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More Reason to Question the Government’s Treatment of Andrew McCabe’s Notes

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In this post, I noted that the three sets of Peter Strzok and Andrew McCabe notes to which FBI added dates (in at least one case, inaccurate dates) had had their Protective Order footers redacted, suggesting someone packaged them up for circulation (probably with two other documents shared that same day, one of which was a frivolous repackaging of Strzok’s texts with Lisa Page).

In this post, I pointed out several other irregularities with McCabe’s notes: that there’s an artifact in the left margin by one of the redactions (multiple people have said this is one or two post-it notes which left a shadow and covered up the margin) and there’s no declassification stamp.

Two more readers of the site have provided further reason to question FBI’s treatment of Andrew McCabe’s notes.

First, a tech expert separated out the objects in the PDF with the altered date, which shows what the original scan of McCabe’s notes looks like. It looks like this:

That is, the redaction that covered up where the footer would say, “SUBJECT TO PROTECTIVE ORDER,” was in the first scan of the document, even though the footer would be applied later (the Bates stamp and the Protective Order footer show up as metadata in the PDF).

Meanwhile, Cannonfire did some more toying with the document in PhotoShop, and shows that the Bates stamp footer and the redaction are of a different quality than everything else on the page.

It makes sense that the Bates stamp footer is–those are added at a later stage to the document along with the Protective Order stamp.

But for this document to have been produced in this way, the Protective Order stamp would have had to have been redacted out at a later date.

Both of those details suggest that the footer was redacted at a later date.

The Altered Andrew McCabe and Peter Strzok Documents Were Packaged for Circulation

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On September 23, 2020, prosecutor Jocelyn Ballantine sent five documents to Sidney Powell:

  • The altered January 5, 2017 Strzok notes
  • The second set of altered Strzok notes
  • The altered Andrew McCabe notes
  • Texts between FBI analysts
  • A new set of Strzok-Page texts, which included new Privacy Act violations

The letter Ballantine sent accompanying those documents is dated September 23, but it wasn’t loaded to the docket until September 28. Like all her discovery letters, the version of the letter uploaded to the docket informs Powell that, “These materials are covered by the Protective Order entered by the Court on February 21, 2018.”

In her letter providing realtered sets of the notes, the only change Ballantine described to the documents pertained to the removal of the sticky notes — which weren’t actually removed, but instead whited out electronically (and probably weren’t sticky notes in McCabe’s case at all).

But there was another change made to all of them: the “subject to protective order” footnote was restored to the documents.

The altered January 5, 2017 Strzok notes, without the footer:

The realtered January 5, 2017 Strzok notes, with the footer:

The second set of Strzok notes (originally altered to read March 28), without the footer:

The second set of Strzok notes, with the footer.

The altered McCabe notes, with the footer redacted out:

The realtered McCabe notes, with the footer unredacted:

Notably, there’s no declassification stamp on McCabe’s notes.

The Page-Strzok notes don’t have a protective order footer. Nor do the FBI analyst texts.

So all the documents sent to Sidney Powell on September 23 had no protective order stamp, and in the case of McCabe’s notes, they had the protective order stamp covered over.

The altered notes have all since been realtered, and rather than trying to certify the Strzok-Page texts, in today’s declaration, Ballantine just told Judge Emmet Sullivan DOJ wasn’t relying on them — no blood no foul. Presumably, there’s something fishy with the FBI analyst texts, because there’s something fishy with all of these documents.

But given the fact that the protective order footer was redacted in the McCabe notes, it cannot be accidental. These documents — the documents with the “inadvertent” alterations — also were all packaged up such that if Sidney Powell shared them (say, with the President’s campaign lawyer), Powell could claim these were somehow exempt.

DOJ Falsely Claimed that McCabe and Strzok Confirmed that the Content of Their Notes Was Not Altered

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I wrote a really long post cataloging all the problems with DOJ’s declaration of authenticity in the Mike Flynn case.

But the most important paragraph in the declaration has an astounding claim: that DOJ — in a declaration signed by Jocelyn Ballantine — affirmed that lawyers for both Peter Strzok and Andrew McCabe had confirmed that their clients’ notes were not altered. [Emphasis original]

The government acknowledges its obligation to produce true and accurate copies of documents. The government has fully admitted its administrative error with respect to the failure to remove three reviewer sticky notes containing estimated date notations affixed to three pages of undated notes (two belonging to former Deputy Assistant Director Peter Strzok, and one page belonging to former Deputy Director Andrew McCabe) prior to their disclosure. These dates were derived from surrounding pages’ dates in order to aid secondary reviewers. These three sticky notes were inadvertently not removed when the relevant documents were scanned by the FBI for production in discovery. See ECF 259. The government reiterates, however, that the content of those exhibits was not altered in any way, as confirmed by attorneys for both former FBI employees.

But the declaration and related filings only reflects communication from Aitan Goelman, Strzok’s lawyer.

Indeed, in the letter that McCabe’s lawyer sent to the court on October 2, he pointedly said that DOJ had not asked him to confirm the accuracy of its claims about the notes before filing them.

So I asked Michael Bromwich, McCabe’s lawyer, if he agrees with the assertion Ballantine made in yesterday’s filing. He told me he spoke with Ballantine a few weeks ago and doesn’t recall any such discussion.

But when he got an email from her on Sunday at 4PM, asking for him to let her know by 2PM Monday if her transcription was inaccurate, he pointedly declined to do so.

I have spoken with Mr. McCabe and he declines to provide you with any information in response to your request.

He believes DOJ’s conduct in this case is a shocking betrayal of the traditions of the Department of the Justice and undermines the rule of law that he spent his career defending and upholding. If you share with the Court our decision not to provide you with assistance, we ask that you share the reason.

We would of course respond to any request that comes directly from the Court.

That is, Ballantine claimed that Bromwich had affirmatively confirmed this content.

But Bromwich very pointedly refused to do so.

For what it’s worth, I think the content has not been altered, but the redactions do misrepresent the notes. But according to Bromwich, Ballantine made that claim even though he had pointedly refused to confirm the accuracy of the notes or transcription.

Update: And now Strzok says that they didn’t confirm the content either.

That’s more problematic in his case, because there are so many more transcripts.

Update: The same thing happened with Strzok (though his lawyer did alert Ballantine to her docket/exhibit problems I noted in this post).

Ballantine emailed Goelman at 4:05 on Sunday with the same request. He responded at 3:38 PM on Monday, telling her they could not confirm authenticity of these notes without the originals. He also noted that Ken Kohl misrepresented the meaning of one of Strzok’s texts in the hearing before Judge Sullivan.

Sorry not to get back to you until now.  We have looked at the attachments to the email you sent yesterday (Sunday) afternoon.  We are unable to certify the authenticity of all of the attachments or the accuracy of the transcriptions.  To do so, we would need both more time and access to the original notes, particularly given that U.S. Attorney Jensen’s team has already been caught altering Pete’s notes in two instances.  However, we do want to call your attention to the fact that Exhibit 198-11 is mislabeled, and that these notes are not the notes of Pete “and another agent” taken during the Flynn interview.

Additionally, we want to register our objection to AUSA Ken Kohl’s material misstatements to Judge Sullivan during the September 29, 2020, 2020, telephonic hearing, during which Mr. Kohl inaccurately represented that Pete viewed himself as an “insurance policy” against President Trump’s election.

So basically both of them refused to affirm that the notes were authentic. But she made the claim anyway.

Shorter DOJ: We Made Shit Up … Please Free Mike Flynn

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Congratulations to the lawyers who worked all weekend to meet Judge Emmet Sullivan’s deadline to certify all the documents (with just eight explicit caveats and then another slew built in) submitted in the Mike Flynn motion to dismiss proceeding. I doubted you could pull it off time-wise.

In your rush you seem to have provided Judge Sullivan even more evidence that nothing about this proceeding is normal. Indeed, some of this submission almost makes Sidney Powell’s submissions look tidy by comparison.

The slew of caveats

Effectively, the certification (signed by Jocelyn Ballantine, with individual declarations signed by three others, in part because there are things that Ballantine almost certainly knows are inaccurate or include material omissions), says there have been no material alterations to the documents submitted in the proceeding except for:

  1. Redactions done in the name of classification, law enforcement sensitive, or privacy that serve to hide material information pertaining to Brandon Van Grack, Bill Barnett, and the reason a third document was altered by adding a date (at a minimum)
  2. A set of texts where “irrelevant information and excess metadata” was excluded and an error introduced in the process of creating a table showing “corrected date, corrected time,” which raises far more questions about the provenance of the document
  3. The Bill Barnett interview report that DOJ had submitted to Sullivan as “a 302” is instead a “report” that is not being certified in normal fashion, in part, because DOJ is hiding redactions that withhold material information about Brandon Van Grack
  4. An NSL declaration done by Jocelyn Ballantine that may hide the existence of at least one earlier financial NSL served on Mike Flynn that WDMO didn’t ask her to summarize
  5. A new set of text messages between Peter Strzok and Lisa Page that DOJ admits they’re not relying on (but nevertheless committed an additional Privacy Act violation in releasing), which was not redacted to hide personal information
  6. Three documents submitted by Sidney Powell that DOJ won’t certify (two of which, however, are probably more accurate than what DOJ has submitted)
  7. “Unintelligible” markings in transcripts of notes where DOJ was unsuccessful at getting the author or their lawyer to conduct a last minute review over a matter of hours on a Sunday (DOJ does not specify how many of their transcripts this includes); some of these appear significant
  8. Inconsistencies on how redactions and unintelligible text were marked in transcriptions which, in some cases, is affirmatively misleading
  9. Lots of documents where the certification doesn’t list the Bates numbers, with some hilarious results
  10. Inconsistencies on whether DOJ certifies all copies of a particular document that got submitted multiple times, which in one case would raise questions about the production of these documents
  11. An admission that, for some reason, the motion to dismiss didn’t rely on the final 302 of Flynn’s January 24, 2017 interview
  12. A new inaccurate date, ironically describing a Kevin Clinesmith email
  13. A claim that both Strzok and McCabe’s lawyers have confirmed their clients’ notes were not altered, but only Strzok’s lawyer is quoted

For all of the exhibits that accompanied the motion to dismiss, DOJ uses the docket number, not the exhibit number, even though Sullivan is supposed to be ruling on that MTD that uses exhibit numbers. That’ll make it a lot harder for him to use the transcriptions, which otherwise would make it more obvious that DOJ misrepresented what some of these documents say, including their “smoking gun,” the Bill Priestap notes.

In addition, in a lot of the documents with problems (including all undated notes to which dates were added), DOJ doesn’t include Bates numbers in its certification, even though it does elsewhere. There’s good reason for this. In the case of the re-altered altered documents, those new exhibits should have new Bates stamps, but don’t. In other cases, DOJ submitted multiple versions of the same document with different Bates stamps, in others, when they resubmitted exhibits they retained the Bates stamp. That’s … not a legal process reflecting any regularity.

DOJ still pretends to have no fucking clue about documents they relied on in the motion to dismiss

Perhaps the most pathetic (and by that I mean, I would hate to be the lawyer banking my bar membership on this ploy) detail in this package is the way they try to deal with the fact they’ve made false misrepresentations about Strzok’s January 5, 2017 notes. In one place in the table of documents, they describe the date of the notes this way:

In another, they describe it — the very same notes, just repackaged so they could submit them with the wrong date — this way:

Above both transcriptions, DOJ includes the following note.

I understand why DOJ is still claiming to be unsure about the date. It’s an attempt to minimize the damage from previously providing false dates so as to avoid being punished for knowing misrepresentations in their alterations (they’re still at risk though, because they’re incorrect dates kept changing). But this will just make it very easy for Sullivan to point out that the people making this representation are therefore confessing to being completely unfamiliar with documents on which the MTD heavily relies, which means he shouldn’t take the MTD all that seriously.

The shell game behind the actual declarations

As noted, this declaration is a filing signed by Jocelyn Ballantine, submitting declarations from three other people:

  • Executive Assistant Director John Brown, whose job it is to submit declarations like this
  • EDMO AUSA Sayler Fleming, one of the AUSAs conducting this irregular investigation
  • Keith Kohne, one of the FBI Agents conducting the investigation

Brown starts by excluding three documents from his general certification (these are the ones that Fleming and Kohne will be on the hook for):

5. To the best of my knowledge, and based on the information provided to me, the Government Exhibits described in Exhibit A, 9 with the exception of ECF Nos. 198-8 and 249-1, are true and correct copies of documents and records, including copies of select pages of a larger record, maintained by the FBI pursuant to the applicable records retention policy. See ECF Nos. 198-2, 198-3, 198-4, 198-5, 198-6, 198-7, 198-9, 198-10, 198-11, 198-12, 198-13, and 198-14 9 9

6 To the best of my knowledge, and based on the information provided to me, the Discovery Documents described in Exhibit B, with the exception of ECF Nos. 228-3, are true and correct copies of documents and records maintained by the FBI pursuant to the applicable records retention policy. See ECF Nos. 231-1, 237-1. 251-1, 9 257-1. 259-1, 9 259-2, 259-3, and 264-1

Effectively, he is saying these documents are real and that Ballantine’s claims about the reasons for classification are valid.

He then says this about Ballantine’s own summary, which purports to be a summary of all the NSLs used against Mike Flynn, but which may not include one or more financial NSLs obtained in 2016.

One of the Discovery Documents is a summary substitution of classified materials that were provided to DC-USAO by the FBI. See ECF 257-2. This summary substitution was prepared by AUSA Jocelyn Ballantine, and was reviewed, approved, and declassified by the FBI To the best of my knowledge, and based on the information provided to me, the information contained therein truly and correctly summarizes the underlying classified information provided by the FBI and maintained by the FBI pursuant to the applicable records retention policy.

He’s saying that her summary accurately summarizes what she says it does, but he’s not saying that her description of it is accurate (which it wouldn’t be if EDMO told her to leave out 2016 NSLs).

Then it’s Fleming’s turn. After reviewing her role in this shoddy review and asserting that she has no reason to believe that the documents she got from FBI were irregular, she then explains why she did a summary of the texts that Strzok and a bunch of other people sent in early 2017: Just to get rid of unnecessary metadata, she says.

3. Among the documents and records that I reviewed were spreadsheets of electronic messages exchanged between FBI personnel involved in the Michael T. Flynn investigation and prosecution. The spreadsheets produced to EDMO contained messages and metadata that were not relevant to my review.

4. I created Government Exhibit ECF 198-8 and Discovery Document ECF 228-3. These exhibits truly and correctly reflect excerpts from documents and record maintained by the FBI pursuant to the applicable records retention policy that were provided to EDMO/DC-USAO for review.1

Then she admits someone — she doesn’t say who — made an error.

1 There is a single typographical error in these exhibits. A single message (“Will do.”) from DAD Peter Strzok, sent on 4-Jan-17, is incorrectly identified as having been sent at 2:17PM; the message was actually sent at 2:18PM.

What she doesn’t explain, though, is why her table has two headings that show she or someone else had to “correct” the dates and times in the spreadsheet (which may be where the typo got introduced, or retained).

Given that heading, she has no business treating the data she got as reliable, because either she or someone upstream from her had to fix it.

Then Keith Kohne steps in, the guy who conducted an incompetent interview (and possibly one of the guys who altered dates on government exhibits). He doesn’t provide any explanation of why he’s making the declaration — not even the standard boilerplate you’d find in an affidavit. He says only,

 I, Keith Kohne, hereby declare, pursuant to 28 U.S.C. § 1746, that the document attached as Exhibit 1 to the Government’s Supplemental Filing in Support of Motion to Dismiss … is a true and correct copy of the report of the interview of William J. Barnett conducted on September 17, 2020.

Understand that this declaration lacks the certification afforded by the rules of FBI record-keeping. It lacks Brown’s certification that the data in was redacted properly (this was not). And it doesn’t explain why it wasn’t finalized as a 302 and submitted into FBI record-keeping systems.

Collectively, then, these declarations stop well short of certifying those texts, Ballantine’s summary, or the Barnett’s interview.

We already know that the Barnett interview is withholding material information. I guess we should assume there are problems with the other two documents as well.

Documents and comments

Here are the documents:

Draft closing communication (198-2) [Docket 2, Exhibit 1]

In the certification but not the exhibit referenced, DOJ redacts Bill Barnett’s name, who wrote the document, as well as that of Joe Pientka, who approved it. That serves to make it harder to figure out that the closing EC materially conflicts with unredacted claims Barnett made in his interview, particularly with regards to Barnett’s awareness that the investigation was a counterintelligence investigation considering 18 USC 951 charges.

It’s all the more problematic given that DOJ has submitted two versions of this document with the same Bates numbers; the earlier one does have the names redacted.

Opening Electronic Communication (198-3) [Docket 3, Exhibit 2]

This doesn’t include Bates numbers.

Mary McCord 302 (198-4) [Docket 4, Exhibit 3]

As with other documents, this one was specially declassified for this release. Another copy has been released under BuzzFeed’s FOIA.

Sally Yates 302 (198-5) [Docket 5, Exhibit 4]

Flynn got a summary of this before he allocuted his guilty plea before Sullivan.

170302 Jim Comey Transcript (198-6) [Docket 6, Exhibit 5]

As DOJ notes, HPSCI used a court reporter on this, so they didn’t have to certify it.

170214 Draft Flynn 302 (198-7) [Docket 7, Exhibit 6]

For some reason (I’ll return to this), DOJ submitted a draft version of the 302, rather than the final one (both have previously been submitted in this docket, and a less-redacted version of the 302 was released prior to this in BuzzFeed’s FOIA). Nowhere in the motion to dismiss does Timothy Shea acknowledge that he wasn’t relying on the final 302.

Text massages and electronic messages (198-8) [Docket 8, Exhibit 7]

The certification doesn’t include Bates stamps.

This is the document that has an admittedly minor error in one of the time stamps, saying that Strzok texted “Will do” at 2:18 instead of 2:17. But the error is interesting given that the table’s headings read, “Corrected Date, Corrected Time,” meaning these aren’t just copied, the times (and dates) were “corrected” (which is presumably where the error was introduced), raising questions about what they were corrected from. [My annotation.]

This is one of the documents that FBI EAD John Brown did not certify, which ought to raise questions about how these dates and times got “corrected.” Instead, the authentication reads:

Truly and correctly reflects information contained in documents and records maintained by the FBI, pursuant to the applicable records retention policy that were provided to EDMO.

Without an explanation of how why this data needed to be corrected, I think there are real questions whether this fulfills the requirement here.

Emails about the Logan Act (198-9) [Docket 9, Exhibit 8]

The certification doesn’t include Bates numbers.

170121-22 Emails about providing briefings (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers.

170124 Emails of questions Flynn might ask (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the identical document with a different Bates number in the docket.

Emails about 1001 warnings (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the identical document with a different Bates number in the docket.

170124 Bill Priestap Notes (198-11) [Docket 11, Exhibit 10]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the same document with a different Bates number in the docket, yet both have the blue sticky that is hidden in later documents (raising questions about why there are two separate direct scans).

170124 Andrew McCabe write-up (198-12) [Docket 12, Exhibit 11]

This document doesn’t have a Bates stamp on it at all, which is especially problematic given that another less redacted version of the document is in this docket, with a Bates stamp of the same series as other documents submitted with the motion to dismiss.

The May version, with the Bates stamp, makes it clear that McCabe agreed with Flynn that leaks were a problem. [My annotations.]

The motion to dismiss version redacts that.

McCabe’s comment about leaks in no way qualifies under any claimed basis for redaction stated in certification.

It also appears to redact the prior declassification stamp.

One thing DOJ did by submitting this without a Bates stamp is avoided admitting that the document is not at all new, as the Motion to Dismiss suggested.

170124 Strzok and Pientka Notes of Flynn interview (198-13) [Docket 13, Exhibit 12]

These were released as the same exhibit, which given that they don’t use Bates numbers to identify which is which, effectively means they haven’t told Judge Sullivan which Agent’s notes are which, something that Sidney Powell wailed mightily about the last time it happened. They do, however, get it right in the transcript.

In the Pientka notes, however, there are numerous examples of things that are clear, at least from the context, that don’t get transcribed properly.

170822 Strzok 302 (198-14) [Docket 14, Exhibit 13]

This had already been produced in this docket.

200917 “Report” of Bill Barnett’s interview (249-1)

In the Government Supplemental Filing accompanying this interview, they claim that this is, “The FBI 302” of the Barnett interview. Here, they’re correctly noting that it’s not actually a 302, which makes it even more problematic than it already was.

The certification makes it clear that this “report” is maintained differently than normal 302s. Rather than certifying it as,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy.

It is instead certified as,

True and correct copy of the report of that interview.

I’m not sure Sullivan is going to be that thrilled that FBI itself is not treating this interview with the regularity of other investigative documents.

This “report” is probably one of the reasons why DOJ included this language in the filing.

There have been no material alterations made to any of the 14 Government Exhibits filed in support of the motion to dismiss and the supplement to the motion to dismiss. Several of the documents contain routine redactions made by the FBI to protect classified information, and/or law enforcement sensitive information, and/or made to comply with the Local Rule to remove Privacy Act information.

As I have laid out, DOJ withheld material information — most notably, all the nice things Barnett said about Brandon Van Grack — by redacting information that would otherwise be unsealed.

This is one of the documents that EAD John Brown did not certify; instead, one of the agents who did the interview did, which suggests it could not be certified properly. It also suggests that Ballantine, who knows it is withholding material information, doesn’t want to be in a position where she can see it (even though she sent an unredacted copy to Flynn).

Text messages (228-3)

The certification notes these are identical to the 198-8 text messages, with the error under heading, “corrected time.” It’s unclear why, in this one case, DOJ admitted to the same exhibit being filed multiple times, since in other cases they don’t note it.

170105 Strzok Notes (231-1)

The transcription of these notes don’t note the redactions. That’s significant because the only difference between this set of notes and the later, altered ones, is that they declassified a bit more information in the latter case.

170125 Gauhar Notes (237-1)

The transcription is inconsistent about whether it treats cross-outs as unintelligible or not, in one place treating a heading “Intro” as intelligible, but not references to “Thanksgiving” and “He said.”

170125 Strzok Notes (237-1)

By labeling these notes as Strzok’s, DOJ makes it more clear that they redacted information that must match other sets of notes from the same meeting.

170130 [Draft] Executive Summary of Flynn investigation (237-1)

The certification doesn’t reveal that this is a draft document, not a finalized one.

170330 Dana Boente Notes (237-1)

Undated McCabe Notes (248-2/259-1)

The transcription doesn’t note that McCabe crossed off his notes on Flynn. Nor does it admit that it redacted what appears to be a continuation of the discussion of Flynn.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-1)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

170105 Strzok Notes (248-3/259-2)

The transcription reveals that two of the three new things revealed in the new copy were unintelligible to DOJ, which raises real questions about why they left it unredacted.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-2)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

Undated Strzok Notes (248-4/259-3)

As with some others, the transcription doesn’t note all the redactions, which in this case raises questions about why they included notes from the day before.

In addition, they leave out a scribble in front of the word “willfullness” meaning Strzok switched what they were measuring with regards to whether Flynn’s lies about Turkey were deliberate.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-3)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

170306 Jim Crowell Notes (251-1)

As expected, DOJ was thoroughly dishonest with this document. They don’t reveal that they’ve redacted something — either a date, or names — where they indicate that they’ve added a date. One way or another, this transcription is false.

Plus, if they’ve redacted the names of non-senior people in the meeting (which is the non-suspect excuse for the redaction), then they need to note that in the transcription. The alternative, of course, is worse, that they knowingly altered the date.

This is one instance where not revealing whether DOJ consulted with the author is especially problematic. But since Crowell is now a DC judge just next door to Sullivan’s courthouse, maybe he can just go ask.

170329 Gauhar Notes (251-1)

180119 Schools Notes (251-1)

161226 Clinesmith NSL Email (257-1)

The certification provides the wrong date for this email, labeling it 12/26/16. [My annotations.]

it was 12/23/16.

Unlike some of the other things here, I think this is just a sloppy error, not an affirmative misrepresentation. But it is ironic that they made the error with Clinesmith.

200924 Ballantine Summary Substitution of NSLs issued in Crossfire Razor (257-2)

In her notice of discovery correspondence accompanying this, Ballantine doesn’t note that she wrote this summary for EDMO to review for them to, in turn, give back to her to give to Flynn. That’s important, because it’s unclear whether the summary shows all NSLs, or only NSLs for the period in question. Both Barnett’s testimony and the Kevin Clinesmith email included suggest the latter.

170125 OGC Notes (264-1)

This doesn’t include Bates numbers, which is interesting because an older 2019 Bates stamp not seen elsewhere is included (possibly indicating that this was previously shared with DOJ IG).

The Government Agent Who Altered Andrew McCabe’s Notes Remains Unnamed

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The frothers have convinced themselves that the sticky notes via which misleading dates were added to Peter Strzok and Andrew McCabe’s handwritten notes do not amount to “altering” those notes. That’s nonsense. Not only did the date added to Strzok’s notes suggest they could have been written on January 4, 2017 when several documents that had already been submitted in the docket (as well as other public documents) made it clear the notes had to have been written on January 5, 2017. But the added date — indicating that whoever wrote it thought the notes could be January 4 or 5 — don’t match the notice DOJ originally gave Sidney Powell about the notes, which suggested the could have been written on January 3.

There are further problems with the alterations, not least that DOJ claims that these documents were “scanned.” A comparison of the original set of notes with the altered one, along with the blue sticky visible on Bill Priestap’s notes with how the same kind of blue sticky appeared on McCabe’s altered notes make it clear these were copied, along with being scanned, a step that made the alterations far less visible.

Worse still, rather than providing unaltered versions of the notes, DOJ instead provided altered versions of the altered notes. That’s easiest to see by comparing the original, altered McCabe notes, where you can see the lined page underneath the added date.

With the altered altered notes.

It’s clear that rather than simply taking the sticky off, DOJ instead simply whited out the date, along with the lines of the page beneath it.

But you can see this by comparing the three versions of the Strzok notes. Unaltered:

First alteration:

Second alteration:

The sticky is still visible in the second alteration, which suggests they’ve done the same thing they did with McCabe’s altered notes, just edit out the alteration, rather than scan the original document. I suspect the reason they doubled down on altering documents is because doing otherwise would make it clear that the McCabe notes, in particular, could not have been “scanned,” because it would have made the blue sticky visible.

So tomorrow they’re going to have to certify that their re-altered notes are “authentic.”

There may be a far more interesting reason why DOJ chose to re-alter the altered documents rather than providing the originals.

In both Jocelyn Ballantine’s notice of discovery correspondence about the Strzok notes:

During the review, agents for EDMO placed a single yellow sticky note on each page of the notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned.

I am providing replacement versions of these documents, and ask that you destroy the prior versions provided to you. We have determined, and confirmed with counsel for Peter Strzok, that the content of the notes was not otherwise altered.

And her notice of compliance, falsely claiming to comply with Judge Emmet Sullivan’s order to authenticate all the documents submitted in this case, she blamed WDMO FBI Agents for the alteration to Strzok’s notes.

In response to the Court and counsel’s questions, the government has learned that, during the review of the Strzok notes, FBI agents assigned to the EDMO review placed a single yellow sticky note on each page of the Strzok notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production.

But her notice of discovery correspondence accompanying the newly altered McCabe notes:

At some point during the course of the review of this page of notes, government agents placed a clear sticky notes (with a colored tab) on this page of notes. On the clear portion of this tab was written the date of 5/10/2017. This sticky note was inadvertently not removed when the notes were scanned.

I am providing a replacement version of this document, and ask that you destroy the prior version provided to you. The content of the notes was not otherwise altered.

And her notice of compliance, she didn’t reveal who had altered McCabe’s notes.

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production.

In one case, she blames, “government agents,” in the other case, she blames “someone.” Blaming “someone” is not a very good way to convince a judge you’re not pulling a fast one.

Realtering the altered notes is not either.

Note, too, that while Ballantine says she has reviewed the contents of Strzok’s notes with his lawyer, she only claims that the content of the McCabe notes has not been altered. If the redactions change the meaning of the notes, falsely tying a SSCI briefing to the notes about Flynn, I can see why she might do that.

By realtering the notes, DOJ is hiding that the altered notes were not, in fact, scans (because if they had been scanned the alteration would have been obvious because the stickies in both cases were colored, and FBI’s scans pick up color).

But I suspect they’re also hiding who that “government agent” is who altered McCabe’s notes.

Judge Emmet Sullivan Just Created Four Big Problems for DOJ in the Mike Flynn Case

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Judge Emmet Sullivan just issued an order that may well destroy DOJ’s presumption of regularity (the legal principle that unless the government really fucks up, you have to assume they didn’t fuck up) in the Mike Flynn case.

He noted that on September 29, he had ordered DOJ to certify all documents submitted as exhibits in the motion to dismiss proceeding, but that DOJ had not done so. Instead, it admitted that it had “inadvertently” altered two Peter Strzok and one Andrew McCabe documents, and asked for a mulligan.

So now he’s ordering DOJ to do what he first ordered: to certify all the exhibits submitted to this docket (both those submitted directly by DOJ and those submitted by Flynn’s team) and provide a transcription and the author and date of any handwritten notes.

MINUTE ORDER as to MICHAEL T. FLYNN. During the September 29, 2020 motion hearing, the Court informed the government that it would need government counsel to authenticate documents filed with the Court. See Hr’g Tr., ECF No. 266 at 91:19-92-21; see also Min. Order (Sept. 29, 2020) (ordering the parties to file any supplemental materials by no later than October 7, 2020). On October 7, 2020, the government filed [259] Notice of Compliance in which it stated that: (1) Federal Bureau of Investigation (“FBI”) agents assigned to review Mr. Strzok’s notes had placed sticky notes on the document with estimated dates, and the sticky notes had not been removed prior to scanning the documents for production purposes (see ECF Nos. 248-2, 248-3); and (2) a sticky note with an estimated date had been placed on the notes of Andrew McCabe, and the sticky note had not been removed prior to scanning the document for production purposes (see ECF No. 248-4). The government stated that the notes of Mr. Strzok and Mr. McCabe were otherwise unaltered, and it provided the unaltered versions of Mr. Strzok’s and Mr. McCabe’s notes. See Exs. to Notice of Compliance, ECF Nos. 259-1, 259-2, 259-3. However, the government did not address the Court’s authentication request despite the government’s acknowledgement that altered FBI records have been produced to Mr. Flynn and filed on the record in this case. See Notice of Compliance, ECF No. 259. The government has filed a motion to dismiss pursuant to Federal Rule of Criminal Procedure 48(a), has attached 13 Exhibits to that motion, and has cited the Exhibits throughout its motion to support its description of the factual background and its argument in support of dismissal. See generally Mot. Dismiss, ECF No. 198. The government has also filed a supplement to its motion and attached an Exhibit to that supplement. Suppl., ECF No. 249. Although the government relies heavily on these 14 Exhibits, the government has not provided a declaration attesting that the Exhibits are true and correct copies. “The presumption [of regularity] applies to government-produced documents” and “to the extent it is not rebutted–requires a court to treat the government’s record as accurate.” Latif v. Obama, 666 F.3d 746, 748, 750 (D.C. Cir. 2011). Here, however, the government has acknowledged that altered FBI records have been produced by the government and filed on the record in this case. See Notice of Compliance, ECF No. 259. Accordingly, the government is HEREBY ORDERED to file, by no later than October 26, 2020, a declaration pursuant to penalty of perjury under 28 U.S.C. sec. 1746 in support of its motion to dismiss that the Exhibits attached to its motion and supplement are true and correct copies. It is FURTHER ORDERED that the government’s declaration shall identify each exhibit by name, date, and author. It is FURTHER ORDERED that the government shall provide transcriptions of all handwritten notes contained in the Exhibits. The government has also filed on the record in this case numerous notices of filing discovery correspondence and Mr. Flynn has generally filed the discovery produced on the record in this case as Exhibits to his supplementary filings. See ECF Nos. [228], [231], [237], [248], [251], [257], [264]. The government has acknowledged that the discovery provided to Mr. Flynn and thereafter filed on the record contained altered FBI records. See Notice of Compliance, ECF No. 259. Accordingly, the government is HEREBY ORDERED to file, by no later than October 26, 2020, a declaration pursuant to penalty of perjury under 28 U.S.C. sec. 1746 that the discovery documents provided to Mr. Flynn and filed on the record in this case are true and correct copies. It is FURTHER ORDERED that the government’s declaration shall identify each discovery document by name, date, and author. It is FURTHER ORDERED that the government shall provide transcriptions of all handwritten notes contained in the Exhibits.

This is going to create four problems for DOJ.

First, there’s no way they can finish this by Monday. Even if the lawyers on this case were as familiar with these documents as they claimed to be, it would take more than this weekend to transcribe and double check everything. They will likely ask for an extension, one that would extend the order past the election.

Plus, once they do transcribe these documents, it will become crystal clear that parts of the notes — most notably, the Bill Priestap notes they’ve claimed are a smoking gun — in fact confirm that every single witness agreed on the purpose of the January 24, 2017 Mike Flynn interview: to see whether Flynn would lie. By submitting a transcript, then, they will have to admit they’ve misrepresented the substance of the documents.

Then, this order will catch them in their past false claims about the date of (at least) the January 5, 2017 Peter Strzok notes. As I’ve noted, DOJ has submitted several documents in this docket making it clear that Strzok’s notes must have been written on January 5, 2017. Except they falsely claimed not to know. There’s probably no easy way out of this problem.

Finally, there is this exhibit, which also had a date added, but a date added via means that cannot have been accidental.

It’s possible that that redaction doesn’t cover over an existing date (but my annotation, in red, may show the hash marks of a date). But I don’t see how DOJ can authenticate this, and they’re going to have to tell Sullivan who wrote it, making it really easy for journalists to call up the author and get him to confirm or deny the date.

Notably, after Strzok and McCabe’s lawyers gave notice that DOJ had altered their notes, Sidney Powell submitted a demand that Judge Sullivan prevent anyone else from telling him their notes had been altered. So maybe she has exhibits about which she has specific concerns.

The false Strzok claims, by themselves, are going to make a truthful declaration here difficult, if not impossible. But that’s not even the only problem this order will create for DOJ.

Update: There are two sets of documents Sullivan is now asking DOJ to ID the author, provide date, and transcribe: those linked in this post and those in this document cloud project.

675 Days after Mike Flynn Blew Up His Probation Plea Deal, We Learn There Never Was an “Original 302”

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It has been 675 days since Mike Flynn was originally scheduled to be sentenced on December 18, 2018.

In the interim period, he fired his competent attorneys, Covington & Burling, hired firebreathing TV lawyer Sidney Powell, and had her write a letter to Billy Barr and Jeffrey Rosen demanding they appoint an outside lawyer to review the case. Among other things, the letter demanded “the original draft” of the Flynn 302.

The original draft of the Flynn 302 and all subsequent drafts, including the A-1 file that shows everyone who had possession of it. It appears that SCO has never produced the original 302. There were multiple drafts. It stayed in “deliberative/draft” stage for an inordinate time. Who influenced it, how, and why?

Then, in what was crafted to be an effort to insinuate that DOJ had not complied with Judge Emmet Sullivan’s standing Brady order, she asked for the 302 again, on reply even claiming that the claims in the 302 weren’t backed by the notes that Peter Strzok and Joe Pientka wrote during the interview.

Last December, Sullivan wrote an unbelievably meticulous opinion laying out why all the things she was demanding weren’t actually Brady material. In it, Judge Sullivan rejected Flynn’s “speculat[ion]” that an original 302 showing the agents believed Flynn was telling the truth could exist, not least because their notes mapped all versions of the draft and final 302s.

Mr. Flynn speculates that the government is suppressing the “original 302” of the January 24, 2017 interview, Def.’s Reply, ECF No. 133 at 28; he claims that the lead prosecutor “made it sound like there was only one 302,” id. at 29; and he makes a separate request for the FBI to search for the “original 302” in one of the FBI’s databases, id. at 28-30. In Mr. Flynn’s view, the “original 302”—if it exists—may reveal that the interviewing FBI agents wrote in the report “their impressions that [Mr.] Flynn was being truthful.” Id. at 28. Mr. Flynn claims that the FBI destroyed the “original 302” to the extent that it was stored in the FBI’s files. Id. at 30. Comparing draft FD-302s of Mr. Flynn’s January 24, 2017 interview to the final version, Mr. Flynn claims that the FBI manipulated the FD-302 because “substantive changes” were made after reports that Mr. Flynn discussed sanctions with the Russian Ambassador “contrary to what Vice President Pence had said on television previously.” Id. at 14-15. Mr. Flynn points to the Strzok-Page text messages the night of February 10, 2017 and Ms. Page’s edits to certain portions of the draft FD-302 that were “material.” Def.’s SurSurreply, ECF No. 135 at 8-9.

To the extent Mr. Flynn has not already been provided with the requested information and to the extent the information exists, the Court is not persuaded that Mr. Flynn’s arguments demonstrate that he is entitled to the requested information. For starters, the Court agrees with the government that there were no material changes in the interview reports, and that those reports track the interviewing FBI agents’ notes. See, e.g., Gov’t’s Surreply, ECF No. 132 at 4; Def.’s Reply, ECF No. 133 at 20. Mr. Flynn ignores that FBI agents rely on their notes and memory to draft the interview reports after the completion of an interview. See United States v. DeLeon, 323 F. Supp. 3d 1285, 1290 n.4 (D.N.M. 2018) (discussing the drafting process for FD-302s). While handwritten notes may contain verbatim statements, the notes of FBI agents are not verbatim transcripts of the interview. United States v. Forbes, No. CRIM.302CR264AHN, 2007 WL 141952, at *3 (D. Conn. Jan. 17, 2007). And persuasive authority holds that the government’s production of summaries of notes and other documents does not constitute a Brady violation. See, e.g., United States v. Grunewald, 987 F.2d 531, 535 (8th Cir. 1993) (finding no Jencks Act or Brady violations where the government produced summaries of handwritten notes instead of the actual notes); United States v. Van Brandy, 726 F.2d 548, 551 (9th Cir. 1984) (holding that the government fulfilled its Brady obligations by producing summaries of the FBI’s file because Brady “does not extend to an unfettered access to the files”).

As an initial matter, the Court notes that the government has provided Mr. Flynn with the relevant FD-302s and notes rather than summaries of them. See, e.g., Gov’t’s Surreply, ECF No. 132 at 6-7; Gov’t’s Opp’n, ECF No. 122 at 10, 15; Gov’t’s App. A, ECF No. 122-1 at 2; Gov’t’s Notice of Disc. Correspondence, ECF No. 123 at 1-3. And the government states that it will provide Mr. Flynn with the FD-302s of his post-January 24, 2017 interviews. Gov’t’s Opp’n, ECF No. 122 at 4 n.1. Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.” Gov’t’s Surreply, ECF No. 132 at 4-5. The Court rejects Mr. Flynn’s request for additional information regarding the drafting process for the FD-302s and a search for the “original 302,” see Def.’s Sur-Surreply, ECF No. 135 at 8- 10, because the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD-302, and Mr. Flynn’s own admissions of his false statements make clear that Mr. Flynn made those false statements.

Then, as matters moved towards sentencing and DOJ responded to Flynn’s refusal to cooperate and his conflicting sworn statements, by asking for prison time, Powell got desperate. She filed a bunch of motions to try to get Flynn out of his guilty pleas. And, magically, Billy Barr appointed St. Louis US Attorney Jeffrey Jensen to do what Powell had demanded seven months earlier, to review the case. That “review” used documents already reviewed by Mueller’s team, DOJ IG, John Durham, and — many of them — even Judge Sullivan — to claim DOJ had discovered “new” documents that justified blowing up Flynn’s prosecution.

Before long, Jensen started submitting documents and claims that made it clear his team was either lying or had zero understanding of the documents they used to claim DOJ should withdraw from Flynn’s prosecution. Nevertheless, Jensen kept churning out documents, even — ultimately — releasing an insta-302 showing that a key pro-Trump FBI agent on the case claimed not to understand this was a counterintelligence investigation, professed ignorance of key pieces of evidence, but nevertheless held sway in the Mueller team’s conclusion that they did not have proof that Trump ordered Flynn to blow up sanctions on Russia. They altered evidence in such a way that would support their prior false claims about key dates, and that altered evidence made its way, almost instantaneously and probably via Jenna Ellis, the Trump campaign lawyer with whom Sidney Powell remained in regular touch, into a Trump campaign attack. Ultimately, they admitted to some — but not all — of the evidence that had been altered and asked for a mulligan (but didn’t explain who had altered one of those exhibits).

Along the way, Jensen submitted evidence that made it clear that — not only didn’t Peter Strzok have it in for Mike Flynn — but he pushed the pro-Trump FBI Agent whose view held sway to join the Mueller team. As Sullivan’s amicus has noted, DOJ’s current argument relies on Strzok’s reliability, even while claiming that Strzok cannot be considered a reliable witness.

Jensen also submitted evidence that showed that meetings immediately after Flynn’s interview map perfectly onto Flynn’s existing 302, showing that there are completely credible witnesses who will attest that Strzok described the interview just as the 302 does immediately after the interview happened, including that Flynn lied.

Jensen also provided evidence that made it clear why Flynn’s lies were material — which was ostensibly the reason DOJ blew up his prosecution in the first place. His lies served to hide that Flynn coordinated with Mar-a-Lago on his efforts to blow up sanctions, something that even Billy Barr’s DOJ conceded might be evidence of coordination with Russia.

And then, on Tuesday, perhaps realizing that now that Strzok and Andrew McCabe have gotten discovery in their lawsuits for wrongful termination, DOJ should stop releasing documents that show Trump’s claims about the two of them were false, but also DOJ’s alterations of Strzok and McCabe documents, Jensen stopped.

According to a notice of discovery correspondence released last night, via letter to Sidney Powell sent on Tuesday DOJ told her there are no documents left and, in fact, there never was an “original 302.”

We write to respond to your recent discovery requests. On October 20, 2020, you requested “immediate production of any additional information that has been uncovered by Durham or the FBI or any federal officer or agent and provided to US Attorney Jensen–and not previously provided to the defense.” As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. Beginning in April 2020, and continuing through October 2020, we have disclosed on a number of occasions documents identified during that review. We are aware of no other documents or information at this time that meet the standard for disclosure in the Court’s Standing Order (Doc. 20).

You also requested “the original 302 and later drafts . . . , or the data evidencing their destruction.” The Federal Bureau of Investigation has a well-documented record management program and retention plan that provides specific instructions for the collection of information, the maintenance of documents, and the retention or disposal of documents. Those guidelines state that “[w]orking files, such as preliminary drafts, notes, and other similar materials, are to be destroyed when the final documents have been approved by the FBI official with authority to do so.” The policy applies to “all drafts created in any medium.” See Records Management Policy Guide, at p. 31, available at https://vault.fbi.gov/records-management-policy-guide-0769pg-part-01-of01/Records%20Management%20Policy%20Guide%200769PG%20Part%2001%20of%2001/vie w#document/p4.

Here, the FD-302 of your client’s January 24, 2017, interview was created in SENTINEL, which is the FBI’s electronic records management system for all criminal and intelligence gathering activities:

SENTINEL provides FBI employees the ability to create case documents and submit them through an electronic workflow process. Supervisors, reviewers, and others involved in the approval process can review, comment, and approve the insertion of documents into the appropriate FBI electronic case files. Upon approval, the SENTINEL system serializes and uploads the documents into the SENTINEL repositories, where the document becomes part of the official FBI case file. SENTINEL maintains an auditable record of all transactions

See Privacy Impact Assessment for the SENTINEL System, May 28, 2014, at p. 1, available at https://www.fbi.gov/services/information-management/foipa/privacy-impactassessments/sentinel.

In this this case, SSA 1 began drafting the FD-302 on the evening of January 24, 2017. The FD-302 was electronically accessed by SSA 1 and former DAD Peter Strzok in SENTINEL on several occasions. The FD-302 was electronically approved by FBI Assistant Director for Counterintelligence E.W. Priestap on February 15, 2017. Our review of SENTINEL’s audit trail establishes that no other FBI personnel accessed the FD-302 electronically prior to its approval and serialization. Consistent with the FBI’s records retention policy, no prior drafts of the FD-302 were maintained within SENTINEL.

You have previously been provided with three draft versions of the FD-302, dated February 10, 11, and 14, 2017, that were circulated in PDF format by email to FBI personnel for review; these are the only draft versions of the FD-302 that we have located during our diligent searches.

Finally, you requested “all the comms retrieved of McCabe with Comey, Page, Strzok, Baker, Priestap or anyone else about Flynn, Crossfire Razor or any other name for General Flynn or Michael G. Flynn, and any comms of Comey or any FBI member with anyone in the Obama White House about Flynn.” As discussed above, we have reviewed those communications and have disclosed all such communications that we have identified that meet the standard for disclosure in the Court’s Standing Order (Doc. 20). [my emphasis]

This doesn’t mean Barr is done with his shenanigans. After all, in spite of past assertions that no one at DOJ engaged in any abuse in its discovery compliance, this letter suggests (falsely, per Sullivan’s December 2019 opinion and all precedent) that the documents they’ve been dribbling out did meet “the standard for disclosure in the Court’s Standing Order.” Couple that with the fact that DOJ seems to be hiring for a Brandon Van Grack adjacent job, and I wouldn’t be surprised if they’re going after him, even while hiding evidence showing that Bill Barnett liked and trusted Van Grack.

Plus, ultimately Trump will pardon Flynn (indeed, Powell already told Sullivan that she had discussed a pardon with Trump).

But it does mean that, 675 days after Flynn could have started serving a probation sentence, we finally learn that one key premise on which he blew up this prosecution was false. There is no original 302.

In the wake of learning that her witch hunt came up short yesterday, Sidney Powell was complaining about the delay that she herself caused.

Docket Tea Leaves: Manafort, Bannon, and Flynn

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I’d like to point to some curious docket doings in cases pertaining to Paul Manafort, Steve Bannon, and Mike Flynn

Manafort

First, two things pertaining to Paul Manafort, who is serving his prison sentence from home. In his book, Andrew Weissmann raises the “other investigation” in which Manafort, on the day he succeeded in getting a plea deal, implicated someone — almost certainly Jared Kushner — and wondered why the material still hadn’t been released.

Most notably, at one point we asked him about an email he’d received in August 2016 from Roger Stone. Manafort gave a long explanation, the gist of which was to implicate two senior Trump campaign officials; it was related to an investigation in New York. (As the precise material is still under seal I cannot discuss the details, although it is unclear to me what the continued basis is for keeping all this material under seal.) We were trying to assess his credibility, fixating on signs of dishonesty—any indication that Manafort was still angling for a pardon, or attempting to play us. Volunteering this information, which implicated senior officials, suggested he may have written that possibility off, even though we all had continuing doubts.

It’s a damn good question given that Manafort’s defense and prosecutors filed a sealed joint motion about what else could be unsealed from Manafort’s breach determination. At the time, the government was proposing to unseal at least some of the information — and had even given proposals to Manafort’s lawyers to unseal them.

On May 29, 2020, the government provided counsel for Mr. Manafort with the last of the government’s proposals for lesser-redacted materials. Counsel for Mr. Manafort is now considering the government’s proposals, and the parties respectfully request additional time for counsel for Mr. Manafort to do so, and for the parties to confer and prepare the joint report for the Court.

But Judge Amy Berman Jackson hasn’t ruled yet. She’s busy as hell, but some of this information would be fairly important for voters to consider before they vote.

Meanwhile, in Manafort’s case in chief, on Tuesday, one of the two DC AUSAs who were on the docket swapped out for a different one.

The United States of America, by and through its attorney, the Acting United States Attorney for the District of Columbia, and Assistant United States Attorney Arvind Lal, hereby informs the Court that he is entering his appearance in this matter on behalf of the United States. Assistant United States Attorney Zia M. Faruqui no longer represents the United States in this matter.

Manafort’s serving his prison sentence from home. And the AUSA on the unsealing docket, Molly Gaston, remains on this one (so it shouldn’t pertain to the unsealing debate). There doesn’t seem to be a need to add new AUSAs when all he’s going to do is continue to sit in his condo until Trump pardons him.

Bannon

Meanwhile, on Wednesday, a sealed document was placed in Steve Bannon’s docket.

This could be a lot of things, and Bannon has three co-defendants, so it’s not even clear that it pertains to him. But it’s the first sealed document (as a simple fraud case, this shouldn’t involve any classified evidence). And it was filed the same day as the Hunter Biden faux-scandal broke.

NBC reported that the FBI is investigating whether this faux-scandal has ties to foreign intelligence.

Federal investigators are examining whether emails allegedly describing activities by Joe Biden and his son Hunter and found on a laptop at a Delaware repair shop are linked to a foreign intelligence operation, two people familiar with the matter told NBC News.

The FBI seized the laptop and a hard drive through a grand jury subpoena. The subpoena was later published by the New York Post. The bureau has declined to comment.

Though there are other sketchy aspects to the story, such as the claim that the shop owner, having been subpoenaed for the laptop, also made a copy and gave it to Rudy’s lawyer, Robert Costello.

“Before turning over the gear, the shop owner says, he made a copy of the hard drive and later gave it to former Mayor Rudy Giuliani’s lawyer, Robert Costello,” the Post said. “Steve Bannon, former adviser to President Trump, told The Post about the existence of the hard drive in late September and Giuliani provided The Post with a copy of it on Sunday.”

Bannon’s Chinese benefactor, Guo Wengui, was hyping the dirt before it was released.

Weeks before the New York Post began publishing what it claimed were the contents of Hunter Biden’s hard drive, a Sept. 25 segment on a YouTube channel run by a Chinese dissident streamer, who is linked to billionaire and Steve Bannon-backer Guo Wengui, broadcast a bizarre conspiracy theory. According to the streamer, Chinese politburo officials had “sent three hard disks of evidence” to the Justice Department and House Speaker Nancy Pelosi containing damaging information about Joe Biden as well as the origins of the coronavirus in a bid to undermine the rule of Chinese President Xi Jinping.

Three days later, a Twitter account linked to Guo and Bannon’s Himalaya movement subsequently amplified an edited clip of the segment alongside the pledge of a “Bombshell… 3 hard disk drives of videos and dossiers of Hunter Biden’s connections with the Chinese Communist Party (CCP) have been sent to Nancy Pelosi and DOJ. Big money and sex scandal!”

And Bannon was boasting of having the laptop on September 28.

If the FBI was already investigating this — including why the shop owner was handing out copies of the purported laptop — then the FBI may have been aware of Bannon’s activities before Wednesday.

The point is, some of this — particularly if it delves into fraud — would be a bail violation. There’s a status conference on October 26, so it’s possible we’ll get hints then.

Ultimately, I think Bannon is virtually guaranteed to be pardoned, because he still hasn’t told the full truth about 2016. So even if he were jailed, it’d likely be for a matter of days until Trump got him out again.

Flynn

Finally, there’s Flynn’s case. The one unopposed amicus — filed by the NACDL — got docketed today. It’s a strong case — far stronger than a similar argument that Sidney Powell tried to make — that Flynn should not be held in contempt for the lies he has told in Judge Emmet Sullivan’s case. It’s an argument that Sullivan would, I imagine, normally find persuasive, and the fact that he has docketed it today makes me wonder if he’s relying on it in his order on Flynn’s case.

The only problem with the brief is it misunderstands the full scope of Flynn’s lies to the court. The brief assumes all his lies pertain to his guilty pleas, and argue that defendants can’t be held accountable for perjury on coerced guilty pleas.

But — as I’ve noted repeatedly — the sworn declaration Flynn submitted as part of his attempt to withdraw his guilty plea, which DOJ’s recent excuses for blowing up his prosecution increasingly rely on, also conflicts with what Flynn said to the grand jury as well as evidence submitted in this docket, which shows notes from Covington recording Flynn telling lies about his engagement with Turkey (see the bold for a conflicting statement).

  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that:
    • “From the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,”
    • He and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate)
    • “For the most part” “all of that work product [was] about Gulen”
    • When asked if he knew of any work product that didn’t relate to Gulen, Flynn answered, “I don’t think there was anything that we had done that had anything to do with, you know, anything else like business climates or stuff like that”
    • He was not aware of “any work done on researching the state of the business climate in Turkey”
    • He was not aware of “any meetings held with U.S. businesses or business associations”
    • He was not aware of “any work done regarding business opportunities and investment in Turkey”
    • He and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior”
  • January 29, 2020: Mike Flynn submitted a sworn declaration. Among the assertions he made were:
    • “On December 1, 2017 (reiterated on December 18, 2018), I pled guilty to lying to agents of the FBI. I am innocent of this crime.”
    • “I gave [Covington] the information they requested and answered their questions truthfully.”
    • “I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak nor do I remember if we discussed the details of a UN vote on Israel.”
    • “My relationship with Covington disintegrated soon thereafter.” [After second proffer session.]
    • “I did not believe I had lied in my White House interview with the FBI agents.”
    • “In the preceding months leading up to this moment [when he agreed to the plea deal], I had read articles and heard rumors that the agents did not believe that I had lied.”
    • “It was well after I pled guilty on December 1, 2017, that I heard or read that the agents had stated that they did not believe that I had lied during the January 24, 2017, White House interview.”
    • “I agreed to plead guilty that next day, December 1, 2017, because of the intense pressure from the Special Counsel’s Office, which included a threat to indict my son, Michael, and the lack of crucial information from my counsel.”
    • “My former lawyers from Covington also assured me on November 30, 2017, that if I accepted the plea, my son Michael would be left in peace.”
    • “Regretfully I followed my lawyers’ strong advice to confirm my plea even though it was all I could do to not cry out ‘no’ when this Court asked me if I was guilty.”
    • “In truth, I never lied.”

Not to mention, Flynn’s sworn declaration is internally inconsistent. [Update: a few more of the amicus briefs have been approved, including one from former prosecutors.]

It’s also worth noting that the Bill Barnett 302, which included about a page worth of paragraphs that were “pending unsealing by the court” that have yet to be unsealed. Some of those must pertain to things Flynn claimed in his declaration. (Flynn’s defense, but not Judge Sullivan, has an unredacted copy.)

Finally, yesterday, DOJ either posted or updated a job description that could be Brandon Van Grack’s job leading DOJ’s more focused FARA practice, which Van Grack got moved to after the Mueller investigation (though it could also be a more junior position reporting to Van Grack).

The attorney for this position will focus on administering and enforcing FARA, with at least 50% of the attorney’s time devoted to FARA matters. The attorney’s FARA responsibilities will include preparing for and leading civil litigation, managing criminal investigations, conducting inspections, and drafting advisory opinions.

When DOJ tried to blow up Flynn’s prosecution, Van Grack withdrew from the case but did not quit, though the frothy right claimed he had been ousted. Just in the last while, Bruce Ohr was finally ousted from the office for a trumped up complaint that he shared intelligence on Russian threats, as he had done for years. Van Grack hasn’t filed anything in PACER since DOJ moved to withdraw the prosecution. That said, DOJ has repeatedly said DOJ did not violate Brady.

I don’t really know what to make of all this. But I thought I’d note what I’m seeing in the bottom of my tea cup.

Government Caught Between a Recusal Motion and Desperation

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Last week, Sidney Powell made her first formal request that Judge Emmet Sullivan recuse.

In response, Judge Sullivan said (while noting the proper time for such a request was last year), file a motion.

Sidney did.

It was a shitshow.

Nevertheless, Judge Sullivan politely invited the government to weigh in.

They’ve now done so. While not disagreeing with Flynn, they argue that the way to proceed is on the motion to dismiss — and press for urgent response.

The United States of America, by and through its undersigned counsel, respectfully files this response to General Michael T. Flynn’s Motion to Disqualify Judge Emmet Sullivan, United States v. Flynn, 17-cr-232 (Doc. 161), filed on October 7, 2020. As this Court is aware, during the mandamus proceedings before the en banc Court of Appeals for the D.C. Circuit, General Flynn asked that “any further proceedings be conducted by a different judge.” In re Flynn, No. 20-2153, Doc. 1846621 at 24. While the government did not address that request in its written pleadings, when asked during oral argument, the government offered that it had “reluctantly come to the view that there is now at least a question about appearances of impartiality” because this Court’s filing of a petition for en banc review suggested a “level of investment in the proceedings that is problematic.” In re Flynn, No. 20-2153, Doc. 1859900 (Transcript of the August 11, 2020, Hearing) at 54. The D.C. Circuit rejected that view. In re Flynn, No. 20-5143, 2020 WL 5104220, at *16 (D.C. Cir. Aug. 31, 2020).

Based in part on subsequent events, including the hearing held before the Court on September 29, 2020, General Flynn again raises the serious charge that this Court is biased and has engaged in misconduct. The government does not believe that adjudicating General Flynn’s motion is the most appropriate way for this Court to proceed. Consistent with the en banc D.C. Circuit’s statement that “[a]s the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch,” In re Flynn, 2020 WL 5104220, at *7, the government respectfully submits that instead the Court should immediately grant the unopposed motion to dismiss the criminal information with prejudice. Doing so would avoid any further delay to General Flynn and to the government, and would eliminate any need for the Court to address the disqualification motion, which would be moot.

This is a nifty way to use the purportedly agreeing sides against each other.

The government wants this done by November 3. That makes Sulliavan’s response to Powell on recusal easier.

 

Sidney Powell Switches Her FARA Villain Mid-Stream

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In a still pending motion to withdraw Mike Flynn’s guilty plea submitted in January, Sidney Powell told this story about how the baddies in DOJ’s FARA unit — led by David Laufman — entrapped the General in lies.

I’ve linked to the exhibits where Powell claims her arguments are supported, though in places, they show the opposite — for example, Flynn lying to his lawyers claiming that he came up with the idea to write the op-ed himself — and in at least one case, the page Powell cites doesn’t exist.

The next day—Mr. Flynn’s first day out of the White House, with media camped around his house 24/7—Rob Kelner and Brian Smith of Covington, and Kristen Verderame, called Mr. Flynn to give him a status update on the FARA issues. Mr. Flynn accepted their recommendation that it was better to file, and he instructed the lawyers to “be precise.”11

On February 21, 2017, David Laufman, Heather Hunt, Tim Pugh, and multiple others from the FARA Unit telephone-conferenced with Covington. Ex. 8. Laufman directed the content, scope, and duration of the call. In this lengthy conversation, Kelner exacerbated his prior mistake, stating that “Flynn wrote [the op-ed],” and that Mr. Rafiekian, Mr. Flynn’s former business partner, provided “input.” Ex. 8 at 2. Kelner apparently misremembered or misspoke, but the SCO parlayed the description in the FARA form into a felony attributable to Mr. Flynn. Meanwhile, Covington—instead of owning any error and correcting it—began a campaign of obfuscation that deepened the conflicts, created Mr. Flynn’s criminal exposure, and led to repeated instances of ineffective assistance of counsel.12

That evening, Heather Hunt requested a meeting the next day at Covington’s offices to review the draft FARA filing in person. She and several others from the FARA unit, arrived and reviewed the FARA draft and discussed logistics. Mr. Smith made notes of matters to include in the filing, such as the New York meeting with Turkish officials, payments to Inovo, specifics of the Sphere contract, and Sphere’s budget (if established). The team noted that if Turkey was involved, it must be listed on the filing, and they created various reminders. Finally, Ms. Hunt reminded the Covington team to file by email and send a check to cover filing fees by a courier. 13 Ex. 9.

Covington filed the forms on March 7, 2017. Hunt acknowledged receipt at 10:50 p.m., prompting Smith to remark to his colleagues, “They are working late at the FARA Unit.” Ex.12.

Hardly had the FARA registration been uploaded on the FARA website when the onslaught of subpoenas began.14 On May 17, 2017, Special Counsel was appointed, and the much-massaged “final” Flynn 302 was reentered for use by the SCO. Soon thereafter, the SCO issued a search warrant for all Flynn’s electronic devices. Meanwhile, Covington’s August 14, 2017, invoice alone was $726,000, having written off 10% of its actual time. Ex. 13 at 3.

11 Ex. 7: Smith Notes of 2/14/17 call.

12 Covington lawyer Brian Smith’s notes of January 2, 2017, and reconfirmed in his 302 of June 21, 2018, show that Mr. Flynn stated Rafiekian wrote the first draft. ECF No. 151-12 at 17. ECF No. 150-5 at 7. Rafiekian told Covington this also, and the emails confirmed it. Ex. 10.

13 On March 3, 2017, Kelner emailed Hunt to tell her “we are not quite ready to file, but close.” Hunt wanted more detail and demanded to know, “close as in later today, or close as in next week?” Kelner responded, Tuesday, March 7, 2017. Ex. 11.

14 Covington received multiple subpoenas from the DOJ FARA unit, as well as subpoenas from the House Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, and then Special Counsel Office. In response to these subpoenas, Covington provided many thousands of documents in sixteen productions from April 2017 through October 2017 alone, and Mr. Flynn’s legal fees exceeded two million dollars.

Powell is shading here, covering up the fact that Flynn told Covington & Burling he was writing his Fethullah Gulen op-ed to benefit the Trump campaign rather than entirely for the benefit of clients he knew to be Turkish government ministers. The claim by itself demonstrates how Powell provides evidence that her client lied, even while wailing about unfair prosecution.

But for my purposes, I’m primarily interested in the villains of this story: Flynn’s Covington lawyers who repeated Flynn’s lies, FARA Unit lawyer Heather Hunt who promptly confirmed receipt of a filing, and David Laufman.

Laufman, then Chief of the Counterintelligence and Export Control Section at DOJ, was an early villain in the evolving conspiracies about the investigation into Trump and his flunkies, even while he is the hero of the Trump flunky’s complaints that Jim Comey didn’t let Julian Assange extort the US government with Vault 7 files.

I raise all this because I’m trying to determine whether the other two documents that Jeffrey Jensen’s team decided to date (notes from an ODAG meeting that Jensen purports took place on March 6, 2017 and notes from a meeting involving Bruce Swartz that Jensen purports took place on March 28, 2017) have affirmatively incorrect dates. Here are the notes “inadvertently” dated March 28:

In her filing accompanying the latter, Powell ignores that the notes show that Jeff Sessions asked two Turkish ministers what Flynn had been doing for them in an engagement that — Flynn’s official filing submitted on March 7, 2017 claimed — he wasn’t actually sure whether he had been working for Turkey. Rather than puzzling through why the Turkish foreign ministers would know the answer to that if Flynn was instead working for Ekim Alptekin, Powell instead complains that on March 28, 2017, Swartz “decided” to subpoena Flynn’s company even though (she claims) he had just been told that Flynn had satisfied the registration obligation.

Newly produced notes of Peter Strzok show: Strzok met with Bruce Schwartz, Lisa, and George at DOJ on March 28, 2017, where he noted Flynn Intel Group “satisfied the registration obligation” and “no evidence of any willfulness.” Nonetheless, “Bruce” decided to issue subpoenas to Flynn Intel Group “and more.” Exhibits C, D.

Whereas Laufman had been her villain, now Bruce Swartz is.

The thing is, that claim seems to be inconsistent with what her star witness, pro-Trump FBI Agent Bill Barnett, had to say in his interview with Jensen’s team (though since they’ve redacted Brandon Van Grack’s name it’s hard to tell). He seems to have said the Turkish case “was far stronger than the [Russian] investigation, in that there was specific information that could be investigated. BARNETT was working closely with [Van Grack]. BARNETT had worked with VAN GRACK on other matters.

In any case, the actual subpoena shows that it didn’t happen in March (as the purported date might suggest) but instead on April 5, a week later. And it wasn’t Swartz who filed it, nor even Van Grack, but EDVA AUSA William Sloan.

That doesn’t mean the date that Jensen’s team “inadvertently” applied to Strzok’s notes is wrong. It certainly may have taken a week to put together the subpoena.

But it does show that Powell’s current story doesn’t cohere with her past (still-pending) one.