The Justice Department has informed current and former FBI officials sued by Russia probe target Carter Page that it is unlikely to represent them in the civil case, signaling they will need to get private lawyers, according to new court filings.
At least two defendants — fired FBI Director James Comey and current FBI intelligence analyst Brian Auten — have already hired private counsel and notified the presiding judge in the case of their representation.
Ordinarily, DOJ represents its employees sued by civilians over their official duties. But court records show the Justice Department has not committed to doing so in this case and told the court as recently as last week it "does not currently represent any of the individual capacity defendants" and needs time to sort through complex issues about whether it should assist in their defense.
"The Department of Justice must determine, among other things, whether the employee defendants reasonably appear to have acted in the scope of employment … whether their representation is in the interest of the United States … and whether legal or factual conflicts exist among the various defendants such that representation of all by the same attorney would be inappropriate," Justice lawyers argued in a motion dated March 15.
Then on Monday, Auten alerted the court in a new motion that DOJ had moved beyond its indecision and that he and other defendants were informed they needed private attorneys going forward.
"On March 15, 2021, Mr. Auten was informed that it was unlikely that DOJ would be able to represent any of the individual Defendants in this matter, including Mr. Auten," the new court filing. "On the same date, Mr. Auten requested that the undersigned attorneys of the law firm Steptoe & Johnson LLP act as counsel of record on his behalf in this matter."
Comey, meanwhile, filed a notice late last week that he has retained David N. Kelley, a prominent and respected former federal prosecutor from New York City, to represent him personally in the lawsuit.
The FBI on Tuesday declined to discuss the decision. A Justice Department spokesman did not return a call seeking comment.
A person directly involved in the case, who spoke only on condition of anonymity, said the DOJ's decision not to represent the defendants wasn't an acknowledgement it believed the case had merit or that it was legally abandoning its current and former employees, but rather a reflection of the reality that many of the defendants pose conflicts of interest.
For instance, former FBI lawyer and current defendant Kevin Clinesmith was indicted and convicted by DOJ for falsifying evidence in the Russia case that harmed Carter Page, making it difficult for DOJ to defend his conduct.
Other defendants — such as fired FBI Deputy Director Andrew McCabe, former bureau lawyer Lisa Page and former counterintelligence agent Peter Strzok — have lawsuits pending against the U.S. government for issues like wrongful termination or invasion of privacy, putting them in conflict with DOJ.
DOJ's own filing acknowledged its first responsibility in the lawsuit is "to attend to the interests of the United States."
Carter Page, a former Trump campaign adviser, was targeted for a full year of FBI surveillance under the Foreign Intelligence Surveillance Act. Subsequent investigation revealed that applications the FBI submitted to obtain the Page surveillance warrants contained glaring factual errors, including falsified evidence, as well as unverified information marked as verified and omissions of evidence of innocence that the FBI should have disclosed to the judges. For instance, the FBI was alerted that Page was an asset for the CIA helping on Russia matters and not a Russian intelligence stooge, but that information was kept from the courts.
Carter Page sued the government and numerous current and former FBI officials for $75 million in damages last November, alleging he was the victim of "unlawful spying" based on erroneous or uncorroborated evidence from the Steele dossier and other sources that were found to be unreliable or infected with Russian disinformation.
"Since not a single proven fact ever established complicity with Russia involving Dr. Page, there never was probable cause to seek or obtain the FISA Warrants targeting him on this basis," the suit said, alleging Page's constitutional rights were violated.
"This case is about holding accountable the entities and individuals who are responsible for the most egregious violation and abuse of the FISA statute since it was enacted over forty years ago," the lawsuit added.