The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'm struck by the kerfuffle over a text message sent by FBI agent Peter Strzok to Lisa Page, an FBI lawyer with whom he was apparently having an affair. The messages bash Trump and seem to favor Clinton at a time when Strzok was directing the investigation of Clinton's email server. That's very troubling, as is the fact that both participants moved to Robert Mueller's staff to investigate the President. As Justice Scalia noted, there's great risk that the people most eager to join a special prosecutor's staff are those who are burning to take down the person under investigation, and these texts certainly raise that concern.
But the President's defenders are off base when they try read conspiracy into Peter Strzok's "insurance policy" message. Talking about Trump's chances in August 2016, here's what Strzok wrote: "I want to believe the path you threw out for consideration in Andy's office [Andy McCabe is the FBI deputy director and married to a Democratic Virginiia State Senate candidate] for that there's no way he gets elected — but I'm afraid we can't take that risk. It's like an insurance policy in the unlikely event you die before you're 40…."
Lots of folks on the right are suggesting that "insurance policy" is some opaque but sinister Deep State code for black ops in the event of a Trump victory. A few examples:
- Daily Caller: "'We Can't Take That Risk' — FBI Officials Discussed 'Insurance Policy' Against Trump Presidency"
- National Review "Why Did Two FBI Officials Discuss an 'Insurance Policy' In Case of Trump's Election?"
- Ben Shapiro's Daily Wire: "Texts From Anti-Trump FBI Agent Suggest Possible Plot To Take Down Trump Before Election"
- Byron York: "After mysterious 'insurance policy' text, will Justice Department reveal more on FBI agent bounced from Mueller probe?"
Give me a break. Read the text again. Strzok is reacting to the argument that there's no point getting worked up because Trump is bound to lose. To which he says that the odds may be against a Trump victory but that's no reason to be complacent. Then he gives an example: The odds are very much against you dying before the age of 40, but you probably bought insurance at that age because dying with a young family would be such a disaster. It's a reasonable concern even if the event is unlikely. For the same reason, in Strzok's view, horror at the prospect of a Trump presidency is reasonable even though the prospect is remote. Could he have written it more gracefully to avoid ambiguity? Sure. But if you want to argue that, I hope you'll publish all the 2 am texts you've sent to your lovers so we have a model of the clarity that's possible.
In the meantime, chill. The texts say a lot, none of it good, about the FBI's culture and Bob Mueller's staffing choices. They say nothing about a grand plot by the Deep State.