DOJ Attempts to Stave Off May 24 Trump Deposition in Peter Strzok Lawsuit

Many of the details of the how and the why of DOJ’s bid to get Judge Amy Berman Jackson to reverse her decision allowing Peter Strzok’s lawyers to depose Christopher Wray and Donald Trump in whichever order they choose are redacted.

But several things are clear.

First, Strzok currently has a Trump deposition scheduled for May 24.

Following the Court’s ruling, Defendants requested that Plaintiffs depose Director Wray before taking a deposition of the former President. See Exhibit A to Declaration of Christopher M. Lynch (“Lynch Decl.”). Plaintiffs refused that request, and instead scheduled a deposition of the former President to take place on May 24, before any deposition of Mr. Wray had been scheduled.

And, today, Solicitor General Elizabeth Prelogar gave DOJ approval to pursue several means of forestalling the deposition, including filing for a writ of mandamus as well as a more conventional appeal.

DOJ has something called the apex doctrine, which says that in a suit you have to depose more junior and non-governmental people first, in case it’s possible the lower level depositions will obviate the need for more senior ones.

In this case, DOJ hopes that Chris Wray will say he didn’t pass on any of the political pressure he was getting from Trump to fire Strzok to David Bowdich, who did the firing. If he does, DOJ claims, then there’s no need to depose Trump, who will say he was demanding that Strzok be fired.

There is no dispute that former FBI Deputy Director David Bowdich made the decision to remove Mr. Strzok from the FBI. Mr. Strzok argued that he should be permitted to take the former President’s deposition “about whether he met with and directly pressured FBI and DOJ officials to fire Plaintiff . . . and whether he directed any White House staff to engage in similar efforts.” Opp’n Mot. Quash Trump Subpoena at 10, In re Subpoena Served on Donald J. Trump, No. 1:22- mc-27-ABJ (D.D.C. Mar. 9, 2022), ECF No. 11. But this line of inquiry is potentially relevant only if any such meeting or pressure (a) included Mr. Bowdich or (b) was reported to Mr. Bowdich by Director Wray, who also had authority to discipline Mr. Strzok. Mr. Bowdich has already testified that he made the decision himself, without any input from former President Trump. See Bowdich Dep. 360:4-362:1 (Sept. 9, 2022); id. at 149:9-11; see also Defs.’ Suppl. Filing of Sept. 29, 2022, at 1, Strzok v. Garland, No. 1:19-cv-2367 (D.D.C.), ECF No. 90. And he has also testified that he “absolutely” did not recall Director Wray ever telling him about any meeting with President Trump in which “the President[] pressed the Director to fire Peter Strzok and Lisa Page[,]” and that he was “trying to keep [Director Wray] removed from th[e] particular adjudication” of Mr. Strzok’s misconduct. Bowdich Dep. at 200:17-204:2, 332:4-6; see also Defs.’ Suppl. Filing of Sept. 29, 2022, at 1. If Director Wray’s deposition establishes that Director Wray either did not receive the alleged pressure from the former President or did not convey any such pressure to Deputy Director Bowdich, the recipients of any alleged “pressure” to discipline Mr. Strzok would have been limited to those who did not take any action to discipline Mr. Strzok.

Thus far, Trump has not done things he could have done to insulate himself from this lawsuit, including invoking Executive Privilege.

But he did consent to DOJ’s attempt to stall his May 24 deposition.

1 Pursuant to Local Civil Rule 7(m) the undersigned conferred on the substance of this motion with counsel for Mr. Strzok and former President Trump. Counsel for Mr. Strzok advised the undersigned that Mr. Strzok opposes this motion. Counsel for former President Trump advised that former President Trump consents to this motion.

Maybe the E Jean Carroll verdict helped him realize how damaging his surly depositions can be in civil suits.

Meanwhile, ABJ just assumed senior status on May 1. She’ll remain a diligent judge, but she’s got far less reason to care that DOJ wants to tell her she has been shirking her job.

Update: The backup that DOJ submitted reveals that DOJ had already floated moving for a writ of mandamus on March 30 — but may not have done so until Trump’s deposition was locked in.

Update: Judge ABJ has issued an order scolding both sides, noting that based on the Apex doctrine arguments DOJ made last year, Chris Wray’s deposition should go last, but nevertheless ordering that it go before Trump’s.

MINUTE ORDER denying as moot [110] Motion for Reconsideration and Motion to Stay. On August 10, 2022, the Court ruled, pursuant to the apex doctrine, that any request to depose FBI Director Christopher Wray or former President Donald J. Trump must await the completion of the depositions of former FBI Deputy Director Bowdich and former Deputy Attorney General Rod Rosenstein. Thereafter, on February 23, 2023, after full briefing by the parties as to what had transpired in those proceedings, the Court issued a lengthy oral ruling on the question of whether the depositions of Director Wray and former President Trump could proceed. It ordered in its discretion and in accordance with the applicable law that they could both go forward under very strict restrictions as to time and subject matter. The Court is somewhat surprised to learn that since then, the parties have done nothing more than wrangle over the order of the two depositions. The government seems chagrined that the Court did not order that the deposition of the FBI Director be completed first, but it may recall that it was the Court’s view that it was Director Wray, the only current high-ranking public official in the group of proposed deponents, whose ongoing essential duties fell most squarely under the protection of the doctrine in question. The defendants’ instant motion repeats arguments that were made and fully considered before, and it does not set forth grounds warranting reconsideration. The Court’s ruling was appropriate in light of all of the facts, including the former President’s own public statements concerning his role in the firing of the plaintiff. However, in order to get the parties — who apparently still cannot agree on anything — over this impasse, it is hereby ORDERED that the deposition of Christopher Wray proceed first, rendering the instant motion moot.

38 replies
  1. guest_22JUN2014_1057h says:

    Trump will be president again before this is done.
    I can report that one day after the Cable Network Nuremberg rally, the ghost of 2020 is back in Portland.
    I just went to fred meyer (kroger) at Interstate and Lombard in the heart of the ‘hood and a redneck was rolling coal and flying a huge trump flag from his giant pickup with the big wheels put on backwards. This was a daily thing in summer of 2020 until the proud boys last big rally in Sept, after which they took their show to Rockville Md for Trumps covid drama.
    I wish I had ANY confidence the dems are up to the challenge. Well, DiFi is back in the saddle, theres that for inspiration.

    [Welcome back to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You’ve published comments here as “guest,” “TimC,” “TC,” Anon,” and “tadc,” none of which meet the standard and are repeated sockpuppeting. You get one more attempt to get this right, consider yourself warned. Until then your username will be your first used name with the date/time of your first comment. /~Rayne]

    • guest_22JUN2014_1057h. says:

      fine, just go ahead and delete my post and/or ban me. i might post here once or twice a year, im 60 and not going to remember another 8 character username.

      • Rayne says:

        I’m older than you and I have to recall not only multiple screennames but passwords. Don’t do that ageism crap here; it’s a poor excuse for not doing something as simple as keeping an encrypted text file with your usernames/passwords or even an old-fashioned notebook.

        ADDER: If you’re having memory problems don’t put off talking with your doctor.

        • jdalessandro says:

          OK, I’m sticking with this, the least-imaginative, one. Thanks for the opportunity.
          I will sin no more.
          Do other such sites have this problem, I wonder?

        • Doctor My Eyes says:

          Hey, I enjoyed your comment. I hope you stick around.

          If you compare this site to “other such sites”, how would you rate the level of discourse and lack of bullshit on this site as opposed to those other sites? To me, there is no comparison. It does feel like mom-and-pop style down-home justice here in a very odd way, but it works and that’s what I care about.

          And while we’re on the topic, a decade or so ago, a study proved how very easy it is for trolls to destroy useful discussion and bury facts beneath a deluge of emotionally-charged confusion. After this study came out, Science Magazine gave up and closed their comment section on the solid grounds that the truth does not win out in “debates” with dishonest actors. My hope is that EW never closes its comment section; whatever they have to do to keep the discussion in the realm of reality is okay with me. Be nice to the cops walking the beat.

        • stillscoff says:

          All you have to do is look at comments at sites like AOL and Yahoo to see the truth of that study revealed in all its ugly reality.

          “Falsehood flies, and the Truth comes limping after it; so that when Men come to be undeceiv’d, it is too late; the Jest is over, and the Tale has had its Effect….”
          – Jonathan Swift

        • Rayne says:

          Other sites have similar problems but most don’t allow what looks like sockpuppeting.

          Not every site has the same comment system and approach to moderation. This site balances individuals’ privacy needs and site security needs by obtaining the least amount of information necessary to determine unique user identities.

          The price of admission here is to make it easy for us to balance those needs. That’s it — no login, no real phone number or credit card, no fees, no advertising. Just pick a name meeting our rather thin criteria and stick with it. Thanks.

        • Kim_13MAY2023_1017h says:

          Dang! Love it. I’m 64 and I sure don’t have time for “I’ve fallen and I can’t get up” bullshit. High dang five.

          [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too short and common it will be temporarily changed to match the date/time of your first know comment until you have a new compliant username. Thanks. /~Rayne]

        • Rayne says:

          IKR? I’m sitting here in my 60s beating back trolls by screening new and old users alike every day but jeebus, finding a way to remember one’s own username for use at one site is too much for a 60-year-old? ~eye roll~

        • bmaz says:

          In fairness to Rayne, she also has to deal with me. To paraphrase Rodney Dangerfield, it’s a tough room….

  2. DrFunguy says:

    TFG $5 million settlement to his victim.
    PB leadership convicted of seditious conspiracy
    Oath keepers leader ship convicted of seditious conspiracy
    Over 675 people so far convicted of crimes related to January 6.
    Other investigations proceed apace.
    Maybe you should accentuate the positive :-)

  3. ducktree says:

    “and flying a huge trump flag from his giant pickup with the big wheels put on backwards” ~ so which was put on backwards, the trump flag or the big wheels?

  4. Cargill2 says:

    I trust my name (Cargill2) is compliant.

    I too think some of the positives are encouraging, but I also understand the impatience and frustration that many people have, concerning the wheels of justice grinding at a very slow pace. Particularly when (it seems) there is already a mountain of documented evidence and testimony (and TV footage) in the hands of prosecutors. How much evidence does the DOJ need?

    And the sceptic in me holds the view that the Democratic Party may well want to keep Trump right in the primary mix, and not do anything sufficient to have him barred from standing for the 2024 presidency. Perhaps they see him as an albatross for the Republicans in a general election.

    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

  5. Peterr says:

    In this case, DOJ hopes that Chris Wray will say he didn’t pass on any of the political pressure he was getting from Trump to fire Strzok to David Bowdich, who did the firing. If he does, DOJ claims, then there’s no need to depose Trump, who will say he was demanding that Strzok be fired.

    Good luck with that, DOJ.

    Trump’s antipathy for Strzok was well-known and — importantly for this suit — public. Even if Wray were to testify that he never passed on any order to fire Strzok from Trump, that hardly eliminates the political pressure from Trump on DOJ generally and whoever had the authority to fire Strzok in particular.

    “Who will rid me of this troublesome . . . uh . . . cop?” Trump may not have said those words exactly like that, but that was the message being sent through the media and GOP political circles, whether he sent it through Wray or not.

      • Rayne says:

        I’ve thought of that with the January 6 defendants and how many of must have been thinking, “What did I do wrong, Hal?”

  6. newbroom says:

    Does anybody think that Wray did NOT receive WH pressure to fire Strzok? The puss filled Republican party has come to a head in TFG after many, many years of festering pestilence. The people who profit from media are using our emotions against many of us, if not all, by extension.
    Meanwhile, reality grinds on despite opinion, belief, or misunderstanding.
    Is perfection a reality? answer: ‘not yet’ (?) or, not in this lifetime? or, how can it not with all that contrasts to the concept?
    Our ‘ability’ to communicate misinformation in a global instant has amplified our instability. I feel trapped by powerful foolishness. I, we, he, she, or it.

  7. waban1966 says:

    The redactions in this must make all the difference. DOJ plays it pretty straight, and they characterize ABJ as “admonishing” Strzok but letting the Trump deposition go forward anyway.

    And apparently the Bowdich testimony is that he never heard from Wray.

    So my specific question is what, in the depo of Trump, cross-examination-style questions does Strzok think he can ask (and ultimately Wray)? Anybody have any thoughts?

    There’s no doubt that Bowdich felt the pressure whether he heard from Wray, or Trump, or otherwise. And no doubt Wray felt pressure too, but will emphatically deny it; saying that as FBI director he does not take political cues. He has to say that. But we know that lots of people in the administration were doing everything they could at the margins (and beyond the margins) to not get fired because they were sure that “it would be worse if I am not there.” E.g., Gen. Kelly. Nobody needed to be told. And that is political pressure but I am not sure how you prove that.

    So is Strzok taking a shot in the dark? Seems unlikely. What is his theory (I can’t tell given the redactions). And so what questions are coming?

    DOJ is also super-smart and they can guess what those questions are, but no doubt DOJ has to take this position (and I think maybe it’s the right position to uphold a general rule, and let Strzok convince the courts that this is an exceptional circumstance).

    Anybody have any specific questions or know the theory well enough to make an educated guess at what is under the redactions?

  8. Dryly 41 says:

    Remember”Special Counsel” John Durham is still out there after four years. AG Garland has not yet shut him down.

    • Dmbeaster says:

      At this point, letting him sit there doing nothing may be the best choice. Or else Durham wants to release his “report” in the 2024 election cycle.

  9. obsessed says:

    This is an unusually hard one to understand.

    1. Why does DOJ care whether a non-DOJ plaintiff follows the standard procedure of working one’s way up from less to more senior witnesses?

    2. Regardless of DOJ’s motivation(s), what is Strozk’s motivation in deposing Trump first? If they had Wray locked in, wouldn’t that make it easier to catch Trump in a lie?

    • theartistvvv says:

      “the standard procedure of working one’s way up from less to more senior witnesses” is to DOJ’s preference because it might lessen the number of deps of people they are representing and allow for more control of the evidence, particularly if a relatively lower-rung witness “falls on their sword” before getting to a higher-rung witness.

      Deposing the former president first means he would not have the benefit of conforming his own to prior testimony. As a notorious “loose cannon”, the odds of his messing up are higher without a roadmap, IOW without rehearsal based on the previous testimony of others.

  10. SVFranklinS says:

    You say:
    “DOJ has something called the apex doctrine, which says that in a suit you have to depose more junior and non-governmental people first”

    Doesn’t that mean that private citizen (non-governmental) Trump should be interviewed before currently still serving government employee Wray?
    Isn’t that the way policy would say it would be?

    • John Paul Jones says:

      Chain of command as at the time of the incident, not today.

      As to Wray saying he did pass on pressure, even if he didn’t, that still leaves open the possibility that Bowdich, knowing full well what the state of play was, could frame it as a hypothetical. “I’m thinking I might do X, let me know if that’s not okay.”

  11. Joberly1954 says:

    EW’s update on Peter Strzok’s case sent me back to his memoir *Compromised.* Strzok wrote about why the FBI chose not to recommend to DOJ an indictment in the 2015-16 “Midyear Exam” investigation (Secretary Clinton’s mishandling of classified documents).

    Strzok said that then-FBI Director Comey asked Bureau and DOJ attorneys to research past cases where charges were pressed for mishandling classified documents. As of July 2016, the researchers found four categories of past charged cases: 1) willful mishandling of classified information; 2) willful letting lose large quantities of information; 3) expressing disloyalty to the US; and 4) lying or destroying evidence to cover up the mishandling (*Compromised,* pp. 89-90).

    Strzok published his memoir in 2020, well before the public, or even the National Archives learned of classified documents held by former President Trump. Thinking about the “Midyear Exam” standard for charging, it’s no wonder that Trump’s attorneys recently asked to have investigations of mishandling classified information removed from criminal investigations.

    • theartistvvv says:

      Not sure I get your point – seems to me 1 has a lot of publicly apparent evidence, and 4 has some (most recently re the surveillance video), and we don’t yet know re 2.

      (As to 3, there’s not enough info given above re the category for me to comment.)

  12. Savage Librarian says:

    Until I can formulate some thoughts based on my personal experience, and since you mentioned E. Jean Carroll and Trump, I’ll submit this for now. Then I’ll try to come back later for something more directly related to this post.

    Licht Spittle

    Was it Stubby Fingers
    celebrated by right-wingers?
    So informing!
    Was his mushroom wiener,
    Tricky Dick in its demeanor,
    Not performing?

    Those compensatory
    damages and more
    from his defamatory
    treatment: She won that score!

    Nothing could be keener,
    How she took him to the cleaner,
    Quite transforming!
    He never seems to measure up,
    Especially with the pressure up,
    Too much storming!

    If I had a magic lamp for only a day,
    I’d make a wish & here’s what I’d say:
    His old lies don’t measure up,
    Especially with the pressure up,
    No more norming!

  13. waban1966 says:

    Ah, just saw the MTW post that Judge ABJ is unsealing the DOJ filing (i.e. the redaction about which I was curious). Always a solid move to tell a judge you are going to mandamus them unless you get your way.

  14. WilliamOckham says:

    Apologies in advance for the frivolous comment. Do federal judges have to turn in all their fucks when they take senior status? Because ABJ clearly has zero fucks left to give.

Comments are closed.