More Irregularities with the Andrew McCabe Notes: Bleg for Graphic Design Analysis

The Andrew McCabe notes just certified on Monday as a regular FBI document have at least four and, I think, more irregularities. This kind of graphic analysis is not my forté, so I’m going to just post what I think the irregularities are, and invite some people who are better at this to test my hypotheses.

Here’s an annotated version of the McCabe notes (here’s the original). Below, I’ll describe what I think I’m seeing.

A: The left-hand rule of the notebook at the top of the page appears not to line up with the left-hand rule at the bottom of the page. To be sure, I’ve just sketched this up, and it’s the observation I’m the least confident in, so please check my work. [Note: This may arise from copying the notebook.] Update: a reader has convinced me I’m wrong about this — see below.

B: There’s a non-horizontal line drawn to the margin to the left of where the first big redaction begins. Below it, the horizontal page rules don’t appear for about nine lines.

C: As noted here, the footer reading, “SUBJECT TO PROTECTIVE ORDER,” has been redacted. It would be restored in the re-altered version authenticated on Monday.

D: As DOJ has now admitted, someone — and DOJ has not told Judge Emmet Sullivan what government agent it was — added a date. DOJ claimed this was done with a clear sticky with a blue tab, but there’s no sign of the blue tab. Moreover, when the document was re-altered to remove the date, that was accomplished by digitally whiting it out (not the technical term!), leaving a clean white rectangle with no rules.

E: This document has no declassification stamp. The larger redaction here, by topic, must hide notes from a prep session for the World Wide Global Threats hearing that would be held on May 11, 2017. It is, by definition, classified (indeed, that’s presumably the claimed reason for the redaction). And yet there is no declassification stamp for the document. The Peter Strzok notes released in the same batch have declassification stamps dated September 17 and 21.

This document got released after a dispute between McCabe and the FBI about whether he can access his own notes. After the Senate Judiciary Committee promised Andrew McCabe he could review his notes before testifying before the committee in early September, and after McCabe’s lawyer Michael Bromwich engaged in what he believed to be a good faith discussion about obtaining those documents on September 15, on September 16, FBI told the Committee that the request was “unmanageably voluminous;” the Committee passed that determination onto McCabe’s team. On September 18, McCabe’s lawyers worked with FBI’s OGC to narrow the request. One thing FBI lawyers were balking at, categorically, was providing McCabe’s calendars. In addition, they complained that if McCabe reviewed his own notes, he would have access to material beyond Crossfire Hurricane materials (as this page has). On September 23 — the day this document was provided to Flynn’s lawyers by DOJ, according to discovery correspondence — FBI for the first time raised a categorical objection, stating that, the FBI “has a policy of generally not providing documents to former employees and does not see a basis to make an exception to that policy under these circumstances.”

If McCabe had access to his own notes and calendar, he would be able to tell whether this document has been altered beyond the date addition. On the day DOJ sent it out, they decided that McCabe could not be provided access to any of his own notes or calendars so he could provide accurate testimony to Congress.

Update: I have a request for comment from FBI’s press office regarding the lack of a declassification stamp.

Update: FBI referred me to DOJ to ask them why FBI’s EAD certified a declassified document that lacked a declassification stamp.

Update: I have asked the Senate Judiciary Committee (which was supposed to have had McCabe testify earlier this month) for their copy of this set of McCabe notes, to see if we can make sense of the document. I am awaiting a response.

Update: A reader with expertise in the area provides these notes anonymously:

A. yes, the tilt with the line (to the left) at top left, normally would be compensated for with less visible binder rings at bottom right. (to which there is more showing) so its backwards.

B. Yes, agree. The line looks like it was hand drawn. And if you zoom in at 400% in the middle of the red box B) you can see an additional line, very faint. Whited out some way.

C. if you zoom in at 400% at the redaction box, it may have been redacted twice. There are two corners at top left, that are not lined up and same issue at lower right. If they were, it would look like one, clean cornered box.

D. the lines on each side of the date are fainter and in the same distance from each other implying that there was some kind of clear sticker put on top with a handwritten date in the center. When scanning light bounces off the sides of any clear plastic tab, mylar etc. and reflects and fades out whatever is next to it.

E. No opinion.

Other observations:

If you zoom in at 400% in between each of the 3 lines at the lower left (just above the redaction box) there are other faint lines, which make no sense.

At the 3 lines above the handwritten text “possible”, it looks like there was some handwritten text there before, the dot patterns resemble writing that was there once upon a time. Can’t prove it. I don’t have iText redaction software to see if that would show editing (it may be capable or may not), but the scanner would also have to have extra dirt on that area, and doesn’t have the same intensity of dot/dirt scatter as the rest of the white spaces on the rest of the page. Same issue under the 3-6 lines under the text “not the strongest”.

Update: A different reader, who also asks to remain anonymous, sends this screencap of the document pulled into Photoshop and darkened, which (the person explains) can show things that aren’t otherwise readily apparent. The person added a ruler which, I think, shows I’m wrong about the left margin. I’ve crossed out that observation above accordingly.

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

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

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

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).

(Part of) What I Shared with the FBI

On July 28, 2016, something happened that would eventually lead me to the FBI.

I’m going to explain part of that story now. I’m explaining it for several reasons. I had promised myself I wouldn’t let another election pass without sharing what happened. Even now, I can’t entirely make sense of it — that was part of the point, confusion. But the release of documents in the wake of the Mueller investigation has provided a great number of public details (some of which I laid out in my Rat-Fucker Rashomon series) with which this story might be consistent. I can’t prove that this story explains the unanswered questions about the Roger Stone story (and Bill Barr’s intervention in the Stone sentencing seems to have shut down some parts of any ongoing investigation to do so). But at least I can share details that may provide an explanation.

It started with a several-day dispute about attribution, starting on July 26, 2016, which included discussions about Guccifer and Crowdstrike. A guy I will refer to by the pseudonym Phil and I were texting on Signal debating that attribution. On the 27th, Phil disputed the Crowdstrike report that APT 28, which had done the hack, was GRU, “Russia didn’t write this APT damnit.”

I told him, vaguely, that I knew that entities external to both the DNC and Crowdstrike had evidence confirming the GRU attribution. I had a well-placed source who knew Phil was wrong. He seemed not only sure he could convince me otherwise, but intent on learning what I knew, which I didn’t share.

The next day, July 28, 2016, Phil made up an excuse for wanting me to tell him what his IP address was–it was a bullshit excuse and doesn’t matter for the purpose of this story. “Can you see an ip on your website,” he asked. “Yeah I can get logs.” I said, “Easiest obviously is fr a comment.” (I was wrong about my ability to see the IP address, and he may have known that, because he had been testing how requests to my site worked for months.) “Now,” he said, as he left a comment. 

I forgot about the request until the next day, July 29, when another of the people who can approve first-time comments at the site emailed me with the comment, which had been posted moments after he had told me, “Now.” “I debated about approving that comment by icelanderia in DNC Hack sourcing post,” the person said. “But didn’t because of the email addy attached to it.” To readers of the public site, the comment read, “Just one phrase. Show me the metadata.” It was signed “Icelanderia.” Visible only to those of us with backstage access, however, it was signed [email protected]

Much later, Phil told me he liked leaving comments at my site as a, “Great outlet to talk to my usg pals.” Until late 2017, we kept getting comments at the site which were consistent with disinformation deliberately left in the first Guccifer 2.0 releases, but which might or might not have been him.

But I knew that first one, [email protected] was Phil, purportedly left to find out what IP address his comments would show up as. He never did follow up to ask me whether I could see his IP address. And so I was left trying to figure out why the hell he signed a comment with the name of the persona who was trying to obfuscate what really happened with the DNC hack.

Normally, I don’t think twice about comments left at my site under obviously fake names. Lots of people choose not to use their real email addresses when leaving comments at this site. Unsurprisingly, we’ve had a ton of comments claiming to use NSA email addresses. And from time to time — though, given how chummy and long-established emptywheel’s comments section is and how closely we moderate obvious trolls, not all that often — people try to get funny with their log-in names. 

In this case I did take notice. I did so, partly, because of how he had left it, giving me a heads up that it was him, but doing so in such a way that only I would know it was him (as noted, he never did ask me what IP he had come in under and, as I said, I was never able to determine that). But it also made me rethink stuff that had happened between us going back to fall 2015 and earlier, especially because of what had happened starting on June 14, 2016, the day that the Democrats publicly announced they had been hacked by the Russians, when he tried to get me to change my operational security even as he seemed to be debating about going forward with something, which he referred to in terms of “tapping out.”

On June 14, 2016, the same day the Washington Post reported that the DNC had been hacked by Russia, Phil called me up and asked me to delete notes of conversations we had had going back to December 2015, notes telling a story about his life and motivations for being angry with the government that he had wanted me to tell after he died, which he claimed — starting in December 2015 — was going to be imminent. The next day, he claimed he believed he was being investigated by the FBI for the way he had narced out some people in April, which was his explanation for escalating levels of paranoia. That same day, he asked me to shift our comms to the Silent Circle text service, which would have put the texts beyond the reach of US law enforcement. This was at least the fourth effort he had made to shift to more secure comms than Signal and PGP email with me, including a highly inappropriate suggestion earlier that spring; each time, including this one, I blew off the request, because I didn’t believe these conversations were that sensitive or interesting. 

Starting at 3:12PM on June 21, the weirdness resumed. He asked me to change my PGP key, inventing a bullshit excuse, while explaining he was flipping his own keys. He showed me a traceroute on my site he had done, reflecting my recent addition of Cloudflare to protect the site (he had concocted an earlier traceroute in May 2016 that–I’m certain–was designed to make me paranoid). He advised me that when using a VPN, one should always choose a Swiss or even a Russian server. He told me he worked for a company owned by FSB’s founding fathers. 

Around 8:12PM on June 21, he claimed, “I am getting DDOSed like a motherfucker–is it you or ‘Gucifer’?” 

As far as I knew, he had no website to be DDOSed. As he surely knew, I didn’t have the capability to DDOS anything. It was just word salad invoking the newly unveiled GRU persona, but amid the other weirdness I didn’t make too much of it.

He then called me and repeated much of the story he had told me over the past six months, the story the notes of which he had, just a week earlier, asked me to destroy. In that retelling of the story, he would include several details about Russia (on top of the FSB founding fathers comment). He described a meeting he attended months before, overseas, one that (he claimed) members of Russian intelligence had also attended, where he had been physically beat up. Before that June 21 conversation, he had told me a version of that overseas meeting story at least 6 times, including telling me about the meeting in real time (in just two of those tellings do I remember him mentioning Russian intelligence, and precisely who in Russian intelligence he said attended was inconsistent). I’m not attesting that his claims about the meeting were true, I’m describing that he kept telling me about the meeting over the course of more than six months. 

Another detail in that June 21 conversation was the way he insisted to me, as he had at least once before June 14, almost plaintively, that he hates Russia. Phil told me that two of his most cherished possessions were trophies from interactions with Russia. At the time, I didn’t understand why he felt it was so urgent to convince me he really did hate Russia, but after the fact it seemed to be an effort to excuse himself, like emphasizing that he had been physically beaten.

There was a third story, too, another story about an interaction with Russia more alarming than the others, another one he had told me once prior to June 14. The story involved a moment when Russians held “a gun to [his] head.” I believe the story, as he told it to me, was a well-rehearsed lie, one he had told others. But if the lie served to explain away something else, it would be the kind of thing that might mean his comment might not be a joke, that he might have a role in the Guccifer 2.0 operation. 

In June, this felt somewhat stalkerish. I still had no idea why he was telling me this, aside from the fact he wanted me to tell the story of his grievances with the government, but he was also in a bad place and I was trying to make sense of it. The next day, June 22, between 12 and 5PM ET, we spoke again on and off. When I suggested I might be under surveillance to see how he’d react, he said there were no rules, saying that no one could back out of a deal (I had no idea what deal he was talking about). “360 degress of no rules, tap out is not an option unless (Apparently) you are a politician. But even then…”

The next day, June 23, just after 5PM, he told me he had been contemplating a line from a Cormac McCarthy screenplay: “The world in which you seek to undo the mistakes that you make, is different from the world where the mistakes were made.” He added, within that same hour, “I’m done. I don’t re-decide.” Phil was, obviously, a mess, but he was also done talking about ways out of whatever mess he was in. 

I broke off communication at that point for a period, but a week later, at 6:51PM on June 30, he was back. He told me he had “unfucked his problems.”

As weird as all this was, in those days in June, I was just observing, trying to figure out what had caused the sudden bout of paranoia, and honestly trying to figure out what he wanted out of me. I sure as hell didn’t think, at the time, there was a tie between all that and the DNC hack (remember, he was claiming — probably another lie — that the FBI was investigating him, which I assumed was what all the weirdness was about). 

But when I remembered all this on July 29, it made me reconsider whether there was a tie. As I’ve alluded to publicly in the past, it is why I spent six months on my part to test the Russian attribution for myself, to decide for myself whether the IC and Crowdstrike, along with people in tech companies and individuals who fought this hack personally with whom I’d spoken — were correct, that it had been the Russians, or whether what I took to be Phil’s suggestion that he or people he knew, without the Russians, may have been involved. Absent such an effort, I assume that certain other people who’ve interacted with Phil have, instead, taken the existence of an American body claiming to have been involved as enough to deny Russian involvement. That may be what happened with Roger Stone.

Once I was convinced about the Russian attribution in December 2016 and given a growing certainty I couldn’t test key parts of this story myself, I began to consider sharing it with the government in a way that protected both my identity and Phil’s. 

As I noted in the title, these events were just one part of the reason I went to the FBI in 2017, and not actually the most urgent reason at the time, nor the one I had most confidence in. There’s another part of the election year attack — one few people know is related — that I believed (and still believe) he may have had a role in, too. Those other parts of this story were, in 2017, an escalating, ongoing threat, which is part of why I ultimately chose to meet with two FBI cyber agents and a prosecutor from DOJ’s National Security Division, to stop ongoing damage if I was right. 

Now, four years later, it’s clear the details Phil shared with me in 2016 might be consistent with several details discovered in the Roger Stone investigation. Indeed, starting in August 2018, Mueller’s team appears to have investigated whether Stone had been co-present, in the US, with someone involved in this operation, and they also appear to have confirmed, after the Mueller team shut down, that Stone met with someone face-to-face at the RNC who gave Stone advance warning of the DNC drop. On July 15, 2016, Phil described to me flying east from the West Coast. 

More interesting still is the way that Phil’s activities over a key weekend in August 2016 overlap with Roger Stone’s. I won’t yet lay out how this timeline looks (I’ll return to it). For now, compare the one I did in this post to the timeline I lay out here. 

On August 12, 2016, the night that Guccifer 2.0 released DCCC documents the timing of which Jerome Corsi had predicted, Phil texted me at 11:32PM and told me he was thinking of going to the Trump rally that was scheduled — inexplicably, from a campaign strategy standpoint — in Roger Stone and Paul Manafort’s home state of Connecticut the next day. “Should I stay or should I go…” he said, but he already had a ticket. At 9:46 AM the next morning, he said it again. “Trump rally [in CT] tonight, thinking of swinging by.”

He did go, and made sure I had abundant contemporaneous record of it. At 4:21PM he told me he was close to the protest venue. At 4:33PM he told me he had put together an IMSI catcher for the event to track where the Secret Service had Stingrays.

Amid those texts, I told him that I had freed up the Guccifer comment at my site; I wanted to see how he’d react. “Haha-the mouthpiece,” he responded. “‘they’ are clueless as I’m fond of saying…” he added, which I took not only as confirmation that he did leave the comment, but also to mean that he believed the authorities misunderstood the Guccifer persona. 

It was an hour, though, before the calls started. From 5:57PM to 6:58PM, he kept calling me and sharing video of what he was doing at a protest close to the rally (as well as a screenshot of the IMSI catcher).

At the time, I thought he was hoping to film himself picking a confrontation with the cops that would go viral. I thought it was really stupid and started ignoring his calls. It was actually years before I reviewed all these videos. When I did, I realized that he was not interacting with any of the protestors. He was, instead, just badgering the cops, in really controlled fashion. He was filming the confrontations so as to catch their name badges. And then, each of several times he did this, he would back off and thank the cops for what they were doing. Those interactions would have left a handful of cops, whose names I’d have, who would have remembered him as the obnoxious guy at an event protesting Donald Trump. 

At 9:59PM, he told me the rally itself was done, he was not in jail, and his phone was intact. He showed me a document that he had picked up at the rally.

The next morning, August 14, at 7:22AM, he texted me a picture to let me know he was in NYC. That was the day Jerome Corsi claims he started a file named “Podesta,” that would eventually become posts that integrated documents publicly released in October. 

Again, I didn’t make much of this, as I didn’t make much of earlier events. 

Except that just over a week later, as part of a conversation from 7:56 to 8:28PM on August 21 (and so hours after Stone’s famous “time in the barrel” comment), he emphasized to me that I was the only one whom he had sent videos from the August 13 protest. Then he said there were more. “I have like 20 more vids before and after no one gets,” he told me. Something was interesting enough, both from before and after he attended the protest of the Trump rally, that was not only worth filming, but that was more sensitive than these protest videos.

Even as Stone and the persona Guccifer 2.0 were chatting away on Twitter over the weekend of August 12, a guy who’d just covertly signed his name “Guccifer2” on my site was at the Trump rally, taking videos of … something.

 Not immediately, but over time, I’ve wondered what might be on those videos.

On January 1, 2017, in the wake of Trump boasting that, “I also know things that other people don’t know,” about the Russian hack, I did a post wondering if what Trump thought he knew was the same thing that Craig Murray believed — that there was an American involved in this operation. I wrote, “I have a suspicion that Trump’s campaign did meet with such a person (I even have a guess about when it would have happened).” I had the rally in mind. Within 30 minutes after I published the post, after having not spoken to me in weeks (he later told me he had been overseas), Phil called me, but hung up before we spoke. 

Indeed, events that the investigation have since made public — including the confirmation that Roger Stone set about getting Julian Assange a pardon no later than 7 days after Trump won the election — made me revisit additional texts from July 29, ones I hadn’t even paid attention to in real time. 

On July 29, 2016 — the same day I was trying to figure out why this guy had just made a big deal of signing a comment guccifer2 — we had another conversation, one I believed at the time was unrelated, a discussion about what motivated Julian Assange. Revenge, I argued: the guy hates Hillary, going back to 2010. “Yes” Phil conceded, “but he has a puppeteer too — IDK who and maybe it’s just $ but.” Again, I was sure this was “sheer retaliation for him.” “You might be right,” Phil responded, “but there’s a political or $ way to get him out — please don’t lose sight of that…” I still didn’t buy it, and asked again why. “B/C if ‘I’ wanted badly enough for him to release that data in a manner that benefitted me, I could get him out and he’s damn sure in prison — where people do desperate things.”

On that day in July 2016, no one in public knew there’d be a second dump. Certainly, no one knew that, on that day and the next, Roger Stone was in conversations with Trump’s campaign manager planning how to optimize the next dump. “Good shit happening,” Stone told Manafort just over an hour before this exchange, before the old friends spent 67 minutes on the phone together on July 30, their longest conversation of the year. No one knew that Stone would turn immediately to getting Assange out of the Embassy at least as early as November 15, probably even before. 

But Phil, who had just made sure I knew he signed a comment Guccifer2, seemed to be sure of it before it all started. 

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

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.

Chuck Grassley and Ron Johnson Produce a 285-Page Confession They’re Unfamiliar with the Public Record

Chuck Grassley and Ron Johnson recently released a 285-page report relitigating a story made public in 2017 about how Mueller’s team obtained records from General Services Administration. The report adopts an entirely opposite stance as the SSCI Russia Report did. The latter discussed how unheard of it was for an Administration to claim an expansive Transition privilege. Chuck and Ron are outraged that a criminal investigation have access to such files, and similarly outraged that the subjects of an investigation did not get notice that their files had been obtained.

The report also makes clear that, at first, Mueller relied on SSCI’s request for its records request, and only later in the summer made their own. In other words, Chuck and Ron have a complaint, in part, with SSCI (though they don’t say that).

The report is most useful for revealing which Transition officials Mueller’s team was interested in. On August 23, Mueller’s team sent a records request for these nine officials closely interacting with Flynn while he was secretly undermining sanctions and other Obama policies in “collusion” with Russia.

The nine Trump for America officials identified by the FBI were Daniel Gelbinovich, Sarah Flaherty, Michael G. Flynn, Michael T. Flynn, Keith Kellogg, Jared Kushner, K.T. McFarland, Jason Miller, and Michael Pompeo.114

Then Mueller’s team asked for the records of four more people — which appears to be the people who were at Mar-a-Lago when Flynn was secretly undermining sanctions with Russia.

The four Trump for America officials identified by the FBI were Sean Spicer, Reince Priebus, Stephen Bannon, and Marshall Billingslea.125 In the cover email, the FBI explained:

We have an additional four individuals we are currently interested it [sic]. … If possible, can you at least have their emails downloaded by tomorrow when I pick up the other information? . . . [W]e want to have it available when they swear out a warrant before then.126

Note, there’s a reference to the DC US Attorney’s office, too, so it’s possible they also needed these records as part of their investigation into the suspected bribe from Egypt that kept Trump afloat in August 2016.

But the craziest thing is how the report confesses that they are unaware of any legal process for these files.

Although the FBI’s August 30, 2017 cover email referenced applying for a search warrant, the Committees are aware of only one court-ordered disclosure of records, specifically, information related to the transition records of Lt. Gen. Flynn, K.T. McFarland, Michael Flynn’s son, and Daniel Gelbinovich.128

128 Order, In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d) Directed at Google Related to [the transition email accounts for those four individuals], 1:17-mc-2005 (D.D.C. Aug. 18, 2017) [GSA004400- 4404] (ordering the disclosure of customer/subscriber information but not content).

At one level, they’re being coy in that they claim to be interested in court-ordered disclosure. A document recently released via the Jeffrey Jensen review reveals that in February 2017, star witness and pro-Trump FBI Agent was obtaining some of this information using NSLs. Another document explains why, too: because one of the first things FBI had to do to understand why Flynn had lied to them was to determine if he was coordinating his story with those at Mar-a-Lago.

The lie that he didn’t even know Obama had imposed sanctions was not one of Flynn’s charged lies, but it was his most damning. He lied to hide that he had consulted with Mar-a-Lago before picking up a phone and secretly undermining sanctions in “collusion” with Russia.

Crazier still, Chuck and Ron didn’t go to the first place one should go to understand how legal process worked, the publicly released Mueller warrants. The warrant to access the devices and email of at least the original nine (plus one other person) is right there in the docket.

GSA transferred the requested records to the FBI, but FBI didn’t access them until it had a warrant.

In other words, this 285-page report is effectively a confession from Chuck and Ron that two Committee Chairs and a whole slew of staffers can’t figure out how to read the public record.

Maybe that’s a hazard of conducting investigations with no Democrats? It makes it harder to read accurately?

From Failed Whistleblower to Journalistic Source: Natalie Sours Edwards Mounts a Credible Public Interest Defense

Natalie Sours Edwards, one of the sources for a series of BuzzFeed stories on Treasury and a larger, global series on Suspicious Activity Reports, submitted her sentencing memorandum last night. It is probably the most convincing example of a whistleblower-turned-leaker telling her story to explain why she did what she did. And while she was charged under a different statute than the Espionage Act — there’s a specific law prohibiting the leaking of SARs — it is a laudable effort to make a public interest defense.

She spends much of her submission (as most do) describing her background — her Native American upbringing, the series of jobs she had after obtaining a PhD in national security decision-making, first at ATF, then at CIA, and then at Treasury’s FinCEN. Not long after she moved to Treasury, she grew concerned about a number of things she was seeing: She believed Treasury was making some organizational changes without first getting congressional approval.

By April of 2016, TFI was considering a proposal to move several employees from FinCEN to OIA. May Sours Edwards and other members of FinCEN’s upper management questioned the legality of the proposed realignment. In an email to John Farley, Acting Director of Executive Office for Asset Forfeiture (TEOAF), Dr. Edwards raised concerns about whether the transfers would be consistent with Congressional appropriations and whether OIA was moving forward in spite of a direction from the Senate Select Committee on Intelligence not to proceed until the Committee had reviewed the plans for the reallocation of funds.

She was concerned — as was the Privacy and Civil Liberties Oversight Board — that Treasury had never instituted guidelines protecting Americans’ privacy when accessing records under 12333. (I had written about this problem before this period.)

Did OIA, as a member of the intelligence community, have the authority to collect and retain data domestically. Under Executive Order 12333 (“E.O. 12333”) IC entities, which OIA is, are permitted to collect information on “United States persons” only if the organization has promulgated guidelines for doing so and had them reviewed and approved by the Attorney General.11 Dr. Edwards questioned whether OIA had signed guidelines. Counsel for OIA hostilely, in Dr. Edwards’ estimation, disagreed with her interpretation of EO 12333. She believed he deliberately denigrated her during the meeting in front of the other participants in an attempt to bully her into agreeing with his position. She did not acquiesce.

11Executive Order 12333 provides in pertinent part as follows. “2:3 Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided in Part 1 of this Order.”

After she had shared these concerns with Congress, she believed that Jacob Lew had knowingly lied to Congress about whether there were whistleblowers at Treasury.

On September 22, 2016, Treasury Secretary Jacob Lew testified before the House Financial Services Committee. https://www.c-span.org/video/?415661- 1/secretary-jack-lew-testifies-financial-stability-report&start=9046. Representative Fitzpatrick specifically asked him whether the proposed realignment was consistent with the existing budget, the issue Dr. Edwards had been raising. He also the Secretary whether there were any whistleblowers at Treasury. Representatives Jeb Hensarling and Sean Duffy later sent a follow-up congressional letter to Secretary Lew, expressing concern that the proposed “changes may violate appropriations requirements, civil service rules, and constraints on gathering and use of financial intelligence data.” They also noted that it was “troubling that Treasury is moving forward with the proposed reallocation with the intention to complete the process before a new Administration takes over in January 2017 and despite bipartisan requests to process at a more deliberate pace.” Id.

Something else of significance happened during the hearing. In response to a question from Representative Fitzpatrick, Secretary Lew stated that he was unaware of any whistleblowers in the Treasury Department. Dr. Edwards was taken aback and concerned. She was a whistleblower, a fact well known to Treasury OIG.

In the wake of that hearing, she believed that her clearance was pulled, briefly, as retaliation.

On September 27, 2016, a week after the contentious OIA-FinCEN meeting, someone at OIA ordered that Dr. Edward’s SCI (Sensitive Compartmentalized Information) clearance and her access to the SCIF (Sensitive Compartmentalized Information Facility) be revoked. Dr. Edwards questioned the basis for the action. Her clearance was reinstated the following day. Email of September 28, 2016, from May Edwards to Elizabeth Ortiz, attached hereto as Exhibit XX

She submitted two whistleblower complaints — to Treasury IG and to OSC. The latter found that she had engaged in protected activity (meaning that she had been a whistleblower), but ruled against her claims of retaliation on narrow grounds.

By letter dated May 21, 2018, OSC informed Dr. Edwards that they were closing her file. OSC concluded that Dr. Edwards’ reports to her “leadership, OIG, Congress and OSC all likely constitute ‘protected activity’ or whistleblowing under the law.” May 21, 2018, letter from OSC to Dr. Edwards, attached hereto as Exhibit HHH at 4. Further, Dr. Edwards could establish that her “management knew about [her] whistleblowing regarding, at a minimum, the issues [she] raised directly to them.” However, OSC made several findings that it concluded were fatal to Dr. Edwards’ claim that she had been retaliated against as a whistleblower. OSC could not find that there was a substantial likelihood that Treasury Secretary Lew knew of Dr. Edwards’ allegations when he testified before Congress that there were no whistleblowers in Treasury. Id. at 3. The email that outlined OMB’s direction to Treasury on communicating with Congress about the FinCEN/TSI realignment was not improper because it appeared to be directing Treasury officials not to discuss the issue in their official capacities as opposed to directing them in their individual capacities on their rights to report suspected wrongdoing to Congress

A Treasury IG Report ruled against her based on an alternative explanation provided for why the PKI of FinCEN employees had been pulled.

While finding that the problem with the IC PKI certificates was solely the result of inadvertence, the author of the audit did note that “the present working relationship between OIA and FinCEN related to the IC PKI process is strained.” Id. at 3. The two Treasury components had a “fundamental disagreement” about FinCEN’s need for access to the IC PKIs and more broadly about FinCEN’s autonomy.

She even explains how — after she started working with Jason Leopold — Ron Wyden complained that FinCEN was withholding information on Russian interference and its ties with Donald Trump.

In addition to her concern about OIA’s handling of realignment and the PKIs issue, Dr. Edwards grew to question whether FinCEN was providing complete information in response to Congressional requests for information. She was not alone in that belief. On May 10, 2017, Senator Ron Wyden made a floor statement placing a hold on the nomination of Sigal Mandelker for the position of Under Secretary of TFI. His office issued a statement explaining the Senator’s reasoning:

Senator Ron Wyden, D-Ore., today placed a hold on the nomination of Sigal Mandelker to be Under Secretary of the Treasury for Terrorism and Financial Intelligence. Wyden said he will maintain that hold until the Treasury Department provides the Senate Intelligence Committee and Senate Finance Committee information and documents related to Russia and its financial dealings with President Trump and his associates.

On Tuesday, May 9, Senate Intelligence Committee Vice Chairman Mark Warner announced that the Committee had made a request to the Treasury Department’s Financial Crimes Enforcement Network (FinCEN). https://www.wyden.senate.gov/news/press-releases/wyden-announces-hold-ontreasury-nominee-until-administration-produces-documents-on-russian-dealingswith-trump-associates. On September 22, 2017, Senator Wyden put a hold on another Treasury Assistant Secretary nominee, Isabelle Patelunas, again because of Treasury’s “refusal to provide documents related to Russia.” https:// www.wyden.senate.gov/news/press-releases/wyden-announces-hold-ontreasury-nominee-over-agencys-refusal-to-provide-documents-related-to-russia.

It’s in that context that — she described — she started working with Leopold to get Congress to return its attention to misconduct at Treasury.

When Congress’ attention to the issues May believed vitally affected the security of this country flagged, she began communicating with Jason Leopold, a reporter with the online publication BuzzFeed News. He told her that he shared her concern for national security. He assured her that the only way to revive Congressional interest was through media attention. He promised to – and did – introduce her to additional Congressional staffers. At his encouragement, she provided him with Suspicious Activity Reports (“SARs”) and other internal Treasury Department documents. He wrote articles that disclosed that information. She was arrested. He was not.

[snip]

Although Congress by then had done little to curb Treasury’s behavior, Dr. Edwards continued to believe that the only way to ensure that those responsible for the improper behavior were held accountable was through Congress. Leopold encouraged this belief: By writing articles, he could get the proper attention for the issues she believed were of vital importance to national security. This was a theme he returned to more than once when he sought information from Dr. Edwards: He could use what she gave him to write stories that would force Congress to investigate her allegations. (September 27, 2017: “We do need to keep momentum going so this story is crucial.” October 16, 2017: “We are going for the next story – keep momentum going with 12333.” January 11, 2018: “Listen, I am going to make a case that we need to leak something and report it. I am going to reach out to some of your colleagues. But this is getting ridiculous and I need to get their attention…By their attention I mean Congress).

Importantly, given the way she was charged (with a conspiracy to leak these SARs, with Leopold identified as a co-conspirator would be) she describes how hard Leopold worked to champion her efforts in Congress.

Throughout 2017 and 2018, Leopold told Dr. Edwards in their WhatsApp conversations that he was committed to her cause of uncovering and remedying corruption in the Treasury Department. He told her at times that he was acting on behalf of Congressional staff members in seeking information from her. He sought to arrange meetings for Dr. Edwards with members of Congress or their staff. Such meetings did take place. Leopold attended meetings with Dr. Edwards. Staffers encouraged Dr. Edwards to provide information they sought about the inner workings of the Treasury Department, including whether the requirements of the Bank Secrecy Act were being enforced by financial institutions as required to assist U.S. government agencies.

Remember: Before the global SARs reporting effort came out, Treasury issued a statement that can only be viewed as an attempt at prior restraint, a threat against Leopold.

Edwards’ sentencing memorandum says that the Probation office recommended two years of probation.

Dr. Sours Edwards faces no mandatory minimum term of incarceration. As discussed above, the relevant range under the United States Sentencing Guidelines, both as stipulated in the plea agreement and as determined by United States Probation, is zero to six months. PSR at ¶4, p. 28. Probation has recommended that the Court sentence Dr. Sours Edwards to a two-year term of Probation.

It is unclear whether this will work — whether Edwards will get probation. It is equally unclear whether Leopold’s laudable efforts to double down on his reporting, to raise global attention to the issue, will bring about reform at banks or in the US.

But this is what every other leaker I’ve covered has tried to do, far less persuasively: an attempt to make a public interest defense for leaking to a journalist.

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

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”

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.

image_print