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Rudy the Dripper: The Vicious Cycle of Dead-Ender Propagandists Feeding Bullshit to Tribalist Republicans

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Not long after the former US Attorney of the Southern District of New York headlined a press conference where he and other lawyers presented insane conspiracy theories to claim that Donald Trump had been robbed of his victory, CNN reported that the FBI continues to investigate Rudy Giuliani for his ties to Russian Agents.

Complicating matters is that Giuliani’s post-election swirl of activity comes as federal investigators renewed their investigative interest into his work that is already the subject of a New York-based investigation.

In recent weeks, FBI agents in New York contacted witnesses and asked new questions about Giuliani’s efforts in Ukraine and possible connections to Russian intelligence, according to a person briefed on the matter. The FBI investigators, who have spoken to at least one witness previously months ago, came back to ask new questions recently about possible origins of emails and documents related to Hunter Biden that appear similar to those that the New York Post reported that Giuliani and others helped provide. CNN has previously reported that the ongoing probe is examining whether Giuliani is wittingly or unwittingly part of a Russian influence operation, according to people briefed on the matter.

But questions about that probe have been out of the spotlight as Giuliani stepped into focus as the campaign’s chief post-election lawyer. One source close to the Trump campaign countered that Giuliani is an overzealous defender of the president.

Meanwhile, the same propagandists who’ve helped Trump survive in recent years — on the left and the right — are claiming that because Democrats and others backed the investigation of Russian efforts to get Trump elected in 2016 (an investigation that attempted to understand why Trump fired Jim Comey, the person most Democrats chiefly blame for Hillary’s loss), it is precedent for Trump’s efforts to disclaim Joe Biden’s resounding win.

This exemplifies the vicious cycle we’ve been on since since August 2016, when Donald Trump authorized his rat-fucker to take desperate measures to find bullshit stories to tell to try to win an election.

After WikiLeaks released the first set of files Russia had stolen as part of its plot to help Trump get elected in July 2016 and someone — it’s not clear who — released damning information about Paul Manafort’s corrupt ties with Russian-backed Ukrainian oligarchs, Donald Trump doubled down. Rat-fucker Roger Stone, desperate to save Trump’s campaign and maybe even the job of his lifetime buddy, made a Faustian bargain for advance access to fairly innocuous John Podesta emails that Stone believed would provide the smoking gun for a conspiracy his allies had been chasing since March. The Faustian deal, by itself, exposed Stone as a co-conspirator in a hack-and-leak operation led by a hostile foreign agency. But the deal also brought ongoing exposure: at least as soon as he was elected, Trump’s rat-fucker (and maybe his eldest son!) started pursuing an effort to pay off Julian Assange with a pardon or some other way out of the Ecuadorian Embassy, thereby implicating Trump in a quid pro quo. After Trump assumed the Presidency, his own exposure through Stone gave him reason to want to shut down the investigation, even the investigation into the hack-and-leak itself. As a result, from very early in his presidency, Trump had obstructed justice to hide the quid pro quo and conspiracy his rat-fucker (and possibly he and his son) had joined to help him get there.

Meanwhile, early on in the investigation, acting on advice that Paul Manafort gave after returning from a meeting with one of Oleg Deripaska’s key deputies, the Republicans defended their President by attacking the credibility of the Steele dossier — one that Deripaska himself likely ensured was filled with disinformation — as a stand-in for the larger investigation itself. Deripaska even has apparent sway at one of the outlets that most relentlessly pursued that synecdoche, the dossier as the Russian investigation. Former hawks on Russia, like Trey Gowdy, were lured into fiercely defending Trump even in the face of overwhelming proof of his compromise by the able gate-keeping of Kash Patel and the discovery of how the use of informants can implicate members of your own tribe, as it did with Carter Page. By the time Billy Barr deceived the nation with his roll-out of a very damning Mueller Report, almost every single Republican member of Congress was susceptible to ignoring damning evidence that their President treated both the pursuit of the presidency and his office as a means for self-benefit, no matter what that did to US interests.

Key to the process of co-opting virtually all Republican members of Congress was the process of villainizing the people who had tried to keep the country safe from Russian compromise, starting with Peter Strzok but also including Andy McCabe. That process easily exploited the same apparatus of Congress’ “oversight” powers — and the same susceptibility to heated rants over logic — that had been used to turn a tragic incident in Libya into a multi-year investigation of Hillary Clinton. Also key to that process were certain propagandists on Fox News, including three of the lawyers that stood with Rudy yesterday: DiGenova and Toensing and Sidney Powell.

The day after Mueller closed up shop, those same propagandists joined with Rudy to pursue a revenge plot for the investigation — they started pursuing a way to frame Joe Biden in anticipation of the 2020 election. Most Democrats didn’t believe that Hillary lost because of Russia, but Trump and his conspiratorially-minded advisors believed they did. And so Rudy, relying on advice Manafort offered from prison, used the same networks of influence to try to frame Biden in a Ukrainian plot that, at the same time, might provide an alternative explanation for the Russian crimes Trump was personally implicated in.

Once again, Trump got personally involved, extorting the Ukrainian president over a series of months, “I’d like you to do us a favor, though.”

There’s no doubt that Trump’s abuse of Congress’ power of the purse in an effort to extort a campaign benefit from a foreign country merited impeachment. There’s also no doubt that it served to heighten the tribalism — and ranting illogic — of Republican members of Congress.

Things snowballed further.

That tribalism, by itself, might have gotten Trump re-elected. But it wasn’t enough for Trump. Instead, the President prepared an attack on the integrity of the vote by dissuading his own supporters from using mail-in ballots, setting up the Equal Protection hoaxes that Rudy has pushed in recent days. Georgia Secretary of State Brad Raffensperger claims that, by itself, the effort to discredit mail-in voting cost Trump the state of Georgia. But partisan attacks are what got Trump where he is, and partisan attacks are what he knows.

Trump also doubled down on what had gotten him elected in 2016: overblown attacks sourced to stolen emails, Hunter Biden’s laptop, in this case rolled out by one guy at legal risk for his ties to Fraud Guarantee, and another under indictment for exploiting the tribalism of Trump’s supporters to commit fraud. According to CNN, the FBI believes these emails may have been packaged up by the Russian agents that have been buying access through Rudy and DiGenova and Toensing.

Trump’s DOJ, working with Sidney Powell, even tried to invent an attack on Joe Biden by altering exhibits in a court proceeding. In that case, the overblown attack was sourced to real notes, albeit notes that actual law enforcement officials had packaged in such a way as to tell a false story. Yet again, however, this was a false story that scapegoated those who’ve protected the interests of the country — adding Joe Biden to the targets along with McCabe and Strzok — to try to cover-up unbelievably damning evidence about Trump’s coziness with Russia. The effort to deny that Mike Flynn was secretly working for Turkey while claiming to work for Trump and to deny that Mike Flynn repeatedly called up the country that had just attacked us to try to obtain further benefits turned into an attack on those who tried to keep the country safe from sell-outs like Mike Flynn.

It’s a false story. But Republicans in Congress believe it with all their being. And so it has succeeded in convincing those Republicans they need to redouble their efforts to defend Trump.

So, yesterday, Rudy and the other propagandists gave a press conference that was, for the first time, broadly labeled as a coup attempt and roundly mocked, even by otherwise true believers. Trump, Rudy, Republicans, they’re all victims of an international plot launched by George Soros, Cuba, China, Venezuela, according to Rudy and the lawyers who spun the last several conspiracy theories on Fox News.

And this propaganda, an attempt to set aside the clear will of the voters, derives its strength not from any basis in fact. Rather, it derives its power from the fact that Republicans have gotten so tribally defensive of Trump, they will set aside the clear good of the country to back him.

Donald Trump, if he leaves office, may face legal consequences for what he did in 2016 to get elected. If Trump leaves office, Rudy may face consequences for the things he has done since to keep Trump in office.

To save themselves, they’re pursuing the same strategy they’ve pursued since 2016: telling bullshit stories by waving documents around and lying about what they say, relying on tribalism and raw power rather than reason to persuade their fellow Republicans. It just so happens that several of these stories got told with the help of Russian foreign agents (though some got told with the help of a corrupted law enforcement). It just so happens that Trump and Rudy (and Stone’s) willingness to rely on Russian help to tell these stories has greatly exacerbated their legal risk, and therefore made the spewing of bullshit stories more urgent.

But the Russian role mostly serves to magnify the desperation of this gambit.

Mostly, this is about weaponizing the tribalism of the Republican party that puts party loyalty over loyalty to the country or Constitution. And while there have been a few defectors from this dangerous tribalism in recent days, for the most part, Republicans in Congress don’t care that Trump is exploiting them like this or even — in some cases — don’t understand that this is all a shoddy set of lies.

Donald Trump Was Personally Involved in Flynn’s “Collusion” with Russia to Protect Israel

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As noted earlier, Judge Emmet Sullivan has released the Mueller warrants targeting Mike Flynn. The two pertaining to his lies about the calls with Russia’s Ambassador — an August 2017 one targeting Flynn, KT McFarland, and his scheduler, and a September 2017 one targeting top Trump officials — make it crystal clear that Flynn knew he was lying when he covered up the calls, because he and McFarland were also lying to other Transition officials in real time. The affidavits also explain why Flynn lied: Trump was personally involved in (at least) the effort to undermine a UN effort targeting Israel.

Flynn’s conversations with Kislyak arose directly out of the “back channel” meeting with Jared Kushner

It has long been public that on November 30, 2016, Jared Kushner took a meeting with Sergey Kislyak at which he asked the Russian Ambassador if Russia could set up a back channel for communication with the Transition. Here’s the description from the Mueller Report:

It took place at Trump Tower on November 30, 2016.1139 At Kushner’s invitation, Flynn also attended; Bannon was invited but did not attend.1140 During the meeting, which lasted approximately 30 minutes, Kushner expressed a desire on the part of the incoming Administration to start afresh with U.S.-Russian relations.1141 Kushner also asked Kislyak to identify the best person (whether Kislyak or someone else) with whom to direct future discussions—someone who had contact with Putin and the ability to speak for him.1142

The three men also discussed U.S. policy toward Syria, and Kislyak floated the idea of having Russian generals brief the Transition Team on the topic using a secure communications line.1143 After Flynn explained that there was no secure line in the Transition Team offices, Kushner asked Kislyak if they could communicate using secure facilities at the Russian Embassy. 1144 Kislyak quickly rejected that idea. 1145 4.

It was also public that, following that meeting, Kislyak started working on setting up a meeting between sanctioned banker Sergey Gorkov and the President’s son-in-law.

On December 6, 2016, the Russian Embassy reached out to Kushner’s assistant to set up a second meeting between Kislyak and Kushner. 1146 Kushner declined several proposed meeting dates, but Kushner’s assistant indicated that Kislyak was very insistent about securing a second meeting. 1147

What wasn’t public is that, in response to these same requests for a meeting that (Kushner claimed in his testimony) Kushner rebuffed, he also ordered Flynn to respond.

[On December 6, 2017] The Embassy official also asked Kushner’s assistant to provide him with the contact information for FLYNN and to ask FLYNN to call the Russian Ambassador at either his home number or his cell phone number. Kushner’s assistant forwarded the email chain to FLYNN’s Chief of Staff, cc’ing FLYNN himself, and wrote “Please see the correspondence below and ensure Lt. General Flynn gets in contact with Russian Ambassador Sergey via phone.

That set off a debate. Marshall Billingslea, who had experience in government, recommended they postpone any response until after inauguration. But KT McFarland objected.

Let Flynn make this decision. Russian amb historically does meet with nsc head. Their amb to USA and to UN is of a very high rank with close relations to Putin. Plus Flynn has met with him in past.

McFarland’s stance is completely at odds with the claimed view of both Flynn and especially Kushner that Kislyak wasn’t the right person to liaise with. And it also may explain why she and Flynn hid some of his contacts with Kislyak even from other Transition staffers: because they knew this was wrong.

Trump was probably directly involved in the effort to delay a UN veto condemning Israel

The language from the affidavits on the Kushner-driven effort to undermine Obama’s position on an Egyptian condemnation of illegal Israeli settlements includes several important details.

First, it all started when a “senior advisor to a Republican Senator” reached out to McFarland and others (several at their personal accounts) alerting them that the Obama Administration was not responding to the effort. Jared was very centrally involved in the response.

According to records obtained during the course of the investigation, at approximately 8:46 a.m. on December 22, 2016, FLYNN had a four-minute conversation with Jared Kushner. After that conversation concluded, at approximately 8:53 a.m., FLYNN called the Russian Ambassador to the U.S. FLYNN then called a representative of the Egyptian government and had a four-minute conversation with him. At approximately 8:59 a.m., FLYNN had a three-minute conversation with the Russian Ambassador. Over the next few hours, FLYNN had several additional phone calls with the representative of the Egyptian government.

Remember: The DC Attorney’s Office was investigating a bribe from Egypt that allowed the Trump campaign to stay afloat after they had gone broke in August 2016; Barr shut that investigation down.

The entire UN intervention is way more damning that previously reported. First, it’s quite clear that Flynn reached out to both Russia and Egypt, and because McFarland bragged about his success with others, everyone knew that to be true. That didn’t prevent Kushner from lying to the larger group email about the fact after Egypt announced that they would stand down.

Kushner replied all to that email [including Spicer, Bannon, Priebus, Kellogg, McFarland, Kushner, and one other person whose name is redacted] and wrote: “Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede? This happens to be the true fact pattern and better for this to be out there.”

This was a lie. Flynn had reached out, on Kushner’s orders.

Or maybe not just Kushner’s. The affidavit reveals that Trump was involved with this.

At approximately 8:26 p.m. on December 22, 2016, K.T. McFarland emailed FLYNN and Sarah Flaherty and stated that FLYNN had “worked it all day with trump from mara lago.”

Remember, Ric Grenell withheld the transcript from the call Flynn placed to Kislyak on December 22 and in fact the affidavits show Flynn and. Kislyak had two conversations that day (Mueller significantly downplayed Russia’s concessions on the December 23 one). There’s a latter call (the December 29 one) where the analysts suggest that Flynn might be on a speaker phone.

That suggests it’s possible that Trump was on the call with Kislyak, or at least in the room. That might explain why Kushner immediately tried to establish a false record that Egypt had contacted the Trump Transition, not vice versa.

One more thing makes this exchange especially damning. Flynn wrote to the larger group on December 23 and revealed he had called the Ambassador. Then, later that day, McFarland said that Flynn should leak to the press about,

the crucial role [he] played in working your contacts built up over the decades to get administration ambush Israel headed off. You worked the phones with Japanese Russians Egyptians Spanish etc and reversed a sure defeat for Israel by kerry/Obama/susan rice/samantha power cabal.

Those communications make it far less credible that he forgot this effort, which makes the personal involvement of Donald Trump far more interesting.

Note, there appears to be another contact involving Russia (possibly not with Kislyak directly) on December 23 and the affidavits also confirm that Flynn did make a condolence call on December 20 to Russia about the assassination of the Russian Ambassador to Turkey. Grenell did not release these transcripts either.

Flynn lied about his sanctions discussion to hide that Mar-a-Lago was involved

As I have explained, the reason Flynn’s lies to the FBI were material is because he was hiding that he coordinated his calls with Mar-a-Lago. Even Sidney Powell has submitted clear evidence that investigators considered that a key question. Flynn lied to the FBI by saying that he didn’t know about Obama’s sanctions announcement when he contacted Kislyak because he was out of the loop in Dominican Republic. But the timeline laid out the in affidavit makes clear how blatant a lie that was. Here’s what it looks like (I’ve bolded details in this timeline that Mueller hid in the report, as noted in this post):

December 28

11:24AM: Obama Twitter account announces sanctions against Russia, with link to description

December 29

11:49AM: McFarland emails Flynn and three others.

1:53PM: McFarland and other Transition Team members and advisors (including Flynn, via email) discuss sanctions.

2:07PM: Sarah Flaherty, an aide to McFarland, texts Flynn a link to a NYT article about the sanctions.

2:29PM: McFarland, using her GSA phone, calls Flynn (on his personal phone), but they don’t talk.

Shortly after 2:29PM: McFarland and Bannon discuss sanctions; according to McFarland’s clean-up interview, she may have told Bannon that Flynn would speak to Kislyak that night.

3:14PM: Flynn texts Flaherty and asks “time for a call??,” meaning McFarland. Flaherty responds that McFarland was on the phone with Tom Bossert. Flynn informs Flaherty in writing that he had a call with Kislyak coming up, using the language, “tit for tat,” that McFarland used on emails with others and that Flynn himself would use with Kislyak later that day.

Tit for tat w Russia not good. Russian AMBO reaching out to me today.

3:50PM: McFarland (apparently using her GSA phone) calls Flynn, they speak for 6:39 minutes

[Note: Somewhere in here, Flynn called SJC Staffer Barbara Ledeen’s spouse, Michael, which makes her involvement in undermining the investigation all the more corrupt]

4:01PM: Someone (likely Tom Bossert) relays what Lisa Monaco passed on to him to Flynn, McFarland, Bannon, Kellogg, and Priebus  explaining that “Russiand [sic] have already responded with strong threats, promising to retaliate. [She] characterized the Russian response as bellicose.

4:20PM: Using his hotel phone in the Dominican Republic (!!!!), Flynn calls the Russian Embassy

4:43PM: McFarland emails Flynn, Kellogg, Flaherty, Spicer, Priebus, Bannon and one other (likely Bossert), saying that,  “Gen [F]lynn is talking to russian ambassador this evening.”

4:44PM: Flynn emails McFarland and two others.

Before 5:45PM: McFarland briefed President-Elect Trump, Steve Bannon, Reince Priebus, Sean Spicer, and others on the sanctions. McFarland remembers that someone at the briefing may have mentioned the upcoming Kislyak call.

6:05PM: McFarland emails Gelbinovich and one other person.

After the briefing: McFarland and Flynn speak by phone (they spoke from 6:08 to 6:35PM). Flynn tells McFarland, “that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration,” and McFarland tells Flynn about the briefing with Trump.

10:06PM: Gelbinovich emails Flynn.

This timeline makes clear that Flynn and McFarland spoke about sanctions before Bossert relayed what Monaco had passed on tho him, and Flynn may have reviewed Bossert’s email, reflecting his inquiry to Monaco, before he called Kislyak. Importantly, by the time of the security briefing that day, Flynn had already spoken to Kislyak.

The affidavit then makes it clear how damning it is that McFarland wrote an email deliberately hiding that (she knew) Flynn had raised sanctions with Kislyak:

December 30

5:32AM: Sergey Lavrov says Russia will respond

7:15AM: Putin says they won’t respond

7:29AM: McFarland emails Flynn and two others

8AM: McFarland emails a group (again, Flynn appears to have been on his personal email) stating that Putin was sending a signal to Trump he wants to improve relations

10:50AM: McFarland emails the group again saying that “Putin response to NOT match obama tit for tat are signals they want a new relationship starting jan 20. They are sending us a signal.”

11:41AM: Trump tweets “Great move on delay (by V. Putin) – I always knew he was very smart!”

12:02PM: McFarland sends email to group with summary of Flynn’s call with Kislyak that “does not indicate that they discussed the sanctions”

Flynn would ultimately admit that the text he sent to McFarland that she used to inform the others deliberately left off his mention of sanctions.

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

The timing, of course, is key: Once Trump weighed in, Flynn built plausible deniability that Trump had initiated outreach to Kislyak. Remember: The transcript shows that Flynn, not Kislyak, raised sanctions.

The affidavits have more on both Flynn and McFarland’s exchanges on December 31, when Flynn told Kislyak that Trump was aware of their calls, as well as details about how Flynn crafted a knowingly false cover story for the press. They also reveal another follow-up call from Russia on January 6.

Together, however, these affidavits make any claim from Mike Flynn that he didn’t deliberately lie to the FBI to be an utter fabrication. He and McFarland were lying to top Trump officials in real time. They were doing so to hide Trump’s personal involvement in all this from their own colleagues.

The affidavits also make it clear that the US government has abundant evidence to prove that Mike Flynn lied, just with the paper trail and the testimony of Trump officials as well as abundant DOJ documents helpfully released by Sidney Powell showing that every single account of Flynn’s interview DOJ has tracks with the 302 on which he was charged. They don’t need Peter Strzok or Joe Pientka’s testimony to prove Mike Flynn lied. Flynn and McFarland already made that case.

And we know why Flynn lied: Trump not only knew of Flynn’s calls to Kislyak. He may have been on the line for the Israeli-related ones.

“Looking Forward” Will Be Harder for President Biden than It Was for President Obama

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NBC has a story that has caused a bit of panic, reporting that “Biden hopes to avoid divisive Trump investigations, preferring unity.”

The panic is overblown, given that the main point of the story is that Biden is hoping that DOJ will resume a more independent stance than that taken, especially, by Billy Barr.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.

“His overarching view is that we need to move the country forward,” an adviser said. “But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department.”

If there were to be investigations of Trump, everyone should want them to be completely insulated from the White House.

The story raises two more specific types of investigations which are both likely moot.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he “just wants to move on.”

Another Biden adviser said, “He’s going to be more oriented toward fixing the problems and moving forward than prosecuting them.”

New York state already has a tax investigation into Trump, so a federal one would be duplicative. And the pardon power is absolute; there’s little likelihood DOJ could investigate the pardons that Trump grants, because doing so would be constitutionally suspect.

All that said, attempting to move forward may not be as easy for President Biden as it was for President Obama.

That’s because there are a number of investigations that implicate Trump that are either pending (as of right now, but I don’t rule out Trump trying to kill them in the interim) or were shut down corruptly, to say nothing of the obstruction charges Mueller effectively recommended (which aforementioned pardons would renew, even in spite of DOJ’s declination prior to pardons). At a minimum, those include:

  • The Build the Wall fraud case against Steve Bannon and others that might, eventually, implicate the failson or his close buddies
  • The Igor Fruman and Lev Parnas graft which clearly implicates Rudy Giuliani and by all rights should always have included Trump’s extortion of Volodymyr Zelensky; given the timing of David Correia’s plea, it’s likely there will be grand jury testimony from him banked
  • Other foreign agent charges against Rudy
  • The investigation into Erik Prince for selling his private mercenary services to China
  • False statements charges against Ryan Zinke that Jeffrey Rosen attempted to kill
  • Various campaign finance and grift charges implicating Roger Stone, Paul Manafort, and Brad Parscale, to say nothing of the hush payments involving Trump personally
  • Possible hack-and-leak charges against Roger Stone from 2016, as well as the related pardon quid pro quo for Julian Assange implicating Trump himself
  • The possible aftermath of Judge Sullivan’s decisions in the Mike Flynn case, which could include perjury referrals or an invitation for DOJ to prosecute Flynn on the foreign agent charges he pled out of

All of these investigations still do or were known to exist, and if they no longer exist when Biden’s Attorney General arrives at DOJ, it will be because of improper interference from Barr.

The last of these might get particularly awkward given that multiple people at Billy Barr’s DOJ, possibly in conjunction with Sidney Powell and Trump campaign lawyer Jenna Ellis, altered documents to concoct a smear targeting Joe Biden in a false claim that he invented a rationale to investigate Flynn for undermining sanctions on Russia. You cannot have an independent DOJ if the people who weaponized it in such a way go unpunished. Except investigating such actions would immediately devolve into a partisan fight, particularly if Republicans retain control of the Senate. (This particular issue will most easily be addressed, and I suspect already is being addressed, via a DOJ IG investigation.)

Still, in the other cases, DOJ may need to decide what to do with investigations improperly closed by Barr, or what to do with investigations where just some of the defendants (such as Fruman and Bannon) get pardons.

And all this will undoubtedly play against the background of the confirmation battle for whomever Biden nominates. I would be shocked if Mitch McConnell (especially if he remains Majority Leader) didn’t demand certain promises before an Attorney General nominee got approved.

So none of this will be easy.

A far more interesting question will pertain to what President Biden does about the ICC investigation into US war crimes in Afghanistan, crimes that occurred during both the Bush and Obama Administrations. Mike Pompeo launched an indefensible assault against the ICC in an attempt to block this investigation, sanctioning ICC officials leading the investigation. Biden’s Secretary of State will have to decide whether to reverse those sanctions, effectively making a decision about whether to look forward to ignore crimes committed (in part) under Barack Obama.

Sidney Powell Implicates Barbara Ledeen in Her Effort to Undermine Democracy

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Yesterday, GA’s Republican Secretary of State Brad Raffensperger used various means to push back on the Republicans who were trying to cheat to win. In addition to a genuinely useful thread from Erick Erickson debunking one after another conspiracy theory about GA’s vote, he gave an interview to the WaPo detailing how his Republican colleagues have been pressuring him.

He called Doug Collins (who, remember, campaigned with all the Trump felons) a liar.

The normally mild-mannered Raffensperger saved his harshest language for Rep. Douglas A. Collins (R-Ga.), who is leading the president’s efforts in Georgia and whom Raffensperger called a “liar” and a “charlatan.”

Collins has questioned Raffensperger’s handling of the vote and accused him of capitulating to Democrats by not backing allegations of voter fraud more strongly.

[snip]

“I’m an engineer. We look at numbers. We look at hard data,” Raffensperger said. “I can’t help it that a failed candidate like Collins is running around lying to everyone. He’s a liar.”

More alarmingly, Raffensperger described Lindsey Graham suggesting he should throw out entire counties of legally cast votes.

Raffensperger also said he spoke on Friday to Graham, the chairman of the Senate Judiciary Committee, who has echoed Trump’s unfounded claims about voting irregularities.

In their conversation, Graham questioned Raffensperger about the state’s signature-matching law and whether political bias could have prompted poll workers to accept ballots with nonmatching signatures, according to Raffensperger. Graham also asked whether Raffensperger had the power to toss all mail ballots in counties found to have higher rates of nonmatching signatures, Raffensperger said.

Raffensperger said he was stunned that Graham appeared to suggest that he find a way to toss legally cast ballots. Absent court intervention, Raffensperger doesn’t have the power to do what Graham suggested because counties administer elections in Georgia.

“It sure looked like he was wanting to go down that road,” Raffensperger said.

As a number of people have pointed out, it’s a crime under GA law to solicit election fraud.

Meanwhile, Sidney Powell continues her effort to drum up support for undermining democracy. In a tweet this morning, she included Lindsey Graham staffer Barbara Ledeen among her co-conspirators.

In addition to working with Mike Flynn to try to reach out to hostile foreign governments in hopes they had hacked Hillary’s emails, Ledeen’s spouse, Michael, was the first person Flynn called when he was trying to figure out how to undermine sanctions on Russia.

Ledeen is, in spite of those glaring conflicts, the key staffer behind Lindsey’s efforts to undermine the Russian investigation. That suggests she’s also a key staffer behind Lindsey’s decision to ignore how DOJ has altered documents in Bill Barr’s effort to undermine the prosecution of Powell’s staffer.

I honestly believe that Lindsey does all this because his mind has rotted and people like Ledeen have told him so many lies he believes it. But now he’s entering a potentially criminal racket.

Ockham’s Cut: How the Andrew McCabe Notes Were Doctored

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Some weeks ago, I asked for help understanding the irregularities of the Andrew McCabe notes. Among other observations, two people showed that the notes had been created in layers, with the redaction of the protective order footnote seemingly added twice. Since then, longtime friend of the site “William Ockham” has done more analysis (he was the tech expert identified in the second post), and determined that the file must have been made as part of a multi-step process. I share his analysis here. The italics, including the bracket, are mine, the bold is his.

Here’s what I can say about the McCabe notes. The easiest way to explain this is to think about the ancestral tree of the images that are embedded in the documents we have. It all starts with the original page from McCabe’s notes (Generation 0).

Someone scanned that page to create an unredacted image file (Gen 1).

That image was printed (Gen 2). {From a technical point of view, this is what happens when a page is copied on a modern copy machine. Based on the evidence I have, I’m fairly sure that a digital image of the original page must exist. If not, it sucks to be the FBI.)

An analog redaction (probably with a black Sharpie or similar instrument) was applied. I strongly suspect that the date was added to the same physical page before it was rescanned. It’s possible, although I consider it very unlikely, that the date was added after the physical page was rescanned. These original redactions aren’t totally black the way they would be if done with the DoJ’s redaction software. In any event, this rescanned image is Gen 3.

That physical page with the date was scanned to an image file (Gen 4).

At this point, a PDF file  that will become 170510-mccabe-notes-jensen-200924.pdf is created by embedding the Gen 4 image and saving the file as a PDF. Then, a separate process adds the words “SUBJECT TO PROTECTIVE ORDER” and “DOJSCO – 700023502” to the metadata inside the file and draws the words in a font called “Arial Black” at the bottom of that page and the file is saved again. ***I am 100% certain that a PDF was created exactly like I describe here***

Update from Ockham to describe how the redaction shows up in the DOJ footnote:

A PDF file is really a software program that has instructions for rendering one or more pages. An image similar to the one above [Gen 4] was turned into a PDF file which contained one set of instructions:

  1. Store about 1 megabyte of compressed data.
  2. Take that data and render an image by interpreting the data as an 8bit per pixel grayscale image 1710 pixels wide by 2196 pixels high (at normal 96 pixels per inch, 17.81 in by 22.87 in, so obviously scanned at a much higher resolution)
  3. Scale that image so it takes up an entire 8 ½ by 11 page
  4. Render the image

Then, an automated process adds the footer. The part of the instructions for rendering the Bates number are still in the document and look like this:

Operation Description Operands
Dictionary E.g.: /Name << … >> /Artifact<</Contents (DOJSCO – 700023502)/Subtype /BatesN /Type /Pagination >>
BDC (PDF 1.2) Begin marked-content sequence with property list
q Save graphics state
cm Concatenate matrix to current transformation matrix 1001458.234985434.7999268
gs (PDF 1.2) Set parameters from graphics state parameter dictionary /GS0
Tr Set text rendering mode 0
Tf Set text font and size /T1_031.5 [This is a pointer to a font name and size, Arial Black – 18PT]
Do Invoke named XObject /Fm0 [This is a pointer to the actual text and location to render it
Q Restore graphics state
EMC (PDF 1.2) End marked-content sequence

Originally, there would have been a similar set of instructions for the “SUBJECT TO PROTECTIVE ORDER” part as well. They would have looked almost the same except for the “Artifact” operands, the actual text, and the positioning instruction.

Now, here’s the really important part. The DoJ redaction software presents the rendered PDF file to the end user. However, it operates on the actual PDF by rewriting the instructions. When the user drew the rectangle around the words “SUBJECT TO PROTECTIVE ORDER”, the redaction software has to find every instruction in the PDF that made changes to the pixels within the coordinates of the rectangle. The redaction software sees two “layers” of instructions that affect the rectangle, the text writing instructions and the image itself. The redaction software removes all the instructions for writing the text and replaces those instructions with instructions to draw a black box in the same place. Then, it also blacks out the pixels in the image itself. It has to do both of those things to ensure that it has removed all of the redacted information, even though in this case it didn’t really need to do both.

Then someone at the DoJ opens the PDF and redacts the words “SUBJECT TO PROTECTIVE ORDER” from the page. The redaction does all of the following things:

  • It removes the metadata entry with the words “SUBJECT TO PROTECTIVE ORDER”,
  • It removes the commands that draw the words.
  • It replaces those commands with commands that draw a black rectangle the same size as the rendered words.
  • It replaces the pixels in the Gen 4 image that correspond to the area of the image that the words were drawn on top of with solid black pixels.

Those last two steps create two very slightly offset redaction boxes. The slight offset is caused by errors caused by using floating point math to draw the same shape in two different coordinate systems. Step 4 creates an image which I’ll call Gen 5 which can be extracted from 170510-mccabe-notes-jensen-200924.pdf.

When someone notices that this file and the Strzok notes have been altered, Judge Sullivan asks for the unaltered versions.  Jocelyn Ballantine has a problem. There’s no redacted version of McCabe’s notes without the added date. She can’t use the DoJ’s redaction software because that would look even worse (a big black rectangle where the date was added).  What’s a stressed out assistant US Attorney to do? Here’s what she did. She took the unredacted PDF file I mentioned above and converted it to an image. Then she used image editing software to remove the date, which made that rectangle of white pixels. She fires up Microsoft Word on her DoJ work computer and starts creating a new document (likely from a template designed creating exhibit files). The first page just says Exhibit A and on the second page (which has all margins set to 0) she pastes in the image she just created, scaled to fit exactly on the page. Without saving the Word file, she prints the document (using the Adobe Distiller print driver) to PDF and submits the printed file as the supposedly unaltered McCabe notes. [Gen 6]

It seems like these steps look like this:

Gen 0: FBI had or has McCabe’s original notes presumably stored with his other documents.

Gen 1:  Someone took the notes from there and scanned them, presumably to share with other investigators.

Gen 2: Someone printed out Gen 1 and made notes and otherwise altered them. This is the stage at which the government claims someone put a sticky note with a date on the notes, but it appears they just wrote the date on the notes themselves. If everything had been operating normally, however, when Judge Sullivan asked for unaltered copies of the documents, they could have used the Gen 1 copy to resubmit. They didn’t do so, which suggests the chain of custody may have already been suspect. Some possible explanations for that are that Jeffrey Jensen’s team received the document from either DOJ IG or John Durham’s investigation, not directly from the FBI files. That wouldn’t be suspect from the standpoint of DOJ internal workings, but it would be proof that DOJ knew the documents they relied on in their motion to dismiss had already been reviewed by Michael Horowitz or Durham’s teams, and found not to sustain the conspiracies that Billy Barr needed them to sustain to throw out Flynn’s prosecution (or that DOJ claimed they sustained in the motion to dismiss).

Gen 3: I think Ockham is viewing the creation of the image file in two steps. First, a scan of the file with the note written on it is made, which is Gen 3.

Gen 4: Then, probably before the file is handed off to Jocelyn Ballantine to “share” with Mike Flynn’s team (I’m scare-quoting because I suspect there may have been a back channel as well), the redaction is created for where the protective order stamp would go. Here’s what Gen 4 would have looked like:

Gen 5: Gen 4 is then prepared as an exhibit would normally be, by putting it into a PDF and adding the Bates number and protective order stamp, then redacted the latter. Reminder: The protective order footer was also redacted from (at least) the two altered Strzok notes, as I show here.

Gen 6: When Peter Strzok and McCabe tell Sullivan that their notes have had dates added, DOJ re-releases the notes such that the notes are no longer added but the redacted footnote is. As Ockham notes (and as I think everyone who looked closely at this agrees) the date is not removed by taking off a post-it. Instead, it is whited out digitally, leaving a clear mark in the exhibit.

One reason this is so interesting — besides providing more proof that DOJ went to some lengths to make sure a version of these notes did not include the protective order, freeing Sidney Powell to share it with Jenna Ellis and whomever else she wanted, so they could prepare campaign attacks from it — is that DOJ refused to say who added the date to McCabe’s notes. As I noted in my own discussion here, one possible explanation why DOJ kept redacting stuff rather than going back to the original (other than having to submit the file for formal declassification and the post-it hiding other parts of the document) is because the chain of custody itself would undermine the claims DOJ has made in the motion to dismiss, by making it clear that someone had already reviewed this document and found no criminal intent in the document.

The other problem with this multi-generation alteration of Andrew McCabe’s notes is, if anyone asks, it is going to be very difficult for anyone involved to disclaim knowledge that these documents were altered. Mind you, Ballantine already has problems on that front: I emailed her to note that the FBI version of Bill Barnett’s “302” she shared redacted information that was material to Judge Sullivan’s analysis, the positive comments that Barnett had for Brandon Van Grack. So if and when Sullivan asks her why DOJ hid that material information from him, she will not be able to claim she didn’t know. Then there’s her false claim — which both Strzok and McCabe’s lawyers have already disproved — that the lawyers affirmed that no other changes had been made to the notes.

But if this file was prepared as Ockham describes, then both DOJ and FBI will have a tough time claiming they didn’t know they were materially altering documents before submitting them to Judge Sullivan’s court.

Updated with some corrections from Ockham.

Convergence: Mueller Obstruction, Ukrainian Favors, and DOJ’s Altered Documents

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Amid uncorrected false claims about election results and tweets inciting violence in DC, Donald Trump tweeted this last night.

After respectable law firms withdrew in AZ and PA, Trump’s legal team is now down to Rudy, DiGenova and Toensing, Sidney Powell, and Jenna Ellis, along with “other wonderful lawyers” whom he did not name.

Finally, the grand convergence: Trump’s obstruction of the Mueller investigation into Trump’s “collusion” with Russia, his demand that Ukraine’s President Volodymyr Zelensky “do him a favor” by inventing an investigation of Joe Biden, and the Billy Barr-led effort to blow up Mike Flynn’s prosecution for covering up Trump’s efforts to undermine sanctions imposed for helping Trump to win. All one grand effort led by lawyers barely clinging to reality.

That’s not a unique observation. Many people are making it (along with laughing at the sorry state of affairs for Trump, a glee that may be premature).

But it’s worth focusing on the relationship between Jenna Ellis and Powell. As I have noted repeatedly, when Judge Emmet Sullivan asked Powell whether she had been in direct contact with Trump about Mike Flynn’s case, she not only confessed to that, but also admitted multiple contacts with Trump’s campaign lawyer, Ellis. That means Ellis is directly implicated in whatever effort there was to alter documents to launch a false attack on Joe Biden, one intimately tied to DOJ’s false excuses (that the investigation was primarily about the Logan Act) for wanting to blow up the Flynn prosecution.

That is, the effort to throw out the Mike Flynn prosecution (about which the lawyers have mostly gone silent, post-election) was all part of an effort to obtain power via illegitimate means. And still is.

The Last Time Billy Barr Ordered a Politicized Investigation, DOJ Altered Documents for Public Consumption

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It is a fact that someone (or someones) who were part of the Jeffrey Jensen review of the Mike Flynn prosecution altered documents for public consumption. That is not speculation. It is not hyperbole. It is a fact, one that other outlets had better start replicating and enhancing if they want to prevent Barr’s green light on investigations into election irregularities, announced last night, from doing the same.

At a minimum, DOJ removed protective order footers from a set of documents shared with Sidney Powell on September 23, in advance of the first debate.

The altered January 5, 2017 Strzok notes, altered to suggest a January 5, 2017 meeting might have happened on January 4, 2017, 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, altered to include a date, with the footer redacted out:

The realtered McCabe notes, with the footer unredacted:

The two other documents released that day, a newly repackaged set of Page-Strzok texts (with newly released personal information that constitutes a new violation of the Privacy Act) that DOJ now claims not to have had a purpose to release and a set of FBI analyst texts the identities of which DOJ seems very concerned about hiding, also lacked protective order footnotes.

The three documents (above) subsequently released with the protective order replaced all had dates added to the initially altered document, a misleading date in at least the case of Peter Strzok’s January 5, 2017 notes and misleading redactions used to suggest something false about the date added to the McCabe notes. DOJ claims those added dates were inadvertent, but the fact they happened with documents that had otherwise been altered (and on a document, the Strzok January 5, 2017 notes, that had already been released once without the date) makes that claim highly unlikely. When prosecutor Jocelyn Ballantine submitted a filing admitting that the dates had been altered, she falsely claimed that Strzok and McCabe’s lawyers had confirmed nothing else was altered.

There are several other problems with the altered set of Andrew McCabe notes (including that notes about prep for the Global Threats Hearing got released with no declassification stamp), problems that merit more attention from experts.

But those aren’t the only pieces of evidence that the Jeffrey Jensen investigation evolved from inventing an excuse to blow up the Flynn prosecution into an opportunity to set up campaign attacks for the President. Pro-Trump FBI Agent Bill Barnett gave an interview that was materially inconsistent with his actions during the Flynn investigation (and that claimed to be unaware of key pieces of evidence against Flynn). When DOJ released it, they redacted it in such a way as to hide complimentary comments from Barnett about Brandon Van Grack that would have completely undermined DOJ’s claimed reasons to throw out Flynn’s prosecution.

There are more signs of irregularities with this “investigation.” But this list by itself proves that DOJ, in an investigation personally ordered up by Billy Barr, used the “investigation” to package up propaganda to help Donald Trump. The package even seems to have served to tee up an attack Trump made on Joe Biden in the first debate.

As noted, last night Barr authorized what had previously been forbidden for over forty years, DOJ’s conduct of investigations into claims of irregularities ginned up by the very same lawyers — Sidney Powell and Rudy Giuliani — who invented the complaints about the Flynn prosecution. One of Barr’s investigations has already altered official documents to sustain false claims. That means there’s reason to believe he would do it again, to serve the same cause. Indeed, Trump’s election loss gives Barr’s a greater incentive to repeat the process, to ensure he is not replaced by someone who would treat these alterations as a crime.

A Bill Barr politicized investigation altered documents to serve propaganda in the past. We should assume it will happen again.

Lindsey Graham Responds to News of Potential Ongoing Crime by Promising to Ignore It

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As I have been laying out, there is growing evidence that when DOJ added dates (a misleadingly incorrect one in at least one case) to Peter Strzok and Andrew McCabe notes, they altered the documents in some other ways. At the very least, they redacted protection order footers in the first documents shared with Sidney Powell, but there appear to be other irregularities in the McCabe notes, irregularities that may be far more serious.

And that’s before you get to DOJ’s claims that:

  • They didn’t know the date of the January 5, 2017 meeting (even though documents in the docket make that date clear)
  • The Bill Barnett “report” was a 302
  • Lawyers for Peter Strzok and Andrew McCabe had affirmed there were no (other) alterations to their clients’ notes

Those are all false, and the last one is fairly demonstrably maliciously false.

I’ve been trying to chase down places where original versions of the Andrew McCabe notes might exist, to compare with what got released in the docket. In addition to DOJ IG (which might have the notes in investigative files relating to the Carter Page investigation), I figured the Senate Judiciary Committee should have a copy.

After all, McCabe had been scheduled to testify on October 6, before he canceled on account of the GOP COVID cluster.

So I called the committee spox, Taylor Reidy, asking if they had copies of McCabe’s notes, since I wanted to use them to see whether FBI had committed a crime. She (credibly) claimed not to know about DOJ altering official documents, given the mad rush to confirm Amy Coney Barrett. So I sent her information to help her out.

Thanks for seeing if you can chase down the copies of these documents the Committee has received.

Basically, in some documents shared with Sidney Powell and then loaded to the docket in the Mike Flynn case, FBI had added (incorrect, in at least one case) dates to some Peter Strzok and Andrew McCabe notes, which they subsequently admitted to the court, stating that the alteration was unintentional.

https://www.politico.com/news/2020/10/07/doj-altered-flynn-document-427280

But it’s now clear that the FBI also removed the “protection order” footers in those documents as well (and have restored them in the re-altered documents).

There are a number of other irregularities with the McCabe notes, including that it doesn’t have a declassification stamp, even though the notes talk about Worldwide Threats hearing prep.

So I’m wondering if SJC could release the version of the notes the Committee received so we can understand what those notes originally looked like.

As I know from following the Crossfire Hurricane investigation closely, I’m know the Committee takes alterations of official documents very seriously.

I appreciate any help you can offer to clarify why these documents were altered.

I got no answer yesterday. I pinged her again today, mentioning that I thought Lindsey Graham’s disinterest in what might be a crime in progress newsworthy:

I’m circling back for comment on this.

I’m considering a post reporting on Chairman Graham’s disinterest in evidence that FBI has tampered with evidence to help Mike Flynn and would post it later today.

Thanks in advance.

Reidy responded to my question about DOJ’s current actions by stating that her boss is totally committed to continuing to review events that happened four years ago.

Thanks for your patience, Marcy.

The matter relates to pending litigation and is not something the committee would have access to.

Graham continues to pursue oversight related to the FBI’s handling of Crossfire Hurricane.

And while I followed up to clarify the seemingly shocking detail — that SJC intended to call McCabe as a witness without obtaining any of his records! — it appears to be the case that DOJ didn’t even share those documents with SJC.

I tried again, noting that she hadn’t answered the question I asked.

To clarify, even though you had prepared to have Andrew McCabe testify this month, you intended to do so without his records?

Also, would you like to issue a statement about FBI’s altering documents in the month of September 2020, which is entirely unrelated to the Crossfire Hurricane investigation, and what I asked about? Or does Chairman Graham not intend to exercise oversight over ongoing misconduct happening right now? To clarify, because this will be clear in any post, I’m asking whether Chairman Graham, having been informed of a potential crime happening as we speak on a matter that he has direct oversight over, is going to do anything about it?

I’ve had no response, from which I guess it is fair to conclude that former JAG Officer Lindsey Graham is going to do nothing about what might be a crime in progress.

FBI, for what it’s worth, yesterday referred my questions about why Executive Assistant Director John Brown certified what was almost certainly a classified document for release that lacked any declassification stamp as authentic to DC’s US Attorney’s Office.

I asked again if FBI had comment about the further alterations exhibited in the McCabe document, but got no answer there, either (I’m wondering what will happen if I report that FBI is doctoring documents to the FBI tip line).

It’s really weird that all these people who are supposed to guard the rule of law in this country are so disinterested in what might be a crime in progress.

Update: After I posted, the FBI reiterated that they still want me to ask DOJ why their EAD certified what appears to be a formerly classified document that lacks a declassification stamp.

We are still referring you to DOJ since this pertains to ongoing litigation.

I’m asking again for reference to what policies in question EAD Brown just certified to.

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.

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.