Will Carter Page succeed, and will he get a dime out of anyone even if he does? I don’t know — but it’s worth it all the same. His $75 million lawsuit against James Comey, the FBI, and the Department of Justice has a number of institutional obstacles in its path. At the same time, however, the sheer injustice of illegally surveilling and then smearing someone internally known to be a CIA source working on behalf of his country requires at least some accountability:
Carter Page, a former Trump aide whom the FBI surveilled during the Russia probe, has filed a $75 million lawsuit against the bureau, Justice Department and former FBI Director James Comey.
The lawsuit filed Friday accuses the FBI, DOJ and Comey of violating Page’s constitutional “and other legal rights in connection with unlawful surveillance and investigation of him by the United States Government.”
“This case is about holding accountable the entities and individuals who are responsible for the most egregious violation and abuse of the [Foreign Intelligence Surveillance Act] FISA statute since it was enacted over forty years ago,” the complaint states.
Actually, the respondent list is longer than Fox News lets on. The complaint also targets Kevin Clinesmith, who has already pled guilty to a criminal charge of falsifying evidence presented to the FISA court about Page. Inspector General Michael Horowitz identified Clinesmith as the lawyer who knowingly changed an e-mail to keep the court from finding out that Page worked for the CIA against the Russians and not the other way around.
Besides Clinesmith, we have almost the full rogue’s gallery from Russiagate. Peter Strzok and Andrew McCabe, both cashiered by the FBI for their behavior in the probe involving Page, are respondents to this suit. So is Lisa Page, Strzok’s paramour and texting partner who discussed the infamous “backup plan.” Interestingly, Page is also suing Joe Pientka, mostly known for the Michael Flynn investigation — and for his initial assessment that Flynn was telling the truth. Why is Pientka getting pulled into the Page case? Hmmm. There are also a couple of more minor players, Stephen Somma and Brian Auten, as well as up to twenty John and Jane Does.
However justified Page’s claims might be, he faces large hurdles. First, under the doctrine of sovereign immunity, it is extremely difficult to sue the federal (or state) government or its agencies — not impossible, but extremely difficult. First, under the Federal Tort Claims Act, one must file an administrative claim first and give the government six months to respond. Page has already done that, as paragraphs 237-8 detail. Page’s suit claims that the lack of response amounts to a “right to sue letter,” the permission to proceed with a lawsuit that would be required under sovereign immunity. The DoJ is likely to take a different perspective on that claim and argue that the functions of investigation and intelligence work are core to governmental operations and fall under the “absolute immunity” subdoctrine, which would bar almost any lawsuit regardless of merit. If a judge agrees, then to get around that Page would likely have to prove (on a preponderance of evidence standard) that the entire Russiagate probe was solely a corrupt operation with malicious intent, and not within the proper scope of government operations or the scope of work of the individuals involved.
Speaking of which, two more problems come into play with the suits against individuals — at least those who were employees of federal agencies at the time. (Presumably that includes all of the John/Jane Does, but we don’t know that yet.) Qualified immunity of a different sort covers government officials as long as their actions are part of their normal work. The notable exception here is violation of constitutional rights — and Page’s Fourth Amendment rights were clearly violated by the unsupported surveillance conducted against him by intelligence operations within the US. (That is precisely the kind of Fourth Amendment violation FISA is intended to prevent.) Clinesmith, at the very least, knew full well of this violation and facilitated it anyway. If Page can prove the other individuals knew it, then he could possibly get around qualified immunity with them as well. Proving that would not be easy, but the discovery process would be fascinating.
However, that assumes the individuals named will remain in the lawsuit. The other problem Page might have with suing individuals is the Westfall Act — the same law that Donald Trump and William Barr tried using in a defamation case earlier this year. The court shot that attempt down by pointing out that calling someone a liar isn’t exactly a core presidential duty. However, the Westfall Act would clearly cover the individuals named in this suit, effectively transferring their liability to the United States and perhaps strengthening the qualified immunity defense as a result:
Under the Westfall Act, the exclusive remedy for anyone injured by the negligent or wrongful act of a federal employee acting in the scope of employment is a suit against the United States under the Federal Tort Claims Act. 28 U.S.C. § 2679(b)(1) (2010). Despite this clear statutory command, department attorneys often encounter plaintiffs who seek to recover money damages from the personal assets of federal employees for an alleged violation of state tort law. Fortunately, this pleading mistake is easily remedied. The Westfall Act permits the Attorney General to certify that the employee “was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” 28 U.S.C. § 2679(d)(1) (2010). If the case is pending in state court, the certification permits the case to be removed any time prior to trial. 28 U.S.C. § 2679(d)(2) (2010). The certification also causes the employee to be dismissed from the action and the United States substituted in his place as the only defendant on the state law tort claim. Id. From that point the case proceeds like any other claim under the Federal Tort Claims Act and all the usual FTCA defenses apply. 28 U.S.C. § 2679(d)(4) (2010).
Of course, the FTCA is a limited waiver of sovereign immunity and expressly excludes certain claims. See, e.g., 28 U.S.C. § 2680(a) (2010) (claims challenging discretionary decisions); 28 U.S.C. § 2680(h) (2010) (intentional torts). Moreover, as noted elsewhere in this issue, compliance with the FTCA’s statute of limitations is a jurisdictional prerequisite. See 28 U.S.C. §§ 1346(b), 2401(b) (2010). Accordingly, in some cases following the substitution of the United States as sole party defendant under the Westfall Act, it is clear the plaintiff is not entitled to relief. Some plaintiffs respond by arguing that the substitution was improper, apparently preferring to sue the employee individually instead of pursuing a claim against the United States that is doomed to fail. Usually this argument is couched in terms of a challenge to the certification of scope of employment.
This seems like a fairly easy case for a Westfall Act motion, one which the plaintiffs bear the burden of proof for defeating. Given that all of the claims in Page’s suit against these individuals arise from actions that were well within the normal scope of their employment, those respondents will likely escape any sort of entanglement in Page’s suit, except the legal work necessary to get themselves dismissed from it. Notably, Page’s complaint doesn’t discuss the Westfall Act or any form of immunity, sovereign or otherwise.
Let’s just say the odds aren’t stacked in Page’s favor. However, he does have one factor in his favor — the transition to a Biden administration. The DoJ might well want to get out from under the whole Russiagate nonsense as quickly and as cleanly as possible to give Joe Biden a fresh start. If so, they might dispose of the individual cases and consolidate respondent actions through the Westfall Act, and then cut a settlement with Page acknowledging Clinesmith’s wrongdoing, at least. That gives everyone a face-saving way out, while giving Page a well-deserved measure of justice.
Until then, it will be fun to see everyone squirm for a while. Let’s hope Page gets some satisfaction for the years he spent getting dragged through the mud.
