit found that any minimal disruption to the
employer’s office was the result of the employer’s retaliatory attempts to silence the speech,
rather than the employee’s protected speech itself: “It is against this Court’s precedent to find
against an employee where the disruption ‘was primarily the result, not of the plaintiff’s exercise
of speech, but of his superiors’ attempts to suppress it.’” 772 F.3d at 992 (quoting Czurlanis v.
Albanese, 721 F.2d 98, 107 (3d Cir. 1983)). Here too, any disruption or harm to the agency’s
reputation flowed directly from defendants’ unlawful release of the texts to the media to try to
discredit the Special Counsel’s investigation, not Strzok’s speech itself.
Moreover, in those cases in which courts have permitted an employer to rely upon
reasonable predictions of harm, it is because the firing took place soon after the protected speech,
and courts acknowledged that “we do not see the necessity for an employer to allow events to
unfold to the extent that the disruption of the office and the destruction of working relationships
is manifest before taking action.” Connick, 461 U.S. at 152. Here, in contrast, the text messages
were publicly revealed to the media in December 2017, and the FBI did not fire Strzok until
22
August of the following year. Aside from a torrent of presidential tweets vilifying Strzok for his
“disloyalty,” no actual disruption ensued in the roughly nine months between disclosure of his
texts and Strzok’s firing. The government’s inability to point to any actual harm to the mission
of the agency under these circumstances is fatal to its Pickering argument.
In American Postal Workers Union, AFL-CIO v. U.S. Postal Service, 830 F.2d 294, 303
(D.C. Cir. 1987), the D.C. Circuit faced a similar effort by the government to justify firing an
employee over his speech. There too, the government was unable to offer any evidence of actual
disruption and instead argued that the plaintiff’s conduct had jeopardized the “public’s
confidence in the confidentiality of the mailstream.” While that concern was “[o]bviously . . .
legitimate,” not least because the terminated postal worker had written an editorial stating that he
read a congressman’s mail, the Circuit concluded that in the “absence of any demonstrated harm
caused by [the employee’s] speech, [he] must prevail in the balancing of competing interests.”
Id. As in American Postal Workers Union, Defendants have not shown that any harm resulted
from Mr. Strzok’s speech rather than from its own leaks about his political views.
(b) Strzok’s Position in the FBI Does Not Leave Him Unprotected
Unable to show any disruption, the government tries to bolster its Pickering presentation
by contending that Strzok occupied the type of policy making position which affords less
protection from discipline based on public speech. Here, the government relies almost entirely
on the D.C. Circuit’s opinion in Hall v. Ford, 856 F.2d 255 (D.C. Cir. 1988). See Motion at 21–
25. Hall is nothing like this case.
Hall occupied one of the highest-level positions at the University of the District of
Columbia. As Athletic Director, he reported directly to the President of the University and
Board of Trustees. He was a “highly visible spokesman” and “likely to be thought of by the
public as responsible for running the [athletic] department.” Id. at 265. Strzok simply did not
23
occupy a comparable role. Although the Court need not address the incomplete evidentiary
record, Plaintiff notes that Defendants’ Exhibit 7 undermines their argument. The government
has denoted employees who occupy a policy-making role by exempting those employees from its
standard disciplinary process. Specifically excluded are the “deputy director (DD), the associate
deputy director (ADD), any executive assistant directors (EADs), the general counsel (GC), or
any Senior Executive Service (SES) employee who reports directly to the FBI Director.” See
Defs.’ Ex. 7 at 1 (emphasis added). Policy-making employees are subject to disciplinary
decisions from the Deputy AG, and Strzok is not in that category. See Hall, 856 F.2d at 255.
Roughly eight thousand other SES-level managers are similarly situated to Strzok in the
federal workforce in that they supervise employees, but the vast majority of those employees are
not policy-makers. See Facts About the Senior Executive Service (SES), FEDWEEK (Oct. 29,
2018), https://ask.fedweek.com/facts-senior-executive-service-ses/. The government’s argument
would leave thousands of career federal government employees without protections from
discipline over the content of their political speech. That is not what Pickering intended.
Another crucial distinction is that Hall publicly espoused views that were contrary to
those of his employer: “Hall’s views as to how the department should have been run were
obviously at odds with those of the Board.” Hall, 856 F.2d at 265. This fact was decisive for the
Court, which noted that Hall’s statements “reflected a policy disagreement with his superiors
such that they could not expect him to carry out their policy choices vigorously.” Id. An
employer obviously must have confidence that its senior leaders are aligned with the
organization’s policies and goals, and public speech undermining the employer can be regulated.
But there is nothing of the kind here. As noted above, Strzok was merely expressing his personal
political opinions in what he intended to be private messages. His views about presidential
24
candidates are not the same as criticizing the policies of his agency. The government does not
cite to a single comparable situation in which punishment for speech in those circumstances has
been sustained.
The government offers two other points to tip the balance in its favor: (1) that some of the
texts “related” to the investigations Strzok was involved in, and (2) that the “time, place and
manner” of his speech rendered it unprotected. As to the former, “[s]peech can be covered by
the First Amendment even if it is related to one’s job function” so long as it is not part of the
employee’s official duties. Winder v. Erste, 566 F.3d 209, 216 (D.C. Cir. 2009). And, of course,
context is crucial. When an employee speaks publicly in opposition to his employer’s interests
on a topic related to his work, it can be disruptive. That is not what happened here. Strzok was
intending to speak privately, and it was Defendants themselves who made his speech public.
Finally, Defendants’ “time, place and manner” argument trumpets the fact that Strzok
used his government-issued cell phone to engage in the speech. Defendants note that Strzok and
Page exchanged more than 40,000 texts, and argue that “[t]he fact that the relevant speech very
likely occurred, at least in part, during work hours strongly favors the Government’s interest in
regulating it,” before piously concluding that “[t]he FBI properly pays its employees to spend
their work days furthering FBI’s statutory mission—not undermining it at government expense.”
Motion at 26. This argument ignores the fact that the overwhelming majority of the 40,000 texts
were either work-related (and apolitical) or private texts sent during the evening or on weekends,
and FBI policy explicitly allows some personal use of cellphones issued by the Bureau. See
SOGI Ex. O at 15–16. Moreover, the insinuation that the American taxpayers didn’t get their
money’s worth from Mr. Strzok’s service with the FBI is belied by OPR’s acknowledgement of
Mr. Strzok’s extraordinary performance record and work ethic. Compl. ¶ 34.
25
The fact that the texts were sent on an FBI-issued phone was baked into AD Will’s
determination of the appropriate penalty. But it was just one factor, which AD Will determined
did not justify terminating Strzok. Rather, she engaged in the balancing of all of these factors,
and determined that the mission of the agency was best supported by imposing lesser discipline,
and keeping a very talented agent on the rolls. Here too, this one factor does not outweigh
Strzok’s important interest in expressing his core political beliefs, and is insufficient to justify
the decision to fire him. Cf. Davis, 51 F. Supp. 3d at 122 (denying motion for summary
judgment based on the factual dispute over “how much CRS time the plaintiff spent in order to
finalize [his] Wall Street Journal opinion piece” and whether that use of time justified his
termination).
Defendants’ further claim that the “vulgar, vituperative, and ad hominem character” of
Mr. Strzok’s speech also “weighs against his claim,” and they offer snippets of selectively
chosen texts to illustrate “the base tone of Plaintiff’s discourse.” Motion at 27. In addition to the
fact that there is no requirement that political speech be genteel, see, e.g., New York Times v.
Sullivan, 376 U.S. 254, 270 (1964) (acknowledging that debate on matters of public concern
“may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials”), it is a bit rich for this Administration to be criticizing Mr. Strzok’s
decorum when the President has repeatedly used the most inflammatory and vulgar language to
attack Mr. Stzrok. This pattern, which is ongoing and has included false charges of treason and
restraining orders, reached its ugly (thus far) peak at a rally in Minneapolis in October 2019, at
which Mr. Trump mimicked Mr. Strzok having an orgasm before tens of thousands of jeering
supporters, thereby completing the President’s debasement of the office once held by Lincoln
and Washington. SOGI ¶ 59b.
26
In the end, we are left in the same position as the court in Navab-Safavi v. Glassman, 637
F.3d 311, 318 (D.C. Cir. 2011), where the D.C. Circuit affirmed the district court’s denial of a
motion to dismiss a First Amendment claim involving Pickering:
Neither the district court nor this court has evidence in the record that appellee’s
conduct interfered with the performance of the governmental function, including
the carrying out of the statutory mandates. We have only allegations, and the
allegations of the parties are in conflict. At summary judgment or at trial, these
conflicts may be resolved on an evidentiary record. At the stage of the motion to
dismiss, they cannot. We must take the allegations in the light most favorable to
the plaintiff. She stated a claim for violation of her First Amendment rights. The
Board asserts its qualified immunity, but we are unable to determine without an
evidentiary record whether any act it committed in defense of those functions
constituted a violation of clearly established rights, or even in general terms,
where the Pickering balancing tips.
We therefore conclude that the district court did not err in denying the motion to
dismiss, and we remand the claim for further proceedings consistent with this
opinion.
III. MR. STRZOK HAS STATED A VIABLE FIFTH AMENDMENT CLAIM
The FBI designated OPR Assistant Director Candice Will to be its final decision-maker
with respect to the proposal to discipline Peter Strzok. Compl. ¶¶ 1, 50. AD Will had been
performing that function for the FBI for many years. Compl. ¶ 50. The materials that
Defendants have injected into the record along with their motion merely underscore Will’s
unequivocal role as the deciding official. See, e.g., Defs.’ Ex. 1 at 23 (“You will receive a
written decision letter from the AD, OPR after consideration of any oral and written responses to
the proposed action, fully stating the reasons for the decision.”). Will offered a Last Chance
Agreement, which Strzok and his counsel signed and thereby accepted on July 26, 2018. Defs.’
Ex. 5. In that agreement, Strzok relinquished any appeal rights with respect to AD Will’s
decision, and accepted the demotion and suspension as the “FINAL decision in this matter.” Id.
AD Will made reference to and relied upon that LCA in her final decision issued on August 8,
2018. Compl. ¶ 35.
27
The government now argues that none of that mattered, and that David Bowdich could
ride in at the 11th hour and overturn AD Will’s decision at his discretion, because Strzok
purportedly had no property interest affording him any protections under the Fifth Amendment.
That argument is incorrect for two reasons. First, “[a] last-chance agreement is a settlement
agreement, and a settlement agreement is a contract.” Link v. Dep’t of Treasury, 51 F.3d 1577,
1582 (Fed. Cir. 1995). Contracts give rise to property rights. Indeed, the Supreme Court has
emphasized that:
“[P]roperty” interests subject to procedural due process protection are not limited
by a few rigid, technical forms. Rather, “property” denotes a broad range of
interests that are secured by “existing rules or understandings.” A person’s
interest in a benefit is a “property” interest for due process purposes if there are
such rules or mutually explicit understandings that support his claim of
entitlement to the benefit and that he may invoke at a hearing.
Perry v. Sindermann, 408 U.S. 593, 601 (1972) (emphasis added). In Perry, the Court found that
the employee had alleged a viable property interest, subject to due process protections, by
contending that his state university employer had an informal and unwritten agreement that
“certain employees shall have the equivalent of tenure.” Id. at 602. The FBI’s explicit written
agreement with Strzok, in which he offered as valuable consideration the relinquishment of legal
rights and obtained the agency’s agreement that he would not be fired over these issues, is an
even stronger source of a property interest than the implied contract in Perry.
The sequence of Mr. Strzok’s negotiations with AD Will underscore the contractual
nature of the LCA. Mr. Strzok executed and returned the LCA on July 26, 2018, to AD Will’s
office, which had stressed to counsel for Mr. Strzok that “in the end, it is [AD Will’s] decision.”
SOGI ¶ 59j. When AD Will did not issue her decision within several days, counsel for Mr.
Strzok inquired, and was informed that AD Will was still considering whether to move forward
with the LCA. Counsel noted that “to the extent that AD Will is considering terminating Pete
28
instead of moving forward with the LCA,” Mr. Strzok requested that AD Will contact Strzok’s
character witnesses “and consider what they have to say as mitigation under the Douglas
factors.” SOGI ¶ 61e. On August 6, 2018, counsel for Mr. Strzok was informed that AD Will
was ready to issue her final decision and was asked whether Mr. Strzok wanted her to wait until
one of his character witnesses could submit a letter on his behalf. Counsel responded that, if AD
Will was ready to move forward pursuant to the terms of the LCA, there was no need to wait for
the last character letter, and AD Will proceeded to accept the LCA, extinguishing Strzok’s right
to appeal to a DRB and his opportunity to submit additional mitigating evidence under the
Douglas factors. SOGI ¶ 61f. The next day, without warning, Bowdich reversed AD Will’s
decision and informed Strzok that his decision terminating Strzok constituted a final,
unappealable, agency action. SOGI ¶ 61h. While discovery will reveal what (ultimately
unsuccessful) pressure was brought to bear on AD Will between July 26 and August 8, 2018, DD
Bowdich was evidently unable to withstand the same pressure.4
Second, even if the FBI had not contractually promised to give Strzok a last chance and
not to fire him over these events, Candice Will’s August 8 decision demoting him out of the SES
restored him to a veteran’s preference eligible status with property rights in his job. See 5 U.S.C.
§§ 7511(a)(1)(B), (b)(8), and 7513(d). AD Will’s decision was unequivocal and had immediate
effect: “I am: (a) suspending you from duty, without pay, for 60 calendar days, not dismissing
you, as originally proposed; and (b) demoting you to a non-supervisory position.” Defs.’ Ex. 4 at
1. Thus, Strzok was not a member of the SES when David Bowdich fired him the next day.
Courts interpreting this statutory scheme have consistently held that while rank and file
4
It is notable that AD Will unexpectedly retired from the FBI shortly after DD Bowdich
overruled her decision. Whether there was a connection between that decision and Defendants’
actions here requires discovery to determine.
29
employees of the FBI who are not preference eligible have no property interest, non-SES FBI
employees who have earned veteran’s preference are vested with appeal rights. Parkinson v.
Dep’t of Justice, 874 F.3d 710, 712–13 (Fed. Cir. 2017); see also Herr v. DOJ, SF-0752-14-
0447-I-1, 2014 WL 4851394 (M.S.P.B. Sept. 22, 2014).
Either basis for a property interest (the contractual force of the LCA or Strzok’s veteran’s
preference status) means that the FBI was required to afford him procedural due process before
firing him. It is well established that:
In the employment context, “agencies cannot ‘relax or modify’ regulations that

provide the only safeguard individuals have against unlimited agency discretion in
hiring and termination.” Thus, “where ‘a government employee has no procedural
due process rights apart from those which the agency has chosen to create by its
own regulations, scrupulous compliance with those regulations is required to
avoid any injuries.’” Accordingly, “[w]hen agencies establish ‘special’ ‘pre-
termination procedures,’ they are bound to follow them.”
Lerner v. District of Columbia, 362 F. Supp. 2d 149, 161 (D.D.C. 2005) (quoting Lopez v. FAA,
318 F.3d 242, 247 (D.C. Cir. 2003) (denying summary judgment on Fifth Amendment denial of
due process claim where disputes over agency’s compliance with its own written disciplinary
procedures)).
Here, the only process afforded to Strzok was the OPR process presided over by AD
Will. Strzok submitted his written response to her, appeared before her during an oral reply and
answered her questions, and entered into the LCA offered by her. The agency obviously could
have removed AD Will from her role as deciding official, and authorized her merely to make a
“recommendation” to Bowdich. Had it done so, Strzok would then have appeared before
Bowdich as the deciding official, and responded to any questions he had about Strzok’s actions,
or the impact on the agency. But that was not the arrangement. Instead, the agency expressly
designated Will to be the deciding official, and then disregarded her decision because it did not
30
sufficiently placate the President. Without meeting with Strzok or his attorneys and in a striking
departure from the FBI’s standard disciplinary policies, Bowdich fired Strzok and, in the same
letter, declared that his decision was final and unappealable. This effectively deprived Strzok of
any real due process. After all, in Cleveland Board of Education v. Loudermill, 470 U.S. 532,
546 (1985), the Supreme Court described the importance of affording a public employee “oral or
written notice of the charges against him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story.” Those protections are illusory if the employee never
even has a chance to present his response to the real deciding official.
Courts have unequivocally held that once a decision is issued by an authorized individual,
it is binding on the agency and cannot be changed by a higher-level supervisor. Boddie v. Dep’t
of Navy, 827 F.2d 1578 (Fed. Cir. 1987); Bross v. Dep’t of Commerce, 389 F.3d 1212, 1218
(Fed. Cir. 2004) (same). AD Will’s decision to suspend and demote, but not fire Strzok, was
authorized, final and binding on the FBI. The FBI deprived Strzok of his property interest in his
job by firing him the next day without affording him any procedural due process.
To justify this deprivation, defendants turn to Policy Directive 0915D which they contend
gave Deputy Director Bowdich a free hand to overturn the final decision issued by AD Will, and
substitute it with his own determination of the appropriate penalty. The government used the
same argument to convince the MSPB that it lacked jurisdiction over Strzok’s appeal, but in that
proceeding it merely described the policy—the government declined to actually submit it for
either Strzok or the MSPB to review. That gambit worked when the MSPB determined that it
lacked jurisdiction, without ever reviewing PD 0915D.5
5
Strzok did not have a copy of the policy, and it is not available to the public. His counsel
explicitly asked the FBI to produce it, but the agency declined. Counsel then asked the MSPB to
31
But defendants have now produced that policy, and it is clear that the government
overplays its hand. The policy, entitled “Disciplinary Appeals Process” (Defs.’ Ex. 7) does not
apply to the original decisions of the deciding official (here AD Will), but rather to decisions
rendered through an appeal process by a Disciplinary Review Board (“DRB”) of five FBI
officials serving one-year terms in an adjudicatory role. Significantly, the DRB was empowered
to either sustain or lower the original penalty—it could not make the penalty more severe. See
Defs.’ Ex. 7 § 6.2.5. The FBI reserved for the Director, however, the authority to reverse a DRB
determination, which would allow him to restore the determination or penalty back to the
original (more severe) finding of the deciding official. Under a heading called “Exemptions” to
this “Disciplinary Appeals Process” policy is the section upon which the FBI relies. Section 4.3
provides: “Although the decisions rendered by . . . the Disciplinary Review Board (DRB) (in
adverse action matters) are considered the FBI’s final internal disciplinary actions, by virtue of
the authority inherent in the position, the FBI Director (or his or her designee) maintains the
authority to modify any disciplinary finding, penalty, or both as deemed necessary and in the
best interests of the FBI.” This exemption by its terms applies to appeals to the DRB, not to final
decisions by the original deciding official. But Strzok did not invoke the appeal process; rather,
as reflected in the LCA, he expressly waived that process and accepted AD Will’s decision. See
Defs.’ Ex. 5.
The FBI offers no other policy or authority which would allow it to disregard the final
decision of its own deciding official. For that reason, AD Will’s decision was the decision of the
require its production, but the agency did not do so and merely relied upon the FBI’s
representations regarding its substance. The first time that Strzok and his counsel saw the policy
was when it was attached by defendants to their motion.
32
FBI, and Bowdich’s decision to summarily remove him without any due process violated his
rights under the Fifth Amendment. See SOGI ¶¶ 61–62.
IV. MR. STRZOK HAS PLEADED AND WILL ULTIMATELY PREVAIL ON HIS
PRIVACY ACT CLAIM
Defendants effectively concede, by limiting their Rule 12(b)(6) motion to dismiss to
Strzok’s constitutional claims and moving only for summary judgment as to the Privacy Act
claim, that Strzok has stated a claim under the Privacy Act. As explained supra at Section II,
Defendants’ attempt to avoid the discovery that would ordinarily follow as a matter of course is
unavailing because the Court is not obligated (or, indeed, permitted) to accept Defendants’ self-
serving account of their actions without allowing discovery and because Defendants’ summary
judgment arguments are insufficient as a matter of law. The actual circumstances of the leaks
support the inference that Defendants knew the disclosures were improper but made them
anyway as part of an effort to placate President Trump and assist in his efforts to discredit the
Mueller investigation. Defendants’ Privacy Act arguments, like their argument on Strzok’s
constitutional claims, thus present questions of intent and motive that will likely require jury
findings based on witness credibility, even after discovery. See Evans, 716 F.3d at 622 (disputes
over motive are “precisely the type of factual dispute that ‘must be resolved in a jury
room . . . .’”) (quoting Czekalski, 475 F.3d at 362); Lamb v. Miller, 660 F.2d 792, 794 (D.C. Cir.
1981) (reversing grant of summary judgment where there was evidence of “possible
impermissible motives” for plaintiff’s termination despite “substantial evidence” that he violated
union rules). Regardless, Rule 56(d) entitles Strzok to discovery before he should even be asked
to respond to the disputed factual assertions that Defendants rely upon.
33
A. Strzok Must Be Afforded Discovery on His Privacy Act Claim
Agency records were impermissibly accessed and used to disseminate information about
Strzok to the press on at least two dates. Both instances require discovery because the
information necessary to respond to Defendants’ Motion is in their possession.
First, Strzok is currently unable to identify the DOJ official who leaked the information
about the text messages between him and Ms. Page prior to December 2, 2017. Goelman Decl.
¶ 4a. The identity of the leaker will likely be critical to proving that the leaks were intentional or
willful. See Convertino, 684 F.3d at 99; Goelman Decl. ¶ 6. Strzok is also unable to definitively
prove from which system of records the official collected the text messages. Goelman Decl.
¶ 4g; Winn Decl. ¶ 9 (offering an opinion based on a supposition that “the records of these text
messages [were] copied from the FBI’s general archives into a ‘system of records,’ for instance
into an OIG investigative file”).6 Discovery on that issue is necessary to respond to Defendants’
half-hearted suggestion that the messages may not have been taken from a “system of records”
and to demonstrate that the use of these records was not a “routine use” that was “compatible
with the purpose for which [the record] was collected.” 5 U.S.C. § 552a(a)(7), (b)(3); see U.S.
Postal Serv. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 9 F.3d 138, 146 (D.C. Cir. 1993)
(whether routine use notice was sufficient presented an “issue[] of fact”); see also 72 Fed. Reg.
6
Mr. Strzok disputes Mr. Winn’s reasoning that the “FBI’s general archives” are not a
system of records within the meaning of the Privacy Act. Mr. Winn’s argument leads to the
untenable conclusion that an agency cannot violate the Privacy Act by disclosing sensitive
information about individuals from emails and text messages because, according to Mr. Winn,
those are not “‘records’ in a ‘system records’ [sic] that would be subject to the Privacy Act.”
Winn Decl. ¶ 8.
34
36,725 (enumerating purported routine uses for the “Office of the Inspector General
Investigative Records System”).7
Second, Strzok also needs discovery to respond to the Government’s argument that its
December 12, 2017 disclosure of hundreds of his private text messages did not willfully violate
the Privacy Act. Employees from the DOJ Office of Public Affairs disseminated the text
messages to select reporters on December 12, 2017 (SOGI ¶ 56c), but in the absence of
discovery, Strzok cannot establish the identity of the political appointee who ordered the release
of his text messages, show when the appointee did so, or fully demonstrate the inadequacy of the
DOJ’s asserted efforts to comply with the Privacy Act. Goelman Decl. ¶ 4a. All of those facts
are pertinent to showing that the DOJ intentionally and willfully violated Strzok’s rights.
Goelman Decl. ¶ 5.
Discovery is especially appropriate because, even in its absence, the available evidence
strongly suggests that the DOJ’s rushed disclosure of the text messages about Strzok on the
evening of December 12, 2017, was a willful violation of the Privacy Act. The little thought
given to the legal implications and Strzok’s statutory rights is underscored by Defendants’ ill-
fated attempt to cover up their disclosure of the text messages by requiring members of the
media to agree not to attribute them to the DOJ. SOGI ¶ 56g. That is the kind of evidence from
which consciousness of guilt can be inferred. Defendants rely on Mr. Winn’s justification for the
December 12, 2017, disclosures, hoping that the Court will miss the fact that Mr. Winn’s legal
7
Because the text messages at issue had to be identified by sender and recipient phone
numbers associated with Mr. Strzok and Ms. Page, the position that they were not retrieved from
a “system of records” borders on untenable, but Defendants have not acknowledged that the text
messages were retrieved from a system of records. See 5 U.S.C. § 552a(a)(5). Further, because
December 2, 2017 predated the supposed balancing that Mr. Winn claims to have engaged in on
December 12, 2017, the pre-December 2, 2017 leaks cannot have complied with the lone
supposed routine use that Defendants have placed at issue.
35
rationale was apparently prepared after-the-fact and then back-dated to create a veneer of due
diligence. SOGI ¶ 56d. Mr. Winn’s carefully-manicured declaration, which is based only on the
limited facts as “presented to [him] at that time”—apparently meaning on December 12, 2017—
obscures facts necessary to evaluate Defendants’ knowledge and intent, which includes the
official or officials (not Mr. Winn) who made the actual decision to release the texts to the
media. Winn Decl. ¶ 18. It is revealing that, while Defendants included declarations from Mr.
Winn and Mr. Boyd, they did not submit a declaration from the unidentified senior Department
official who actually authorized the disclosure to the media. An agency cannot avoid Privacy
Act liability for a disclosure actually made for an improper purpose by eliciting a sanitized after-
the-fact rationale from an official who does not have all of the facts. See Convertino, 684 F.3d at
99. The available evidence also shows confusion (or deception) among high-ranking DOJ
officials as to the procedures that led to the disclosures. For example, DOJ officials initially
falsely asserted that the OIG approved the disclosures, but the OIG denied that. SOGI ¶ 56h.8
Discovery on these issues is necessary.
B. Defendants’ Legal Arguments Are Either Wrong or Subject to Refutation by

Evidence to be Obtained in Discovery
Each of Defendants’ three arguments for summary judgment is either legally irrelevant or
incorrect. First, neither the White House nor any of its staff is a defendant to this action, so
whether the White House is an “agency” within the meaning of the Privacy Act is of no
consequence. Second, the disclosures of the OIG investigative records to the press during the
pendency of an investigation were neither a “routine use” nor compatible with the investigative
8
See also SOGI Ex. G (“As the DAG just testified, the IG approved the release.”), Ex. M
at 2 (“The Department did not consult with the OIG in order to determine whether releasing the
text messages met applicable ethical and legal standards before providing them to Congress. . . .
The Department did not consult with the OIG before sharing the text messages with the press.”).
36
reasons for which those records were collected. Third, the evidence, including evidence to be
obtained in discovery, will prove that the DOJ intentionally and willfully violated the Privacy
Act; summary judgment cannot be premised solely upon uncritical acceptance of declarations
from two officials who did not make the decision to reveal the texts to the media.
1. The Privacy Act Applies to the Disclosure of DOJ Records to the White
House and through the White House to Others
The sole argument that the pre-December 2, 2017 leaks did not violate the Privacy Act is
Defendants’ assertion that Strzok “does not allege a Privacy Act violation with respect to any
disclosure by officials in the White House.” Motion at 32. But the Complaint alleges that
Defendants indirectly made an illegal disclosure through the White House. Compl. ¶ 59.
Defendants may be right that Strzok cannot sue the White House itself for disclosing White
House records, but they are wrong to suggest (if they intend to) that agencies can immunize
themselves from Privacy Act liability by using a White House conduit to leak agency records.
As Defendants recognize, the Privacy Act places restrictions on “agency” records.9 With
limited exceptions, it prohibits disclosure of “any record which is contained in a system of
records by any means of communication to any person, or to another agency.” 5 U.S.C.
§ 552a(b) (emphasis added). Defendants cannot and do not dispute that the DOJ, including its
Office of the Inspector General, is an agency within the meaning of the Privacy Act, nor do they
dispute that the individuals who work in the White House are persons. Additionally, Defendants
9
Although the Privacy Act references a definition of “agency” at 5 U.S.C. § 552(e),
Defendants rely on the definition in 5 U.S.C. § 552(f)(1), which provides that “agency . . .
includes any executive department, military department, Government corporation, Government
controlled corporation, or other establishment in the executive branch of the Government
(including the Executive Office of the President), or any independent regulatory agency.”
37
have offered no exception to the Privacy Act that permits the disclosure of OIG investigative
records to the White House for the purpose of leaking those records for political gain.
For the same reason that moving (non-agency) records from the White House to the State
Department (an agency) does not bring the White House records within the Privacy Act, moving
agency records from DOJ to the White House does not strip the records of their Privacy Act
protection. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156–57
(1980). That is surely why in Alexander v. F.B.I., 691 F. Supp. 2d 182, 191 (D.D.C. 2010), the
court granted summary judgment on the disclosure of FBI records to the White House on the
basis of a routine use exception for vetting personnel to be given access to the White House, and
willfulness—not whether the non-agency status of the White House made the Privacy Act
inapplicable to the FBI disclosures.
2. Disclosing Employees’ Private Communications to the Press Is Not a

“Routine Use” of OIG’s Investigative Records
Defendants next argue that the DOJ’s decision to disclose Strzok’s text messages on
December 12, 2017 was “routine” and “compatible with the purposes for which those records
were collected.” Motion at 36–40. As Defendants recognize, the government must prove both a
“publication” of an applicable routine use and the “compatibility” between “the purpose for the
collection of the record in the specific case and the purpose of the disclosure.” Motion at 35
(quoting Britt v. Naval Investigative Serv., 886 F.2d 544, 548–49 (3d Cir. 1989)). The
government has done neither.
“[P]roviding information to the media is not among the list of permissible disclosures
listed in the Privacy Act,” Kelley v. F.B.I., 67 F. Supp. 3d 240, 260 (D.D.C. 2014), so Defendants
must rely on a published “routine use” and show that they provided “adequate notice of the
purposes for which the [agency] may release an employee’s information.” Dinh Tran v. Dep’t of
38
Treasury, 351 F. Supp. 3d 130, 136 (D.D.C. 2019); see Britt, 886 F.2d at 548 (alleged routine
use did not provide “meaningful public notice” where it did not state “what information
concerning them will be released and the purposes of such release”).
Assuming, as Defendants imply, that the relevant system of records here is the OIG
system, the purported “routine use” of disclosing investigative records “to the news media and
the public” cannot be interpreted to apply to disclosures other than those contained in official
OIG reports. If the exception were meant to be so broad, it would be invalid.10 5 U.S.C.
§ 552a(e)(4)(D) requires agencies to publish the “purpose of [each] use” and the only published
purpose here is “to carry out [the OIG’s] responsibilities pursuant to the Inspector General Act of
1978.” Yet the Inspector General has testified that it would be “entirely inappropriate” for
anyone on his team to “give interviews,” reach conclusions, “indicate preliminary ideas,” or
provide “advice, [or] guidance statements” to the press or public until “the end of [an]
investigation.” SOGI ¶ 55d. The disclosures at issue cannot have been a routine use because
they were unprecedented, inconsistent with the OIG’s mission, and apparently perpetrated by the
DOJ without the OIG’s consent. SOGI ¶ 55c.
Moreover, even if this “routine use” was applicable, there was no “fairly close
relationship” between the purpose for which the documents were collected “and the purpose of
10
Agencies are prohibited from utilizing the “‘routine use’ exception to circumvent the
mandates of the Privacy Act.” Pilon v. U.S. Dep’t of Justice, 73 F.3d 1111, 1123 (D.C. Cir.
1996) (quoting Doe v. Stephens, 851 F.2d 1457, 1466 (D.C. Cir. 1988)). To the extent that
Defendants assert that the routine use for disclosures to the media and the public allows
disclosures other than those contained in official reports at the conclusion of OIG investigations,
Defendants purport to create a general and impermissible exception to the Privacy Act that
allows the disclosure of any record, at any time, on any subject, unless the DOJ determines
disclosure “would constitute an unwarranted invasion of personal privacy.” 72 Fed. Reg. 36,725.
Such an interpretation could not be squared with 5 U.S.C. § 552a(e)(4)(D) or the agency’s
obligation to provide adequate notice of how records will be used. See Dinh Tran, 351 F. Supp.
3d at 136.
39
[their] disclosure.” Richardson v. Bd. of Governors of Fed. Reserve Sys., 248 F. Supp. 3d 91,
102 (D.D.C. 2017). Leaking records to the media for the purpose of priming the media pump
against a target of the President’s animosity is not compatible with the purpose for which the
OIG collects records or even the impermissibly broad purpose of informing the public suggested
by Defendants’ brief.11 This factual dispute as to Defendants’ motivations plainly precludes
summary judgment. See Lamb, 660 F.2d at 794.
And even if the asserted routine use was applicable and the purpose of the disclosure
aligned with the purpose for the records’ collection (a disputed material fact in its own right),
summary judgment would still be improper because the parties dispute whether Defendants
engaged in a good-faith, diligent balancing of the public and private interests, as Defendants
concede the supposed routine use mandated. Motion at 39–40. Federal “agents’ status as public
officials does not rob them of their privacy rights,” Stone v. F.B.I., 727 F. Supp. 662, 664
(D.D.C. 1990), and the DOJ is ordinarily reticent to release the names of its career employees, in
part because it knows that they may then be the victims of threats and intimidation as Strzok has
been since the Defendants disclosed his identity. SOGI ¶ 59b; see Lesar v. U.S. Dep’t of Justice,
636 F.2d 472, 487 (D.C. Cir. 1980) (FBI “agents have a legitimate interest in preserving the
secrecy of matters that conceivably could subject them to annoyance or harassment in either their
official or private lives.”); see also Gerstein v. C.I.A., No. C 06-4643 MMC, 2011 WL 89337, at
*2 (N.D. Cal. Jan. 11, 2011).
The Defendants, and Mr. Winn, point to the fact that Plaintiff’s identity was already
public on December 12, 2017 as decreasing the weight of the privacy interests at stake since at
11
The media and public disclosure routine use has been used only to justify disclosing
private information to the public at the conclusion of an OIG investigation and together with the
OIG’s analysis and conclusions. SOGI ¶ 55c.
40
that time “there appeared to be no way to mitigate the invasion of privacy that would accompany
the release of the texts by redacting [Mr. Strzok’s and Ms. Page’s] names.” Motion at 40. But
Defendants never engaged in a balancing analysis in which the non-disclosure of Strzok’s
identity was a realistic possibility only because they had already leaked information about the
text messages before any balancing of interests was contemplated. SOGI ¶ 56d. They should
not now be allowed to rely on the effects of their prior indiscretion as a justification for their
subsequent improper disclosures to the media.
It is also no answer to say, as Defendants do, that the text messages would have become
public anyway. Motion at 36. Many of the private text messages that were provided to the
media on December 12, 2017 were not included in the Midyear Report and may never have been
publicly disseminated absent the December 12 disclosures. SOGI ¶ 54b. Moreover, by releasing
the texts to the media long before the OIG’s investigation had concluded that Plaintiff’s political
opinions had not impacted his work at the FBI, Defendants provided President Trump and his
allies a lengthy head start to falsely shape the perception of the Plaintiff as (among other things)
a traitor and coup plotter.
3. Plaintiff Will Show that the DOJ Willfully and Intentionally Violated the
Privacy Act.
Strzok expects to prove that the DOJ “acted in a manner which was intentional or willful”
as required by 5 U.S.C. § 552a(g)(4).12 Defendants claim that Strzok will never be able to meet
12
As Defendants note, “[i]n distinguishing between an intentional violation and an
inadvertent error, this Circuit has assembled a variety of tests . . . .” Motion at 42. Defendants
contend that “together” the Circuit’s cases require conduct “greater than gross negligence” based
on Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987), yet the Circuit’s more recent cases
show that conduct “greater than gross negligence” is but one of several ways in which an
intentional or willful violation of the act may be proven. See Maydak v. United States, 630 F.3d
166, 179 (D.C. Cir. 2010). A plaintiff may also succeed by showing that the disclosure was
made “without grounds for believing it to be lawful” or “by flagrantly disregarding others’ rights
41
that burden because Mr. Winn provided an opinion to Associate Deputy Attorney General Scott
Schools that the public interest in the texts’ disclosure outweighed the private interests of Strzok
and Ms. Page. But this Court cannot accept Mr. Winn’s declaration as a definitive account of
Defendants’ decision-making process. To be sure, Defendants’ disclosure of Mr. Winn’s advice
is a waiver of any privileges Defendants might try to assert against discovery of their decision-
making, just as presenting an advice of counsel defense operates as a waiver of the attorney-
client privilege. See Ideal Elec. Sec. Co. v. Int’l Fid. Ins., 129 F.3d 143, 151 (D.C. Cir. 1997).
But Mr. Winn was not the official who made the decision to release the text messages on
December 12, 2017 or among the employees who made the disclosures at issue, and his
declaration has no necessary bearing on whether those unnamed actors intentionally or willfully
violated Strzok’s rights. As noted, disputed issues of intent and motive are rarely suited for
summary judgment even on a fully developed record, see Evans, 716 F.3d at 622, Lamb, 660
F.2d at 794, and they are even less amenable to preemptive summary judgment at this early stage
of litigation, see Convertino, 684 F.3d at 102.
The task of responding to Defendants’ motion is made doubly difficult by the DOJ’s
ironically extensive redaction, in response to a FOIA request, of post-December 12, 2017 emails
regarding the back-dated “Privacy Act Assessment” on deliberative process grounds. See, e.g.,
SOGI Exs. D, E (note redactions for “(b)(5)”). Two key issues emerge. First, if Mr. Winn had
actually reached an opinion after sufficient due diligence and careful analysis on December 12,
2017, there would be no need and no right to invoke deliberative process protections for the
under the Act.” Id. (quoting Waters v. Thornburgh, 888 F.2d 870, 875 (D.C. Cir. 1989)). The
Circuit’s more recent interpretations of the Privacy Act’s “intentional or willful” requirement
also more closely adhere to Supreme Court precedent, which extends civil liability for “willful”
acts “not only knowing violations of a standard, but reckless ones as well.” Safeco Ins. Co. of
Am. v. Burr, 551 U.S. 47, 57 (2007).
42
agency’s Privacy Act assessment after December 12, 2017. See Elec. Frontier Found. v. U.S.
Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014) (limiting privilege to “documents that are
‘predecisional’ and ‘deliberative’”). Second, Strzok is being forced to respond to a motion for
summary judgment based on records that appear to redact information central to this case. See
Doe 2 v. Esper, No. CV 17-1597 (CKK), 2019 WL 4394842, at *7 (D.D.C. Sept. 13, 2019)
(deliberative process could not be used to shield documents when “the extent and scope of that
decision-making process is a central issue in this lawsuit”). Only after discovery can Strzok be
expected to fully respond to Defendants’ asserted lack of intent, but even the heavily redacted
FOIA disclosures debunk Defendants’ claim that its December 12, 2017 disclosures were based
on “thoughtful analysis” or complete “due diligence.” Due diligence, by definition, is performed
before disclosure, not, as here, where a memorandum justifying the disclosures is prepared
belatedly and then back-dated. SOGI ¶ 56d; cf. Reed v. Dep’t of the Navy, 910 F. Supp. 2d 32,
44 (D.D.C. 2012) (finding, after trial, that agency employee had “not willful[ly] or
intentional[ly]” violated the Privacy Act because agency employee “did her due diligence before
releasing the documents” (emphasis added)).
V. CONCLUSION
For the reasons explained above, Defendants’ Motion to Dismiss or, in the Alternative,
for Summary Judgment as to Count One and Count Two, and Motion for Summary Judgment as
to Count Three should be denied.
43
Date: December 30, 2019 Respectfully submitted,
/s/ Aitan D. Goelman

Aitan D. Goelman (DC Bar 446636)
ZUCKERMAN SPAEDER LLP
1800 M Street, NW, Suite 1000
Washington, DC 20036
Tel: (202) 778-1800
AGoelman@zuckerman.com
/s/ Richard A. Salzman

Richard A. Salzman (DC Bar 422497)
HELLER, HURON, CHERTKOF & SALZMAN
PLLC
Tel: (202) 293-8090
salzman@hellerhuron.com
Counsel for Plaintiff
44
Case 1:19-cv-02367-ABJ Document 36-1 Filed 12/30/19 Page 1 of 5

)
PETER P. STRZOK, )
)
Plaintiff, )
)
)
)
Defendants. )
)
DECLARATION OF AITAN D. GOELMAN PURSUANT TO RULE 56(d) AND IN

SUPPORT OF OPPOSITION TO MOTION TO DISMISS AND FOR SUMMARY
JUDGMENT
I, Aitan D. Goelman, hereby declare:
1. I am a partner with Zuckerman Spaeder LLP. I have filed an appearance in this matter as
an attorney for Peter Strzok. I also represented Mr. Strzok in connection with the
disciplinary hearing before the FBI Office of Professional Responsibility, which was
headed by Assistant Director Candice M. Will, as well as Mr. Strzok’s appeal to the
Merit Systems Protection Board.
2. No discovery has occurred to date in this action.
3. Mr. Strzok, myself, attorneys at my firm, and our co-counsel have reviewed a significant
body of relevant documents, including: the text messages at issue; Department of Justice
and Federal Bureau of Investigation policies and procedures; the exhibits to Defendants’
motions; and relevant productions made by the Department of Justice in response to
Freedom of Information Act requests.

4. Despite our efforts, Mr. Strzok is unable to offer the testimony and documentary
evidence that is necessary to fully and adequately respond to Defendants’ motion for
summary judgment. If discovery is allowed to proceed in this action, there is a high
likelihood that Mr. Strzok will develop a record sufficient to prove:
a. The identity of the Department of Justice official(s) who accessed and leaked
information about text messages between Mr. Strzok and Ms. Page on or before to
December 2, 2017;
b. The system of records accessed to retrieve information about Mr. Strzok and the
method by which those records were retrieved (Defendants’ brief implies, without
acknowledging, that this system was most likely the Department of Justice, Office
of the Inspector General’s Investigative Records);
c. The system of records where the texts were maintained before they were collected
by the OIG.
d. The motivation, political or otherwise, for the Department of Justice official’s
decision to disclose records about Mr. Strzok and the incongruity between those
motivations and the purposes for which the records were collected;
e. Any communications between the Department of Justice and the White House
with respect to the texts on or before December 2, 2017, including any discussion
of providing the content or subject matter of these texts, as well as information
identify Mr. Strzok, to the news media;
f. That the leaks that occurred on or before December 2, 2017 were an intentional
and willful violation of the Privacy Act;
2
g. The identity of the high-ranking official at the Department of Justice who made
the decision to disclose hundreds of text messages between Mr. Strzok and Ms.
Page to various media outlets on or about December 12, 2017 (The Declaration of
Stephen E. Boyd indicates “that the Office of the Deputy Attorney General and
the Department’s Office of Public Affairs determined that it was appropriate to
make the . . . text messages available to certain members of the media,” but does
not identify the specific decision-maker);
h. The system of records from which the text messages were retrieved in order to
make the December 12, 2017, disclosures and the method by which they were
retrieved (again, Defendants’ brief implies but does not confirm that this system
was most likely the Department of Justice, Office of the Inspector General’s
Investigative Records);
i. The motivations for the high-ranking DOJ official’s unprecedented decision to
order the disclosure of the text messages and the obvious incongruity between
those motivations and the purposes for which the records were collected;
j. Any pressure brought to bear on AD Will between Mr. Strok’s execution and
transmission of the Last Chance Agreement to AD Will on July 26, 2017 and AD
Will’s official decision implementing the LCA on August 8, 2017, to withdraw
the Last Chance Agreement or to influence her decision as to the appropriate
sanction for Special Agent Strzok;
k. Any communications between the White House, the Office of the Attorney
General or other allies of the President, and Deputy Director Bowdich, Director
3
Wray or others in the FBI that precipitated Deputy Director Bowdich’s decision to
countermand AD Will’s decision and fire Special Agent Strzok;
l. The reasons that Deputy Director Bowdich, who had previously assured Special
Agent Strzok that his job would not be materially impacted by the furor over the
texts, changed his mind and reversed the decision by AD Will;
m. Any other examples of Deputy Director Bowdich or others in the Office of the
Director of the FBI reversing a decision by the AD for OPR, including any
previous precedent where an employee was fired despite an executed Last Chance
Agreement.
5. Although Mr. Strzok has made specific, well-educated allegations based on the facts
known and is submitting a response to Defendants’ statement of undisputed materials
facts in accordance with to Local Civil Rule 7(h), evidence as to the above facts is
essential to fully justify his opposition to Defendants’ motion.
6. Most significantly, without discovery Mr. Strzok is unable to fully demonstrate that the
leaks at issue were an intentional and willful violation of the Privacy Act and that his
termination was based on political viewpoints.
7. I have reviewed the audio recording of Mr. Strzok’s testimony before Assistant Director
Candice M. Will on July 24, 2018. In that testimony, Mr. Strzok disagreed with the
notion that his texts themselves had damaged the credibility of the FBI. Instead, Mr.
Strzok argued that it was the cynical use of his text messages by the President and his
allies that damaged the credibility of the FBI.
8. On August 6, 2018 at 8:52 AM, I received an email from the Department of Justice
Office of Professional Responsibility (“OPR”), which I have attached to the Statement of
4
Disputed Material Facts that will be submitted in support of Plaintiff's Opposition to
Defendants' Motion to Dismiss or for Summary Judgment (ECF No. 30). That email
indicated that an individual whom Mr. Strzok had identified as a character reference
needed additional time to submit information and asked whether Mr. Strzok wanted AD
Will to wait to receive the character reference to issue her decision if she was otherwise
prepared to issue her decision. Shortly after receiving that email I spoke with a
representative for OPR who was working under the direction of AD Will. The OPR
representative indicated that AD Will was prepared to issue her report. I explained that
although there was no need to await further character reference materials if AD Will was
going to approve the Last Change Agreement, Mr. Strzok did want AD Will to hold off
on issuing a decision until the character reference was submitted if AD Will was
considering terminating him instead of moving forward with the LCA.
9. I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true
and correct, to the best of my knowledge and belief.
Executed on:
Aitan D. Gelman
5

)
PETER P. STRZOK, )
)
Plaintiff, )
)
)
)
Defendants. )
)
PLAINTIFF’S RESPONSE TO DEFENDANTS’ STATEMENT OF

UNDISPUTED MATERIAL FACTS AND PLAINTIFF’S
STATEMENT OF GENUINE ISSUES
Pursuant to Local Civil Rule 7(h), Plaintiff Peter Strzok hereby responds to Defendants’
Statement of Undisputed Material Facts and sets forth material facts as to which a genuine issue
exists that preclude the grant of summary judgment. Although Local Rule 7(h) requires
“references to the parts of the record relied on to support the statement,” because Defendants
have moved for summary judgment before any fact discovery or creation of a record, Plaintiff
cites to attached exhibits where relevant information is in his possession. Where the relevant
information is within the possession of the Defendants or third parties, the facts set forth below
are based on information and belief. For the sake of brevity, Plaintiff repeats only the most
critical statements of fact contained in the Complaint. We begin by responding to Defendants’
asserted “undisputed facts,” followed by the genuine issues remaining for trial with related facts
presented in roughly chronological order.

RESPONSE TO DEFENDANTS’ STATEMENT OF UNDISPUTED MATERIAL FACTS
Defendants’ Statement of Undisputed Material Facts gingerly side-steps the facts that
actually matter to the claims alleged. Defendants offer a partial narrative that (for the most part)
can stand alongside the allegations of the Complaint without contradicting them. Because the
Complaint plausibly pleads claims under the First and Fifth Amendments and the Privacy Act,
Plaintiff must be afforded discovery before he can be compelled to fully respond to Defendants’
assertions.
1. After serving in the United States Army, Plaintiff entered the rolls of the FBI in
1998. See Compl. ¶¶ 14-15.
Admitted.
2. When Plaintiff exchanged the text messages at issue in this litigation, beginning
around August 2015 through May 2018, Plaintiff was a member of the FBI’s SES. See OIG
Report at 396.
Admitted.
3. During the same period, Plaintiff was promoted to Deputy Assistant Director of
the FBI’s Counterintelligence Division in September 2016. Id.
Plaintiff was promoted on a date, not during a period; otherwise admitted.
4. Plaintiff’s career at the FBI put him at the center of some of the most important
and politically charged investigations in the Bureau’s history. See Compl. ¶¶ 1, 13–16.
The phrase “at the center” is imprecise. The Complaint states the facts alleged.
5. Plaintiff was assigned in August 2015 to lead the criminal investigation of former
Secretary of State and presidential candidate Hillary Clinton’s use of a private email server,
which the FBI referred to as “Midyear Exam” or “Midyear.” Compl ¶¶ 15, 32.
Admitted.
6. Then, in July 2016, Plaintiff was assigned to the FBI’s investigation into the
Russian government’s efforts to interfere in the 2016 presidential election. See Letter Unit Chief,
Adjudication Unit II, Office of Professional Responsibility 2, June 15, 2018 (“Proposal Letter”)
(Exhibit 1).
Admitted.
2
7. Plaintiff was “one of the key members” of that investigative team. Compl. ¶ 31.
Admitted, although as set forth in the OIG’s Report on the FBI’s Investigation into
Russia’s interference in the 2016 election Report (“Crossfire Hurricane Report”),
Plaintiff’s role in the investigation was that of a mid-level manager, with several layers of
FBI officials both above and below him in the hierarchy.1
8. After former FBI Director Robert Mueller III was appointed Special Counsel over
the Russian investigation, Plaintiff was a member of the Special Counsel’s staff from May 2017
until July 28, 2017. See Proposal Letter at 2.
Admitted.
9. In early 2017, in response to requests from Congress, various organization, and

members of the public, the OIG opened an investigation into various actions by the FBI and the
Department in connection with the Midyear investigation that Plaintiff led. Compl ¶ 32; A Review
of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance
of the 2016 Election, June 2018 (“OIG Report”), https://www.justice.gov/file/1071991/download.
Admitted.
10. As part of that investigation, the OIG requested and received text messages from
FBI-issued mobile devices for personnel involved in the Midyear investigation, including those
sent and received by Plaintiff, for the period when the Midyear investigation began through July
1, 2017. OIG Report at 395-96.
Plaintiff has no basis to either admit or dispute these statements at this time because
he has not been afforded discovery. Plaintiff reserves the right to dispute the veracity of
these statements after being afforded the opportunity to take discovery in this matter.
11. In its review of the collected text messages, the OIG identified over 40,000 text
messages exchanged on FBI-issued cell phones between Plaintiff and the Government Attorney,
who was serving as Special Counsel to former Deputy Director Andrew McCabe. OIP [sic]
Report at 396.
Plaintiff has no basis to either admit or dispute these statements at this time because
he has not been afforded discovery. Plaintiff reserves the right to dispute the veracity of
these statements after being afforded the opportunity to take discovery in this matter.
1
Office of the Inspector Gen., U.S. Dep’t of Justice, Review of Four FISA Applications
and Other Aspects of the FBI’s Crossfire Hurricane Investigation at iii, Oversight and Review
Division 20-012 (Dec. 2019 (Revised)) (“Crossfire Hurricane Report”),
https://www.justice.gov/storage/120919-examination.pdf (explaining that Strzok was “not the
sole, or even the highest-level, decision maker as to any of” several critical decisions).
3
12. Those messages included political opinions about candidates and issues involved
in the 2016 Presidential election, “including statements of hostility toward then candidate Trump
and statements of support for candidate Clinton.” Id.
Admitted that the Midyear Report is accurately quoted. The text messages speak
for themselves and include statements criticizing politicians of both major parties.
13. In addition, according to the OIG, “[s]everal of their text messages also appeared
to mix political opinions with discussions about the Midyear and Russia investigations,” which
raised questions as to whether Plaintiff’s and the Government Attorney’s political opinions may
have affected investigative decisions. Id.
Admitted that the Midyear Report is accurately quoted. Denied that Plaintiff’s
political opinions influenced his work or that officials had a sound basis for believing they
had. Plaintiff notes that the OIG, at the conclusion of its investigation, explicitly stated that
it had found no evidence that political opinions played any role in investigative decisions.
See infra Statement of Genuine Issues Sections B, C.
14. The text messages exchanged between Plaintiff and the Government Attorney, as
well as others described in the OIG Report, include the following: [quotations omitted, citation to
OIG Report at 400, 403-05.]
Admitted.
15. Upon review of Plaintiff’s text messages, the OIG was “particularly concerned”
that they “potentially indicated or created the appearance that investigative decisions they made
were impacted by bias or improper considerations.” See OIG Report at ix.
Admitted that the Midyear Report is accurately quoted. Plaintiff notes, again, the
OIG’s ultimate conclusion regarding the absence of political bias in any investigative
decision or act. This conclusion was known to Defendants at the time they terminated
Plaintiff’s employment. See infra Statement of Genuine Issues Sections B, C.
16. The OIG pointed to, in particular, Plaintiff’s August 8, 2016 text message stating
that “‘we’ll stop’ candidate Trump from being elected,” which gave rise to the implication that
Plaintiff was willing to take official action to impact a presidential candidate’s electoral
prospects. Id. The OIG Report is replete with other examples how Plaintiff evidenced political
bias—or, at best, created the perception of bias. See, e.g., id. at 399-410.
Denied that Plaintiff’s political views affected his work. The OIG concluded that
Plaintiff’s views did not affect his work. Also denied that Plaintiff’s private expression of
political views in text messages created the perception of bias. Defendants’ illegal
disclosure of the text messages and President Trump’s relentless attacks on Plaintiff, the
FBI, and the Mueller Investigation were the cause of the perception of the bias Defendants
reference. See infra Statement of Genuine Issues Sections B, C.
17. Plaintiff acknowledged to the OIG that
4
his text messages could be read to suggest that [Plaintiff] held himself responsible
for Trump’s victory and Clinton’s defeat because of the Midyear investigation
and that he viewed the Russia investigation as providing him an opportunity to
‘fix’ this result by working on an investigation that could result in the
impeachment of President Trump. OIG Report at 405.
Admit the accuracy of the quote, which is taken out of context and misleadingly
incomplete. As the Report notes in the next two sentences, which were omitted by
Defendants: “Strzok said he strongly disagreed with this interpretation and provided a
lengthy explanation for these statements. Strzok said that he wanted to ‘finish’ the Russia
investigation rather than be reassigned midway through and lose the institutional
knowledge of issues being investigated by the Special Counsel.”2
18. The OIG concluded that Plaintiff’s text messages with the Government Attorney
“cast a cloud over the FBI’s handling of the Midyear investigation and the investigation’s
credibility.” Id. at iii.
Admitted that the Midyear Report is accurately quoted.
19. When the OIG learned of the existence of the text messages between Plaintiff and
the Government Attorney in the summer of 2017, both Plaintiff and the Government Attorney
were members of Special Counsel Mueller’s staff.
Admitted.
20. The OIG informed Special Counsel Mueller of the text messages, and Plaintiff
was removed from the Special Counsel’s investigation on July 28, 2017. OIG Report at 397.
Admitted.
21. On December 2, 2017, the New York Times and the Washington Post each reported
on the existence of Plaintiff’s text messages with the Government Attorney and his removal from
the Special Counsel’s investigation. See Compl. ¶ 60; Top FBI Official Assigned to Mueller’s Probe
Said To Have Been Removed After Sending Anti-Trump Texts, Washington Post (Dec. 2, 2017)
https://www.washingtonpost.com/world/national-security/two-senior-fbi-officials-on-clinton-
trump-probes-exchanged-politically-charged-texts-disparaging-trump/2017/12/02/9846421c-
d707-11e7-a986-d0a9770d9a3e_story.html; Mueller Removed Top Agent in Russia Inquiry Over
Possible Anti-Trump Texts, NY Times (Dec. 2, 2017), https://www.nytimes.com/
2017/12/02/us/politics/mueller-removed-top-fbi-agent-over-possible-anti-trump-texts.html.
Admitted.
2
Office of the Inspector Gen., U.S. Dep’t of Justice, A Review of Various Actions by the
Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election at
405, Oversight and Review Div. 18-04 (June 2018) (“Midyear Report”),
https://www.justice.gov/file/1071991/download.
5
22. Shortly thereafter, the chairmen of congressional committees in both the U.S.
House of Representatives and the U.S. Senate (“Congressional Committees”) made verbal and
written inquiries to the Department regarding the existence and substance of the text messages.
These inquiries included written requests for the Department to produce the text messages to
Congress for oversight purposes. See Declaration of Stephen Boyd ¶ 7 (“Boyd Decl.”) (Exhibit 2)
Admitted that the Boyd Declaration so states. Otherwise denied. See infra
Statement of Genuine Issues Section B.
23. In order to respond to Congress, the Department requested the text messages from
the OIG and, once received, redacted them to remove non-political, personally sensitive and law
enforcement information. Id. ¶¶ 8-9.
Admitted that Mr. Boyd’s declaration so states and that the text messages were
partially redacted before production to Congress. Otherwise denied. Plaintiff disputes the
implication that the text messages were properly redacted in accordance with Defendants’
standard practices, or that the requests were actually initiated by Congress, rather than
from a coordinated effort between the Members of Congress making the inquiries and the
White House and/or political appointees within the DOJ. Plaintiff reserves the right to
dispute the veracity of these facts after discovery. See infra Statement of Genuine Issues
Section B.
24. The Department made its initial hard copy production of redacted text messages
to the Congressional Committees on the evening of December 12, 2017, and subsequent
productions followed. Id. ¶ 11.
Admitted that certain members of the Congressional Committees or their staffs

received some of Mr. Strzok’s text messages late in the evening of December 12 or early in
the morning of December 13. Otherwise denied. Plaintiff reserves the right to further
dispute the veracity of these statements after being afforded the opportunity to take
discovery in this matter. See infra Statement of Genuine Issues Section B.
25. The Department also determined that it would be appropriate to make the same
subset of text messages available to members of press. Id. ¶ 12.
Denied. Plaintiff disputes that it was “appropriate” to release the text messages to
the press, or that Defendants genuinely believed at the time that it was appropriate to do
so. Paragraph 25 cites the Boyd Declaration. However, Mr. Boyd acknowledges that he
“was not directly involved in matters involving the media.” Boyd Decl. ¶ 12. He did not
make, or participate in making, the decision to release text messages to the media. Id.
Accordingly, Mr. Boyd has no personal knowledge of the reasons that decision was made
or the circumstances. Paragraph 25 is not properly part of the summary judgment record.
Moreover, the government’s choice to submit a second-hand statement when it surely has
access to individuals involved in the decision-making and electronic records of their
communications can be viewed as an admission that the allegations of ¶¶ 63-65 of the
Complaint are true. See infra Statement of Genuine Issues Section B.
6
26. The Department did so after consulting with the appropriate senior member of
Department career staff—Peter Winn, Director of the Office of Privacy and Civil Liberties and
Acting Chief Privacy and Civil Liberties Officer—who reviewed the text messages to determine
whether disclosing them in redacted form to the media would be permissible under the Privacy
Act. See Declaration of Peter Winn ¶¶ 3-4 (“Winn Decl.”) (Exhibit 3).
Denied. Plaintiff disputes that it was “appropriate” or “permissible” to release the

text messages to the press, or that Defendants genuinely believed at the time that it was
appropriate or permissible to do so. Plaintiff reserves the right to dispute the veracity of
these facts after discovery and notes that documents released under FOIA, while heavily
redacted, call into question both the timing and scope of Mr. Winn’s purported review. See
infra Statement of Genuine Issues Section B.
27. As described in his accompanying declaration, Mr. Winn considered that the
routine use in an OIG Systems of Records Notice, or SORN, permits compatible disclosures “[t]o
the news media and the public, including disclosures pursuant to 28 C.F.R. § 50.2, unless it is
determined that release of the specific information in the context of a particular case would
constitute an unwarranted invasion of personal privacy.” Id. ¶ 10 (quoting 82 Fed. Reg. at 36,726).
Denied as incomplete. Mr. Winn’s declaration is unclear as to when he formed this

view. The justification for disclosures appears to have been finalized on January 4, 2018,
when it was formalized in a memo that was then back-dated to December 12, 2017, to
create a veneer of due diligence. Discovery on this issue is critical. See infra Statement of
Genuine Issues Section B.
28. Based on his review of the text messages provided to him, and assuming the text
messages were contained in an OIG system of records, Mr. Winn concluded that the public
interest outweighed the privacy interest of Plaintiff and the Government Attorney and the
relevant routine use would permit disclosure. See id. ¶¶ 11-18.

view. The justification for disclosures appears to have been finalized in January 2018 when
it was formalized in a memo that was back-dated to create a veneer of due diligence.
Discovery on this issue is critical. See infra Statement of Genuine Issues Section B.
29. Mr. Winn concluded that the Department’s disclosure of the text messages would
not violate the Privacy Act, and Mr. Winn so advised senior leadership within the Department.
Id. ¶¶ 11-18.

view. The justification for disclosures appears to have been finalized in January 2018 when
it was formalized in a memo that was back-dated to create a veneer of due diligence.
Discovery on this issue is critical. See infra Statement of Genuine Issues Section B.
30. The Department’s senior leadership then made the decision to release the records.
See Boyd Decl. ¶ 13.
7
Admitted but incomplete. The identity of the decision maker is critical to showing
willfulness and intent. Discovery must be allowed. See infra Statement of Genuine Issues
Section B.
31. On June 15, 2018, OPR staff proposed dismissing Plaintiff from the FBI based on
its finding that he: (1) engaged in unprofessional conduct by making inappropriate political
comments in text messages on his FBI-issued cell phone, in violation of FBI Offense Code 5.21;
(2) utilized a personal email account to conduct official FBI business, in violation of FBI Offense
Code 5.18; and (3) failed to diligently pursue a credible lead when new information was brought
forth regarding the Clinton private server investigation, in violation of FBI Offense Code 1.7.
See generally Proposal Letter.
Admitted.
32. With the assistance of his attorneys, Plaintiff provided a written response to OPR’s
recommendation and participated in an oral hearing at which he defended his conduct. See Letter
of Candice M. Will, Assistant Director, OPR, Aug. 8, 2018 at 18 (“Will Letter”) (Exhibit 4).
Admitted.
33. In July 2018, Plaintiff and his attorney also signed a “Last Chance” Adjudication
Agreement, in which Plaintiff requested, in lieu of dismissal, that OPR reduce the proposed penalty
of dismissal “to a 60-day suspension, in which Offense Codes 5.21 and 5.18 are substantiated,
Offense Code 5.2 (Dereliction of Supervisory Responsibility) be substituted for Offense Code 1.7,
and he be demoted to a non-supervisory position.” “Last Chance” Adjudication Agreement for Peter
P. Strzok II (July 2018) (Exhibit 5).
Admitted.
34. In exchange for a reduced punishment, Plaintiff proposed that he would, among
other things, complete a suspension of 60 days and be subject to removal from the rolls of the
FBI if he were to engage in any other serious misconduct. Id.
Admitted, but characterizing the Last Chance Agreement as a “proposal” is

inaccurate, when it was a binding agreement between the FBI and Plaintiff. See infra
Statement of Genuine Issues Section D; Defs.’ Ex. 5, ECF No. 30-6.
35. In a letter dated August 8, 2018, the career Assistant Director (“AD”) for OPR,
Candice M. Will, analyzed the OPR’s staff’s recommendation, together with Plaintiff’s written
and oral responses and Plaintiff’s “Last Chance” Adjudication Agreement. See generally Will
Letter.
Admitted.
36. As described in her letter, AD Will reviewed the available information and
analyzed Plaintiff’s conduct according to the twelve factors articulated in the Merit Systems
Protection Board’s decision in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). Id.
8
Admitted.
37. AD Will determined, based on her weighing of those factors, to suspend Plaintiff
from duty without pay for 60 days and to demote him to a non-supervisory position. Id. at 23.
Admitted.
38. Before the FBI took any official employment action with respect to Plaintiff’s
misconduct, and before the FBI informed Plaintiff of AD Will’s decision, the FBI’s Deputy
Director (“DD”), David Bowdich, reviewed relevant evidence and the Douglas factors. See
generally Letter of David Bowdich, FBI Deputy Director, Aug. 9, 2018 (“Bowdich Letter”)
(Exhibit 6).
Plaintiff admits the authenticity of the Bowdich Letter. Otherwise denied. Official
action was taken by AD Will on August 8, 2018. Plaintiff further disputes that DD
Bowdich engaged in any genuine consideration of the allegations or the Douglas factors.
Instead, DD Bowdich’s decision was designed to placate the President who had been
publicly and privately lobbying for Plaintiff’s firing because of the content of his speech.
Plaintiff must be afforded discovery into the motivation behind the firing, and what, if any,
review of evidence or analysis DD Bowdich actually engaged in on August 9, 2018. See
infra Statement of Genuine Issues Sections C, D.
39. On August 9, 2018, DD Bowditch (sic) exercised his delegated authority,

consistent with FBI policy, to modify disciplinary actions as necessary to advance the best
interests of the FBI. See Bowdich Letter at 1; see also FBI Policy Directive 0915D, Disciplinary
Appeals Process § 4.3 (Exhibit 7).
Admitted that DD Bowdich unilaterally modified AD Will’s decision on August 9,

2018. Denied that DD Bowdich’s action was consistent with his “delegated authority,”
“consistent with FBI policy,” or “in the best interests of the FBI.” Plaintiff expects
discovery to show that DD Bowdich’s actions were politically motivated, the result of
pressure from the White House and/or the Attorney General, and retaliatory. See infra
Statement of Genuine Issues Sections C, D.
40. Pursuant to that authority, DD Bowdich reconsidered AD Will’s decision and

concluded that dismissal was appropriate based on all of the facts. See Bowdich Letter at 1.
Plaintiff admits the authenticity of the Bowdich Letter. Denied that DD Bowdich’s
conclusion was “appropriate based on all of the facts.” Also denied that that the DD
Bowdich meaningfully “reconsidered AD Will’s decision.” The Bowdich Letter does not
reflect the actual rationale for its conclusions. See infra Statement of Genuine Issues
Sections C, D.
41. DD Bowdich concurred with AD Will that the three offenses were substantiated;
however, as he explained in his letter, DD Bowdich disagreed with AD Will’s evaluation of the
relevant Douglas factors in deciding the appropriate penalty. Id.
9
Admitted that Defendants accurately summarize the Bowdich letter. Denied, to the
extent implied, that DD Bowdich genuinely disagreed with AD Will’s evaluation of the
relevant Douglas factors in deciding the penalty to impose. Discovery is needed to resolve
this disputed fact. See infra Statement of Genuine Issues Sections C, D.
42. In his letter, DD Bowdich explained that he had reviewed relevant evidence
pertaining to Plaintiff’s case, including text messages between Plaintiff and the Government
Attorney, Plaintiff’s role as one of the most senior counterintelligence agents in the FBI, and
Plaintiff’s many years of service. Id.
Admitted that Defendants accurately summarize the Bowdich Letter. Otherwise

denied. Discovery is necessary for Plaintiff to determine what review, if any, DD Bowdich
engaged in. See infra Statement of Genuine Issues Sections C, D.
43. DD Bowdich concluded that—notwithstanding Plaintiff’s 21 years of service—

“serious aggravation is warranted for your [FBI Offense Code] 5.21 offense given the severe,
longterm damage your conduct has done to the reputation of the FBI.” Id.
Admitted that Defendants accurately quote the Bowdich Letter. Denied, to the
extent implied, that DD Bowdich was motivated by Plaintiff’s conduct, particularly given
Bowdich’s own prior assurances to Strzok. See Exhibit N, Strzok Decl. ¶ 4.
44. DD Bowdich explained that, as “a Deputy Assistant Director in the

Counterintelligence Division, you were expected to be a leader who was beyond reproach and to
set an example for not only your direct subordinates, but others throughout the organization who
watched and observed your behavior and actions.” Id.
Admitted that Defendants accurately quote the Bowdich Letter. Denied, to the
extent implied, that DD Bowdich was motivated by Plaintiff’s position and conduct, rather
than pressure from the President and his allies to fire Strzok. See infra Statement of
Genuine Issues Sections C, D.
45. DD Bowdich also noted that it was “difficult to fathom the repeated, sustained
errors of judgment you made while serving as the lead agent on two of the most high-profile
investigations in the country,” and that Plaintiff’s “sustained pattern of bad judgment in the use
of an FBI device called into question the decisions made during both the Clinton E-Mail
investigation and the initial stages of the Russian collusion investigation.” Id.
Admitted that Defendants accurately quote the Bowdich Letter. Denied that any of
Plaintiff’s actions called into question any decisions made by the FBI. Rather, any loss of
faith in the FBI resulted from the sustained campaign to delegitimize the Clinton and
Russia investigations by President Trump and his allies, which began long before the
discovery of the texts but eventually included the texts as part of a politically motivated
assault on the integrity of the FBI and Special Counsel’s Office. See infra Statement of
Genuine Issues Section A.
10
46. In short, Plaintiff’s “repeated selfishness has called into question the credibility of
the entire FBI.” Id. DD Bowdich indicated that his decision to dismiss Plaintiff was final and not
subject to further administrative review. Id.
Admitted that Defendants accurately quote the Bowdich Letter. Denied that
Plaintiff’s errors in judgment could reasonably have “called into question the credibility of
the entire FBI,” which has been under sustained political attack by Mr. Trump since before
the 2016 election. See infra Statement of Genuine Issues Section A.
47. The FBI updated Plaintiff’s personnel file with an official Standard Form (“SF”)
52, Request for Personnel Action, which terminated Plaintiff from his FBI position effective
August 10, 2018. See Pl.’s SF 52 (Exhibit 8).
Admitted.
48. The following day, on August 11, 2018, the FBI issued a SF 50, Notice of
Personnel Action to Plaintiff, officially alerting him of his termination. See SF 50 (Exhibit 9).
Admitted.
49. On September 5, 2018, Plaintiff filed an appeal of the FBI’s dismissal decision with
the Merit Systems Protection Board (“MSPB”), which was dismissed for lack of jurisdiction by an
Administrative Judge (“AJ”) on November 15, 2018. See MSPB Initial Decision (Exhibit 10).
Admitted.
50. The AJ concluded that, as a member of the FBI SES, Plaintiff did not occupy a
position that gave him appeal rights to the MSPB under the Civil Service Reform Act (“CSRA”),
Pub. L. No. 95-454, 92 Stat. 1111, as amended, codified throughout Title 5 of the United States
Code. Id. at 9.
Admitted.
PLAINTIFF’S STATEMENT OF GENUINE ISSUES
The following genuine issues must be resolved by the jury at trial, or at the very least
require an opportunity for discovery as provided by Rule 56(d).
A. Did the President Engage in a Sustained Effort to Undermine Americans’ Faith in

the FBI?
This issue is material to all claims in the case because the evidence shows that the
Defendants fired Strzok and released Privacy Act protected materials to placate the President as
11
a result of his relentless campaign to discredit the Bureau. The following facts demonstrate the
existence of this campaign:
51. During his campaign for the Presidency in 2016, Donald J. Trump repeatedly
attacked the integrity of the FBI in particular and law enforcement in general.3 Before FBI
Director James Comey announced that former Secretary of State and Democratic nominee
Hillary Clinton would not be prosecuted for her use of a private email server as Secretary of
State, Candidate Trump claimed without evidence that a decision not to prosecute Secretary
Clinton would necessarily be corrupt.4 After Director Comey’s announcement, Mr. Trump
claimed, again without evidence, that the FBI’s decision had been a result of political pressure by
the Obama Administration.5 Mr. Trump also repeatedly warned that, if Secretary Clinton
defeated him in the election, that would be the result of fraud and corruption.6 Throughout the
campaign, Mr. Trump led supporters at his rallies in chants of “lock her up!”7 These campaign
tactics conditioned many Trump supporters to believe that the FBI was biased against Trump.
3
See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (“Crooked Hillary colluded
w/FBI and DOJ and media is covering up to protect her. It's a #RiggedSystem! Our country
deserves better!” (Oct. 17, 2016, 2:03 PM)), (“EXCLUSIVE: FBI Agents Say Comey ‘Stood In
The Way’ Of Clinton Email Investigation” (linking to dailycaller.com article) (Oct. 17, 2016,
6:42 PM)).
4
See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (“Crooked Hillary Clinton is
‘guilty as hell’ but the system is totally rigged and corrupt! Where are the 33,000 missing e-
mails?” (July 4, 2016, 8:26 AM)).
5
See, e.g., Trump Campaign (@TeamTrump), Twitter (“CORRUPTION CONFIRMED:
FBI confirms State Dept. offered ‘quid pro quo’ to cover up classified emails.” (Oct. 17, 2016,
10:50 AM)).
6
See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (“Of course there is large scale
voter fraud happening on and before election day. Why do Republican leaders deny what is
going on? So naive!” (Oct. 17, 2016, 7:33 AM)).
7
Wall Street Journal, RNC 2016 Chant: ‘Lock Her Up’ Goes Mainstream, YOUTUBE (July
22, 2016), https://www.youtube.com/watch?v=VtaxcKvRCpY.
12
52. After his election, President Trump continued to incite his supporters against the
FBI and the intelligence community.8 President Trump repeatedly stated, largely but not
exclusively by tweet, that the intelligence community’s conclusion that Russia interfered in the
2016 presidential election to help him and hurt Secretary Clinton was untrue, and contended that
the investigation into Russian interference, first by the FBI and then by Special Counsel Mueller,
was a politically motivated “witch hunt,” a “hoax” and a “scam.”9 President Trump’s attacks on
the integrity of the FBI and the Russia investigation, which preceded the discovery of the texts at
issue in this case, were designed to, and did, further erode his supporters’ faith in the integrity of
the FBI and law enforcement.
53. After months of attacks by President Trump and his allies in Congress and the
media, the DOJ Office of the Inspector General (“OIG”) initiated investigations into the
investigations of Secretary Clinton’s email and Russian interference in the 2016 election. The
OIG investigations stretched over years, involved the review of millions of documents and the
interview of hundreds of witnesses, and culminated in two reports—one issued in June 2018 and
8
See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (“Information is being illegally
given to the failing @nytimes & @washingtonpost by the intelligence community (NSA and
FBI?).Just like Russia” (Feb. 15, 2017, 7:19 AM)).
9
See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (“The Russia-Trump collusion
story is a total hoax, when will this taxpayer funded charade end?” (May 8, 2017, 3:46 PM)),
(“You are witnessing the single greatest WITCH HUNT in American political history - led by
some very bad and conflicted people! #MAGA” (June 15, 2017, 4:57 AM)), (“Congratulations
to @ABC News for suspending Brian Ross for his horrendously inaccurate and dishonest report
on the Russia, Russia, Russia Witch Hunt. More Networks and ‘papers’ should do the same with
their Fake News!” (Dec. 2, 2017, 6:22 PM)), (“A must watch: Legal Scholar Alan Dershowitz
was just on @foxandfriends talking of what is going on with respect to the greatest Witch Hunt
in U.S. political history. Enjoy!” (Dec. 4, 2017, 4:35 AM)); cf Donald J. Trump
(@realDonaldTrump), Twitter (“Global warming is an expensive hoax!” (Jan. 29, 2014, 10:27
PM)).
13
one issued in December 2019.10 Both reports criticized, among other things, politically charged
texts exchanged between Strzok and a Government Attorney, Lisa Page. The reports also
concluded that there was no evidence that Plaintiff’s political opinions impacted his work on
either the Clinton or Russia investigations.11
B. Issues of Material Fact Relevant to the Privacy Act Claim
54. From what system(s) of records did Defendants collect records about Strzok in
order to disclose his private information in 2017? Defendants essentially concede that the
records were retrieved from the OIG’s investigative records system by relying on a supposed
“routine use” that is specific to that system. It remains to be discovered whether other systems
were utilized to disclose the records at issue. Plaintiff submits that the following facts are likely
to be proven:
a. The text messages were collected from Mr. Strzok’s and Ms. Page’s
phones and maintained in a system of records by the FBI’s Enterprise Security
Operations Center (“ESOC”) referred to as the “FBI’s collection program” and in a
separate enterprise.db database.12 Both databases stored data so that it could be collected
by names, phone numbers, or other personal identifiers that were specific to Mr. Strzok
and Ms. Page.
10
Midyear Report, supra note 2; Crossfire Hurricane Report, supra note 1.
11
See Midyear Report at iii (finding no “documentary or testimonial evidence that improper
considerations, including political bias, directly affected the specific investigative decisions”);
Crossfire Hurricane Report at iv (finding no “documentary or testimonial evidence that political
bias or improper motivation influenced the decisions to open the four individual investigations”).
12
Office of the Inspector Gen., U.S. Dep’t of Justice, Report of Investigation: Recovery of
Text Messages From Certain FBI Mobile Devices, Investigations Div. 2018-003523 (Dec. 2018)
(“Text Message Recovery Report”), https://oig.justice.gov/reports/2018/i-2018-003523.pdf.
14
b. The text messages between Mr. Strzok and Ms. Page came to light during
the OIG investigation into the FBI’s handling of the Hillary Clinton email investigation.
The OIG collected the text messages from the ESOC and the enterprise.db database and
stored the text messages within its “Investigative Records.”13 The text messages that Mr.
Strzok and Ms. Page exchanged were largely “routine work-related communications,”
although many were “of a personal nature, including discussions about their families,
medical issues, and daily events.”14 Most of these personal text messages were entirely
apolotical and were not included in the Midyear Report.15
c. This OIG’s investigative records system organizes files by case number
such that they may “be retrievable by the surnames of subjects, witnesses, and/or
complainants.”16
d. One or more of the above noted systems (or other systems unknown) was
accessed to retrieve and impermissibly disclose Plaintiff’s private information. Upon
information and belief, the DOJ retrieved the text messages that were then leaked to the
press from the OIG’s investigative records by using either Plaintiff’s name, an identifying
number, or another identifying particular, such as his cell phone number.
55. Could the purported “routine use” relied upon by the Defendants have justified
their release of Plaintiff’s personal records? Plaintiff answers that it could not, and submits that:
13
See id.; see also 72 Fed. Reg. 36,725.
14
Midyear Report at 398.
15
See generally id.
16
72 Fed. Reg. 36,725, 36,726.
15
a. The OIG published a list of “routine uses” of its investigative records in
the Federal Register that includes compatible disclosures “to the news media and the
public” unless disclosure would constitute “an unwarranted invasion of personal
privacy.”17 However, the OIG only routinely communicates with the public and media
through its public reports, such as the ones issued in June 2018 and December 2019.
b. The OIG’s investigative records exist “to carry out [the OIG’s]
responsibilities pursuant to the Inspector General Act of 1978, as amended.” The OIG
only routinely uses those records “in the course of investigating individuals and entities
suspected of having committed illegal or unethical acts and in conducting related criminal
prosecutions, civil proceedings, and administrative actions.”18
c. Although Defendants characterize the disclosure of texts to the media in
this case as such a “routine” use, on information and belief the OIG had never, in its
nearly 30 years of existence, allowed reporters to access the files contained in its
investigative records during the pendency of an investigation.
d. On December 11, 2019, Inspector General Horowitz testified to the Senate
Judiciary Committee that the OIG should never disclose investigative files to, or engage
in substantive communications with, the press regarding ongoing investigations. The
relevant testimony is reproduced below.
Sen. Feinstein: Did you give interviews about your investigation while it
was ongoing?
Inspector General Horowitz: I’m sorry, did I-
Sen. Feinstein: Did you give interviews?
17
Id.
18
Id.
16
Inspector General Horowitz: Myself?

Sen. Feinstein: During the investigation?
Inspector General Horowitz: No. I do not do that.
Sen. Feinstein: Did anybody on the IG team?
Inspector General Horowitz: No, and it would have been entirely
inappropriate for them to do so.
Sen. Feinstein: So, I’d just like to clear this up, what are the dangers of
discussing an investigation that’s ongoing?
Inspector General Horowitz: So, I actually wrote and we wrote a 500-
page report about that that we issued last year on the midyear investigation
and among other things criticized what occurred last year with regard to
the handling of that investigation. . . . Ongoing investigations, you don’t
know as an investigator or you shouldn’t conclude as an investigator, until
you are done with the investigation. You shouldn’t be reaching your
conclusions until that point. And so giving preliminary ideas, advice,
guidance statements, can be misleading and you should not be reaching
final conclusions until you get to the end of the investigation.19
e. After the texts in question were discovered by OIG and before December
2, 2017, someone in the leadership of the DOJ caused their existence and contents to be
leaked to the press, either by providing this information directly to reporters or by
providing it to the White House in order to provide to reporters.20
56. Who authorized the disclosure of the texts to the media, and what was
his/her/their motive? This is relevant to whether the disclosures of information about Plaintiff
were compatible with the purpose for which Defendants collected those records as required by
the Privacy Act. It is also relevant to whether the pre-December 2, 2017 leaks to the media
and/or the “authorized” disclosure to the media on December 12, 2017 were willful or intentional
violations of Plaintiff’s Privacy Act rights. The following facts are relevant to this question:
19
Crossfire Hurricane Report Hearing Before the S. Comm. on the Judiciary, 116th Cong.
(Dec. 11, 2019) (official transcript not yet available), https://www.rev.com/blog/inspector-
general-report-hearing-transcript-michael-horowitz-testifies-on-fbis-findings.
20
Defs.’ Statement of Undisputed Facts ¶ 21 cites two December 2, 2017 articles
concerning the text messages at issue.
17
a. It is unknown which official made the pre-December 2, 2017 disclosures.
The identity of that official (or officials) will likely be discovered and is relevant to
proving willfulness or intent.
b. On December 14-15, 2017, DOJ Spokesperson Sarah Isgur Flores engaged
in an email exchange with a reporter from Fox News in which Mrs. Flores acknowledged
that members of the press were provided access to the texts before either Congress or the
“official” disclosure of the texts to reporters by DOJ, both of which had occurred on
December 12, 2017. Ms. Flores initially claimed that this disclosure was “not
authorized” before subsequently and falsely implying that Congress was the source of the
leaks.21
c. On or about December 12, 2017, a high-ranking political appointee at the
DOJ made the decision to allow members of the press access to the texts that the DOJ
had received from the OIG’s investigative records.22 On the afternoon of December 12,
only hours before the Defendants allowed reporters to view the texts, Department
leadership first contacted the Office of Privacy and Civil Liberties (“OPCL”).23
d. OPCL did not conduct any “thoughtful analysis” or complete “due
diligence” before the unknown official(s) ordered the disclosure of the texts to reporters.
In fact, emails sent between OPCL and Associate Deputy Attorney General Schools
reveal that a memo assessing the legality of the release wasn’t even drafted until
December 19, 2017, seven days after the disclosures, and wasn’t finalized until early
21
Exhibit A, December 15, 2017 email from Sarah Isgur Flores to Elvan Katmer.
22
See Exhibit B, December 12, 2017 DOJ text messages to reporters.
23
Exhibit C, December 12, 2017 email from Scott Schools to Peter A. Winn.
18
2018. Despite this, the final memo (but not earlier drafts) was back-dated to December
12, 2017, the date of the texts’ release.24
e. The extreme irregularity of the DOJ’s conduct is underscored by the
Department’s own communications to Congress. In letters to Congress, the DOJ referred
to its disclosures of the texts between Mr. Strzok and Ms. Page as “extraordinary” and
“unique.”25
f. Numerous exchanges with reporters also show that the DOJ’s disclosures
to the press were highly unusual. To highlight just four of the many questions that
apparently stunned reporters sent to the DOJ’s Office of Public Affairs on December 13,
2017: Mark Hosenball of Reuters asked “Isn’t it quite unorthodox, if not unethical or
even illegal, for DoJ to deliberately make public or leak evidence collected in an IG
investigation”;26 Quinta Jurecic of The Washington Post questioned how the DOJ would
respond to allegations that it was “unusual or potentially politiciz[ed] . . . an ongoing
investigation”;27 Dan Friedman of Mother Jones asked whether DOJ had “handy prior
examples of instances in which DOJ provided information to the press” in this manner,
24
Compare Exhibit D, January 4, 2018 email from Peter A. Winn to Scott Schools
attaching “2017-12-12 – Privacy Assessment FINAL” with Exhibit E, December 19, 2017 email
from Katherine M. Harman-Strokes to Peter A. Winn attaching “2017-12-19 – Privacy Act
Assessment – OIG Records.”
25
Exhibit F, December 12, 2017 letter from Stephen Boyd to Chairman Goodlatte.
26
Exhibit G, December 13, 2017 email from Sarah Isgur Flores to Mark Hosenball.
27
Exhibit H, December 13, 2017 email from Ian Prior to Quinta Jurecic.
19
because he had “never received something like that”;28 and Eli Lake of Bloomberg View
asked, “[W]hy was this done? What about the due process rights of Page and Strzok?”29
g. Even after the “official” disclosure of the texts to the media on December
12, 2017, employees of the DOJ’s Office of Public Affairs instructed reporters that they
“couldn’t source [the text messages] to DOJ”30 and not “to attribute the texts to [DOJ].”31
h. After the Office of Public Affairs failed to prevent public reports that it
was the source of the leaked text messages, the DOJ misled Congress, the press, and the
public by implying that the OIG had signed off on its disclosures to the press.32 In fact,
the decision to disclose the texts to reporters was made by political appointees at the
DOJ, without consultation with OIG, a fact that OIG made clear in Inspector General
Horowitz’s December 15, 2017 letter to Congress: “The Department did not consult with
the OIG before sharing the text messages with the press.”33
i. The DOJ failed to properly redact or withhold the text messages in
accordance with the ordinary FOIA practices that it now claims apply.
j. Upon information and belief, the disclosures to the media were intended to
discredit the Mueller investigation, engender public distrust of the FBI and the
28
Exhibit I, December 13, 2017 email from Ian Prior to Daniel Friedman.
29
Exhibit J, December 13, 2017 email from Ian Prior to Eli Lake.
30
Exhibit K, December 13, 2017 email from Sarah Isgur Flores to Zoe Tillman.
31
Exhibit L, December 13, 2017 email from Sarah Isgur Flores to Emma Loop.
32
See, e.g., Exhibit G, December 13, 2017 email from Sarah Isgur Flores to Mark
Hosenball (“As the dag just testified, the IG approved the release”).
33
Exhibit M, December 15, 2017 letter from Inspector General Horowitz to Ranking
Member Jarrold Nadler, Vice Ranking Member Jamie Raskin, and Congressman Hakeem
Jeffries.
20
intelligence community, and otherwise serve the partisan political agenda of President
Trump and his political allies.
k. To the extent the top DOJ official(s) who authorized the disclosure of the
media did not actively want to undermine the public’s faith in the FBI and investigations
of President Trump, upon information and belief, he/she/they disclosed the texts in
question in response to President Trump’s repeated criticism of these leaders’ failure to
sufficiently protect President Trump from scrutiny by the FBI and Special Counsel’s
Office.
C. Issues of Material Fact Relevant to the First Amendment Claim
57. Was the decision to fire Strzok and countermand the final decision of the FBI’s
duly designated “deciding official” motivated by retaliatory animus over the content of Strzok’s
protected political speech?
58. Relatedly, in deciding to fire Strzok, was Deputy Director Bowdich (“DD
Bowdich”) attempting to placate the President of the United States who viewed Strzok as
disloyal due to the content of his protected political speech?
59. Did Defendants engage in viewpoint discrimination when they punished
Plaintiff’s political speech critical of President Trump, while welcoming or tolerating speech
supportive of the President and critical of his political rivals? Although discovery is critical to
fully respond to Defendants’ motion on these issues, the following facts suggest that the answer
is affirmative:
a. The hundreds of text messages that the DOJ disclosed to the press
included private speech between Mr. Strzok and Ms. Page. Many of the disclosed texts –
including nearly all of the texts containing personal political opinions that precipitated the
21
ultimately successful campaign by the President to have Plaintiff terminated – were
unrelated to any FBI investigation in which Plaintiff had participated.34
b. Once the texts were released, they were relentlessly exploited by the
President and his sympathizers, including allies in Congress and the media, who tweeted,
wrote, published, issued and declared countless false and defamatory statements about
Plaintiff, including accusations of “treason,” and attempting a “coup” against a
democratically elected President. President Trump also publicly and privately demanded
that Plaintiff be punished for these imagined crimes, including by firing, criminal
prosecution, jail and worse.35 In the Spring of 2018, President Trump directly pressured
then Attorney General Sessions and FBI Director Wray to fire Plaintiff.36 At one point,
President Trump endorsed the notion that Plaintiff’s (nonexistent) crimes justified the
death penalty.37 At another point, the President mimicked Plaintiff having a sexual
orgasm in front of tens of thousands of jeering supporters.38 At a subsequent rally the
34
See Defs.’ Statement of Undisputed Facts ¶ 14.
35
See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (“So they now convict Roger
Stone of lying and want to jail him for many years to come. Well, what about Crooked Hillary,
Comey, Strzok, Page, McCabe, . . . ? Didn’t they lie?.... A double standard like never seen before
in the history of our Country? (Nov. 15, 2019, 9:13 AM)).
36
See Murray Waas, Exclusive: Trump Pressed Sessions to Fire 2 FBI Officials Who Sent
Anti-Trump Text Messages VOX (Apr. 20, 2018 9:30 AM),
https://www.vox.com/2018/4/20/17258230/trump-sessions-fire-fbi-officials-strzok-page-text-
messages.
37
See Philip Bump, Trump, not understanding treason, names people he thinks committed
the capital crime, The Washington Post, May 23, 2019; Donald J. Trump (@realDonaldTrump),
Twitter (“My Campaign for President was conclusively spied on. Nothing like this has ever
happened in American Politics. A really bad situation. TREASON means long jail sentences, and
this was TREASON!” (May 17, 2019, 4:11 AM)).
38
See Trump Mocks Peter Strzok, Lisa Page at Minnesota rally, The Washington Post
(Dec. 2, 2019, 12:27 PM), https://www.washingtonpost.com/video/politics/trump-mocks-peter-
22
President falsely suggested that Ms. Page had procured a restraining order against
Plaintiff.39 This premediated campaign of vilification directly resulted in Plaintiff’s
termination and a host of threats against Plaintiff and his family that have continued even
after he was fired.40
c. On June 14, 2018, the OIG issued its report on the FBI’s investigation into
Secretary Clinton’s emails, which the FBI had opened under the codename “Midyear
Exam.” (“Midyear Investigation”). This report concluded that there was no evidence that
Plaintiff’s political opinion had affected his work on the Midyear Investigation and noted
that, although Plaintiff had expressed a preference for Secretary Clinton over Candidate
Trump, Plaintiff had nevertheless been one of the members of the Midyear Team pushing
for relatively more aggressive investigative steps against Secretary Clinton.41
d. On June 15, 2018, the day after the release of the OIG Midyear Report, the
FBI Office of Professional Responsibility (“OPR”) sent Plaintiff a letter, accusing him of
violating three sections of the FBI Offense Code and recommending his dismissal.42
e. On July 12, 2018, Plaintiff publicly and voluntarily testified before the
House Oversight and Judiciary Committees. In 11 hours of sometimes openly hostile
questioning from President Trump’s Congressional allies, Plaintiff testified that: he
deeply regretted sending the texts in questions, which had provided ammunition for
strzok-lisa-page-at-minnesota-rally/2019/12/02/968979d0-38b3-409e-
97c6c2e20c9cfa53_video.html.
39
Lisa Page (@NatSecLisa), Twitter (“This is a lie. Nothing like this ever happened.”
(Dec. 11, 2019, 9:34 AM)).
40
Exhibit N, Strzok Decl. ¶ 7.
41
Midyear Report, supra note 2, at iii.
42
Defs.’ Ex. 1, ECF No. 31-1.
23
politically motivated attacks against an institution he loved and had served proudly for 20
years; he had never allowed his political opinions to affect his investigative actions; and,
contrary to President Trump’s repeated statements, the investigation into Russian
interference in the 2016 U.S. Presidential election was neither a “hoax” nor a “witch
hunt.”43
f. On July 17, 2018, Plaintiff submitted a letter to the FBI OPR responding
to OPR’s letter of June 15, 2018. In Plaintiff’s letter, a copy of which is attached,44 he
again expressed remorse for sending the texts but contested OPR’s allegations that he had
violated the FBI Offense Code and argued against OPR’s recommendation of dismissal.
g. Contrary to Defendants’ claim (Motion at 8), that Plaintiff does not
“appear to dispute” the conclusion that it was his text messages that “cast a cloud” over
the Midyear Investigation and the FBI’s credibility, Plaintiff strongly contests and
contested that charge, in his public testimony,45 his July 17, 2018 letter,46 and his
testimony before Assistant Director Candice M. Will (“AD Will”) on July 24, 2018, in
which Plaintiff noted that it was the cynical use of the texts by the President (who had
been attacking the FBI’s integrity long before the texts surfaced) and his allies, and not
the texts themselves, that damaged the credibility of the FBI.47
43
House Judiciary Comm. and House Oversight and Gov’t Reform Comm. Joint Hearing
on FBI and DOJ Actions Surrounding the 2016 Election, 2018 WL 3410042 (July 12, 2018).
44
Exhibit O, July 17, 2018 letter response of Peter Strzok to Candice Will.
45
House Judiciary Comm. and House Oversight and Gov’t Reform Comm. Joint Hearing
on FBI and DOJ Actions Surrounding the 2016 Election, 2018 WL 3410042 (July 12, 2018).
46
See Ex. O.
47
Goelman Decl. ¶ 7.
24
h. Plaintiff also expressed deep concerns with the lack of due process in his
disciplinary process, citing the following facts: repeated public and private statements by
President Trump demanding that Plaintiff be fired; Plaintiff’s inability to access his own
files or the thousands of pages of materials relied upon by OPR; and “the unusual and
unprecedented speed of OPR’s process,” evidenced by the fact that OPR’s letter to
Plaintiff still contained language keyed to a prior version of the OIG report that had been
changed in the final report, which suggested “a rush to judgment which undermines
[Plaintiff’s] right to due process.”48
i. AD Will began her career at the DOJ in 1988 and was appointed Assistant
Director for the Office of Professional Responsibility by Director Robert S. Mueller in
2004.49 AD Will, as the government has recognized in other litigation, is a “high-ranking
career official,” and her opinions on what the “standard penalty” is for violations of FBI
policy are entitled to considerable weight.50 In McCabe v. Barr, the government has
argued that the fact that former Acting Director McCabe’s dismissal resulted from “the
conclusions and recommendations” of AD Will, among others, demonstrates the absence
of a political motivation for, and the propriety of, McCabe’s termination.51 Here, in
contrast, AD Will’s determination of the appropriate penalty for Plaintiff was summarily
rejected after President Trump’s sustained pressure on the FBI to fire Strzok.
48
Ex. O at 16 n.7.
49
FBI, Nat’l Press Release, “FBI Director Names Candice M. Will as Assistant Director for
Office of Professional Responsibility” (Aug. 11, 2004), https://archives.fbi.gov/archives/news/
pressrel/press-releases/fbi-director-names-candice-m.-will-as-assistant-director-for-office-of-
professional-responsibility.
50
See Motion to Dismiss and For Summary Judgment at 21, 28, McCabe v. Barr, No. 1:19-
CV-2399-RDM (D.D.C. Nov. 1, 2019), ECF No. 23.
51
Id. at 21.
25
j. After conducting an in-person hearing with Plaintiff on July 24, 2018, AD
Will sent Plaintiff a “Last Chance Agreement” (“LCA”) whereby Plaintiff would be
suspended for sixty days and demoted rather than terminated. Plaintiff and counsel
executed and returned the LCA on July 26, 2018.52 AD Will’s office stressed that “in the
end, it is the AD’s decision” as to whether or not to execute the LCA.53
k. At the hearing, AD Will invited Plaintiff to supplement his submission by
providing her a list of up to five character witnesses from whom the AD would solicit
input with respect to Plaintiff. Plaintiff provided AD Will with the names of four people.
On August 6, 2018, the AD’s office sent an email to counsel for Plaintiff informing him
that one of the proposed character witnesses needed until the end of the week to submit a
statement on Plaintiff’s behalf and asked counsel whether the Plaintiff wanted OPR to
wait for the character reference before she signed the LCA and letter to Plaintiff’s
Division if the AD was otherwise ready to proceed. Counsel for Plaintiff responded that,
if AD Will was ready to move forward pursuant to the terms set forth in the LCA, there
was no need to wait for the character reference, but that if AD Will was considering
terminating Mr. Strzok, Plaintiff requested that she wait and consider this character
reference as mitigating information under the Douglas factors.54
l. Between the time that Plaintiff signed the LCA on July 26, 2018 and AD
Will’s decision on August 8, 2018, the campaign of pressure by President Trump and his
52
53
Exhibit P, July 25, 2018 email from OPR to Aitan Goelman.
54
Exhibit Q, August 6, 2018 email from OPR to Aitan Goelman.
26
allies to ensure that Plaintiff was fired continued unabated.55 Nevertheless, AD Will,
who repeatedly noted that she had the best understanding of the FBI’s Offense Code, its
relevant precedent, and whatever aggravating and/or mitigating factors existed, made the
decision that the terms set forth in LCA were appropriate discipline for Plaintiff. On
August 8, 2018, AD Will signed a 26-page letter that analyzed the entire record and
concluded that the appropriate penalty for Plaintiff was the suspension and demotion set
forth in the LCA.56
m. On August 9, 2018, DD Bowdich countermanded AD Will’s decision in a
one-and-a-half-page letter that cited no additional evidence or analysis but concluded that
dismissal was appropriate and informed Plaintiff that this decision was final and
unappealable. DD Bowdich, who had previously personally assured Plaintiff that the
furor surrounding the texts would not significantly impact Plaintiff’s career with the
FBI,57 did not explain what had caused him to change his mind.58
n. After receiving DD Bowdich’s letter, counsel for Plaintiff immediately
sent DD Bowdich an email protesting both the substantive decision and the process
employed by the Deputy Director, which counsel noted was a departure from both past
55
See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (“FBI Agent Peter Strzok (on
the Mueller team) should have recused himself on day one. He was out to STOP THE
ELECTION OF DONALD TRUMP. He needed an insurance policy. Those are illegal, improper
goals, trying to influence the Election. He should never, ever been allowed to……..” (Aug 1,
2018, 6:03 AM)), (“Russian Collusion with the Trump Campaign, one of the most successful in
history, is a TOTAL HOAX. The Democrats paid for the phony and discredited Dossier which
was, along with Comey, McCabe, Strzok and his lover, the lovely Lisa Page, used to begin the
Witch Hunt. Disgraceful!” (Aug. 1, 2018, 7:01 AM)).
56
57
Exhibit N, Strzok Decl. ¶ 4.
58
See Defs.’ Ex. 6, ECF No. 30-7.
27
practice and the FBI’s own prior written assurances that it would follow regular process
in this matter. Counsel asked for the opportunity to appeal DD Bowdich’s decision to
terminate Plaintiff or, in the alternative, an explanation as to why the FBI decided to
“abandon both past practice and its own written commitments in this case.”59 Although
counsel received an email from FBI’s Office of General Counsel (“OGC”) on August 20,
2018, which stated that OGC was “looking into” Plaintiff’s complaint and would respond
in “due course,” Plaintiff never received a response.60
o. After Plaintiff was removed from the rolls of the FBI, he timely filed a
notice of appeal with the Merit Systems Protection Board. This appeal was ultimately
dismissed by MSPB on jurisdictional grounds.61
p. On December 9, 2019, the OIG issued the Crossfire Hurricane Report,
which evaluated the FBI’s investigation into Russian interference in the 2016 election.
The Report was over 460 pages long and concluded that there was no “documentary or
testimonial evidence that political bias or improper motivation influenced the decisions”
that Plaintiff and others made during the Russia investigation.62 It also squarely
debunked many of the other allegations previously leveled by the President and his allies,
including that the FBI had “spied” against the Trump campaign,63 and that the Russian
intelligence source who provided information to members of the Trump campaign was
59
Exhibit R, Aug. 20, 2018 email from Cecilia O. Bessee to Aitan Goelman.
60
Id.
61
Defs.’ Ex. 10, ECF No. 30-11.
62
Crossfire Hurricane Report at iii–iv, supra note 1.
63
Id. at vi (finding no evidence that political bias affected decision to seek FISA authority).
28
actually a secret asset of the FBI or the U.S. intelligence community.64 President Trump
responded to the Report by falsely claiming that it proved the “attempted overthrow” of
the government and issuing a thinly-veiled threat to fire Director Wray for his failure to
echo the President’s false claims about the Report.65
q. The Crossfire Hurricane Report also highlights instances in which FBI
agents involved in the investigation sent text and instant messages “which reflect their
support for Trump in the 2016 elections.”66 For example, one supervisory special agent
instant messaged another FBI employee on November 9, 2016, “if you hear talk of a
special prosecutor….I will volunteer to work [on] the Clinton Foundation.” He also
wrote that he was “elated with the election” because he “didn’t want a criminal to be in
the White House.”67 Another pair of agents exchanged text messages that read:
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: LOL68
Upon information and belief, none of these agents who expressed positive opinions about
then President-elect Trump and negative views of Secretary Clinton faced disciplinary
64
Id. at 403.
65
Shannon Pettypiece, Trump: IG report of justified campaign probe shows ‘attempted
overthrow’ of government, NBC News (Dec. 9, 2019, 3:53 PM), https://www.nbcnews.com/
politics/white-house/trump-ig-report-finding-2016-campaign-probe-justified-actually-documents
-n1098396.
66
Crossfire Hurricane Report at 339 n.477.
67
Id.
68
Id.
29
proceedings. Notably, and appropriately, the FBI has taken steps to prevent these agents’
identities from being publicly disclosed, in contrast to the Defendants’ decision to
disclose Plaintiff’s identity to the media.
r. This disparate and discriminatory treatment is but one example of a
broader pattern. Throughout the Trump Administration, there has been a pattern of
treating political speech by federal employees differently based on its content. While
Plaintiff and many others who have criticized the President have faced discipline, up to
and including termination, revocation of security clearances, and threats of criminal
prosecution, federal employees who praise President Trump and/or attack his political
rivals have faced no consequences.69
s. Even career civil servants have been repeatedly singled out for
opprobrium in the campaign by President Trump and his supporters to delegitimize any
investigation of potential misconduct by the President.70 Meanwhile, the public record is
replete with examples of federal employees who praise the President and criticize his
political rivals having de facto immunity, even when their actions are clear violations of
federal law.
t. Presidential advisor Kellyanne Conway is a prominent example of this
dynamic. Even after President Trump’s own Office of Special Counsel recommended
69
See, e.g., Julie Hirschfeld Davis & Michael D. Shear, Trump Revokes Ex-C.I.A. Director
John Brennan’s Security Clearance, N.Y. Times (Aug. 15, 2018), https://www.nytimes.com/
2018/08/15/us/politics/john-brennan-security-clearance.html. Mr. Brennan appears to have been
fortunate in that his security clearance was not ultimately revoked.
70
See, e.g., Caitlin Oprysko, White House attacks Lt. Col. Vindman as he testifies against
Trump, Politico (Nov. 19, 2019, 3:17 PM), https://www.politico.com/news/2019/11/19/
alexander-vindman-testimony-071576.
30
Mrs. Conway’s removal for flagrant and repeated violations of the Hatch Act,71 Mrs.
Conway faced no consequence, and continues to serve in the administration. President
Trump even thwarted attempted Congressional oversight by instructing Mrs. Conway to
refuse to comply with a Congressional subpoena under the doctrine of “absolute
immunity,” an argument since rejected by Judge Ketanji Brown Jackson.72
u. On December 24, 2019 President Trump stated that he considered “getting
rid” of the FBI employees who led the Crossfire Hurricane investigation one of his
“greatest achievements.” “These were dirty people. These were bad people. These were
evil people, and I hope that someday I’m going to consider it my greatest, or one of my
greatest achievements, getting rid of them,” Trump told reporters at Mar-a-Lago, where
he was on vacation.73
v. Upon information and belief, if Plaintiff had expressed support for, instead
of criticism of, Candidate and then President Trump, he would still be employed at the
FBI.
60. Did the FBI suffer any actual disruption as a result of Plaintiff’s protected
political speech? The following facts suggest that it did not:
71
See Press Release, “U.S. Office of Special Counsel, OSC Finds Kellyanne Conway
Repeatedly Violated the Hatch Act, Recommends Removal from Federal Service” (June 3,
2019), https://osc.gov/News/Pages/19-10-Kellyanne-Conway-Hatch-Act.aspx.
72
U.S. House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), 2019 WL 6312011,
at *36 (D.D.C. Nov. 25, 2019).
73
Chuck Ross, Trump: ‘Getting Rid’ Of ‘Evil’ FBI Officials ‘One Of My Greatest
Achievements’, Daily Caller (Dec. 24, 2019, 11:04 AM),
https://dailycaller.com/2019/12/24/trump-evil-fbi-achievement/.
31
a. The government cites no evidence of actual disruption in its motion and
relies entirely on authority supposedly allowing it to rely on reasonable inferences of
harm. Moreover, in his memorandum firing Plaintiff, DD Bowdich cited to no instances
of actual disruption in the nearly nine-month interval between the public release of the
texts and the firing.74
b. The DOJ OIG reports did not find that any of the actions taken or
decisions made by Plaintiff during the investigations were influenced by any political
views that he held.75
c. To the extent that the FBI experienced a perception problem as a result of
President Trump’s relentless attacks on Plaintiff and law enforcement generally, often
with references to Plaintiff’s personal life and text messages, those issues resulted from
Defendants’ illegal disclosures of his political views and the politically motivated attacks
against Plaintiff by the President and his allies in Congress and the media.
D. Issues of Material Fact Relevant to the Fifth Amendment Claim
61. Did the FBI vest OPR Assistant Director Candice Will with authority to make a
final decision on the proposed discipline of plaintiff, and did AD Will make such a final decision
on August 8, 2017, when she approved the LCA and signed and sent her letter to Strzok’s
Division? Did AD Will’s endorsement of the LCA after Mr. Strzok provided valuable
consideration, including giving up his right to review by a Disciplinary Review Board, constitute
a contract between Strzok and the agency? While discovery is needed to answer these questions
in full, the following facts suggest the answer is “yes” to each of these questions:
74
75
See supra note 11.
32
a. The June 15, 2018 proposed removal states: “The Assistant Director (AD)
of the Office of Professional Responsibility (OPR) will make the final decision in this
matter after consideration of your written and/or oral responses, should you choose to
submit either or both.” The letter also says, “You will receive a written decision letter
from the AD, OPR, after consideration of any oral and written responses to the proposed
action, fully stating the reasons for the decision.”76
b. This was consistent with the FBI’s standard practice and AD Will’s role
for the more than a decade in which she served as the deciding official, vested with full
authority to make a final disciplinary decision, for employees at Plaintiff’s level within
the FBI.
c. AD Will is the only official who met with and heard Plaintiff’s response to
the proposed disciplinary action.
d. After meeting with Strzok and his counsel and reviewing his written reply,
AD Will offered Strzok an LCA in which Strzok would relinquish any internal or
external appeal rights he enjoyed and accept a demotion to a non-supervisory position
and a 60-day suspension, but would not be fired, as the “FINAL decision in this
matter.”77 Strzok and his counsel signed the LCA and returned it on July 26, 2018.
e. After AD Will did not issue her decision within several days, on July 30,
2018, counsel for Strzok inquired with AD Will’s office, and was informed that AD Will
was still considering whether to move forward with the LCA. Counsel noted that “to the
extent that AD Will is considering terminating Pete instead of moving forward with the
76
Defs.’ Ex. 1 at 23, ECF No. 31-1.
77
Defs.’ Ex. 5 (emphasis in the original), ECF No. 30-6.
33
LCA,” Mr. Strzok requested that AD Will contact Strzok’s character witnesses “and
consider what they have to say as mitigation under the Douglas factors.”78
f. On or about Monday, August 6, 2018, counsel for Mr. Strzok was
informed that AD Will was ready to issue her final decision, but that one of Mr. Strzok’s
character witnesses was unable to submit a recommendation letter until the end of that
week. AD Will’s office inquired whether Mr. Strzok wanted AD Will to wait to issue her
decision until she had a chance to review this final character reference. Counsel
responded that, if AD Will was ready to move forward pursuant to the terms of the LCA,
there was no need to wait for the last character letter, and AD Will proceeded to accept
the LCA, extinguishing Strzok’s right to appeal to a DRB and his opportunity to submit
additional mitigating evidence under the Douglas factors.79
g. On August 8, 2018, AD Will issued a final decision on the disciplinary
proposal, in which she decided, “I am (a) suspending you from duty, without pay, for 60
calendar days, not dismissing you, as originally proposed, and (b) demoting you to a non-
supervisory position. AD Will’s decision also states that it is “Based on” “Last Chance
Agreement, 07/26/2018.” 80
h. The next day Bowdich reversed AD Will’s decision and informed Strzok
that his decision constituted a final, unappealable, agency action.81 While discovery will
reveal what (ultimately unsuccessful) pressure was brought to bear on AD Will between
78
Ex. Q at 3.
79
Goelman Decl. ¶ 8.
80
Defs.’ Ex. 4 at 1, 24, ECF No 30-5.
81
Defs.’ Ex. 6 at 2, ECF No. 30-7.
34
July 26 and August 8, 2018, DD Bowdich was evidently unable to withstand the pressure
that AD Will was.
i. Shortly after Bowdich overruled her decision not to terminate Strzok, AD
Will unexpectedly announced her intention to retire after three decades of federal service.
62. Did FBI published policies and/or procedures authorize DD Bowdich to overturn
a final decision by AD Will, once rendered? Defendants claim that the answer is yes, but the
policy is not clear on the matter, and a jury could reasonably find that the policy is not applicable
to this case:
a. Policy Directive 0915D, entitled “Disciplinary Appeals Process” applies
to decisions rendered through an appeal process by a Disciplinary Review Board
(“DRB”) of five FBI officials serving one-year terms in an adjudicatory role. The DRB
was empowered to either sustain or lower the original penalty – it could not make it more
severe.82
b. There is no policy which authorized the Deputy Director to overturn AD
Will’s decision. The only policy that the FBI purports to have relied upon (Policy
Directive 0915D) does not in fact apply to this situation. It authorizes the Director of the
FBI (or his designee) to overturn an appellate decision of the FBI’s DRB.83 The DRB did
not consider or make a decision on Plaintiff’s disciplinary action because he accepted the
LCA and final decision of AD Will, and did not appeal.
82
Defs.’ Ex. 7 § 6.2.5, ECF No. 30-8.
83
Defs.’ Ex. 7 at 1–4, ECF No. 30-8.
35
Date: December 30, 2019 Respectfully submitted,
/s/ Aitan D. Goelman__________________

Aitan D. Goelman (DC Bar 446636)
ZUCKERMAN SPAEDER LLP
Tel: (202) 778-1800
AGoelman@zuckerman.com
/s/ Richard A. Salzman________________

Richard A. Salzman (DC Bar 422497)
HELLER, HURON, CHERTKOF & SALZMAN
PLLC
Tel: (202) 293-8090
salzman@hellerhuron.com
Counsel for Plaintiff
36
Strzok v. Barr, No. 1:19-CV-2367-ABJ
Exhibit A
Flores, Sarah Isgur (OPA)
From: Flores, Sarah Isgur (OPA)

Sent: Friday, December 15, 2017 7:14 AM
To: Katmer, Elvan
Cc: Gibson, lake; 531-DCDeskOps; Press
Subject: Re: Statement on
want to clarify something about my statement:
I learned that another news organization may have had the texts before I showed them to media at
doj. Which means we didn't give it to them. Could mean congress did after we gave it to them for
example. As I said in my statement, there was no limitation on congressional release to the public
either legally or ethically.
On Dec 14, 2017, at 11:44 PM, Flores, Sarah lsgur (OPA) csiflores@jrnd.usdoj.gov> wrote:
The Chairman and Ranking Members of each of the congressional committees

were provided the opportunity to have copies of the texts delivered to their
offices. This was completed before any member of the media was given
access to view the same copy of the texts by the Department's Office of
Public Affairs. As we understand now, some members of the media had
already received copies of the texts before that —but those disclosures were
not authorized by the ❑epartment.
As the Deputy Attorney General said in this testimony on Wednesday, when

the initial inquiries came from committees and members of Congress, the
Deputy Attorney General consulted with the Inspector General, and the
Inspector General determined that he had no objection to the ❑epartment's
providing the material to the Congressional committees that had requested
it. After that consultation, senior career ethics advisors 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.
On Dec 14, 2017, at 11:43 PM, Katmer, Elvan (Eivan.Katmer@FOXNEWS.COM> wrote:
Good evening Ms. Flores,
I am a journalist with Fox News.

I am reading a Business Insider report that refers to a ❑OLITICO article citingyou
saying a Justice Department "statement" acknowledges "copies of private text
messages exchanged between two former special counsel investigators were
disclosed to certain members of the media before they were given to Congress,
even though those disclosures 'were not authorized.'
Document ID: 0.7.16060.93567 20180326-0063341

Can you confirm if there is a ❑o3 statement on this, or was this in response to a
question you have provided to POLITICO. Could you please confirm if the release
of these texts were not authorized.
Sincerely,
Elvan Katmer
Fox News Channel
Assignment Desk
(202] 824 - 6369
This message and its attachments may contain legally privileged or

confidential information. it is intended solely for the named addressee. If you
are not the addressee indicated in this message (or responsible for delivery of
the message to the addressee), you may not copy or deliver this message or
its attachments to anyone. Rather, you should permanently delete this
message and its attachments and kindly notify the sender by reply e-mail. Any
content of this message and its attachments that does not relate to the
official business of Fox News or Fox Business must not be taken to have been
sent or endorsed by either of them. No representation is made that this email
or its attachments are without defect.
Document ID: 0.7.16060.93567 20180326-0063342

Exhibit B
fhl 161
Chat with
Tuesday, December 12, 2017

(13) (0
Hi Sarah, Lachlan at the Daily Beast. Betsy suggested I touch base

about the document preview tonight? Just wanted to get ❑n your
radar. lachlan.markay©thedailybeast.com
Page 1
Chat with (b) (6)
Tuesday, December 12. 2017

b) (6)
Hi Sarah it's Jessica from the WSJ. Del asked me to head to the 10:09 PM
DOJ for an update. Can I get escorted?

Me
I can't escort at this point. Folks are wrapping and I can't be 10:10 PM
outside for that long.
(b) (6)
Is there any other way to d❑ it? 10:10 PM
Me
5 committees on the hill have this stuff 10:10 PM
(b) (6)
I can be there in a short while 10:10 PM
(b) (6)
is there anyone else that can get me inside? 10:11 PM
Me
Not at this point. Sorry. 10:12 PM
Page 1
Ok will try to find a replacement, thanks all the same 10:13 PM
Page 2
8QJ[ ^R[Q 6TN_ BONROONY
Nonresponsive Records
BJPN ,
onrespangive Records
Tuesday. December 12. 2017

I onxesponsive Records
Alex Pfeiffer
Hey whets uo 8:46 PM
Page 7
Alex Pfeiffer
*up 8:46 PM
Alex Pfeiffer
responding to ur call 8:46 PM
Weanesday, December 13, 2017

Alex Pfeiffer
10:08 AM
Assuming last night's call was about Strzok?
Me
Yes sorry--turned out only some outlets have nighttime access. 10:10AM
Annoying!
-. 111111
- 11111M1111411
Page 8
Chat with Brent kendall

Brent kendall
Hi Sarah it's Brent kendall from the Wall Street Journal. I'm on my
way over t❑ take a look at these documents. But I wanted to make 10:24 PM
sure how long you were going to be there. Thanks. I have a hard
pass.
Me
I'll be here for another 30 minutes for sure. Beyond that, I hope to 10:26 PM
leave at 11. I've been up since 4:)
Brent kendall
Thanks. I'm sure it's been a super long day. I'm driving now from 10:27 PM
Silver Spring. Google says I will be there before 11.
Me
The issue is you can't take them with you 10:27 PM
Me
You have to read them here 10:27 PM
Me
And take notes 10:27 PM
Page 1
Brent kende
Well if I am able to just take a quick look and at least confirm a few 10:39 PM
of the texts then I can feed to Aruba who is already writing. thanks
Brent kendall
Excuse the grammar I am dictating text while driving thanks 10:39 PM
Me
Not a problem at all 10:39 PM
Page 2
:RK\ _S\R :RKZUSO EK^KQO
CKQO -
Wednesday, December 13, 2017

Charlie Savage
Sarah Given RR testimony, can you please say who decided to

put ❑ut the texts yesterday and why? did he know/authorize? If
there is anything else ❑OJ is saying about the matter, can you
please send it to me? Thanks!
Me
He just said the IG approved 1.03 PM
Charlie Savage
I am in cab with Katie bc we are worried about missing the window

for her to submit credential paperwork so not watching hearing.
He said IG approved giving the stuff to the press specifically? I was
asked to get Main Justice explanation for that in particular.
Me
Off the record: I bent over backwards to include NYT including

standing in 20 degree weather bc the person you sent didn't have
a badge. The IG approved it. Lawyers and ethics officials approved
it But not to worry. We will note the press doesn't want access to 1.14 PM
information that we provide to congress and isn't subject to any
withholding exemption. This is unreal to me after how much grief
I've gotten from media of everything we haven't been able to
make available.
Me
Ian has a statement. You can work through him from now on. 1:14 PM
Charlie Savage
I understand where you are coming from and objected. They said
bc RR confirmed it was a question we had to ask. (I am not even
writing the story.)
Page 23
Me
OTR again: yep, and it will never happen again. Bc I was the one
who jumped through all those hoops to ensure it could be release
legally and ethically. Next time I won't bother. I'll go home before 1:28 PM
midnight, get to eat dinner, and get more than 4 hours of sleep.
And you guys will never know the difference.
_4
Me
I was working from 4am to midnight yesterday. Why would I ever

bother to do this again when my boss and I are both better off 1:29 PM
keeping press in the dark?

_4
Me
[ That's the end of my rant. But you and the other beat reporters can
expect a very different relationship w the department.
Not Responsive Records
1:29 PM
Page 24
:TM^ aU^T ;QW IUWN_\
DMSQ -
0<6;52=" -646936: $%" %#$)

37=; &(
L-Jel
How rate can we send the someone ? 10:06 PM
Del Wilbur
We send someone? 10:06 PM
Me
It would have to be someone w a badge 10:07 PM
Del Wilbur
How late? Where do they go? 10:08 PM
Page 17
Me
10th street entrance. I'll be here for another 30 minutes. 10:09 PM
Del Wilbur
Brent Kendall is going if you want to leave the texts somewhere he 10:20 PM
can find them
me
Can't d❑ that 10:20 PM
Me
I'll have t❑ stay here with him 10:20 PM
Del Wilbur
Ah. Ok 10:20 PM
Me
Can't take it or take pictures of it 10:21 PM
Dei Wilbur
Sorry. Ah 10:21 PM

Del Wilbur
Thanks s❑ much for your help last night. Much appreciated. Sorry 8:22 AM
for my Paper's chaotic approach to it

Me
No prob 8:28 AM
Del WrWur
Left you some caffeine on your desk be of the late night, but then
realized you are probably on the hill...00ps. I only watched it on 2:32 PM
cspan.
Me
Aww. That's really really kind of you. I feel pretty burned by

everything that happened this morning w stories about how I 2:37 PM
probably violated the law ❑r something silly, but I guess I just need
to get over it.
❑el Wilbur
How did you do that? 2:37 PM
Page 18
❑el Wilbur
I thought I saw something about it but assumed it was a reporter

pissed they didn't get the info
Del Wilbur
feel like Obama Doj would sometimes let us see documents that
were sent to congress, too. I have a vague recollection of that. But I
bet others in the press carp would recall it. Some have real
memories for that kind of thing.
❑el Wilbur
Weip, feel free to enjoy it. Once you get back, you can nuke it. I 2:39 PM
like that 350 coffee place
Del VV[Ibu(
Can we get the texts now that they have been made public by 2:45 PM
congress?
Me
Anyone from congress is and has been welcome to give you the 3:01 PM
texts
-onrespentsrve Records
ii
Page 19
9QJ[ ^R[Q ;YRL D\LSNY
AJPN ,
\Druz'- 'cui;t1 C
Tuesday, ❑ecember 12, 2017

Eric Tucke•
8:05 PM
Can you give any more clarity as to what we're looking at?
Eric Tuck€
Is the DAG recusing? 8:05 PM
Me
No. It's responsive to congress. 8:06 PM
EriC Tucke
Thanks very much. Related to unmasking? 8:11 PM
Me
Please stop guessing 8:11 PM
Eric Tucke •
Last question: this isn't an exclusive for AP, is it? Like, others are 8:18 PM
going t❑ be there as well, right?
Eric Tucker
Or is this just us 8:18 PM
Me
Correct. Not just you. 8:18 PM
onnspollSiVe ketorth
-
-
-
Page 22
Chat with Ian & Alan
Hi Sarah and Ian, it's Alan from US News. I know you're 10:13AM
probably following - or with - Rosenstein this morning.
Would you mind calling when you have a moment?
I'm at the hearing. Happy to text. 10:14AM
Alan
Wanted to touch base on the Strzok texts that were shared 10:113AM
yesterday.
Me
You bet. Let me know what you need. 10:57 AM
Page 1
8RK\ _S\R >KTO ;SL[XW
CKQO ,
3@8?74A" .868;58> $%" %#$*

/4:8 &%
.286 &%
.397 &%
/4:8 %$
Me
Plan on coming back to doj a little after 8 7:00 PM
Jake Gibson
I'm long gone 7:00 PM
Jake Gibson
U all right? 7:00 PM
rvle
Who from fox wants to come? 7:00 PM
Me
Can't talk now. And it's just a standby for the moment. Will provide 7:02 PM
more clarity when I can.
Jake Gibson
Can u call me? 7:02 PM
Jake Gibson
Are u talking about doing something tonight?? 7:02 PM
Page 76
Jake Gibson
You mean to do an on cam interview tonight? I'd be happy to

come back for that. But need to know if it's a go, so I can get a 7:07 PM
crew
Me
No. Nothing on camera. 7:08 PM
Me
This would be an info dump 7:08 PM
Jake Gibson
Oh... understood 7:08 PM
Copy 7:08 PM
Jake Gibson
Lemme know and I will book it a ckt 7:09 PM
Jake Gibson
Takes me like 30 mins door to door 7:09 PM
Jake Gibson
7:29 PM
Can u talk anytime soon?
Me
Head this way 7:44 PM
Jake Gibson
What's going ❑n? What time? All Beat reporters? 7:45 PM
Not all beats 7:46 PM
Jake Gibson
K 7:53 PM
Jake Gibson
❑n way 7:53 PM
Jake Gibson
Almost there 8:27 PM
Jake Gibson
10 mins 8:27 PM
Page 77
You're fine 8:29 PM
Page 78
:SL^ aT^S ?ZSY EZMP\^]
DLRP -
tift_mvIsnivl.mswit
John Roberts
Hey...what's going on there tonight? 8:41 PM
Page 7
Chat with Julia Edwards Ainsley
oruesponizive Records

Julia Edwards Ainslev
7.51 PM
You said tonight, right?
Me
Yes. 830. ❑ocuments to review. 7:51 PM
Page 1
Me
Nothing on camera 7:51 PM
Julia Edwards Ainsley
Ok. I'm coming 7:57 PM

Julia Edwards Ainsle.
Hey thanks again for giving us all a heads up last night. It was a 4:50 PM
very smooth roll ❑ut --Julia Ainsley NBC
Page 2
;SL] `T]S APVVb ;YSPX
ELRP .
onre5poniave Record
Tuesday. December 12.2017

Kelly Cohen
8:29 PM
be there in 17 minutes !
No probl 8:29 PM
Kelly Cohen
I'm outside and can't get in! so cold! 8:41 PM
16th street? 8:42 PM
Kelly Cohen
yes 8:42 PM
lonresixinswe Ream
Page 3
;VO` cW`V COa^O BO^^S``
GOUS .
1;6952<" ,6467368 $%" %#$'

27=; +*
Me
Plan on coming back to doj a little after 8 6:59 PM
Laura Jarrett
Got it, here now. You upstairs? 7:01 PM
Me
Yeah. I'll come down in a bit hopefully. 7:01 PM
Laura Jarrett
sounds good, let me know 7:01 PM
Page 55
:QJ] `R]Q @J]] HJYX]X\Tb
CJPN -
ouresponsive Records

Matt Zapoto s
You're gonna get Devlin instead of me (I'm technically on vacation 8:04 PM

today but am in DC).
Me
No prob! 8:06 PM
Page 50
;UNa dVaU BVXR ARcV[R
ENTR .
0<5;41>" -535825: $%" %#$*

7;A? &&
Me
Can u come to office tonight at 830? 7:45 PM
Mike Levine
I can make it there at 9. Is that ok? 8:01 PM
Yep no prob 8:01 PM
Mike Levine
Cool thanks 8:01 PM
Mike Le
Thanks for making all that happen. 10:13 PM
Me
You bet. It's my job:) 10:13 PM
Page 23
Mike Levine
Ha true. Have a good night 10:14 PM
Mike Levine
Hi, do you know the date of the first earliest text message? 11:09 PM
Me
8/16/15 11:10 PM
Mike Levine
Thanks 11:10 PM
Hey, apparently NBC reported that the texts were released by DOJ. 7:42 AM
My folks wanted me to check to see if we can say that too, or still
case that can't mention DOJ?
Me
No she said released by doj to the hill, which is true, if you read the 7:43 AM
story
Mike Levine
Gotcha thanks 7:45 AM
Page 24
8MFW ZNWM ?FXPF @JNI
?FLJ +
; ilizcards
Tuesday. December 12. 2017

ouresponsive Recant.
Paula Reid
Any update? I am using this suspense as an excuse not to go to 6:34 PM

the gym.
Page 21
Me
Ha. Yeah no lid yet. I may ask y'all to come here after 8 if that 6:34 PM
helps. If not, it'll just be a phone call.
Paula Red
❑k. Thank you. Will keep my calendar ❑pen. 6:35 PM
Be here at 830 7:48 PM
Paula Reic'
Which entrance works this time of day? 7:49 PM
Me
The 10th street ❑ne and you go through the car entrance? 7:59 PM
aula Reid
Cool. Tks 8:00 PM
i.^•!edresday. Decemter 13. 2017

Paula Rev_
It seems you have had a s -t day, but I have a prime parallel 7:51 PM
example for you if you need precedent to defend last night.
Page 22
Chat with Pete Williams
IF iicative Material
Tuesday. December 12, 2017

Me
7:45 PM
Can u or send someone to office tonight at 830?
is iThre ;dent;
Page 1
9RK] `S]R EK[KR ?bWMR
CKQO ,
Wednesday necember 13, 2017

Sarah Lynch
Hey. How come no one told me that the texts would be at doj 9:42 AM
yesterday??
Sarah Lynch
Sarah - I am coming by later but I really hope we can avoid this in 9:51 AM
the future
Page 3
Me
❑versight on my part. I tried to get the outlets with overnight

access and you're right that Rueters does but for some reason I 10:11 AM
thought it didn't.
Sarah Lynch
Julia Harte might come by for me later. I think her hearing with end 10:11 AM
before Rod's.
Sarah Lynch
In future clef loop me in. We have 24 hour staffing around the 10:12AM
globe
Page 4
Exhibit C
Schools, Scott (ODAG)
From: Schools, Scott (ODAG)

Sent: Tuesday, December 12, 2017 4:47 PM
To: Winn, Peter A. (OPCL)
Subject: FW: Texts Messages
Attachments: Strzok Texts Redacted.pdf
Per our conversation.
Original Message
From: (b) (6). (b) (7)(C) Per FB (INSD) (FBI (b) (6), (b) (7)(C) per FBI
To: Schools, Scott (ODAG) <sschools@jmd.usd:
Cc: McNamara, Nancy (INSD) (FBI) (b) (6). (b) (7)(C) per FB (b) (6), (b) (7)(C) per FBI (DO) (FBI)
(b) (6). (b) Ca') Pet FBI
Subject: Texts Messages
Mr. Schools,
Let me know if you have any concerns or questions.
Thank you,
(b) (6), (b) (7)(C) pet
FBI
Unit Chief
External Audit Management Unit
Inspection Division
Federal Bureau of Investigation
(b) (6). (b) (AHC) Pe FBI
Document ID: 0.7.16060.12175 20180326-0080067

Exhibit D
Winn, Peter A. (OPCL)
From: Winn, Peter A. (OPCL)

Sent: Thursday, January 4, 2018 12:41 PM
To: Schools, Scott (ODAG)
Subject: RE: FBI Text Messages - Memo to File
Attachments: 2017-12-12 - Privacy Act Assessment FlNAL.docx
Hi Scott,
Here is the final for your records.
Peter
Peter A. Winn
Acting Chief Privacy and Civil Liberties Officer
Director, Office of Privacy and Civil Liberties
United States Department of Justice
National Place Building, Suite 1000
1331 Pennsylvania Avenue, NW
Washington DC 20530
Office (U)
Cell ib) (6)
Pax (202i 307-0693
(b) (6)
(b) (6)
_ uwww_justice.goviapc1
NOTICE: This email (including any attachments) is intended for the use of the individual or entity to which it is
addressed_ it may contain information that is privileged, confidential, or otherwise protected by applicable law. If you
are not the intended recipient or the recipient's agent), you are hereby notified that unauthorized dissemination,
distribution, copying, or use of this email or its contents may violate is prohibited. If you received this email in error,
please notify the sender immediately and destroy all copies.
From: Schools, Scott (ODAG)

Sent: Wednesday, December 20, 2017 8:22 PM
Subject: RE: FBI Text Messages Draft Memo to File
(b) (5)
From: Winn, Peter A. (OPCL)

To: Schools, Scott IODAG) <sschoolsPimd.usdoi.gov>
Document ID: 0.7.16060.10131 20180326-0000070

Subject: Fel Text Messages - Draft Memo to File
Hi Scott,
(b) {5) •
Peter
Document ID: 0.7.16060.10131 20180326-0000071

Exhibit E
Harman-Stokes, Katherine M. (OPCL)
From: Harman-Stokes, Katherine M. (OPCL)

Cc: (b) t6 r (OPCL)
Subject: RE: Privacy Act assessment - OIG context
Attachments: 2017-12-19 - Privacy Act Assessment - O!G Records (b) (5), (b) (6)
.docx
Importance: High
Peter, Happy to discuss further tomorrow.

Kathy
From: Harman-Stokes, Katherine M. OPCL)

Sent: Tuesday, December 19, 20174:43 PM
To: Winn, Peter A. (OPCL) (b) (6)
Cc: b 1 16 (OPCL) IL-11 (6i
Subject: Privacy Act assessment - OiG context
Importance: High
Peter, (b) (5)

Kathy
Exhibit F
. II
U.S. Department of Justice

Office of Legislative Affairs
Office of the Assistant Attorney General Washington, D.C. 20530
The Honorable Robert W. Goodlatte

Chairman DEC 1 2 2017
Committee on the Judiciary
U.S. House of Representatives
Dear Chaitinan Goodlatte,

This responds to your December 5, 2017 request to the Department of Justice
(Department) requesting that the Department provide the Committee with copies of text message
communications between Federal Bureau of Investigation (FBI) employees Peter Strzok and Lisa
Page. We are sending letters and identical enclosures to a number of Congressional Committees
that have made similar requests.
As you may know, on January 12, 2016, the Department of Justice's Office of Inspector
General (OIG) publicly announced that the OIG would review "allegations that Department or
FBI policies or procedures were not followed in connection with, or in actions leading up to or
related to, the FBI Director's public announcement on July 5, 2016,1 and the Director's letters to
Congress on October 28 and November 6, 2016, and that certain underlying investigative
decisions were based on improper considerations.2" As part of that review, the OIG obtained,
among other things, text messages between Mr. Strzok and Ms. Page.
The Department expected the documents provided herein to be provided as part of a
completed OIG report. However, public reporting about the existence of the text messages
prompted Congressional Committee requests for the text messages. Please find enclosed an
initial disclosure of approximately 375 text message communications, dated August 16, 2015 to
December 1, 2016, that have been identified as pertinent to the OIG review referenced above.
The enclosed documents contain minimal redactions that protect the privacy interests of third
parties and sensitive law enforcement information, and remove irrelevant information. The
Department continues to review documents and will provide pertinent documents as they become
available.
1 0n that date, then-FBI Director James B. Carney announced that the FBI was recommending to the Department of
Justice that no charges should be filed relating to former Secretary of State Hillary Clinton's use of a private email
server.
2 D0J OIG Announces Initiation of Review, January 12, 2017, available at: https://oigdustice,gov/press/2017/2017-
01-12.pdf
The Honorable Robert Goodlatte

Page Two
As has been publicly reported, Mr. Strzok previously served on the investigative team led
by Special Counsel Robert Mueller. The OIG informed the Special Counsel of the existence of
the enclosed text messages on or about July 27, 2017. Mr. Mueller immediately concluded that
Mr. Strzok could no longer participate in the investigation, and he was removed from the team.
This extraordinary accommodation of providing the enclosed documents is unique to the
facts and circumstances of this particular matter. The Department appreciates the work of the
OIG on this matter, looks forward to the findings and recommendations arising from that review,
and will take appropriate action as warranted.
S'ncerely
ephen E. Bo
Assistant Attorney General
cc: The Honorable Jerrold Nadler

Ranking Member
Enclosures
Exhibit G

To: Mark.Hosenball@thomsonreuters.com
Cc: Prior, Ian (OPA)
Subject: Re: Strzok emails
As the dag just testified, the IG approved the release.
On Dec 13, 2017, at 12:38 PM, fiMark.Flosenball thomsonreuters.comn

‹Mark.Hosenball@thomsonreuters.com> wrote:
what kind of career officials approved release ? Did IG approve ? and if it is so non
controversial why did you release material in what I hear was a somewhat sneaky way ?
Sent from my iPhone
On Dec 13, 2017, at 12:20, Flores, Sarah Isgur (OPA) <Sarah.lsgur.Flores@usdoj.gov> wrote:
The Department ensures that its release of information from the ❑epartment
to members of Congress or to the media is consistent with law, including the
Privacy Act. As the Department's letter to Congress last night makes clear,
this information was provided in response to requests from several
Congressional committees for access to this information that was not subject
to withholding exceptions. Notice and delivery of this information was made
to the lawyers for the parties and the relevant congressional committees in
advance of public release. Further, prior to release, career officials
determined that the text messages could be released under both ethical and
legal standards.
On Dec 13, 2017, at 12:16 PM, "Mark.Hosenball@thomsonreuters.com"

<Mark.Hosenball@thomsonreuters.com> wrote:
cool tks
From: Flores, Sarah Isgur (OPA) Imailto:Sarah.Isgur.Flores(©usdoj.gov]

To: Hosenball, Mark 3. (Reuters)
Cc: Prior, Ian (OPA)
Subject: Re: Strzok emails
Statement coming
On Dec 13, 2017, at 12:05

PM, "Mark.Hosenball@thornsonreuters.corn"
<Mark.Hosenball@thomsonreuters.com> wrote:
Document ID: 0.7.16060.58477 20180326-0072142

I gather DAG just told Congress the Strzok emails were

somehow approved for public release. By whom ? under
what legal authority ? Did IG sign off on that ? Please
advise. tks mh
From: Hosenball, Mark J. (Reuters)

Sent: Wednesday, December 13, 2017 11:28 AM
To: 'Flores, Sarah Isgur (OPA)'; Prior, Ian (OPA)
Subject: Strzok emails
http://www,businessinsider.comipeter-strzok-page-
texts-mueller-russia-trump-2017-12
So this story says that DoJ invited reporters to your

offices yesterday night to give them access to private
text messages exchanged between Peter Strzok and Lisa
Page. The story says that this material was originally
obtained by Doi as part of an investigation by Justice
Department IG into how the FBI handled its inquiry int❑
Hillary Clinton's use of a private email server while she
was Secretary of State. Isn't it quite unorthodox, if not
unethical or even illegal, for DoJ to deliberately make
public or leak evidence collected in an IG investigation ?
Who is it who ultimately authorized or instructed ❑oJ to
allow journalists to see this evidence ? Was AG Sessions
involved ? Was the White House involved or was anyone
in the White House consulted ? We might be writing a
story about this today so your quick response most
welcome. Many thanks indeed. mh
Document ID: 0.7.16060.58477 20180326-0072143

Exhibit H
Prior, Ian (CPA)
From: Prior, Ian (OPA)

To: Jurecic, Quinta
Subject: RE: Comment on Strzok/Page texts
❑n the record statement below. Off the record, in response to these criticisms that something
unprecedented happened last night -4 https://twittercomiDevlinearrettistatus/941026249396375552
"The Department ensures that its release of information from the Department to members of Congress or to
the media is consistent with law, including the Privacy Act. As the Department's letter to Congress last night
makes clear, this information was provided in response to requests from several Congressional committees
for access to this information that was not subject to withholding exceptions. Notice and delivery of this
information was made to the lawyers for the parties and the relevant congressional committees in advance
of public release. Further, prior to release, career officials determined that the text messages could be
released under both ethical and legal standards."
Ian D. Prior
Principal Deputy Director of Public Affairs
Department of Justice
Office: 202.616.0911
(b) (6)
For information on office hours, access to media events, and standard ground rules far interviews, please click
here.
From: Jurecic, Quinta [mailto:Quinta.lurecic@washpost.com]

To: Prior, Ian (C)PA) <11prior@jmd.usdoj.gov>
Subject: Comment on Strzok/Page texts
Hi ian,
I've seen numerous commenters express concern over the Justice Department's decision to provide the
press and Congress with text messages between Lisa Page and Peter Strzok. How would the Justice
Department address criticisms of the decision as unusual or potentially politicizing of an ongoing
investigation? Can I ask how the Office of Legislative Affairs came to obtain the text messages? Were the
documents provided to the office by the Office of the inspector General?
Also, during this morning's hearing, DAG Rosenstein stated that the Inspector General had planned to
release a report in November but had been delayed. Do you know if the November report would have
concerned the entire IG investigation into the handling of the Clinton email probe, or was it only concerning
Strzok and Page's relationship?
Thanks,
Quinta
Document ID: 0.7.16060.58149 20180326-0072058

Quinta Jurecic
The Washington Post
Office: 202 334 7330
Cell: Ct) I (6)
Document ID: 0.7.16060.58149 20180326-0072059

Exhibit I
Prior, Ian (OPA)

To: Daniel Friedman
Subject: RE: Statement on release of Strzok texts?
Develin -another beat reporter, as is Paula Reid and Del Wilbur
https://twitter.comiDeylinBarrettistatus/941026249396375552
lan D. Prior
Office: 202.616.0911
CE (b) (6)
For information on office hours, access to media events, and standard ground rules for interviews, please click
here.
From: Daniel Friedman (mailto:DFriedman@motherjones.com]

Sent: Wednesday, December 13, 20174:06 PM
To: Prior, Ian (OPA) <IPrior@jmd.usdoj.gov>
Subject: Re: Statement on release of Strzok texts?
Thanks_
From: Prior, Ian (OPA) <lan_Prior@usdoi.gov>

Sent: Wednesday, December 13, 2017 3:43:29 PM
To: Daniel Friedman
-The Department ensures that its release of information from the Department to members of Congress or to the
media is consistent with law, including the Privacy Act As the Departments letter to Congress last night makes
clear, this information was provided in response to requests from several Congressional committees for access
to this information that was not subject to withholding exceptions. Notice and delivery of this information was
made to the lawyers for the parties and the relevant congressional committees in advance of public release.
Further, prior to release, career officials determined that the text messages could be released under both ethical
and legal standards.'
Ian ❑. Prior
Office: 202.616.0911
Cell: I In I
here.
Document ID: 0.7.16060.58908 20180326-0072025

From: Daniel Friedman [mailto:DFriedman@rnotheriones.corn]

To: Prior, Ian (OPA) <IPriorgimd.usdoj.gov>
Thanks If you get more in his I'd like to know, even if the record. That does seem to me like the part where
this is perhaps unusual.
Thanks,
Dan
From: Prior, Ian (OPA) <lan.Prior@usdoi.gov>

Sent: Wednesday, December 13, 2017 11:27:07 AM
To: Daniel Friedman
Off the record, I honestly don't know the process. Will have to check
Ian D. Prior
Office: 202.616.0911
C.- (b) (6)
For ;nfor-motion on office hours, access to media events, and sranaard ground rules for interviews, please cticK
here.
From: Daniel Friedman [mailto:DFriedman@motheriones.corn]

To: Prior, Ian (OPA) <IPrior@jrnd.usdoj.gov>
Just recalled one question I should have asked: These texts were given/obtained by the 1G and turned
over to Congress as the result of members' request, I believe. Do they pass through the comms office
as part of the process through which the leg. affairs people turn them over to the Hill?
From: Prior, Ian (OPA) <lan.Prior@usdoi.gov>

Sent: Wednesday, December 13, 2017 11:14AM
To: Daniel Friedman
Just called you
Ian ❑. Prior
❑epartment of Justice
Office: 202.616.0911
Cell: ,tH (01
Document ID: 0.7.16060.58908 20180326-0072026

here.
From: Daniel Friedman [mailto:DFrieclman@motheriones.com]

To: Prior, Ian (ORA) <IPrior@jmd.usdol.gov>
Do you have handy prior examples of instances in which DOJ provided information to the press that
was also sent to Hill, to avoid confusion? I personally have never received something like that.
From: Prior, Ian (OPA) <lan.Prior@usdo!.gov>

Sent: Wednesday, December 13, 2017 10:59:30 AM
To: Daniel Friedman
yes
Ian D. Prior
Office: 202.616.0911
(b) (6)
For informotion on office hours, access to media events, and standard ground rules for interviews, please click
here.
From: Daniel Friedman [mailto:DFriedman@motheriones.com]

To: Prior, Ian IOPA) <IPrior@imd.usdoLgov>
Thanks. Are the texts shared the same as the ones the Hill got? I was under impression Fox saw more
texts than were turned over to the Hill.
From: Prior, Ian (OPA) <tan.Prior@usdoi.gov>

Sent: Wednesday, December 13, 2017 10:56:04AM
To: Daniel Friedman
From DOJ official:

We often provide information we give to Congressional committees to avoid any confusion.
Ian D. Prior
Office: 202.616.0911
(b) (6)
here.
Document ID: 0.7.16060.58908 20180326-0072027

From: Daniel Friedman [mailto:DFriedman2motheriones.com]

To: Prior, Ian OPA) ❑Priorgimd.usdoj.gov>
Subject: Statement on release of Strzok texts?
Ian,
Do you have a statement you can share on DOJ allowing some reporters to view Strzok/
Page texts? Saw reference to that on twitter.
Can I see them too?
Thanks,
Dan Friedman
202.290.5424
Document ID: 0.7.16060.58908 20180326-0072028

Exhibit J
Prior, Ian (CPA)

To: (b) (6) Eli Lake Emai
Subject: FW: This is Eli Lake from Bloomberg View. Deadline query on text messages
Yes. Off the record, I would note that we invited Chris Strohm who declined.
On the record statement:

The Department ensures that its release of information from the Department to members of Congress or to the
media is consistent with law, including the Privacy Act. As the Departments letter to Congress last night makes
clear, this information was provided in response to requests from several Congressional committees for access
to this information that was not subject to VSithholciirm exceptions. Notice and delivery of this information was
made to the lawyers for the parties and the relevant congressional committees in advance of public
release. Further, prior to release, career officials determined that the text messages could be released under
both ethical and legal standards_
Ian D. Prior
Office: 202.616.0911
(b) (6)
For information on office hours, access to media events, and standard ground rules for interviews, please dick
here.
From: Press
To: Prior, Ian (ORA) clPrior@jrnd.usdoj.gov>
Cc: Pettit, Mark T. (OPA) <mtpettit@jmd.usdoj.gov>
Subject: FW: This is Eli Lake from Bloomberg View. Deadline query on text messages
Thanks-KJ
From: Eli Lake (b) ((-

To: Press ‹Press@imd.usdol.gov>
Subject: This is Eli Lake from Bloomberg View. Deadline query on text messages
Business Insider is reporting that Do] invited reporters Tuesday evening to view text messages the deputsnent
was going to send to Congress between Peter Strzok and Lisa Page.
Is this accurate? If so, why was this done? What about the due process rights
of Faze and Strzok? On deadline. My number is Q17 21q 0804
Document ID: 0.7.16060.57990 20180326-0072146

Exhibit K

To: Zoe Tillman
Cc: Prior, Ian (OPA); Pettit, Mark T. (OPA)
Subject; Re: Strzok texts
To the hill. Not to reporters. You'll notice when sourcing other outlets have said they "obtained" them.
If that doesn't work for y'all, let me know.
On Dec 13, 2017, at 10:03 AM, Zoe Tillman <zoe.tillman@buzzfeed.com> wrote:
Thanks, can you explain what you mean in saying we couldn't source them to DOJ? Several
reports said the texts were "released" by DOJ.
On Dec 13, 2017 9:56 AM, "Flores, Sarah Isgur (OPA)" <Sarah.lsgur.Flores@usdoi.gov>
wrote:
We have a hard copy you can review at the office. You can't take them with you, take
pictures, or source them (to doj or otherwise).
Mark will be the one to work with on that.
On Dec 13, 2017, at 9:53 AM, Zoe Tillman <zoe.tillrnan@buzzfeed.com> wrote;
IIIVI 1 111 16 - PI
•
ywu VVIVI1 16 tc.kt-a, --
VP VV I need td ask
someone else?
Thanks,
Zoe
Zoe Tillman BuzzFeed News I Reporter

0 202-602-1705 I M (b) {6) I @zoetillrnan
1630 Connecticut Avenue 11W 7th Floor Washington DC 20009
Document ID: 0.7.16060.57779 20180326-0072200

Exhibit L
Flores, Sarah Isgur IOPA)

To: Emma Loop
Subject: RE: texts
Yes. Sourcing rule stays the same as ':all agreed to.
Sarah Isgur Flores

Director of Public Affair,
202.305.5808
From: Emma Loop frnailto:emma.loop@buzzfeed.com]

To: Flores, Sarah Isgur (OPA) csiflores@jmd.usdoj.gov>
Subject: texts
Hi Sarah,
I was just at the DOJ copying the text messages between Strzok and Page. Matt told me we aren't to attribute
the texts to you but multiple lawmakers spoke about the DOJ allowing reporters to view the texts at the House
Judiciary Committee hearing today and D.A.Ci Rosenstein said he believed it was true. Do we still need to avoid
attributing to Dar
Thanks,
Emma
Emma Loop BuzzFeed News I Capital Hill Reporter Washington I c (b) (6) (an Signaly 1 d. 202-602-1706
I PGP: http-/;bit Iy/2pCPtiT I Twitter pLoopEmma f buzzfeed corrilemmalcop
Got a confidential tip? Here's how to send it to us: tips buzzfeed corn
Document ID: 0.7.16060.93262 20180326-0072030

Exhibit M
U.S. Department of Justicc
)1lice of the Inspcctor (;cncral
December 15, 2017
The Honorable Jarrold Nadler

Ranking Member
2109 Rayburn House Office Building
The Honorable Jamie Raskin

Vice Ranking Member
431 Cannon House Office Building
The Honorable Hakeem Jeffries

1607 Longworth House Office Building
Dear Ranking Member Nadler, Vice Ranking Member Raskin, and Congressman
Jeffries:
Thank you for your letter dated December 14, 2017, requesting
information regarding whether the Department of Justice (the Department)
consulted with the Office of Inspector General (OIG) before sharing text messages
between FBI employees Peter Strzok and Lisa Page with Congress and the media.
Our responses to the questions presented in your letter are set forth below.
1 A spokeswoman for the Department suggested that "career Justice

officials evaluated the messages... to be sure that they could be released
`under both ethical and legal standards."' Did the Department consult
with your office prior to producing these text messages to Congress?
At a hearing on November 15, 2017, before the House Committee on

Oversight and Government Reform, I testified that the OIG had no
objection to the Department providing to Congress pre-existing
Department records in its custody in response to a Congressional
oversight request. I noted that the Department would need to
determine whether there were any restrictions, such as those affecting
grand jury information, that limited its ability to produce certain
Document ID: 0.7.16060.5678-000001 20180326-0061144

records to Congress. I conveyed this position to the Department as

well. The Department did not consult with the OIG in order to
determine whether releasing the text messages met applicable ethical
and legal standards before providing them to Congress.
2. Did the Department consult with your office prior to sharing these text
messages with the press?
The Department did not consult with the OIG before sharing the text
messages with the press.
If you have any additional questions, please do not hesitate to contact me

or Greg Sabina, my Advisor for Legislative Affairs, at (202) 514-3435.
Sincerely,
Michael E. Horowitz
Inspector General
cc: The Honorable Robert Goodlatte

Chairman, Committee on the Judiciary
The Honorable Trey Gowdy

Chairman, House Committee on Oversight and Government Reform
The Honorable Elijah Cummings

Ranking Member, House Committee on Oversight and
Government Reform
The Honorable John Culberson

Chairman, Subcommittee on Commerce, Justice, Science, and Related
Agencies, House Committee on Appropriations
The Honorable Jose Serrano

Ranking Member, Subcommittee on Commerce, Justice, Science, and
Related Agencies, House Committee on Appropriations
The Honorable Charles Grassley

Chairman, Senate Committee on the Judiciary
The Honorable Dianne Feinstein

Ranking Member, Senate Committee on the Judiciary
Document ID: 0.7.16060.5678-000001 20180326-0061145

The Honorable Ron Johnson

Chairman, Senate Committee on Homeland Security and
Governmental Affairs
The Honorable Claire McCaskill

Ranking Member, Senate Committee on Homeland Security and
Governmental Affairs
The Honorable Richard Shelby

Chairman, Subcommittee on Commerce, Justice, Science, and Related
Agencies, Senate Committee on Appropriations
The Honorable Jeanne Shaheen

Ranking Member, Subcommittee on Commerce, Justice, Science, and
Related Agencies, Senate Committee on Appropriations
The Honorable Rod J. Rosenstein

Deputy Attorney General, U.S. Department of Justice
Document ID: 0.7.16060.5678-000001 20180326-0061146

Exhibit N

)
PETER P. STRZOK, )
)
Plaintiff, )
)
)
)
Defendants. )
)
DECLARATION OF PETER STRZOK
I, Peter P. Strzok, hereby declare:
1. I am the Plaintiff in the above-captioned case.
2. In early August 2017, I was removed from the Special Counsel’s Office and
reassigned to the FBI’s Human Resources Division after the texts criticizing Candidate and
President Trump were discovered by the Office of the Inspector General (“OIG”).
3. Shortly after that transition, I met with David Bowdich, who was at the time the
Associate Deputy Director of the FBI. Mr. Bowdich currently serves at the FBI’s Deputy
Director.
4. During that conversation, Mr. Bowdich reassured me, in substance, that the
discovery of the texts would not significantly impact my career path at the FBI.
5. When I sent the texts in question, I intended that they remain private.
6. My family and I have been the subject of threats, both before and after August 9,
2018.
7. I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the
foregoing is true and correct, to the best of my knowledge and belief.
Executed on: December 20, 2019 /s/ Peter P. Strzok ___________

Peter P. Strzok
2
Exhibit O
Aitan D. Goelman
Zuckerman Spaeder LLP
agoelman@zuckerman.com
(202) 778-1999
ZUCKERMAN
SPAEDER
July 17, 2018
BY EMAIL to i[REDACTED](,fbi.2ov
Candice M. Will
Assistant Director, Office of Professional Responsibility
Re: Response to Proposed Removal on behalf of Special Agent Peter Strzok
Dear Assistant Director Will:
The DOJ Inspector General's report was nothing if not thorough. The report's key finding
concerning any discipline for Special Agent Peter ("Pete") Strzok is that "we did not find
documentary or testimonial evidence that improper considerations, including political bias,
directly affected the specific investigative decisions we reviewed . . . or that the justifications
offered for these decisions were pretextual." [DOJ Report Executive Summary, at iii]. The
finding that this was not pretextual means that the investigative steps taken were reasonable,
effective and unbiased.
Given the finding that there was no evidence none that Special Agent Strzok's
political opinions impacted any investigative step or decision, the proposal to fire him is unfair.
It is also a capitulation to the wishes of the President, who has repeatedly called for his head.
Within the past two weeks, the President accused Strzok of lying under oath during
Congressional testimony [CBS News, 07/15/2018, https://www.cbsnews.com/news/donald-
trump-interview-cbs-news-jeff-glor-peter-strzok-disgrace-claims-mueller-probe-hurting-russia-
relations/] and referred to Strzok as a "former" FBI agent [@realDonaldTrump, 07/11/2018, 3:47
PM], after earlier having accused him of "treason" ["Trump Accuses FBI Agent of `Treason,"
Wall Street Journal, 01/11/2018]. Several members of the House of Representative "Freedom
Caucus" have also publicly called for Special Agent Strzok to lose his job. Worse yet, a
reputable online publication, citing two sources, reported,
President Donald Trump sharply questioned Attorney General Jeff

Sessions and FBI Director Christopher Wray during a White
House meeting on January 22 about why two senior FBI officials
Peter Strzok and Lisa Page were still in their jobs despite
1800 M STREET NW, STE. 1000, WASHINGTON, DC 20036-5807 I T 202.778.1800 I F 202 822.8106
ZUCKERMAN SPAEDER LLP I WASHINGTON, DC I NEW YORK I TAMPA I BALTIMORE

CANDICE M WILL
JULY 17, 2018
PAGE 2
allegations made by allies of the president that they had been

disloyal to him and had unfairly targeted him and his
administration, according to two people with knowledge of the
matter.
The president also pressed his attorney general and FBI director to
work more aggressively to uncover derogatory information within
the FBI's files to turn over to congressional Republicans working
to discredit the two FBI officials, according to the same sources.
The very next day, Trump met Sessions again, this time without
Wray present, and even more aggressively advocated that Strzok
and Page be fired, the sources said." ["Exclusive: Trump pressed
Sessions to fire 2 FBI officials who sent anti-Trump text
messages," Vox, 04/20/2018]
These statements represent cynical attempts by self-serving politicians to place their hands on the
scales of the Bureau's independent disciplinary process. This is not due process.
Special Agent Strzok was not a supporter of President Trump, but he never let that color
his official responsibilities. If he truly wanted to hurt Trump's chances to win the 2016 election,
he could have leaked information in the summer that the FBI was investigating interactions
between members of the Trump campaign and agents from the Russian government trying to
influence the election. He did not; that information was explosive and potentially game-
changing, and he safeguarded it. And the IG Report observes that Special Agent Strzok and Lisa
Page were among the most vocal members of the "Midyear Exam Investigation" (MYE) team in
arguing for aggressive investigative techniques to uncover the details of Hillary Clinton's use of
a private email server as Secretary of State. In short, Special Agent Strzok's actions in 2016
were exactly what they should be - diligent, aggressive and free of political bias or other
improper considerations.
We address each of the three specifications underlying the proposed removal in greater
detail below. But in brief, none of the three allegations support the draconian proposal to fire
Special Agent Strzok.
The charge that Special Agent Strzok violated Offense Code 1.7 (Investigative
Deficiency Misconduct Related to Judicial Proceedings) by somehow putting investigation of
the Anthony Weiner laptop on the back burner is the least supportable of the three charges.
Within hours of learning of the possible presence of relevant emails on September 28th, Special
CANDICE M. WILL
JULY 17, 2018
PAGE 3
Agent Strzok assigned a subordinate supervisor, a case agent, an Intelligence Analyst and a Staff
Operations Specialist, all with no connection to the Russia investigation, to pursue the matter.
Within 24 hours of learning of the information, that team, as well as an NSLB Unit Chief, had
reached out to FBI New York. Indeed, because of his position as a Deputy Assistant Director
with responsibility over thousands of ongoing investigations, Special Agent Strzok was not
present for, and did not otherwise participate in, the critical September 29th meeting which
mapped out the FBI's plan for pursuing the data on the Weiner laptop. Once it became apparent
that the laptop might contain different emails from those previously analyzed, the MYE Team
(including Special Agent Strzok) diligently pursued that information and reopened the
investigation. He acted no differently than other officials leading the investigation and there
would be no legitimate reason to single him out for discipline over these operational decisions.
We note an initial draft of the IG report (relied upon by OPR in the identification and drafting of
their findings) identified fault with Deputy Director McCabe, Executive Assistant Director
Steinbach, Assistant Director Priestap, and Special Agent Strzok for not following through with
the laptop in a timely manner. Based on subsequent information provided by Special Agent
Strzok and others, this element was removed from the final report and no individual was faulted
for an investigative deficiency in the response to the Weiner laptop. It is not clear why OPR
would reinsert an allegation that had been sufficiently discredited that it was dropped from the
IG Report itself.
The allegation of a security violation under Offense Code 5.18 likewise does not justify
the proposed dismissal. It also directly conflicts with the charged investigative deficiency.
Indeed, Special Agent Strzok's need to use his personal email for work purposes was a direct
result of his efforts to aggressively and expeditiously pursue the Weiner laptop information.
Special Agent Strzok received a draft affidavit for a warrant to search the Weiner laptop on a
weekend evening, while he was out of the office (in keeping with the extraordinary exigency, the
warrant was sworn out later that same weekend). Nevertheless, he immediately moved to review
the draft, forwarding the document from his FBI email to his personal iPhone because he could
not view a redlined version of it on his FBI issued smartphone but could on his personal smart
phone. Special Agent Strzok was careful to both double delete the email from his personal
system, and to make sure it was captured on the FBI's system in accordance with policy. This
action was taken in a good-faith effort to swiftly obtain the necessary warrant, and the limited
use fell within the discretion afforded by Section 3.3.1 of the FBI Mobile Devices and Mobile
Applications Policy Guide, 0879PG, dated July 6, 2016, permitting use of personal devices for
business purposes when "the use of an FBI owned mobile device is not possible or practicable."
This underscores that Special Agent Strzok's actions were an every-day occurrence for
employees across the Bureau and not the sort of serious violation of policy that could justify
firing a Special Agent with more than 20 years of exceptional service.
CANDICE M. WILL
JULY 17, 2018
PAGE 4
Finally, it would be both unfair and unlawful to fire Special Agent Strzok because he
expressed -- however "vituperatively" -- his personal political opinions in what he believed to be
private communications with Ms. Page. Assuming the FBI was representative of the country in
the fall of 2016, about 55% of FBI employees opposed the candidacy of Mr. Trump.I
Accordingly, more than half of the FBI likely opposed Trump's candidacy at the time, and the
only thing that singles Strzok out is that the FBI has a written record of his pre-election political
opinions. He cannot be disciplined for having these opinions, for holding these opinions
strongly, or even expressing them to others. Both FBI policy and the First Amendment of the
Constitution protect his rights to have and express personal political opinions, especially where
his personal views about the candidates did not affect his actions in either investigation. Thus,
the only issue for this proposal is that these opinions were in text messages on an FBI phone
rather than stated orally or written on a personal device.
This is not to say that Special Agent Strzok is trying to shrug off responsibility for having
used an FBI-issued cell phone to express these opinions to Ms. Page. It was wrong for him to
have used his FBI device for this purpose, and he is very sorry that his actions have contributed
to the disclosure of information which brought negative publicity on the agency. While we do
not believe that it was reasonably foreseeable at the time that the messages he intended to be
private expressions would be disclosed to the public, Special Agent Strzok accepts responsibility
for his role in this occurrence, and understands that reasonable corrective action could be
warranted. We note that the "standard penalty" for "Unprofessional Conduct — Off Duty" under
Offense Code 5.21 is a five-day suspension. A reasonable penalty, however, does not include
destroying the career of a faithful and very competent public servant by dismissing him from the
FBI.
The unrelenting pressure that the President and his political allies are injecting into this
process is extremely unfair to Pete Strzok. For his sake, as well as for the rank and file members
of the FBI who are very likely in this partisan climate to face intense scrutiny over politically
sensitive investigations in the near future, it is imperative that this proposed disciplinary action
be resolved in a fair manner, and in accordance with fundamental notions of due process.
A. Pete Strzok's Exceptional Career of Public Service
It is no coincidence that Directors of the Bureau under multiple administrations have

assigned Pete Strzok to work on (and in many cases lead) some of the most high profile and
sensitive investigations in recent history. He was one of the initial case agents on the FBI team
I https.//www.realclearpo I itics.com/epol Is/20 I 6/president/usigeneral election_ trump vs c I inton-549 I html.

CANDICE M. WILL
JULY 17, 2018
PAGE 5
that ultimately cracked the case of the Russian illegals. He identified the car abandoned by
several of the 9/11 terrorists in Boston. He oversaw the investigation of Edward Snowden and
literally dozens of other spies, including investigations into the most significant U.S. losses of
classified information in the past two decades. It is not happenstance that he was selected to lead
both the Clinton and Trump investigations. It is because he is one of the very best agents in the
FBI. As Director Comey admitted in his interview with the OIG, Report at 299, in hindsight he
realized that what he needed was "another Strzok."
While the OPR background material notes Special Agent Strzok's extensive performance
and awards from the FBI, including exclusively Outstanding Performance appraisals; four
Special Act/Achievement awards in 1997, 1998, 2004, and 2006; two Quality Step Increases in
2002 and 2004; six cash awards in 2007, 2008, 2009, 2014, 2015, and 2016; and four time off
awards in 2002, 2007, 2009, and 2012, it fails to note the following extraordinary awards:
- the Director's Award, the US Attorney for the Eastern District of Virginia's
Public Service Award and the Director of National Intelligence's Meritorious Unit
Citation, in 2009, all for his work in leading the investigations and eventual convictions
of four individuals for spying for the PRC;
- the US Attorney for the Southern District of New York's Outstanding

Investigation Award, the Director of National Intelligence's Meritorious Unit Citation,
and the Director of National Intelligence Community Excellence in Counterintelligence
Award in 2011, all for his work as a case agent for the Boston-based Russian illegal
couple which were part of the Ghost Stories investigation;
- the US Attorney for the Eastern District of Virginia's Public Service Award in
2013 for the investigation and prosecution of John Kiriakou for disclosing classified
information to the media, a case representing the first ever charge and conviction of
violating the Intelligence Identities Protection Act;
- and classified recognition from the intelligence services of the United Kingdom,
Canada, New Zealand, Belgium, Italy, Israel, and Taiwan for successful joint operations.
It is simply beyond dispute — the Proposed Removal seeks to end the career of an agent who has
provided exceptional service to the FBI.
CANDICE M WILL
JULY 17, 2018
PAGE 6
B. Response to the Three Specifications
The proposed removal relies upon three specifications to justify firing Special Agent
Strzok. None of them support the termination of his employment in light of his outstanding
record of service, and his rights under the First Amendment.
1. Strzok Was Not Negligent In Pursuing the Weiner Laptop Evidence
[REDACTED] - [Subject to NDA]
Additionally, the June 12, 2018 letter from Director Wray to the IG incorporated into the
IG Report specifically notes that no one was to be referred for investigative misconduct. With
regard to "investigatory actions, including moving more quickly to secure a search warrant for
Anthony Weiner's laptop," Director Wray specifically did not characterize the matter as
misconduct, in fact stating the opposite: "The FBI appreciates, however, that the OIG recognized
that many of the identified missteps were judgment calls by seasoned investigators and
prosecutors, and that there was no evidence that any decision was made as a result of bias or
other improper considerations." In sum, the IG report made no allegation of investigative
conduct; the allegation was not referred to the OPR; and Director Wray excluded this charge
from the subjects to be referred to OPR. It is thus wholly inappropriate for the OPR to revive
these already debunked allegations.
[REDACTED] - [Subject to NDA]

The Report, at 330, makes clear that OIG "searched for evidence that the Weiner
laptop was deliberately placed on the back-burner to protect Clinton, but found no evidence in
emails, text messages, instant messages, or documents that suggested an improper purpose."
This conclusion is unassailable and should persuade any fair-minded observer that allegations
that the FBI "went easy" on Secretary Clinton are baseless. Nevertheless, the proposed removal
walks right to the edge of accusing Pete Strzok of trying to delay the inquiry into the newly
2 In defense of OPR, a 06/13/2018 email from OIG staff [REDACTED] - [Subject to NDA]
CANDICE M WILL
JULY 17, 2018
PAGE 7
discovered Weiner laptop until after the election. It quotes extensively from the NYO agent and
AUSA from New York speculating that "somebody was trying to bury this," and the proposal
declares that "the investigation reveals that there is no reasonable excuse for the FBI's delay in
following up on this matter." [Proposal, at 15-16] This insinuation is unfair, and contrary to
both the facts and the findings of the IG Report that they could find no evidence that any
investigative act or decision was the product of improper considerations.
Within hours of learning of the emails on September 28th, Special Agent Strzok assigned
Supervisory Special Agent [REDACTED] a subordinate supervisor, who additionally included an
MYE case agent, an Intelligence Analyst and a Staff Operations Specialist, all with no
connection to the Russia investigations, to pursue the matter. Less than 24 hours after learning
of the information, that team, as well as an NSLB Unit Chief [REDACTED] had reached out to FBI
New York, and Special Agent Strzok followed up the next day.
This timeline is not based merely on the unanimous recollection of those involved; it is
also corroborated by written communications. As noted in a 9:01 AM email from [REDACTED] to
Special Agent Strzok on 10/31/2016,
The only date I have is 09/29/2016. Bill told me about it, and then
we did a Lync call with NYO [REDACTED]
were on — maybe [REDACTED] . At that point,
the system was still crashing so they hadn't gone through all the
data. We discussed searching for our material and realized it
would be outside the scope of the warrant so we asked them to try
to get some basic facts (numbers, domains, etc.) based on plain
view in order to inform our decision of whether or not to move
forward.
Following the Lync call, the team informed Special Agent Strzok that it would be premature to
send a team to New York as the system had not yet finished processing and that there was an
investigative plan in place to move forward. It was reasonable for him to agree with this
recommendation.
It wasn't until the call with NYO on October 25, 2016 that Special Agent Strzok and the
other members of the MYE Team first learned information that made it reasonably likely that the
Weiner laptop might contain the type of mens rea evidence that could have changed the
determination not to recommend prosecution of former Secretary Clinton. At that point, the
team shifted into high gear and obtained a more expansive warrant to search the device by
October 30th.
CANDICE M. WILL
JULY 17, 2018
PAGE 8
The Proposed Removal faults the entire MYE team for not reaching this determination
earlier, and points specifically to a call on September 29, 2016 in which Special Agent Strzok
was not present. During that call the NYO provided other MYE team members with a
description of what they had been able to see on a first pass of the Weiner laptop, which had not
yet completed forensic processing. They had observed the existence of a significant amount of
emails from the Clinton server, and according to the Report there was mention that some of these
emails were backups from one or more Blackberry devices. However, at that point investigators
couldn't determine the origin of the backups or the content of any of the emails. Additionally,
according to the specific recollection of NSLB Unit Chief [REDACTED], who participated on that
call, NYO did not inform the MYE personnel of the presence of emails from the
att.blackberry.net domain. In any event, NYO did not yet have specific and complete details as
to the scope of the data, including domains, file structure, and dates. Moreover, during that call
NYO informed MYE team members that the significant size of the contents of the laptop had
repeatedly caused the system being used to examine it to crash.
The participants on that call made the sensible decision to have NYO complete the
forensic processing to allow them to then review the contents of the laptop, and to compile an
index of the materials contained therein, and only then to consider applying for a search warrant.
The pre-warrant investigative activity included only steps that the FBI could legitimately conduct
consistent with the Fourth Amendment under the "plain view" doctrine, and would allow the
MYE team to decide whether and how to seek a warrant to obtain the contents of the emails in
question. The takeaway from the call on September 29, 2016, was that NYO would contact the
MYE team when that part of the review was completed. Not only is this the recollection of the
MYE personnel who participated in the call, but it is also corroborated by contemporaneous
written evidence (see, e.g., emails to Strzok from the Supervisory Special Agent and FBI lawyer
on October 25, IG Report at 313-314, noting "We were waiting for NYO to get back to us about
the volume of Huma related emails on the devices," and "I have not heard back from NY").
After the call, Special Agent Strzok was briefed by his subordinates, who relayed the
information that the ball was currently in NYO's court. Based on this briefing, there was no
reason for Special Agent Strzok to believe that the laptop differed in any material aspect from all
of the other data storage repositories the MYE had encountered.
Special Agent Strzok's non-participation in the September 29 conference call, and his
decision to task other experienced and very capable agents with following the lead on the Weiner
laptop, was not due to carelessness or indifference. He was not sunning on some beach or
spending time playing with his children. He was a Deputy Assistant Director working 60-plus
hour weeks managing a wide range of global counterintelligence threats, including what he
reasonably believed to be the most significant threat to the country's democracy in recent times.
CANDICE M. WILL
JULY 17, 2018
PAGE 9
In July of 2016, the FBI received credible information from extremely sensitive FBI and U.S.
Intelligence Community sources that the Russian Government was interfering in the U.S.
Presidential election in an attempt to harm the candidacy of Secretary Clinton and aid Mr.
Trump's bid for the White House. This information was corroborated by the discovery of
evidence of multiple, high-level contacts between agents of the Russian Government and
members of the Trump campaign. Special Agent Strzok, who had by that time spent more than
20 years as a counterintelligence and counterterrorism agent, was alarmed. He was also highly
motivated to ferret out and stop any attempt by the Russian Government to subvert American
democracy.
The next call between NYO and the MYE team wasn't until October 25, 2016. Special
Agent Strzok did participate in this call and learned, for the first time, that the Weiner laptop
contained a massive amount of emails from the domain att.blackberry.net, the domain of the
server that Secretary Clinton used when she began her tenure at the State Department. Special
Agent Strzok and the others immediately recognized the potential significance of this
information: it was the first repository of data that seemed reasonably likely to contain thousands
of missing emails from early on in Secretary Clinton's tenure as Secretary of State -- the emails
considered to be most likely to contain evidence of Secretary Clinton's mens rea.
It is indisputable that Special Agent Strzok first learned these facts during the phone call
on October 25, and that he considered them to be significant. There is real-time evidence of both
of these things, in the form of contemporaneously sent texts and handwritten notes. IG Report,
at 315-316. Additionally, the Report notes that the Weiner case agent, who did participate in the
later call after missing the September call, was surprised that MYE personnel asked questions
such as "That's on there?" and "We didn't know that," making it clear that NYO had not
previously passed on those details to the MYE Team. Ultimately, it was determined that the
laptop did not contain such important evidence, and the belief that Special Agent Strzok had
before October 25 and November 2 proved to be accurate.
The proposed removal offers absolutely no explanation for why Special Agent Strzok and
Special Agent Strzok alone should shoulder the blame for the decisions or lack of action of the
entire MYE team. Because of Special Agent Strzok's position and his assignment to the Russia
investigation, which was in full gear at the time, he was less involved in the initial operational
decisions regarding the Weiner laptop than other high level members of the team, and less
involved in these decisions than he was in the MYE investigation before it was closed (for the
first time) in July 2016. In fact, each of the following FBI officials agreed with the plan about
how to pursue the information on the Weiner laptop from the September 29 meeting: AD
Priestap; SC [REDACTED], Special Agent Strzok's MYE co-lead; NSLB UC [REDACTED];
[REDACTED]
Supervisory Special Agent [REDACTED] (the SSA on the MYE team); Special Agent
CANDICE M. WILL
JULY 17, 2018
PAGE 10
[REDACTED] one of the primary MYE case agents; IA [REDACTED] one of the primary MYE
IAs; and Special Agent (then SOS) [REDACTED] , one of the primary MYE analysts. We have
followed the instruction in the proposed removal that we not contact these witnesses for
statements as part of this response; however, we urge you to do so. We believe that each of these
participants of the MYE Team would testify that a) they agreed with the plan of action for the
Weiner laptop reached at the September 29 meeting; and b) they believed that Special Agent
Strzok acted diligently in his pursuit of all relevant information during the investigation.
Moreover, we are not aware of any effort by the agency to discipline these other leaders of the
MYE team for alleged Investigative Deficiency.
The Proposed Removal makes much of a comment purportedly made by Deputy Director
McCabe to the IG that he thought "you [i.e., Strzok] were actually doing it." [Proposal at 19]
But as noted above, in accordance with DD McCabe's guidance, as relayed through AD Priestap,
within hours Special Agent Strzok had assigned a team unrelated to the Russia investigation to
follow through, contact New York, and develop an investigative plan, a task they accomplished
within 24 hours of his asking them to do so, and he then obtained briefings from his staff and
accepted their recommended course of action. This was reasonable.
The accusation that Special Agent Strzok negligently failed to diligently pursue the
information on the Weiner laptop stands in marked contrast to his overall aggressive
investigation of Clinton during the MYE. As noted by the IG report, Special Agent Strzok was
repeatedly among the most aggressive members of the MYE Team. [IG Report at iii, 159] For
example, while the MYE Team made robust use of grand jury subpoenas (issuing 56 of them),
search warrants (3 were sought and obtained) and 2703(d) orders (5 were issued), Strzok pushed
for even more aggressive use of compulsory process in the face of reluctance by career
prosecutors in the Justice Department. [IG Report, at 79] "Strzok and Page were two of the
strongest advocates of obtaining the culling testimony and laptops" [IG Report at 129], and
"Strzok and Page both urged the Department to issue grand jury subpoenas for Mills's and
Samuelson's testimony regarding the culling process and to seek a search warrant to seize the
culling laptops from [their lawyer's offices]." [IG Report at 159]. The IG Report also noted that
Strzok pushed back against the DOJ prosecutors, urging them to more aggressively negotiate the
FBI's access to documents in the possession of high-powered Clinton defense attorneys. [IG
Report at 84].
These facts are undisputed. Along with the similarly indisputable fact that decisions
made by the MYE Team, and the timing of these decisions, hurt the candidacy of Hillary Clinton
and helped that of Donald Trump, and that the FBI took great pains to first shield and then
downplay the existence of the Russia investigation from the media in the run-up to the election,
this is conclusive evidence that the MYE investigation was not impacted by a preference for a
CANDICE M. WILL
JULY 17, 2018
PAGE 11
Clinton Presidency over a Trump Presidency. The narrative of a "Deep State" cell of rabid anti-
Trump partisans in the FBI is absurd in light of the actual evidence.
In sum, there is simply no credible evidence that Special Agent Strzok violated Offense
Code 1.7 by failing to pursue an investigative lead. He and the other MYE team members
reasonably pursued the Weiner laptop lead, which ultimately resulted in no additional material
evidence. His actions were consistent with the consensus view of the team, and there is no
justifiable reason to single him out for punishment. You should reject this specification in its
entirety.
2. Strzok Did Not Violate FBI Policy by His Limited Use of his Cell Phone
The Proposed Removal faults Special Agent Strzok for forwarding, on a few occasions,
emails related to the investigation to his personal email account. Of this handful of emails, the
Proposal finds most troubling that Special Agent Strzok, on October 29, 2016, forwarded an
email attaching a draft of the affidavit in support of a search warrant for Anthony Weiner's
laptop. However, Department of Justice policy allows employees to use personal email accounts
for official communications where exigent circumstances require, as long as any government
records are captured on government record keeping systems within 20 days. [IG Report at 424].
More specifically, as contained in Section 3.3.1 of the FBI Mobile Devices and Mobile
Applications Policy Guide, 0879PG, dated July 6, 2016,3. FBI policy states:
Generally, personally owned mobile devices must not be used to conduct official FBI
business. This includes processing, storing, or transmitting USGI. Permissible exceptions
to this rule are as follows:
Limited voice and/or data usage of a personally owned mobile device for conducting
unclassified, nonsensitive, official FBI business when the use of an FBI owned mobile
device is not possible or practicable.
Special Agent Strzok's use of his personal email account meets that standard. It was not
possible for him to read a redlined version of the affidavit on his government phone, and because
of the urgency of the situation given the approaching election4, he forwarded the document to his
personal email, where he was able to quickly complete the work needed to prepare the search
This critically and directly relevant FBI Policy Guide is neither referenced in OPR's recommendation nor included
in the materials we were provided for review.
An urgency that, ironically, is directly inconsistent with the idea that Special Agent Strzok, because of his anti-
Trump animus or any other reason "slow rolled" review of the materials resident on the Weiner laptop.
CANDICE M. WILL
JULY 17, 2018
PAGE 12
warrant affidavit for filing. Thus, because of the technological limitations of his government-
issued device, Special Agent Strzok used his personal device (and, as he routinely did, his
personal time) to conduct time-sensitive government work. This is the type of exigent
circumstance that is allowed by the exception written into the DOJ policy.
The proposed removal does not dispute any of these facts, but seems to premise the
security violation charge on the assertion that the search warrant was ultimately filed by the
prosecutors under seal, and thus should be considered "sensitive." But the draft affidavit did not
contain federal grand jury information. The IG report incorrectly asserts the draft affidavit
"appears to" contain information obtained pursuant to a grand jury subpoena, an error OPR
compounds by asserting the document "contained" grand jury information.1 The absence of
grand jury information from the draft affidavit can be verified by FBI OGC, specifically NSLB
UC [REDACTED], and we urge you to contact her as a witness. Thus, Strzok reasonably believed
that this was the type of work product - especially given the time sensitivity that he could
forward to his personal device. As the IG Report also observed, it was Special Agent Strzok's
practice to then double delete any work-related email in his personal account, and neither the IG
Report nor the Proposed Removal suggests that his draft of the search warrant was in fact
exposed to any third party.
Thus, even if one were to find, after the fact, that his draft of the search warrant contained
"sensitive" information, this was at best a technical violation of the policy. In good faith and on
his personal time, Special Agent Strzok was working to help to quickly prepare and submit the
search warrant and obtain authority to complete the review of the Weiner laptop information.
According to the Proposed Removal, the standard penalty for a violation of the policy is a five-
day suspension; that would be the outer limit of a reasonable penalty under these circumstances.
Indeed, we note that in similar circumstances, even lesser punishment was administered. In case
number 2009-0217, a Special Agent transmitted an email containing sensitive information from
his FBI Unet account to his personal email account, and downloaded attachments containing law
enforcement sensitive information to a non-government computer. He was given an oral
reprimand.
5
Perversely, OPR's inaccurate conclusion is being relied upon by the FBI's Security Division in their decision to
suspend Special Agent Strzok's security clearance, leading to his indefinite suspension.
CANDICE M. WILL
JULY 17, 2018
PAGE 13
3. The "Unprofessional Conduct" Charge Does Not Support the Firing of Special Agent
Strzok
It is difficult to discern the actual conduct that this specification of the proposed removal
targets as "unprofessional." Is it that Special Agent Strzok developed political opinions? Is it
the intensity — i.e., the "vituperative" nature of those opinions? Is it that he expressed them to
Lisa Page? All of that conduct is protected by the First Amendment. Indeed, it is axiomatic that
the free expression of political opinion is the most protected genre of speech under the First
Amendment. The importance of avoiding any law or regulation that would tend to chill this type
of speech is reflected in both statute, see 5 U.S.C. 7321 (Hatch Act) ("It is the policy of the
Congress that employees should be encouraged to exercise fully, freely, and without fear of
penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate
...in the political processes of the Nation.") (emphasis added), and regulation. See 5 CFR
734.402 (FBI employees retain the right to "[e]xpress his or her opinion as an individual
privately and publicly on political subjects and candidates.").
Special Agent Strzok does not deny that he wrote the text messages in question, or that he
genuinely held and passionately expressed the political opinions therein. He is a patriotic
national security official who was confronted with the prospect of a hostile foreign power
seeking to exert illegal influence on a presidential election. But the relative strength or intensity
of political opinions and their expression cannot be a factor that distinguishes appropriate
political speech from inappropriate political speech. The First Amendment protects "strongly
held" or "intense" expressions of political belief no less than the more milquetoast articulation of
opinion, and to punish Special Agent Strzok for expressing these beliefs, however often or
intensely he stated them, would be a clear violation of his constitutional rights.
If the conduct at issue is that Special Agent Strzok was somehow biased against then
candidate Trump, and that the bias affected his actual performance of his duties on either the
MYE or Russia investigations, then that concern is dispelled by the express findings of the
exhaustive IG Report, which we have already addressed, supra. Moreover, it is not at all fair to
portray political opinion as the same thing as evidence of bias. The term "bias" carries with it a
negative connotation, an unfair prejudice in favor or against someone or something. See, e g ,
Dictionary.com. "Bias" also necessarily implies a difficulty in making neutral, reasoned and
objective analyses of the object of bias. The IG report shows just the opposite notwithstanding
CANDICE M. WILL
JULY 17, 2018
PAGE 14
his political opinions, Special Agent Strzok carried out his duties objectively and
dispassionately.
Page 18 of the Proposed Removal strings together (out of context) excerpts of messages:
"Trump is a flicking idiot," "I hate these people," "I need to fix it," "No he's not [going to
become president] and "We'll stop it." If the purpose here is to suggest that Special Agent
Strzok acted on an alleged bias against then candidate Trump, this charge is baseless and flies in
the face of the conclusion reached by the exhaustive IG Report. Taken in context, these
messages are hardly as nefarious as the Proposed Removal implies. The "No he's not" was
merely Special Agent Strzok's prediction during the campaign that candidate Trump had little
chance of winning the election (an opinion which was widely shared at the time). The "I need to
fix it" comment was part of a discussion between Special Agent Strzok and Ms. Page about
whether he would want to work on the Mueller Russia team or pursue a potential eventual
promotion to Assistant Director. Special Agent Strzok was outraged by the fact of Russian
interference in our election, and was explaining why he would opt for the Mueller assignment.
The "we'll stop it" comment referred to Special Agent Strzok's conviction that the electorate as a
whole (of which he was a part) would not choose a candidate like Donald Trump, especially after
the recent events of the time, which included candidate Trump's vicious attack on a Gold Star
family. It was, again, a commonly held view in mid-August 2016 that Trump was not likely to
win the Presidency. And finally, the first two excerpts were merely emphatic expressions of
Special Agent Strzok's political opinion that candidate Trump and his associates in the campaign
would be poor choices to lead the country.
That leaves the concern that Special Agent Strzok used an FBI device to express these
opinions, and that he should have foreseen at the time that there was a realistic possibility that his
texts with Ms. Page would be publicly revealed and create an "appearance" of bias (whether true
or not). As to the use of an FBI device, Special Agent Strzok has from the very beginning of this
inquiry acknowledged this mistake and is genuinely sorry that it has resulted in negative
6
- The Proposed Removal also repeats one of the mistakes of the IG Report, by focusing only on a select
and very small sample of the texts which were critical of then candidate Trump. This materially misrepresents the
nature of Special Agent Strzok's political opinions and his articulation of them in his texts to Ms. Page. A review of
the entirety of Special Agent Strzok's texts, or even a random sampling of them, would reveal him to be nothing like
his public portrayal as a partisan Democrat and Clinton apologist. In fact, Special Agent Strzok's texts contain
repeated criticism of Secretary Clinton and former President Clinton, along with numerous other Democrats like
Eric Holder and Bernie Sanders.
CANDICE M. WILL
JULY 17, 2018
PAGE 15
publicity to the agency he loves. But we respectfully disagree that it was in any way foreseeable
that his communications with Ms. Page would be publicly revealed, or that he is primarily
responsible for the public disclosure.
First, it is undisputed that Special Agent Strzok and Ms. Page regarded these
communications as private and did not expect the public, or anyone else, to read them. The
intensely personal nature of some of the texts illustrates this fact. Also, neither Special Agent
Strzok nor Ms. Page were responsible for the public disclosure of these texts. Rather, it was the
OIG briefing officials within DOJ who both publicly named Special Agent Strzok and Ms. Page,
and released to the media a selective sample of their text messages, even while the OIG
investigation was ongoing and investigative steps were not complete. By taking this action, OIG
and DOJ contributed to the very same public perception of bias that the Proposed Removal and
IG Report bemoans.
Not only is it indisputable that Special Agent Strzok believed that his text messages to
Ms. Page would remain private, this belief was objectively reasonable. FBI policy provides for
de minimis use of text messaging, which would necessarily envision communications between
an employee and his doctor, clergyman, attorney, spouse, or innumerable other categories of
communications carrying privilege and an expectation of privacy. Special Agent Strzok was not
aware (nor are we now) of any previous instance where the government, including the OIG, has
undertaken this type of review of texts between two FBI employees. Neither the IG Report nor
the Proposed Removal identify any circumstance in which private texts expressing political
opinions were previously disclosed. There was simply no reason for SA Strzok to expect that
these texts would be reviewed by anyone, much less made public.
Thus, the public disclosure here of texts that were always intended to remain private was
both unforeseen and unforeseeable. It is therefore fundamentally unfair to conclude that SA
Strzok's participation in these communications, because he failed to anticipate that they could
create the appearance of political bias, was misconduct. To illustrate the point, consider a
number of FBI officials discussing the upcoming 2016 election in the break room. It is First
Amendment protected activity for these officials to express personal opinions about the election,
and that would not change even if someone recorded or reported those opinions to the public.
There is nothing about the unforeseen public disclosure of such comments that can, retroactively,
render the mere expression of political opinion a disciplinary offense. Ordinarily, punishment
for severe misconduct requires a showing of intent - some effort to harm someone else, or obtain
personal gain. There is no indication that any of the FBI or Departmental rules that the Report
concludes were violated here were intended to be strict liability offenses, and if they were, the
conflict with SA Strzok's First Amendment rights would be further accentuated.
CANDICE M. WIL
JULY 17, 2018
PAGE 16
Moreover, after taking the highly unusual step of publicly disclosing the emails, if the
FBI were to now fire Special Agent Strzok without affording him genuine due process, such
action would also violate his rights under the due process clause of the Fifth Amendment. A
"stigma-plus" claim arises when the government takes adverse action without due process, and
those actions create "a stigma or other disability that foreclosed [the employee's] freedom to take
advantage of other employment opportunities," in his chosen field. See e.g., Campbell v. District
of Columbia, 2018 WL 3188384, at *2 (D.C. Cir. June 29, 2018), citing Bd. of Regents of State
Coils. v. Roth, 408 U.S. 564, 573 (1972). 1
In short, the only aspect of the "Unprofessional Conduct — Off Duty" charge which can
be sustained in a fashion which does not violate Special Agent Strzok's constitutional rights is
the admitted fact that he used an FBI device to send personal messages to Ms. Page. FBI policy
permits "de minimis personal use of government property" if not otherwise inappropriate.
Special Agent Strzok is hardly alone among FBI agents in the use of a government phone for
personal reasons, but we also understand that the impact on the agency from the negative
publicity here makes this situation unusual, and would warrant the imposition of reasonable
corrective action. The FBI table of penalties suggests a five-day suspension for a first offense of
"Unprofessional Conduct — Off Duty), and as we explain below, OPR has in fact issued far less
punishment for even worse conduct. The proposal to fire Special Agent Strzok after more than
two decades of exceptional service is grossly excessive.
We are of course highly concerned that the repeated calls by the President and members of Congress to
fire Pete Strzok interfere with his right to meaningful pre-disciplinary due process. Moreover, the process of review
of material at OPR further hampers his ability to respond to the charges and thus obtain due process. He has not
been allowed his own copy of the thousands of pages of material relied upon by OPR to arrive at their decision, nor
was he even permitted to bring a computer to type notes about the material relied upon by OPR. He was not
permitted to contact witnesses, and submit statements of support to rebut the charges. Similarly, the unusual and
unprecedented speed of OPR's process - in which a review was completed less than two days after Special Agent
Strzok was notified a review had been initiated is evidenced by the numerous factual errors, conclusions not
supported by fact, and assertions and recommendations keyed to language in a prior draft version of the report which
were removed or otherwise changed in the final report. All of this suggests a rush to judgment which undermines
his right to due process.
CANDICE M. WILL
JULY 17, 2018
PAGE 17
C. Dismissal is Not a Reasonable Penalty
Special Agent Strzok is not some newbie who ran into hot water soon after joining the
Bureau. He has given nearly twenty-two years of exceptional service to the FBI. Likewise, this
is not a situation where he intended to hurt anyone, or to take action for personal gain. He
simply expressed personal political opinions to a friend in texts that were intended to remain
private. While the President and his allies in Congress and in the media may be calling for
blood, the law demands a more sober analysis.
The Proposed Removal makes reference to the "Douglas factors" that should determine
the extent of any penalty you may decide to impose. Those factors should be balanced, without
affording one factor primary weight. Unfortunately, the proposed removal errs in this regard by
focusing almost exclusively on the negative publicity that the agency has encountered as support
for the sanction of dismissal, and by failing to balance the relevant Douglas factors as a whole.
It barely pays lip service to the fact of Special Agent Strzok's distinguished service over more
than two decades; or the tremendous amount of support and respect he has earned among his
colleagues; or the fact that none of these alleged offenses are serious enough to carry a penalty of
dismissal; or that no other employees have been fired under similar circumstances; or the fact
that he was working under immensely stressful circumstances, on perhaps the two most
consequential investigations in decades; or that he has demonstrated genuine remorse for having
embarrassed the Bureau and has conducted himself with the highest degree of professionalism
and regard for the agency's interests during the closed and public hearings before Congress; or
that everything in Special Agent Strzok's history with the agency suggests the highest
probability of rehabilitation.
Moreover, the proposal to fire Special Agent Strzok is not consistent with the Bureau's
approach to similar accusations, even when the agents' actions have been malicious or have
brought poor press upon the agency (or both). For example, in case 2012-0164, a Special Agent
knowingly provided false or misleading information within investigative documents, and
violated procedures when he failed to turn over Brady materials in a criminal proceeding. His
misconduct resulted in an innocent person wrongly spending more than seven years in prison,
and required the agency to enter into a large monetary settlement to bring the victim's civil case
to an end. He was given a 60-day suspension. In Case 2015-0233, a Unit Chief acted
unprofessionally while off duty with several people, including assaulting a minor and causing
him injuries, and drawing his duty weapon and threatening to shoot the minor in front of his
mother and 11 year old brother. The UC was criminally charged under state law, and the jury
found him guilty of 2nd degree assault. The penalty imposed by the Bureau was a demotion and
60-day suspension. The Bureau has given demotion or 10-60-day suspensions to employees for
such gross misconduct as a Special Agent assaulting his wife and berating police officers (2017-
CANDICE M. WILL
JULY 17, 2018
PAGE 18
0125), media reports about a Special Agent consistently refusing to pay child support, and using
his FBI credit card for personal debts (2016-011), employees writing racially motivated phony
text messages purporting to fire a black coworker (2016-0190), a Special Agent who had a long-
term sexual relationship with the AUSA assigned to his cases, and who was caught having sex at
work with her, resulting in a new trial for the defendant and widespread negative media coverage
(2012-0356), and many others. Indeed, the IG Report itself refers to a situation in which "racy
texts" exchanged between two FBI agents and an FBI informant were used to impeach the agents
in the prosecutions of several defendants for violations of the Foreign Corrupt Practices Act.
According to a Washington Post article about the case, which ended without convictions, the
foreman of the jury stated that the "texts were one of many things that point[ed] to an absolutely
amateurish operation" by the government. See Del Quentin Wilbur, Racy Texts Hurt Justice's
Largest Sting Operation Targeting Foreign Bribery, WASH. POST, Feb. 13, 2013. Neither agent
was charged with misconduct, and they both remain employed today. In sum, the proposed
penalty of removal is disproportionate to the Bureau's record of discipline with regard to even
worse infractions, and this factor, along with virtually all of the other Douglas factors points to a
lesser penalty.
The notoriety of these events should not trump all of these other factors. This is
particularly true given that Special Agent Strzok has done everything in his power to mitigate the
negative impact to the Bureau caused by the release of these texts. He has submitted to
interviews by OIG on numerous occasions and has fully cooperated with investigations being
conducted by various Congressional committees. In the three weeks since the IG's Report was
released, Special Agent Strzok has been interviewed for more than 21 hours by two House
committees, once behind closed doors and once in open hearing. In both instances, he appeared
voluntarily; in both he did not assert his Fifth Amendment right to remain silent and answered all
questions except those that counsel for the Bureau specifically directed him not to answer. His
testimony was sober, credible and compelling. The reaction to the public testimony has been
almost universally positive, and Special Agent Strzok is being credited with offering the most
compelling defense of the Bureau and its professionalism in recent memory. In fact, with the
exception of the President and some of his most devoted followers, the consensus seems to be
that Special Agent Strzok's testimony went a long way toward redeeming the reputation of the
Bureau among the American public. Since the hearing, he has received a slew of supportive and
grateful messages, including many from former Bureau employees whose pride in the service
was substantially restored by his public statements.
And even if you fault Special Agent Strzok for the bad publicity (notwithstanding the fact
that he was not the source of the leak and has done everything in his power to mitigate the
negative reaction), and even if you decide it is an aggravating factor warranting more than the
standard five to seven day penalties prescribed in the agency's published table, that still does not
CANDICE M. WILL
JULY 17, 2018
PAGE 19
support the draconian action of firing him. There are lesser sanctions which you can take and
that would also serve the agency's interests in taking reasonable corrective action. Indeed, the
agency risks even more harmful notoriety if it were to appear to bow to the political firestorm
and terminate the employment of an agent with a long and outstanding record of service because
he expressed his beliefs about an election.
But in the end, the most important audience for the decision in this case is not the
President or other politicians, and it is not the media; it is the —35,000 hardworking employees of
the FBI. The President has repeatedly alleged that the political opinions, as evidenced by the
donations and party registrations of some members of the Special Counsel's team is prima facie
evidence of bias. See https://www.washingtonpost.com/news/post-
politics/wp/2018/03/18/trump-said-muellers-team-has-13-hardened-democrats-here-are-the-
facts/?utm term=.2af75f939000. Obviously, the First Amendment prohibits taking account of
this. But the question implicitly posed by this case is whether the FBI should stand firmly
against, or become complicit in, bringing about a world where staffing decisions are affected by
employees' political beliefs, registrations, and donations. If the FBI were to remove all
employees who had political opinions, or even restrict the investigative opportunities of those
who had strongly held political views, the workforce would be neutered and left to a small class
of persons who either had no political beliefs, or who pretended not to have them. Note that the
slippery slope may already have begun, as noted in the proposal letter which quotes the case
agent in SDNY as declaring his political neutrality before his substantive concern, stating, "I
don't know what to do because I'm not political. Like I don't care who wins this election, but . . .
." Proposal Letter at p.15 (emphasis added). It is more than conjecture that this case has the
potential to chill the free speech of FBI employees everywhere.
The FBI should not establish this dangerous precedent. For all of these reasons we urge
you to reject the proposed sanction of dismissal, and allow Special Agent Strzok to return (in
whatever capacity you deem appropriate) to protecting the country that he loves.
We appreciate your consideration of this response, and we look forward to the meeting
on July 24, where Special Agent Strzok and I can answer any questions or elaborate on any of
these matters in greater detail.
Very truly yours,
s, Aitan D. Goelman
Aitan D. Goelman
Exhibit P
From: [REDACTED] (DO) (FBI) [mailto: @fbi.gov]

[REDACTED]
Sent: Wednesday, July 25, 2018 3:48 PM

To: Goelman, Aitan
Subject: Peter Strzok Last Chance Agreement
Aitan,
Based on your client's statements during yesterday's hearing that he would accept a 60-day suspension, demotion, and a
Last Chance Agreement in lieu of dismissal, and at your request, I am forwarding you the attached Last Chance
Agreement. I want to stress, Aitan, in the end, as you know, it is the AD's decision. I am waiting to hear back from you
before speaking further with the AD.
[REDACTED]
Office of Professional Responsibility

[REDACTED]
1
"LAST CHANCE" ADJUDICATION AGREEMENT

FOR PETER P. STRZOK II
July 2018
On June 15, 2018, Deputy Assistant Director Peter P. Strzok II was proposed for dismissal from
the rolls of the FBI based on the findings that he: (1) made inappropriate political comments in
text messages on his FBI-issued cell phone, in violation of FBI Offense Code 5.21
(Unprofessional Conduct — Off Duty); (2) utilized a personal email account to conduct official
FBI business, in violation of FBI Offense Code 5.18 (Security Violation — Other); and (3) failed
to diligently pursue a significant investigative lead, in violation of FBI Offense Code 1.7
(Investigative Deficiency — Misconduct Related to Judicial Proceedings). In lieu of dismissal,
Mr. Strzok requests that the Assistant Director, OPR, reduce the penalty to a 60-day suspension,
in which Offense Codes 5.21 and 5.18 are substantiated, Offense Code 5.2 (Dereliction of
Supervisory Responsibility) be substituted for Offense Code 1.7, and he be demoted to a non-
supervisory position. In support of this request, Mr. Strzok agrees to the following terms:
Mr. Strzok agrees to complete a suspension of 60 calendar days by remaining in Suspension

Status until he has recorded a total of 44 complete work days of Suspension in WebTA. The
required 44 days of lost pay includes any complete 8-hour work day already recorded in WebTA
as "Suspension."
Mr. Strzok agrees that OPR will retain jurisdiction over this matter, and that failure to abide by
this agreement will cause OPR to reopen this matter and summarily dismiss the employee.
Mr. Strzok further agrees that the OPR Assistant Director's decision will constitute the FBI's
FINAL decision in this matter, unless the matter is reopened based on credible evidence of a
violation of this agreement. Mr. Strzok agrees to waive his right to appeal to the FBI's internal
disciplinary entity or to the Merit Systems Protection Board.
Mr. Strzok further agrees that if he engages in any other serious misconduct, the appropriate
sanction will be removal from the rolls of the FBI.
Signature: Date:
Peter P. Strzok II
Signature: Date:
Aitan D. Goelman
Counsel for Peter P. Strzok
Exhibit Q
-----Original Message-----
From: [REDACTED] (DO) (FBI) < @fbi.gov>
[REDACTED]
Sent: Monday, August 6, 2018 8:52 AM

To: Goelman, Aitan <AGoelman@zuckerman.com>
Subject: RE: Peter Strzok
Aitan,
has advised that he will need until the end of the week to submit a character reference. If AD Will has
[REDACTED]
completed the final letter in this matter before then, would you like her to wait on Mr. character reference?
[REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]

[REDACTED]
From: Goelman, Aitan [mailto:AGoelman@zuckerman.com]
Sent: Tuesday, July 31, 2018 10:54 AM
To: [REDACTED] (DO) (FBI) <[REDACTED]>
No, we do not.
<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm1.lettermark.net_zuckerman_card_APJP-
5F30.map&d=DwIFAg&c=kWwxgxBGq8MXL6t_SoviyQ&r=iOjjOcZMS659PA-
xjv7rFXVijE8sNUSvFN35kGR_API&m=smGkAV1St0sPS0SqcaqkNIHB3jSzg06ATU9lwa7MgXg&s=KWHZZYEf1gFkCvnCEnOo
gQknTIANWxxW085aa4977wo&e=>
[Aitan D. Goelman 202.778.1999 agoelman@zuckerman.com]<https://urldefense.proofpoint.com/v2/url?u=http-
3A__mm1.lettermark.net_zuckerman_card_APJP-
1
xjv7rFXVijE8sNUSvFN35kGR_API&m=smGkAV1St0sPS0SqcaqkNIHB3jSzg06ATU9lwa7MgXg&s=KWHZZYEf1gFkCvnCEnOo
gQknTIANWxxW085aa4977wo&e=>
[REDACTED]

To: Goelman, Aitan
Thanks. I have emailed Mr. [REDACTED]. Do you have an email address for Mr. ?
[REDACTED]
To: [REDACTED] (DO) (FBI) < @fbi.gov>
[REDACTED]
, Mr. [REDACTED] can be reached at [REDACTED] and cell [REDACTED].

[REDACTED]
Also, please add former GC [REDACTED] to the list of references for Pete. Mr. can be reached at [REDACTED]
[REDACTED]
Thanks,
Aitan
5F30.map&d=DwIGaQ&c=kWwxgxBGq8MXL6t_SoviyQ&r=iOjjOcZMS659PA-xjv7rFXVijE8sNUSvFN35kGR_API&m=O-
l05kQ3p7jMz3fTuTWW6EB95cMuWh4gg8dLE-Cgzi8&s=G697mjqnNbVo1BxvxhaadQVkAM-TZnwL34BFfLtnuPI&e=>
5F30.map&d=DwIGaQ&c=kWwxgxBGq8MXL6t_SoviyQ&r=iOjjOcZMS659PA-xjv7rFXVijE8sNUSvFN35kGR_API&m=O-
l05kQ3p7jMz3fTuTWW6EB95cMuWh4gg8dLE-Cgzi8&s=G697mjqnNbVo1BxvxhaadQVkAM-TZnwL34BFfLtnuPI&e=>
From: [REDACTED] (DO) (FBI) [[REDACTED]@fbi.gov]
To: Goelman, Aitan
Mr. Goelman,
As part of the process before issuing a final letter, AD Will is re-reviewing the rather extensive file on this matter to
ensure 100% accuracy and that she has not missed anything. We would be happy to also have character references. I
will contact the people listed below, however, I do not have an email address for former employees. If you could please
provide one for [REDACTED], I will reach out to him. Thank you.
2
[REDACTED]
[REDACTED]

[REDACTED]
Sent: Monday, July 30, 2018 5:23 PM
To: [REDACTED] (DO) (FBI) < @fbi.gov>
[REDACTED]
as I mentioned in our phone call today, to the extent that AD Will is considering terminating Pete instead of
[REDACTED]
moving forward with the LCA, we would ask her to contact the following people as character references for Pete, and
consider what they have to say as mitigation under the Douglas factors.
[REDACTED]
Additionally, to the extent that AD Will would like to corroborate our version of the chronology surrounding the Weiner
laptop, we'd encourage you to the read the transcripts of the interviews and any subsequent written submissions or
interviews of the following employees: [REDACTED]
Thanks,
Aitan
xjv7rFXVijE8sNUSvFN35kGR_API&m=_kxx26edv8sx7nkQoZq-tMPbJ5K0W1FG9nxloxhgE-
Q&s=7B1WCxImahZDWxppN9UYMur6lk1FdENBe_Qv6zs8et0&e=>
3
xjv7rFXVijE8sNUSvFN35kGR_API&m=_kxx26edv8sx7nkQoZq-tMPbJ5K0W1FG9nxloxhgE-
Q&s=7B1WCxImahZDWxppN9UYMur6lk1FdENBe_Qv6zs8et0&e=>
[REDACTED]
Sent: Monday, July 30, 2018 12:36 PM

To: Goelman, Aitan
Subject: Peter Strzok
Aitan,
I will let you know when the final letter is sent to Mr. Strzok's AD.
[REDACTED]

[REDACTED]
4
Exhibit R
From: Bessee, Cecilia O. (OGC) (FBI) [[REDACTED]@fbi.gov]

Sent: Monday, August 20, 2018 8:59 PM
To: Goelman, Aitan
Cc: [REDACTED]
Subject: FW: Special Agent Peter Strzok
Aitan,
Your email to Deputy Director Bowdich regarding Special Agent Peter Strzok, has been
forwarded to the FBI’s Office of the General Counsel for appropriate response. We are in the
process of reviewing your email and looking into your request. We will respond to your
request in due course. Thank you for your patience.
Cecilia
Cecilia O. Bessee
Acting Deputy General Counsel
Litigation Branch
Office of the General Counsel
935 Pennsylvania Ave, NW, Room 10140
Telephone: [REDACTED]
1
Facsilile: [REDACTED]
Confidentiality Statement :
This message is transmitted to you by the Office of the General Counsel of the Federal Bureau of Investigation. The
message, along with any attachments, may be confidential and legally privileged. If you are not the intended recipient
of this message, please destroy it promptly without further retention or dissemination (unless otherwise required by
law). Please notify the sender of the error by a separate e-mail or by calling [REDACTED].
-------- Original message --------

From: "Goelman, Aitan" <AGoelman@zuckerman.com>
Date: 8/11/18 9:37 PM (GMT-05:00)
To: "Bowdich, David L. (DO) (FBI)" <[REDACTED] >
Subject: Special Agent Peter Strzok
Deputy Director Bowdich:
I represent Peter Strzok and am in possession of your letter dated August 9, 2018, terminating Special Agent Strzok and
thereby overturning the decision of the FBI's Office of Professional Responsibility ("OPR") that Special Agent Strzok's
profound remorse, record of exemplary service and unlikelihood of recidivism justify the less severe punishment of a 60-
day suspension and demotion rather than termination. Your letter states that your decision to terminate "is final, and
not subject to further administrative review." This is inconsistent with both past practice and the language of previous
communications from OPR. Both the OPR letter of August 8, 2018, and the OPR letter of June 15, 2018, announcing the
disciplinary recommendation, stated that Special Agent Strzok would be entitled to appeal any adverse decision more
severe than a 14-day suspension to a 5-member, cross-divisional Disciplinary Review Board. Given that the availability of
such an appeal is consistent with past practice, and Director Wray's repeated statements that he intended to
scrupulously follow the FBI's ordinary practice in this matter, we respectfully request the opportunity to appeal your
decision administratively and, if you decline, an explanation as to why the Bureau decided to abandon both past practice
and its own written commitments in this case.
Very truly yours,
Aitan Goelman
2

)
PETER P. STRZOK, )
)
Plaintiff, )
)
)
)
Defendants. )
)
[PROPOSED] ORDER
Having considered Defendants’ motion to dismiss or, in the alternative, for summary
judgment as to Count One and Count Two, and motion for summary judgment as to Count Three;
Plaintiff’s response; and the entire record, IT IS HEREBY ORDERED:
Defendants’ motion is DENIED.
Dated:________________ _______________________
Hon. Amy Berman Jackson
United States District Judge

Strzok V Barr 12-30-19

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Strzok V Barr 12-30-19

Hochgeladen von

Copyright:

Verfügbare Formate

Case 1:19-cv-02367-ABJ Document 36 Filed 12/30/19 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

STATEMENT OF FACTS AND LEGAL STANDARDS ............................................................ 4

I. THE COURT SHOULD DENY THE MOTION FOR SUMMARY JUDGMENT OR

II. THE MOTION TO DISMISS THE FIRST AMENDMENT CLAIM MUST BE

A. The Complaint Plausibly Alleges Retaliatory Firing Based on Strzok’s

C. Pickering Balancing Favors Strzok’s Right to Free Speech ................................. 15

1. Strzok Engaged in the Most Protected Type of Speech ............................ 15

2. Private Speech on a Matter of Public Concern Is Presumptively

3. There Is Little on the Employer’s Side of the Pickering Ledger .............. 20

(a) There Is No Actual Evidence of Disruption ................................. 20

A. Strzok Must Be Afforded Discovery on His Privacy Act Claim .......................... 34

B. Defendants’ Legal Arguments Are Either Wrong or Subject to Refutation by

1. The Privacy Act Applies to the Disclosure of DOJ Records to the

2. Disclosing Employees’ Private Communications to the Press Is Not a

Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv.,

Anderson v. Liberty Lobby, Inc.,

Boddie v. Dep’t of Navy,

Britt v. Naval Investigative Serv.,

Bross v. Dep’t of Commerce,

Cleveland Bd. of Educ. v. Loudermill,

Convertino v. U.S. Dep’t of Justice,

Dinh Tran v. Dep’t of Treasury,

Dougherty v. Sch. Dist. of Phila.,

Elec. Frontier Found. v. U.S. Dep’t of Justice,

First Chi. Int’l v. United Exchange Co.,

Goldstein v. Chestnut Ridge Volunteer Fire Co.,

Gordon v. Town of Hunter,

Haverda v. Hays County,

Herron v. Fannie Mae,

Ideal Elec. Sec. Co. v. Int’l Fid. Ins.,

Khan v. Parsons Glob. Servs., Ltd.,

Kissinger v. Reporters Comm. for Freedom of the Press,

Lerner v. District of Columbia,

Lesar v. U.S. Dep’t of Justice,

Link v. Dep’t of Treasury,

Maydak v. United States,

McIntyre v. Ohio Elections Comm’n,

N.Y. Times v. Sullivan,

Navab-Safavi v. Broad. Bd. of Governors,

Parkinson v. Dep’t of Justice,

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

Pickering v. Board of Education,

Pilon v. U.S. Dep’t of Justice,

Reed v. Dep’t of the Navy,

Richardson v. Bd. of Governors of Fed. Reserve Sys.,

Richardson v. Bd. of Governors of Fed. Reserve Sys.,

Rosenberger v. Rector & Visitors of the University of Virginia,

Safeco Ins. Co. of Am. v. Burr,

Thompson v. District of Columbia,

U.S. Postal Serv. v. Nat’l Ass’n of Letter Carriers, AFL-CIO,

United States v. Nat’l Treasury Emps. Union,

5 U.S.C. § 552 ............................................................................................................................... 37

5 U.S.C. § 552a ..................................................................................................... 34, 35, 37, 39, 41

5 U.S.C. § 7511 ............................................................................................................................. 29

5 U.S.C. § 7513 ............................................................................................................................. 29

72 Fed. Reg. 36,725 ................................................................................................................ 35, 39

Fed. R. Civ. P. 56(d) ....................................................................................................................... 6

binding agreement to accept demotion and suspension was indeed a politically-motivated

entirely unaddressed in Defendants’ Motion.

communications is unconstitutional, irrespective of any balancing of interests. As the Second

decision: such ‘retaliatory’ discharge is always unconstitutional.” Sheppard v. Beerman, 94 F.3d