The “Scanned” Andrew McCabe Notes Weren’t [Just] “Scanned”

The story DOJ offered yesterday to explain why they had altered several exhibits of undated notes raise more questions then they answered. In both cases where DOJ has admitted the exhibits had added dates — Peter Strzok and Andrew McCabe — those dates are problematic.

Plus, the excuse offered for those dates — that someone forgot to take off a clear sticky and post-it notes before copying the exhibit — can’t explain the third instance where DOJ added a date, where they incorporated it into the redaction of notes taken from a meeting involving ODAG’s office.

Indeed, the redaction may even cover an existing date (see what look like the slashes of a date, outlined in red, though that could also record the names of other attendees), with a date added in the redaction (outlined in yellow).

Moreover, there’s a problem with the excuse DOJ offered about the McCabe notes, which went as follows:

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.

That is, DOJ is claiming that “someone” missed a blue “flag” when they were “scanning” McCabe’s notes and so inadvertently left a date — the wrong date, probably — on the exhibit, without leaving any sign on the exhibit itself.

The problem with this explanation is that we know precisely what a blue sticky left on an actual “scan” looks like. It looks just like what we say in the Bill Priestap notes submitted three times under two different Bates stamp numbers.

That is, if the document were just scanned, it would show up quite obviously, as it does here, and would be impossible to miss.

And yet this “scan” attributed to “somebody” doesn’t show up, possibly because the redaction covers it.


54 replies
  1. klynn says:

    The explanations from DOJ really do not explain why post-it notes with dates were applied. What was the purpose?

    • BobCon says:

      Post-Its are common when people are “digesting” raw documents. They’re really useful for marking and highlighting when you don’t want to obscure the document.

      What’s inexplicable to me, though, is that they might be doing this to the copy they were transmitting. You would go to town on a second copy with whatever annotations you were making but always have a clean version for final redactions.

      It sounds like they’re trying to say they scanned a scan, which doesn’t make sense, or else they were marking up the original, which really doesn’t make sense.

  2. Peterr says:

    Every mother of a DOJ attorney involved in this would be rolling their eyes right now.

    “No mom, I didn’t eat any chocolate chip cookies, and I don’t know anything about the chocolate smears around my mouth and the crumbs on the floor.”

    • klynn says:

      It was as though the explanation was, “My bad. I accidentally put those post-its on the doc and accidentally forgot to remove them when I copied them. Nothing to see here. Move along.”

  3. BayStateLibrul says:

    Marcy is the first and best forensic journalist.
    The judge should hire her as an “expert witness”

  4. Rugger9 says:

    Interesting point, perhaps Marcy can forward these to Gleeson so it will get into the record as part of his next investigatory filing. I can only speculate that all this will really do is to confuse Judge Sullivan and force him to sort it out which will take time. If the idea was to bury this before the election, that ship has sailed now.

    • bmaz says:

      I think they know about this blog. And Gleeson has never had any “investigatory” functions, much less going forward. He is there solely to argue evidence in the record.

      • PeterS says:

        And on that subject, does Powell have any sensible attack on Gleeson’s partiality?? I thought he was precisely there to be partial, after the DOJ stepped down from its adversarial role.

        • Rugger9 says:

          It would seem then that the problem is how to make sure that EW’s analyses get to Sullivan, or does Judge Sullivan already have these dots connected? I think he’s smart enough to see it and also alerted to expect something hinky from DOJ from prior filings, but something like these “modifications” can be lost in the other stuff.

          I would note that Powell’s demand to have Judge Sullivan recuse himself is an act of fear, anticipating that even she knows this is BS so it’s time to forum-shop.

        • Desider says:

          IANAL, but I imagine soliciting opinions from various friends & fav sites could present some ethical and bias issues outweighing or lowering any benefits. I imagine some of these judges are pretty thorough & insightful with the evidence and arguments on record.

      • Manuel Gonzalez says:

        and…..that is why I appreciate your contributions in this blog, bmaz. What you write and what you do not. I visualize what lies between your lines as a scanning lighthouse’s beam that helps me surf the headlines.

      • ThoughtMail says:

        Sure, Gleeson is only there to argue evidence in the record. But still, and obviously, he’s not living in a hermetically sealed bubble. I don’t think he’ll be advocating for any judicial notice of things outside the record, particularly here.

        HOWEVER, in his function as an adversarial amicus, it may be necessary for him to bring some things into the record, so that a fraud is not perpetrated upon the court.

        This is not an appellate court, but of first instance, where the rules of evidence are different, and new evidence may be admitted, albeit evidence of a new crime or misdemeanor.

        Sidney is doing a pretty good job of turning this into a morass.

        • bmaz says:

          Thanks for the primer on trial courts and the Federal Rules of Evidence. No, it is “not an appellate court”. But Gleeson should have never been involved in the first place, and sure as hell should not be adducing evidence. If he does 1,000 people ought to submit amici calling him out for chicanery. I’ll be one of them.

          Also, please do tell how “evidence of a new crime or misdemeanor” is relevant to a freaking motion to dismiss? How about a sentencing on a plea supported by the existing record and formally accepted and entered by the court on the record, twice, starting nearly two years ago. How is that?

        • ThoughtMail says:

          The primer wasn’t for you, dear one. It was for the others who say IANAL. I’d appreciate a little more equanimity on your part, though. Useful skill, that.

          Motions without adducing or alleging evidence would be weaker. But sometimes, like Sydney in the recusal motion, trying to baffle everyone (though probably not Sullivan J.) with a lot of spurious argument, isn’t likely to work in her favor. But, hey, why not be a FAMOUS failure? Infamy works too, if that’s what you’re after.

          Sure, go for sentencing on the plea and record, after you’ve dealt with the delays served up by Sydney. I just don’t see what’s to be gained in all of her delays. She may eventually be able to say that what she did helped the eventual Democratic admin in 2021, 25, or 29 (God forbid).

        • ThoughtMail says:

          Sorry, in haste I neglected to address your point asking about a “new crime or misdemeanor”. Evidence tampering works for me (the post-its debacle). This trial has turned out to be the gift that keeps giving. What else will be a “gift” (in the German sense, as well)?

        • bmaz says:

          Listen, I am fine, and you are full of shit. You are blowing smoke. There is no “trial”, and never was a “trial”. it was a plea on a direct complaint from day one.

          You do not have a clue what you are talking about, and are shading people here. You either do not know the facts, or have no real clue about criminal law in the United States, or both. Maybe it works different in your country.

        • ThoughtMail says:

          You seem to be under the impression that I don’t respect or value you or your *legal* opinion(s). If that’s true, you are mistaken.

  5. greengiant says:

    Wondering which documents Sullivan has which are previously filed and not redacted. Are all scanners used by the DOJ going to generate those blue post it tells? And then there is the Reality Winner type steganography which might show which scanner or printer was used. What would some Obama birth certificate rabbit hole photo shop as an intermediate step do? Just some bread crumbs for the hoped for 2021 investigation.

  6. GKJames says:

    Safe to assume that DOJ intends the inference to be that the “someone” doing the scanning is an administrative assistant, rather than a licensed attorney at risk for committing a fraud on the court?

    • Rugger9 says:

      I would think so, to provide the “plausible deniability” that is a hallmark of the GOP shenanigans since Reagan was in the WH. For example, IIRC Fawn Hall was shredding stuff for Oliver North but no one was willing to hammer her because it was clear she wasn’t one of the instigators.

    • ThoughtMail says:

      It doesn’t matter who scanned it. It only matters who authorized the submission under oath.

      • timbo says:

        Re: “It doesn’t matter who scanned it. It only matters who authorized the submission under oath.”

        Hmm. That doesn’t seem like it is always true.

        It seems to me that one might sign something into evidence in perfectly good faith… even if someone else had previously altered or tampered with that evidence. Thus, while the person signing such tampered evidence in might be completely innocent of any knowing crime, the person who performed the scan (in this instance et al) might certainly be guilty of a crime and have defrauded and/or used their front as a dupe. Of course, sometimes one is specifically responsible for evidence before it is submitted… such as the evidence locker in police stations, etc, which complicates things even further as to the attribution of veracity with regard to the evidence and legal culpability, etc.

  7. UnderhillOverhood says:

    To be fair, Post-it Flags do look different from the arrow scanned in the Priestap document. They have a transparent part that might not show up in the scan — similar to the clear areas on the adhesive arrow in your image — but that can be written on.

    If links are allowed you can see what I’m talking about on the Post-it site here:

    • P J Evans says:

      Some colors show less in photocopying than others. (I had another brand where the colors were printed one-side-only, and some of them were quite transparent when photocopied. Can’t remember the brand, though I still have some around.)

  8. earlofhuntingdon says:

    The DoJ’s conduct here, and the FBI’s elsewhere, certainly looks like intentional misconduct. DoJ prosecutions and FBI investigations revolve around documentary evidence. Keeping track of it is fundamental to the work. It would be outside of procedure to mark an original. Copies would be marked, “Copy.” Annotations would or should be identified by person making them. “Guesses” as to dates of evidence, except for internal notes to be confirmed by further work, would not be added to documents, certainly not those intended to be submitted to a court or the defense.

    Unlike Bill Barr, the DoJ’s explanations do not retain water. I think he’s mocking the court system.

  9. Quake says:

    “It looks just like what we say in the Bill Priestap notes submitted three times under two different Bates stamp numbers.”

    Say > Saw

  10. Chris.EL says:

    On emptywheel Twitter, just viewed 2.5 minute video of Trump standing in front of at least one acre of perfectly mowed (and watered!!!!!!!!!) green grass at White House — looks like he’s getting ready to go spread more covid around somewhere — via helicopter — his little jacket perfectly buttoned (never really wears it that way) telling us how much he LOVE LOVE LOVES SENIORS !!!!!

    (I’m 68 years old; I say F-ING BULLSHIT) go stick your sorry covid infested you know what in a bucket of sodium hypochlorite aka bleach.

    (Insecticide in your hairspray may help too.)

    Sorry – had enough of this liar!!!!!

    Plus his rhetoric about the drug he got sounds like an effort to tweek the manufacturer’s stock price.

    Trump is also GUARANTEEING SENIORS WILL GET THE DRUG FOR FREE!!!!!!!!!! Sez who? Again B.S.

    • P J Evans says:

      He’s trying to make himself sound like he’s a lot healthier than he is, and Regeneron went up bigly this week. It isn’t a cure, it isn’t available to most people, and it will never be free, even for seniors.
      (I’m nearly 70, and I don’t believe him either. Also I’ve had mabs, and while they can be great in treatments, the aren’t appropriate for everyone and everything.)

      • Chris.EL says:

        Thanks PJ for commiserating… I’ve started yelling at the radio when I hear his blathering; we’re doomed.

        Seems to me though that it may be more beneficial to use an antiviral (Remdesivir) to keep the virus from replicating – actually mess up the replication.

        Bet he is getting a kickback for promoting the antibody treatment!

        Really gets me — people are sick and dying, living in the street, the government spends money treating, protecting Trump, maintaining White House grounds and US citizens can’t enjoy any of that.

        • P J Evans says:

          The WH belongs to us, and we’ll get to enjoy it again. After he’s out of it and the place has been thoroughly cleaned. Maintaining it is fine by me. What I object to is the idea that he’s promoting that he’s some kind of super man, and that the economy is the stock market and nothing else.

      • Rugger9 says:

        The number I saw was 100 k$ for the treatment, there’s no way Big Pharma and Regeneron lets that kind of revenue go.

        On the ballot in CA we have Prop 23 regarding dialysis patients, where one of the provisions prevents Fresenius and DaVita, etc. from rejecting patients based on their insurance source. The fact we do not have basic services for all like every other top-80 economy is why we have to have ballot initiatives like this to rein in the vultures.

    • Eureka says:

      There will be (*if this drug gets approved*) a substantial number of free doses, because we the taxpayer are paying for it. However, the number of free doses remains unknown because the ‘dose’ remains unknown (because this stuff is still in Phase 2 trials). Trump received 8g, which is the highest dose. If 8g = optimal dose, then there will be fewer free doses from the supply.

      This is reviewed in a 9-30-20 Science article (by Jon Cohen, pretty sure). I don’t have the link handy but I posted it on the October Covid Surprise post Rayne did for Trump’s dx (ctrl f for word “Lily” will find comment quickly).

      So the “free doses” is about the only thing he’s not totally lying about; however, as it is not an approved drug, there is no guarantee (and certainly no terms, at this time, by which it would be “free to all seniors”, unless, besides the free doses, there is a plan for them to arrange for Medicare to cover it at 100% once the free doses are used up).

      • P J Evans says:

        I doubt that Medicare would cover 100% of it – they don’t cover shingles shots. And I paid a good chunk of chemo myself. (Yes, I read my medicare statements. It’s how I found out some of the drugs I was getting.)

        • Eureka says:

          Exactly, as I said they’d have to make a policy change (or few, depending on how it might be done: for e.g. Medicare doesn’t usually even cover things approved by EUA, which is the door this stuff might get in thru. _Might_). By the time that’s relevant, would lame duck Trump and allies care to push the issue?

          PromisesPandering made, pandering forgotten…

    • P J Evans says:

      They should have 25ed him when he did that damned around-the-block trip: that was a clear signal he has no clue how sick he really is, and how contagious he is. He’s infected at least 30 people that we know about.

      • graham firchlis says:

        Trump is responsible for more than seven million infections in America, with many millions more to come in his wake.

        Give devil his due.

        • P J Evans says:

          I was thinking directly responsible, as in he infected them in his own physical person, not the greater sense.

  11. FL Resister says:

    When caught red handed, the bad guys (Trumpists, Republicans) will call an obvious crime, dereliction of duty, or outright lie or crime a joke or an inadvertent mistake.
    These are the same people who will examine every last procedure, word, sentence, action, process or argument in a legitimate pursuit of the facts and justice to find any reason, no matter how contrived or obtuse, to claim intentional malfeasance or conspiracy.

  12. Jon says:

    I do so look forward to W. Barr’s immediate filings, to protect us from Tampering With Evidence (or the awareness thereof). There will be witch hunts! Sanctity of the process, Original Intent, etc…

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