DOJ Hid Material Comments about Brandon Van Grack from Judge Sullivan in the William Barnett 302

The redactions on the 302 of William Barnett — the pro-Trump FBI Agent who recently gave an interview riddled with contradictions that Republicans have tried to use to undermine the Mike Flynn case — look like they were done by a five year old with finger paint.

It appears there were at least two and possibly three passes on redactions. There are redactions with rounded edges that appear to redact information that is actually classified. There may be more substantive redactions done of full sentences, including a passage marked to be “pending unsealing” by the court. There’s information on the investigation into Mike Flynn’s secret work for Turkey that is redacted, too, which is problematic, given that Judge Emmet Sullivan asked about that investigation into Flynn in Tuesday’s hearing. It’s clear from the unredacted bits of the 302 that Barnett had fewer problems, if any, with that investigation than he did with Flynn’s cover-up of his calls to Sergey Kislyak, so by redacting those discussions, the FBI is hiding Barnett making positive comments about part of the investigation into Flynn.

Then there’s a bunch of stuff — that includes names but also material that appears to be unflattering to General Flynn — that appears to have been redacted with block redactions after the fact, such as this redaction that seems to fade away to nowhere.

The redactions of names are a mess too, with irregular box redactions and in a few places, different typeface sizes.

That’s mostly aesthetics. But it suggests that — in spite of an FBI declassification stamp applied on September 24 — some or all of these redactions weren’t done by the people who normally do such things.

It’s the treatment of names where things delve into legally suspect area. The name of Barnett, Peter Strzok, and Andrew McCabe are not redacted. The names of other FBI and DOJ personnel generally are, though some have labels so you can follow repeated discussions of those people.

It’s in the treatment of Robert Mueller’s lawyers where things get inexcusable.

DOJ has a general rule that all Mueller AUSAs are public (as seen in the Mueller 302s released under FOIA, as well as phone records FOIAed by Judicial Watch), but all FBI personnel are not. Here, however, FBI left the name of some Mueller prosecutors unredacted, and redacted others. The unredacted names are those the GOP would like to spin as biased (including with an attack on Jeannie Rhee which actually shows Barnett being an abusive dick simply because Rhee tried to do her job):

Meanwhile there are at least two Mueller prosecutors whose names are redacted:

The FBI might be excusing this disparate treatment by making a distinction between lawyers who’ve left DOJ and those who haven’t.

Except that raises questions about whether there are unmarked references to Zainab Ahmad who, as the second prosecutor on the Flynn case, should show up in any interview of Barnett’s work with Mueller, but who has also left DOJ (and so would be unredacted if that’s the rule purportedly adopted here).

I have made several inquiries at DOJ for an explanation but gotten no response. But we know that someone at DOJ did these redactions, because Jocelyn Ballantine shared an unredacted copy of the 302 with Flynn’s lawyers, explaining that DOJ would submit the redacted copy to the docket themselves. Ken Kohl, who (multiple people have described) has a history of problematic actions, is the one who actually signed the filing uploading the 302 to the docket.

If I were Ballatine, I’d think very seriously about whether I wanted to remain silent after having witnessed how this 302 was submitted.

The result of redacting Van Grack’s name is that it hides from Judge Sullivan (and Amicus John Gleeson) many complimentary things that Barnett had to say about Van Grack:

DOJ’s star witness purportedly backing its claim that the investigation into Mike Flynn was abusive had a number of good things to say about the prosecutor that purportedly committed some of the abuse. Significantly, DOJ’s star witness, Barnett, claims that Van Grack agreed with Barnett in viewing KT McFarland’s lies in the least incriminating light.

And DOJ redacted Van Grack’s name, thereby obscuring that.

Sidney Powell made a number of allegations about Van Grack on Tuesday, including that Van Grack demanded Mike Flynn lie in the Bijan Kian case, something sharply at odds with Barnett’s claim that Van Grack interpreted McFarland’s answers in the least damning light. And Judge Sullivan asked about the significance of Van Grack’s withdrawal from the case Tuesday, something DOJ dismissed as irrelevant even while they were hiding material details about Van Grack.

So Brandon Van Grack’s conduct is central to the matter before Judge Sullivan. And DOJ is withholding favorable information about Van Grack by redacting his name in this 302, even while relying on the 302 for what DOJ claims is damning information elsewhere.

It would be clear legal misconduct to hide that information, effectively hiding evidence that debunks DOJ’s claims of abuse with a treatment of redactions that is plainly inconsistent with past DOJ practice (including on the release of a 302 discussed in Barnett’s own 302).

And yet that’s what DOJ has done.

30 replies
  1. Ben Soares says:

    Wow wee …. this seems problematic. ” never in my 35 yrs ” Powell comment, sticks out to me …. she will suffer consequences.

    Thanks for sharing Marcy …


  2. Rugger9 says:

    So, the judge can impose sanctions, though for me the proper remedy would include a Bar referral as well since that would strike at the ability to continue being a lawyer. However, we have Wilbur(rrrrr) Ross defying a CA Federal court order on the census, so it makes it imperative to remove all of the administration root and branch.

  3. PeterS says:

    Can I ask a dumb question: if “Jocelyn Ballantine shared an unredacted copy of the 302 with Flynn’s lawyers”, how come Judge Sullivan gets a redacted copy? (I understand why the public file gets a redacted copy)

  4. Peterr says:

    I have a feeling that the phrase “clear legal misconduct” may appear in whatever written ruling Sullivan makes on the MTD down the road — and not followed by “and therefore I dismiss the charges.” Instead, this may move closer to US v Stevens territory, in which Sullivan appointed Henry F. Schuelke III “to investigate and prosecute such criminal contempt proceedings as may be appropriate” against the DOJ lawyers who concealed evidence not only from the defense but from Judge Sullivan. (From the Schuelke report, p. 12)

    For all that Powell loves to point to Stevens, she and her DOJ friends may regret that this case is before Judge Sullivan.

  5. klynn says:

    Your twitter feed in the last hour, going through the buzzfeed docs, is a hero ‘s analysis effort. You and Jason rise to save the republic. I am not being dramatic. Thank you so so much. Your posts and live tweeting this week has been beyond amazing.

    • soothsayer says:

      Just saw as well, timely and needed analysis, thank you MW. This tidbit especially “McCord’s 302 makes it clear that Bob Litt was the first person to raise the Logan Act (Which he has said publicly, as well).”

      I also just saw the shared Chris Murphy info, super important msg from him: “This hasn’t gotten enough attention, but you need to know. Everybody needs to know. 1/ It’s about the massive coverup campaign underway to disguise the octopus-like Russian election interference operation being run on Trump’s behalf. etc.”

      I don’t even want to process the above from Chris, I am actually overwhelmed by the reality of it right now. I am going to go to sleep. Godspeed to all of you good people out there. Thank you again MW.

    • Eureka says:

      I know, there aren’t enough superlatives, and it’s hard to put the scope of my/our appreciation in words, with all that’s at stake here.

      Thank you.

      All of the years & months of EW slogging not just the ‘normal’ documents, but also the abject-nutter tomes… it’s paying off at scale in recent weeks.

      • Eureka says:

        … and justice willing, all of her work on the Russian investigation (in particular here, not to neglect all the rest on FISA, surveillance, etc.) will be revisited with results.

  6. N.E. Brigand says:

    Given that DOJ is using Van Grack’s supposed actions as part of their reason that the Flynn case should be tossed, is Judge Sullivan allowed to say: “OK, let’s hear directly from Van Grack”?

  7. Earthworm says:

    Yes, brigand, I had the same question: can Van Grack be called as a witness? Or, why wouldn’t he be?

    • Rugger9 says:

      As a practical matter Van Grack would have to be summoned to appear by Judge Sullivan since I don’t think he will be arguing the case otherwise. That might require some notice period (perhaps the lawyers will know how long that has to be) to prepare and IIRC Judge Sullivan’s next hearing is next week.

      However, given the antics in use by DOJ and Powell, Judge Sullivan will need to get to the bottom of this to make an informed decision. While a redacted copy of the 302 would be in the public record, Judge Sullivan should have the unredacted copy as a sealed filing but I think that would have a docket number.

    • MB says:

      That’s the biggest “OT” I’ve ever seen!

      Wonder what this does to his denial and minimization messaging now? Game-changer? Boris Johnson certainly started whistling a different tune when he got sick.

      But if they stay asymptomatic or only have mild symptoms, that could reinforce his “it’s nothing” narrative.

      At least the Wisconsin rally is off for now…

      • Eureka says:

        YES sparing WI that rally is the best thing to come of this, with them under such strain there already, max-capacity in some places.

        Of course he has tanked the (‘his precious’) markets with this announcement, too (curious to see who made trades beforehand).

    • Molly Pitcher says:

      Shhh, the evangelical right would like nothing more than to have Pence at the top of the ticket. He would bring back all those who have had enough of Trump.

        • Molly Pitcher says:

          Gym Jordan was on the flight with Trump. It was a huge list. I hate Trump for so many reasons, but most of all because he lowers my inhibitions for the worst in myself.

        • klynn says:

          “ I hate Trump for so many reasons, but most of all because he lowers my inhibitions for the worst in myself.”

          Molly that would make a great blog post.

        • Saf says:

          Thank you , I’m for putting his recovery full speed to see President lose election and one day a conviction.

  8. klynn says:

    EW will be awaking to this news I assume shortly.

    The one headline to muffle all hitting the fan: POTUS and Melania have covid.

  9. Rugger9 says:

    I’m sure we’ll see a post on this today, but pestilence is one of the ways that the Lord teaches the law to kings (wars being another). Or, karma has struck. Anyhow it was first reported as Hope Hicks only, but Kayleigh exposed reporters yesterday knowing she had been exposed. This makes it intentional and IIRC from the AIDS crisis, one can be prosecuted for knowingly exposing others to diseases.

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