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With the odd firing of Peter Strzok, the president has cleansed the bureau of the men who started the Russia investigation. This is not normal.
By BRADLEY P. MOSS
Bradley P. Moss is a partner at the Washington, D.C. Law Office of Mark S. Zaid, P.C., where he has represented countless individuals (including whistleblowers) serving within the intelligence community, and is also the deputy executive director of the James Madison Project, through which he has represented media outlets such as Politico, Gawker, Daily Caller, and the Daily Beast in FOIA lawsuits against the Bush, Obama and Trump administrations.
The announcement Monday morning that former FBI Special Agent Peter Strzok had been fired likely brings to a conclusion the personnel debate within the bureau regarding the behaviors of certain high-profile officials during the 2016 campaign cycle. Agent Strzok—a counterintelligence expert with particular expertise on Russia—played a significant role not only in parts of the investigation into former Secretary of State Hillary Clinton’s email server but also—in his role as deputy assistant director of the Counterintelligence Division—in the initiation of the still-ongoing probe into possible collusion between the Trump campaign and Russian officials. He also committed the serious political sin of exchanging private text messages (at least some on a government phone) with Lisa Page, an FBI attorney with whom he was having an affair, in which the two officials expressed their severe distaste for President Trump personally (as well as other candidates). Like former Director James Comey and former Deputy Director Andrew McCabe before him, Agent Strzok was terminated in the midst of a highly politicized environment in which the president of the United States has repeatedly attacked FBI officials by name and denounced the probe of his campaign as a “witch hunt.”
The actual documentation issued by the FBI outlining the basis or bases for Strzok’s termination has not been made public, and it will no doubt remain private unless Strzok himself permits its publication. Even from the information that is publicly available, however, we can reasonably surmise what were the likely bases for terminating Strzok’s employment. Those bases presumably revolved around misuse of government property, specifically with respect to using a government phone to communicate with Page in a manner that would conceal their personal relationship from their respective spouses. It is also possible, albeit unlikely, that the content of the text messages—and particularly their inflammatory verbiage—would have been cited as raising at least the appearance of impropriety that had cast doubt on Strzok’s trustworthiness and good judgment in how he had performed his duties.
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Indeed, there was no doubt a viable—although arguably attenuated—policy justification supporting Strzok’s firing. Having represented government employees at the FBI and across the intelligence community in similar disciplinary proceedings for 11 years, however, I can tell you that the manner in which this particular saga came to a conclusion was in no way consistent with standard FBI practice.
No matter what some in the media might tell you, it is not impossible to fire government officials if there is a valid basis for doing so. When it comes to the FBI, that task is far easier because—with very limited exceptions that likely do not apply to Strzok—FBI officials are effectively “at-will” employees. The Civil Service Reform Act of 1978, which governs the disciplinary due process system for the entire U.S. government, specifically excludes the bureau—as well as several other agencies within the intelligence community—from its statutory scope. In effect, FBI officials receive whatever internal due process the agency decides to provide to them out of a matter of discretion.
What was so unusual in the context of Strzok’s firing, however, was the direct intervention of Deputy Director David Bowdich into the process. Just like in any other FBI disciplinary proceeding, Strzok was initially afforded the right to appeal the proposed termination of his employment to Candace M. Will, the head of the FBI Office of Professional Responsibility. I have appeared before Will several times on behalf of FBI clients and I can state from personal experience that she is well-credentialed and compassionate, but ultimately very strict. She is a firm believer in the notion that the FBI has to hold itself to the highest ethical and moral standards and that is often reflected in her determinations. In 11 years of practice, I cannot think of a single time I have ever managed to persuade Will to reverse a proposed termination of an FBI official’s employment.
Nonetheless, according to a statement from Strzok’s attorney, Will chose not to uphold the proposed termination of Strzok’s employment. Instead, she concluded that it was appropriate to instead demote Strzok and suspend him for 60 days. She apparently also concluded that Strzok would be afforded what is known as a “last chance agreement,” which is effectively a written understanding between the agency and the employee that even the slightest instance of misconduct going forward can and will likely result in immediate termination. That Will reached this conclusion is very surprising and, in my professional opinion, speaks to just how thin the case for firing Strzok likely was.
That Deputy Director Bowdich chose to overrule Will is what takes this matter so far outside the ordinary practice of the FBI disciplinary process. I have never seen senior FBI leadership unilaterally and directly intervene in such a manner, whether in my client’s favor or otherwise. If Strzok had not been satisfied with Will’s determination, appealing to Deputy Director Bowdich would not even have been a formal option. His final stage of administrative appeal would have been before the Disciplinary Review Board, which is comprised of three senior FBI officials but to my knowledge does not typically (if ever) include the deputy director.
To be clear: No legal restriction likely prevented Deputy Director Bowdich from directly intervening. After all, Strzok was effectively an “at-will” employee. What is concerning here is the continuous and repeated appearance of political considerations seeping into the traditionally apolitical disciplinary process at the FBI. President Trump made no bones about his distaste for Agent Strzok, just as he similarly publicly criticized Director Comey and Director McCabe prior to their terminations. All three men played or were still playing a role in the investigation into the president’s campaign before they were fired.
With the firing of Peter Strzok, the president’s purge of senior FBI leadership who helped launch that investigation is now complete. For those wondering whether Trump would allow the bureau to do its job without political interference from the White House, I think we have our answer.