The decision was disclosed in an urgent court filing in which department attorneys wrote that U.S. Solicitor General Elizabeth B. Prelogar on Thursday approved an appeal unless U.S. District Judge Amy Berman Jackson revisits her decision. On Feb. 23, the judge allowed Trump and FBI Director Christopher A. Wray to be deposed by attorneys for former senior FBI agent Peter Strzok and former FBI lawyer Lisa Page, who exchanged politically charged text messages criticizing Trump while they were having an affair.
Strzok seeks reinstatement and back pay over what he alleges was his unfair termination. Page alleges officials unlawfully released the trove of messages to reporters.
The two ex-FBI employees want to learn whether Trump pressured FBI and Justice Department officials to retaliate against them. But the Justice Department argued that Trump may not be deposed before Wray, on the long-standing principle that litigants must interview lower-ranking officials first and exhaust other sources of information before questioning high government officials.
“As the Court itself acknowledged, Director Wray’s testimony could obviate the need for any deposition of former president Trump,” Christopher M. Lynch wrote for eight Justice Department Civil Division leaders and trial attorneys. For example, Lynch wrote, Wray could say he did not receive or convey any pressure from Trump.
The Justice Department said it acted Thursday because it only recently learned of the timing of Trump’s deposition.
Lynch asked Jackson to render a decision by next Tuesday so that the department could seek a rare writ of mandamus from the U.S. Court of Appeals for the D.C. Circuit to overrule the judge if she refuses to require Wray to be deposed first.
The government decision continues a storm of activity over Trump’s legal troubles stemming not only from the 2016 and 2020 elections, but Tuesday’s verdict by a federal jury ordering him to pay $5 million in damages for sexually abusing and defaming writer E. Jean Carroll nearly three decades ago. Trump also faces a New York indictment alleging felony bookkeeping fraud for hiding hush money payments during his successful 2016 presidential campaign. A U.S. special counsel is also investigating efforts to block the lawful transfer of power after the 2020 presidential election, and Trump’s handling of classified documents after leaving office.
Thursday’s move marks the latest twist in the four-year-old Strzok and Page lawsuits. In March, the Biden administration and Justice Department said they would not assert executive privilege on Trump’s behalf to prevent Wray’s testimony, declining to shield the confidentiality of a president’s communications with top advisers under the Constitution’s separation of powers. The department told the judge that Trump has not requested such an assertion over information covered by her order.
The basis of Jackson’s decision to allow Trump and Wray to be questioned remains under seal, as are the substance of depositions of other witnesses, and portions of the government’s public filings Thursday were redacted. Attorneys for Strzok and for Page did not immediately respond to a request for comment.
The messages from 2016 between Strzok and Page discussed their intense dislike of Trump and their fear that he might win the presidency. They have fueled claims that the FBI was prejudiced against Trump since they were made public in December 2017. The exchanges have fueled scores of angry tweets and public statements by Trump and his supporters against the pair as well as former FBI director James B. Comey and his deputy, Andrew McCabe.
Strzok asserted in the suit that Trump’s administration tolerated partisan political speech by federal employees — but only if it praised Trump and attacked his opponents — and alleged that his removal was “part of a broader campaign against the very principle of free speech” led by the former president.
Strzok, once a top FBI espionage and counterintelligence agent, worked on investigations into whether the Trump campaign coordinated with Russia to influence the 2016 election, as well as into 2016 Democratic presidential nominee Hillary Clinton’s use of a private email server while she was secretary of state.
But in the course of that work, Strzok and Page exchanged messages on work phones critical of numerous politicians, especially Trump, who Strzok derided as “abysmal” and a “disaster.”
In August 2016, after Page wrote Trump was “not ever going to become president, right? Right?!” Strzok responded: “No. No he’s not. We’ll stop it.”
The Justice Department inspector general found that message implied a willingness to take official action to impact Trump’s prospects. Strzok was removed from the Russia investigation when the messages were discovered and fired from the FBI in August 2018.
Both Strzok and Page also accused the FBI and Justice Department of violating the Privacy Act by showing reporters a document containing nearly 400 texts between them.
