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.

69 replies
  1. skua says:

    These impacted errors could cause Barr extra discomfort, and have him attempt to resolve things by asking Trump to pardon Flynn ASAP?

    • JVO says:

      That was my first thought as well but he will wait until after election day – and the extension will make it possible. Sullivan deny an extension or make it next Friday and make Barr squirm and feel the consequences.

    • Justin says:

      Flynn will be required to testify in open court about everything after a pardon.
      No way does that happen

  2. elise says:

    document cloud project
    my lips are sealed
    if i ever learn how to use a project, i’ll let you know.
    thank you, marcy. (instead of Hallow Evening, substitute Day of The Dead)

    • elise says:

      wow WOW
      great ! you put 28 documents in this project !
      maybe the project Stone Trial is bolted shut … ?

      it’s NOT me.

  3. Alan Charbonneau says:

    Powell’s demand “When Mr. Strzok and Mr. McCabe become parties to criminal proceedings, they are welcome to file objections in their own cases. Until then, they are free to write directly to the Department of Justice with their concerns, but they may not engage in ex parte or extrajudicial communications with the judge in this case, nor insert themselves into proceedings in which they have no standing.”

    If I am reading this correctly, she is claiming that since they don’t have standing, any alterations of document are none of their business. If they wrote to the DOJ and the DOJ did nothing, they would have no way to correct the record. I’m not a lawyer, but this sounds like bullshit to me.

    • earlofhuntingdon says:

      One would think – as seems to be so often true with her – that the opposite of what Powell claims is true: the authors of notes submitted as evidence to a federal court and made part of the public record have a duty to correct obvious falsehoods regarding whether their notes are original.

      That would seem especially true where, as here, the documents are part of a formal criminal investigation and their authors are former federal law enforcement officers or lawyers. Two other important factors are that the DoJ has both a conflict – it has submitted the allegedly falsified documents – and it is no longer playing a role adverse to the defendant.

      • Alan Charbonneau says:

        Now she’s on Lou Dobbs along with Tom Fitton saying there’s more than enough evidence to indict Joe and Hunter Biden. That’s per the headline, I can’t bear to watch these conspiracy theorists spew their idiocy.

        Not related, but still interesting is that Dobbs has stated: “I don’t know why anyone in the great state of South Carolina would ever vote for Lindsey Graham” and “Graham has betrayed President Trump at almost every turn”. Graham, the Trump toady, has betrayed him at almost every turn? He’s either off his meds or doing Trump’s bidding, methinks.

      • subtropolis says:

        Absolutely! It would be ridiculous for the court to silence their complaints that submitted documents attributed to them are unsound. Powell just keeps looking worse and worse.

  4. Rugger9 says:

    McCabe and Strzok do have litigations pending (IIRC civil ones about the treatment by DOJ) so Powell’s argument seems to fall flat here but I may be wrong.

    As for the order, the legal dumpster fire set off by Powell really forces Judge Sullivan to demand final answers about the accuracy of the exhibits. He cannot objectively rule on the various motions otherwise, as everyone outside of Neomi on the DCC would understand. Once again, AG Barr took an otherwise simple issue of pardoning Flynn (does anyone really think that something like that 675 days ago would have traction in the press today?) and turned it into a slow-burning fuse on a bomb.

    • (Not That) Bill O'Reilly says:

      I highly doubt Barr was the one deciding to go the Rule 48 route rather than simply issuing a pardon. Seems much more likely that Trump demanded it in order to vindicate his crackpot brigade’s theories that Flynn was set up by the Deep State.

  5. BayStateLibrul says:

    What is the fucking remedy if they deliberately provided the court with false information.
    I want that “hired gun” Barr behind bars.
    As Scott Turow writes…”The real rub of the hired-gun mentality is that it erases any sense that the advocates loyalty is to the legal system.”
    Our legal system is all fucked up.

    • Rugger9 says:

      In CA when it’s a habit the judge will refer the attorney to the state Bar for disciplinary action. This stuff usually qualifies.

  6. BobCon says:

    The perils of rushed document releases are wonderfully shown by this Slate article:


    Whoever did the redactions of Ghislaine (“I wish her well”) Maxwell’s deposition didn’t do a thorough job and let the reporters go back and between the index and figure out the names that were redacted.

    It would be hilarious to see that kind of slip up if DOJ tries to meet the Monday deadline, assuming they don’t do any serious damage they legitimately need to prevent.

    • Alan Charbonneau says:

      IIRC, that’s how the Dead Sea Scrolls were published. The lead researcher wouldn’t publish the texts, but allowed an index of the words and their location by page to be published. A computer then arranged them in the correct order. It’s funny to see that, decades later, the Maxwell case takes a similar turn.

      I’m looking forward to DOJ’s response to Sullivan and it should be fun regardless of slip ups.

  7. Norskeflamthrower says:

    In another administration, under a new competent AG (by definition NOT Amy Klobuchar) could the government go after the toxic tub of goo Barr for anything? We can not survive as a country if the entire rolling coup of the last 4 years is not publicly exposed and prosecuted both civilly and criminally at all levels. No more “looking forward not backward”. But is it even possible under existing law.

      • Alan Charbonneau says:

        I read some speculation (perhaps here, I’m not sure) that Trump will fire Strauss after the election. If that happens and she’s picked for AG, Trump & Co may be reminded of the “be careful what you wish for” aphorism.

    • Spencer Dawkins says:

      What Justin said. If we return to the rule of law, and not “locking them up” to make a president happy, if you broke a law under Trump, it was still broken on the 21st of January 2021, and you can still have a very bad time defending the indefensible.

      And re: Klobuchar – if we could stop pulling Democratic senators out of the Senate for cabinet members, that would be AWESOME. That’s my biggest hangup about Kamala, and California isn’t likely to replace her with a Republican, but as a thought exercise, imagine Obama with the senators he brought to the cabinet still in the senate during the ACA wars. We had a filibuster-proof majority from the time Franken was seated until the time Kennedy was too ill to serve – less than a year. And then McConnell was off to the races blockading.

      • BobCon says:

        Although Klobuchar getting picked could set the table for Keith Ellison going to the Senate, which has the potential for fun. He’s already won statewide, so it’s not totally impossible.

          • bmaz says:

            Ellison is great. But you really think somebody with NO historical federal experience in substantive criminal law, much less the institutional bureaucracy of the DOJ, is the right person to lead it?

            People need to get their heads around the fact that the person to be the next AG is not just some person you have heard of and like, but someone with the background to actually do the job.

            • Xboxershorts says:


              I’d like to see, maybe, Sally Yates or Clint Watts have a senior role or even AG…

              People at DOJ who were burned by Trump and Barr, being put in charge at DOJ seems to me, like extra juicy karma…

            • Norskeflamthrower says:

              I agree with you Bman. Ellison is a fine state attorney general and he needs stay where he is for at least one more term because he is the first activist AG Minnesota has had for decades and he and the governor have been on a pretty successful search and destroy operation against the neo-nazi agent provocateurs who tried to burn down Minneapolis . And anyway if Amy Klobuchar is appointed USAG (shudder) I really believe Al Franken is the best choice to replace her and he is being quietly rehabilitated in the state that was forced to dump him by powers from outside the state but inside the Democratic Party.

      • graham firchlis says:

        Don’t fret about California. We have a half dozen and more quallified competent replacements, all more to the Left of both Harris and Feinstein. Gov Newsome has an interesting set of choices to make, including himself.

        More interesting choices will come in Nov 2022. Expect Feinstein to retire shortly after the election. If Newsome doesn’t take Harris’ place, he’ll still be Governor with his eye on the White House. How best to position for 2028?

        • bmaz says:

          Newsome should be a non-starter. Many people in CA mention Schiff or Swalwell. I am only an adjacent friend to CA, but I would FAR prefer it be Katie Porter. She is better than all the previously discussed put together.

          • graham firchlis says:

            Newsom has all the power, and he will use it to his own advantage. Any benefit for thee and me will be IMHO coincidental.

            He needs to bolster his latinx support, and there will be great pressure for a woman. But not Katie Porter; she is too junior and does not have a power base he needs.

            There is nearly zero chance it will be a white man, unless Newsom takes it himself.

          • blueedredcounty says:

            Ted Lieu’s name also comes up, but I agree with bmaz on this. Even though I live in San Diego, I made it a point to contribute to Katie’s campaign. She has been amazing to watch as a questioner during House committee meetings. She has also been wonderful to watch in direct interviews. Especially if Orange County can’t help itself and replaces her with a Republican, she should be on a short list for a position in a new Biden administration.

            • bmaz says:

              I like Lieu a lot, he would be a great replacement for Harris and/or DiFi. There are several excellent options. Honestly, Porter might make a better replacement for the fossilized Pelosi.

          • AndTheSlithyToves says:

            Porter is a breath of fresh air, and is very talented. Amazing story: A mentee of Elizabeth Warren when at Harvard Law, where she graduated Magna Cum Laude (BA from Yale). She’s a survivor of domestic abuse, and has sole custody of her and her ex’s (Matthew Hoffman) 3 kids.

              • Norskeflamthrower says:

                You win the coverall bmaz. I too would like her in the speakership but Katie Porter is an easier loss in the house (even if it is Orange County) than anyone in the Senate. But ANYone other than Klobuchar. If he appoints Klobuchar it will set up a huge split in the party before anything gets done.

          • P J Evans says:

            I got an email survey the other day where they asked who I’d want to replace Harris. From the list they provided, the only non-Representative I’d consider was Hilda Solis. Too many of the Reps we need in the House.

        • P J Evans says:

          Newsom isn’t as popular as the media like to claim. He’s a favorite of Westlands (the southwest San Joaquin Valley water district) and the oil producers. His policies will kill a chunk of the less-harmful parts of the state economy.

      • Angela Mar says:

        That timeframe from when Al Franken was seated (about 7 months late) was in July and Kennedy passed in late August (the 25th iirc).

        The Democrats had a Cloture proof majority for less than two months.

        I wish enough people could remember this factoid, and judge the “failure” of the Obama first term in light of it. Tough to be 100% victorious when you had about six weeks and not TWO YEARS of superior seats in both Houses of Congress.

        Not that you made such claim, it’s just everyone seems to think that first two years of Obama’s first term should have been owned by the Democrats, and harshly judge them all for failing to get more done. Because they are all mis-remembering how long they held that power.

        • Norskeflamthrower says:

          Very good catch. This is a good example for folks to understand how important it’s gunna be to get everything done in the first 100 days and not spend 2 years on healthcare. Schumer and Pelosi (or hopefully whoever replaces her) hafta have everything ready to hit the floor on day one. All the legislation that’s already been written and presented in both the House and Senate should be printed up and sent to committees (things like reauthorization of voting rights). The focus should be on everything but clear the deck in the first 3months with all the catch-up and appointment confirmations to set up the green new deal and health care for the rest of the biannual term.

    • Zirc says:

      A lot of folks disagree with me, but I’d think President-Elect Biden should whisper in Trump’s ear that he’s safe from federal prosecution if and only if he pardons no one before inauguration day. If he does pardon someone/anyone, then all bets are off. While I’d like to see Trump on the hook for his obstruction of justice, misuse/abuse of DOJ, and various financial crimes, I reason that he is in enough trouble with state authorities, and that anyone else (Barr included) can deal with the fact that there’s no pardon coming, just a thorough investigation of the runaway criminality of the Trump Justice Department. Also, it sounds as though a more thorough counter-intelligence investigation is required.


      • Raven Eye says:

        If Biden wins, will Trump stick around until January 20?

        And either way, I’m not looking forward to November 4.

      • earlofhuntingdon says:

        Bless your heart. You still think Trump can keep a promise or be negotiated with.

        Regardless of what Biden might offer, Trump will do whatever he can get away with and then some to keep himself, his family, and his businesses away from prosecutors and public scrutiny. Either makes his empire worthless, as do the many yuge loans that are coming due. McConnell and his party will do the same, and practice a scorched earth policy that will make Sherman’s March look like a picnic.

        Whatever the Democrats choose to do, they will have to go it alone until the GOP suffers a sea change, which is not on the horizon.

      • Franktoo says:

        I’d trade non-prosecution of Trump for passage of an amendment limiting misuse of the President’s Article 2 powers: a) President’s actions under Article 2 are subject to impeachment or prosecution under obstruction of justice laws. b) There is no immunity from compelled Congressional testimony by administration officials about what they witnessed, how they analyzed situation and what options they discussed with the President, except from the forced disclosure of precise recommendations. c) No presidential pardons after Oct 1 in a Presidential election year and no pardons of administration appointees, campaign officials for their actions in office or during campaigns. No self-pardon by the president himself or pardon of his family. d) Limit the President’s power to appoint Acting Officials to positions requiring Congressional approval to officials who have previously been approved by Congress to serve in that Department. e) Possibly provide the President representation and rebuttal at any Congressional hearing on subjects the President states in writing could lead to impeachment, but otherwise make it clear that Congress otherwise controls the process. f) Possibly codify current policy that the DoJ will investigate Presidential misconduct and forward their findings to Congress including classified finding to members who already receive classified material, but not indict a sitting president.

        The problem with pardoning Nixon and a possible pardon of Trump is that none of the above issues ever get resolved in a timely manner, lower court opinions are rejected by the President’s attorneys and the president manages to run the clock out before reaching the Supreme Court. If the DoJ can assert, as it does (and ordinary law may not change), that it won’t indict a sitting president, Congress needs clarified power to subpoena witnesses. We also need a law requiring the IRS to disclose the last ten years of tax records of anyone whose name will appear on any presidential primary ballot. If you want your name to appear on the ballot, tell the public about your financial affairs before asking for a single vote.

        • earlofhuntingdon says:

          Passage of a constitutional amendment is by far the hardest way to go anywhere. What you would do through a amendment could be achieved through legislation and an enlarged, less reactionary S.Ct. and federal appellate courts, much easier lifts.

          • bmaz says:

            Yeah, I am not sure there will ever be another Constitutional amendment in our lifetimes. If ever. It is basically silly talk at this point.

    • madwand says:

      No chance, as in “The Last of the Mohicans”, stay with the officers, the French officers will protect the English officers.

  8. x174 says:

    fun read, thanks. favorite part of Judge Sullivan’s order is the repetition especially the repeated phrase “a declaration pursuant to penalty of perjury under 28 U.S.C. sec. 1746”

  9. graham firchlis says:

    As Sullivan’s order is a demand that Flynn’s lawyers and DoJ document their lies, some considerable
    footdragging is expected.

    Maybe more lawyerly obfuscation and maybe another weighty Sullivan order or two, and sentencing will be delayed until after the Office of the Presidency leaves Trump.

    No sentence to commute, a broad pardon the only option to keep Flynn and his secrets out of prison may open otherwise precluded lines of investigation into Trump and associates. Perhaps as good as the public interest will get.

  10. joel fisher says:

    Post 11/3 they can get relief, but not by going through Sullivan. (I’m starting to have a Trump earworm: I don’t even ask: I just start sentencing, and when you’re a Federal Judge, they let you do it.) The motion hearing in front of Sullivan will go on and on but, if the election turns out a win for Biden, maybe the only thing left to do is get pardoned or finish the motion currently at issue before Sullivan. What about a commutation of Flynn’s sentence? I really don’t remember this ever coming up, but if there’s no sentence, is there anything to commute? Of course he could get a pardon, but that has unpleasant removal of 5th Amendment problems. I think from Flynn’s/Trump’s perspective he’s got to get sentenced or dismissed by Inauguration Day.

  11. Peterr says:

    Notably, after Strzok and McCabe’s 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.

    IANAL, but is Powell seriously telling Sullivan that if anyone has evidence that a fraud is being perpetrated upon the court, the court should not listen to them?

    Seems to be a strange argument for a lawyer to make — defense or prosecution — as it flies in the face of legal ethics. But you be you, Sidney.

    • earlofhuntingdon says:

      Whether Sid Powell is or can be serious, I have no idea. She certainly isn’t credible. But, yes, she is arguing that the author of document(s) offered as evidence in federal court by the prosecution and defense cannot, on his or her own, allege to the court that the documents as presented are false or have been tampered with.

      Powell argues that the author’s claims can only be brought to the court’s attention, if and when they are submitted through the prosecution or defense. Opportunistically (the only way Powell acts), that would prevent the author’s claims from being heard, because the prosecution is now acting in concert with the defense. Neither would offer the author’s claims here, because to do so would put one or both of them in serious legal jeopardy.

      The cynicism of Powell’s claims – and her whole purported defense – are stunning, even by Trumpian standards.

      • timbo says:

        Yeah, I’m not sure how some of her motions and claims don’t end up warranting her disbarment, frankly.

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