Lisa Page has filed suit against her former employers, the Department of Justice and the Federal Bureau of Investigation, for unlawful and unwarranted release of text messages that included personal information. Ms. Page filed the narrowly focused suit under the Privacy Act, which forbids a federal government agency to release documents containing personal information that does not come within defined exceptions. If the disclosure of personal inforation is not within one of the enumerated exceptions AND the individual whose information is disclosed has not consented, then the disclosure is illegal.
The complaint is here. This diary need not and will not review the nature of the text exchange between Ms. Page and long-time FBI official Peter Strzok, and the relationship between the two, which is well known.
The Privacy Act gives the individual whose information is wrongfully released a right of private action, including money damages. Ms. Page seeks damages (see Para. 88) including the following:
(a) permanent loss of earning capacity due to reputational damage; (b) attorneys’ fees relating to investigations and congressional testimony as well as efforts to prevent the release of personal text messages; (c) the cost of child care during and transportation to multiple investigative interviews and appearances before Congress; (d) the cost of paying a data privacy service to protect her personal information; and (e) the cost of therapy to cope with unwanted national media exposure and harassment caused by the December 12 disclosure.
The rather compact and well-drawn complaint, filed on her behalf by the A-List D.C. law firm of Arnold and Porter, describes some rather sleazy conduct by the Department of Justice. It also describes knowledge of guilt, although that is not an element Ms. Page has to prove. Hours before scheduled key Congressional testimony by Deputy Attorney General Rod Rosenstein, in the middle of the night, the DOJ engineered the most sordid of government leaks:
44. The Department and Attorney General Sessions were already fending off a months-long barrage of criticism by the President, centered on what the President portrayed as the Attorney General’s failure to protect him and pursue his political enemies. See ¶¶ 27–29. Disclosure of the text messages before Rosenstein’s hearing would serve multiple goals: it would protect the Deputy Attorney General from criticism during his testimony; it would show that the Department was addressing matters of concern to the President; and it would dominate coverage of the hearing,which otherwise could be unfavorable for the Department. And the Department could achieve all of this at the relatively low cost (in the Department’s view) of the privacy of two FBI employees: Ms. Page, a longtime DOJ and FBI attorney, and Mr. Strzok, a career FBI agent.
45. On the evening of December 12, , mere hours before Rosenstein’s scheduled testimony, DOJ officials, including then-DOJ spokesperson Sarah Isgur Flores, summoned a select group of reporters to the Department’s offices. There, they allowed the reporters to view the 375 text messages. The reporters were told they were not permitted to remove or copy the messagesand could not source the messages to DOJ.
46. Senior DOJ leadership authorized the disclosure of these messages to reporters.
47. On information and belief, the Department provided the messages to reporters to influence the public reception of Deputy Attorney General Rosenstein’s December 13 testimony and to ingratiate Attorney General Sessions and DOJ with the President, among other improperand impermissible purposes.
48. Also on the evening of December 12, DOJ made arrangements to deliver copies ofthe text messages to certain members of the House Judiciary Committee, the committee before which Mr. Rosenstein was scheduled to testify the following morning. Although the Privacy Act does not permit disclosures to the media, it does contain an exception for certain transmissions of agency records to Congress. But it was already late in the evening when DOJ officials arranged to deliver the messages to congressional members, and publicly available e-mail messages show that members of Congress and staff would not be in a position to receive and review the messages prior to the hearing scheduled to begin the next morning.
49. On information and belief, DOJ and/or FBI officials disclosed the messages directly to a select group of reporters to ensure they would become public in time for the Deputy Attorney General’s testimony on the morning of Wednesday, December 13.
. . .
57. The attempt to prevent reporters from divulging the true source of the messages was unsuccessful, and DOJ officials were forced to admit that DOJ had deliberately released the text messages to the media and attempted to conceal that release. In his testimony the morning of December 13 before the House Judiciary Committee, Deputy Attorney General Rosenstein confirmed a congressman’s summary that “the Department of Justice . . . last evening, invited agroup of reporters to its offices to view the private text messages that were sent during the electionby Peter Strzok and Lisa Page.” Oversight Hearing with Deputy Attorney General Rod Rosenstein:Hearing Before the H. Comm. on the Judiciary on Dec. 13, 2017, 115 Cong. 37 (2018). [Emphasis added.]
This lawsuit will not unfold quickly but has a very good chance of succeeding. There will doubtless be a motion to dismiss, which is unlikely to succeed. If the S.O.P. motion to dismiss fails (as I predict), the suit will be allowed thereupon to move to discovery. My initial take is that Trump will not be a witness but that Sessions and the world-class hypocrite Rod Rosenstein will.
The midnight nature of the disclosure to hand-picked reporters and the attempt to cover it up will undercut any effort to defend the conduct as necessary to the public interest. It is obvious that the unlawful midnight leak was intended to kiss up to Mr. Sessions’ (and Mr. Rosenstein’s) boss and his Le Grand Orange Derierre. As a still-quite-young lawyer with tremendous earnings capability in the private sector, Ms. Page’s damages are apt to be substantial.
Good luck, Lisa Page, Esq., in this and all things.
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