By Noah Feldman
There’s no need to shed tears for Peter Strzok, the senior FBI agent who was fired Friday by the bureau’s deputy director, David Bowdich. Strzok’s anti-Donald Trump texts, sent while he was taking part in the Hillary Clinton email investigation, harmed the bureau’s appearance of impartiality.
But the firing of Strzok, after an internal investigation recommended only reprimand and demotion, is wrong anyway, and for a related reason. The firing further unravels the line between partisan politics and the Federal Bureau of Investigation’s proper role as a nonpartisan criminal justice investigative arm.
President Trump, who had been pushing for Strzok to go, lost no time in tweeting that the Clinton email investigation should be reopened. The fact that Trump’s FBI has fired an agent for texts that have not been found to have affected his job performance makes it look as though the political views of senior agents are now grounds for dismissal.
Worse yet, for the public, the message of the firing is that everything in Washington is partisan politics all the way down — including crime fighting. That message helps Trump in his crusade to discredit the Department of Justice, the FBI and the justice system as a whole. Once public trust in those institutions collapses, it will take decades to re-establish it.
When you drill down to see what Strzok really did wrong, it comes down to terrible judgment — not necessarily a firing offense. The texts no doubt reflected real disdain for Trump. And, taken slightly out of context, one of them could be made to sound as if it reflected some secret plan to stop Trump from getting elected. (That was the one where Strzok’s interlocutor, then-FBI lawyer Lisa Page, wrote that Trump is “not ever going to become president, right?” and Strzok replied “No he won’t. We’ll stop it.”)
Strzok also sent a copy of a sensitive search warrant to his personal email account, a violation of policy to be sure — and not a good look in an investigation of Clinton’s use of private email server. But there was no evidence that the warrant got out or was hacked or leaked.
Because the inspector general’s investigation of Strzok’s texts did not find evidence sufficient to prove that Strzok’s privately expressed views affected the performance of his duties, the Office of Professional Responsibility at the FBI didn’t recommend that he be fired.
In an intensely politicized environment, it’s important that hiring and firing decisions be made on the basis of what the professional bureaucracy recommends, not on the basis of partisan politics or presidential interference. After all, the whole basis for the idea that the FBI and Department of Justice investigate and prosecute crime in a nonpartisan manner is that they follow independent policies and procedures — like those that went into the inspector general’s report and OPR’s recommendation.
Trump, of course, did what he could to pressure the FBI to fire Strzok. He called him “treasonous,” which would seem to call for his prosecution, not just firing.
That’s because Strzok’s texts were a tremendous gift to Trump in his coordinated, long-standing effort to convince the public that the FBI and the Justice Department are arrayed against him as part of a partisan, powerful “deep state.”
The deputy director’s decision to fire Strzok is a further gift to Trump. It not only makes it seem as though Trump was right in calling Strzok treasonous. But it also makes it seem as if the FBI believes that Strzok’s texts really did reflect some wrongdoing in the conduct of his official duties.
This interpretation seems so plausible because, if Bowdich didn’t think Strzok had acted wrongly in his official duties, then he should have followed the OPR’s recommendation. The other alternative is that Strzok is really being fired for the substance of his anti-Trump views, which would be an illegal firing in violation of the First Amendment.
It’s all well and good to say that the president as executive should be able to fire executive branch employees like Strzok. But FBI agents, even senior ones, aren’t political appointees. Strzok had been deputy assistant director of the counterintelligence division. He was a 22-year career FBI agent — the kind of person who is supposed to be hired and fired based on performance and nothing more.
The upshot is that the firing looks partisan. It underscores the public perception that Trump is correct to perceive and depict the FBI in partisan terms.
After Trump, rebuilding trust in the FBI and Justice Department won’t be easy. After the Watergate scandal, the Senate’s Church Committee took more than a year to hold hearings and publish material that revealed nefarious intelligence community activities. No doubt that transparency helped restore public confidence in the FBI.
But the situation now is very different. The FBI hasn’t actually been acting in a partisan fashion — so there’s no obvious material to disclose. The problem now is more perception than reality.
And even the Church Committee didn’t know that FBI Deputy Director Mark Felt had been “Deep Throat,” the Washington Post’s secret source who helped bring down Richard Nixon. Not knowing that was a boon to restoring public confidence. Today information of that kind would confirm the worst conspiracy theories about the “deep state.”
It’s an irony of history that the FBI and the Justice Department are being seen as partisan in what is probably the height of their historic independence.
But it’s not an accident. It’s a concerted plan by the president. The damage he is doing will take a long time to reverse.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.