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.

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27 replies
  1. earlofhuntingdon says:

    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.

    Why focus on having derived the dates from the surrounding pages? It’s as if they hadn’t read and weren’t familiar with the larger picture. Or they’re trying to suggest that the presumed dates – even if incorrect – were inconsequential.

    The false assertion that Bromwich signed off on the unaltered state of the notes is telling and makes the attempted “business-as-usual, we’re a busy shop, sorry,” approach look tattered and insincere, especially with a master stonewaller like Bill Barr lurking off-stage. The whole thing looks thoroughly unprofessional, a mash-up that deserves sanction.

  2. Rugger9 says:

    IANAL, but it seems counterproductive to me to keep blowing out all of this smoke to create confusion, since at best it would make Judge Sullivan demand the originals because of all of these layers of coverup. Or, Judge Sullivan might take the rest of the week or so to detail what EW has put together as problems and make it part of his order denying the Motion to Dismiss and sentencing Flynn the same day. This is a judge known to be experienced with and intolerant of Government irregularities, so why does DOJ risk referrals to the Bar to do this stuff?

    When is the next hearing scheduled?

    • emptywheel says:

      Right. If he demands the actual notes, he’s going to see they really did alter the notes.

      And as McCabe noted in his first letter to Sullivan, right now DOJ is refusing to let him access his notes (in part, to prepare for congressional testimony). So who knows if they’ve altered others.

  3. Peterr says:

    Love the way McCabe is daring DOJ to make their statement to Sullivan absent any input from him. Translated from the lawyerese, it seems to say this:

    Let’s compare and contrast. For decades, I’ve served the DOJ traditions of justice, and you have spent the last four years betraying them. For decades, I’ve defended and upheld the rule of law, and you have spent the last four years undermining it. After you screwed with my pension, dragged out legal procedures involving my termination, and tried to vilify me in public in ways too numerous to count, you’ve got a lot of gall asking me to save your sorry tails when you got them caught in a wringer of your own making.

    You go ahead and make whatever claims you want — you’ve done so often enough about my work — but I’m not going to help you decide what to say.

    But you better be damn careful. Given Judge Sullivan’s current state of mind, I would not be surprised if he does not accept your word for what you claim here, and I will be more than happy to answer any questions he poses to me about your claims.

    Have a nice &#^%@ day.

    At least that’s how I’d translate it.

      • Peterr says:

        He did indeed. Strzok was a lot more direct, not being a lawyer.

        But then Strzok’s lawyer did a very nice followup to what McCabe’s lawyer said. “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.”

        Oh my . . . It kind of translates like this:

        As we both know, DOJ has already been caught altering my client’s notes, making the attachments you sent for confirmation presumptively suspect. You’ve already been shown to be deceptive, and that’s why you’re reaching out to Pete through me to confirm them. Fair enough, but unless you give us access to the originals, there’s no way to do what you’ve asked — even if Pete were disposed to do so.

        But as long as we’re talking, and as a sign of good faith, you’ve got either a big typo or a stunningly obvious piece of deception you might want to clean up before this goes any further, and I’ll generously point it out now rather than let you get crucified for it later: the authorship of Exhibit 198-11 isn’t what you say it is.

        One last thing: your partner Kohl really ought to stop lying to the judge. It’s not a good look for him personally or DOJ generally. If and when we’re talking to Judge Sullivan about Pete’s notes, we’ll be sure to call the court’s attention to that matter as well.

        Have a nice &#^$%% day.

        As they say in volleyball, bump – set – spike.

        One last thing. A faculty secretary friend of mine kept a sign on her desk, directed toward both faculty members and graduate students, that seem appropriate here: “A Lack of Planning on Your Part Does Not Constitute an Emergency on Mine.” Making Goelman wait until Monday afternoon to get a reply, rather than leaping into action to give him one on Sunday, was the icing on the cake.

  4. Jenny says:

    Thank you Marcy for overturning a box of puzzle pieces to fit the pieces together. Helps me to better understand these cases.

  5. vvv says:

    I feel guilt laughing at the feckless incompetence of those whose salaries we pay, but amusement is present nonetheless.

    Ministerial note: the first embedded link (“a really long post”) seems problematic.

  6. BayStateLibrul says:

    Potomac Watch or Playing Hide-and-Seek from the Law

    Drop a note to the reporters at the WSJ with this breaking story. It’ll drive that witch, Kim Strassel, bonkers.

  7. Savage Librarian says:

    Don(e)

    Okay, then you had your fun,
    No doubt it was a raunchy run,
    Maybe that’s how the West was won,
    But now you face a setting sun.

    Say goodbye to your hired gun,
    And to the crew you soon will shun,
    We all know your time is done,
    Your chances here are next to none.

    All your problems must weigh a ton,
    No one likes that, hotdog bun,
    I think that they might even stun
    some pals you have in Qanon.

    You can’t finish what you’d begun
    because you never were number one,
    It was all BS that you had spun
    with sticks & stones and Vlad Putin.

  8. Peterr says:

    Over at Politico, Kyle Cheney give credit where credit is due:

    During a hearing last month, Sullivan told attorneys for DOJ and Flynn that he was “floored” by the revelation of the added dates, and last week he ordered DOJ to itemize and certify the accuracy of all of its other evidence, and to verify that no other alterations were made to the Strzok and McCabe documents. Those certifications were due by midnight Monday.

    The discrepancy over whether Bromwich had verified McCabe’s notes was first identified by national security writer Marcy Wheeler. The U.S. Attorney’s office for Washington D.C. did not immediately respond to a request for comment.

    The US Attorney’s Office for Washington DC is probably too busy preparing to respond to Sullivan’s upcoming request for comment: “So tell me why, after I asked you to clean up your previous misleading statements and filings, you seem to have done yourselves one better?”

  9. John Paul Jones says:

    Politico says:

    “The discrepancy over whether Bromwich had verified McCabe’s notes was first identified by national security writer Marcy Wheeler. The U.S. Attorney’s office for Washington D.C. did not immediately respond to a request for comment.”

    Fantastic.

  10. Ollie says:

    omg thank you Marcy for the clear downlow on all of this. I needed to see/fee/read a ‘winning’. I sure hope we are the victors in all of this battle for our democracy.

  11. MattyG says:

    Is this truly the display of rank Incompetence it appears to be, or what being ordered to achieve the impossible “at all costs” looks like? It would seem a certain powerful player has interests that make blatant courtroom impropriety a small price to pay. It has been noted that a Flynn pardon does not innoculate DT from further testimony. Flyn would conclude he faced serious jail time and loss of pension etc. His team got word back to DT that this was not acceptable – get me out of this or the story goes public one way or another. What else could be annimating the DOJ? They threw Manafort and around – why the bizarre full turn-about with Flynn. Flyn must have lit the low fuse. This isn’t a new or original idea but seems more and more probable as this sordid tale unflods.

    • Chris.EL says:

      regarding whether to “rescue” Manafort or “rescue” Flynn — perhaps it has to do with money; Manafort is money in the bank — so that $$ can stay there, ready to pay for the pardon.

      Flynn’s jeopardy is important; seems Flynn has some sort of KEY MECHANISM or UNDERSTANDING HOW to manipulate the VOTES.

      ~~~~~~~~~~~~

      10/27/2020: …”Judge for SDNY has just rejected the Justice Department’s attempt to substitute the United States for President Trump as the defendant in @ejeancarroll’s defamation lawsuit.

      Judge says POTUS “not an employee” [NOT AN EMPLOYEE] and his comments about Carroll were not in scope of his employment.”…

      FU DT

  12. Jan says:

    The term “stitched up” comes to mind. Putin’s answer to inconvient people. I hope Mr. McCabe gets some justice.

  13. lastoneawake says:

    I’ve been following this for almost 2 years, because it seemed like an instructive case that showed me how the legal process works, with clever but devious lawyers attempting to defeat honest ones who are merely doing their jobs.

    But now I just see scurrying scumbags with law degrees trying to save their necks from honest lawyers doing their jobs.

    The education is over for me. Thank you Marcy!

  14. FL Resister says:

    Judge Sullivan is kicking ass and taking names. From Politico around 10:30 tonight:
    “A federal judge on Tuesday night ordered the U.S. Postal Service to reverse limitations on mail collection imposed by Trump-backed Postmaster General Louis DeJoy, giving the agency until Wednesday morning to inform workers of the court’s changes as more mail-in ballots continue to flood in.”

    “In a highly detailed order, Judge Emmet Sullivan of the District Court for the District of Columbia granted an emergency motion by plaintiffs against President Donald Trump to enforce and monitor compliance with Sullivan’s previous injunction tied to USPS services.

    They have until 9 a.m. Wednesday to “tell agency workers that a USPS leader’s July guidelines limiting late and extra trips” are rescinded.
    “USPS personnel are instructed to perform late and extra trips to the maximum extent necessary to increase on-time mail deliveries, particularly for Election Mail,” Sullivan wrote. “To be clear, late and extra trips should be performed to the same or greater degree than they were performed prior to July 2020 when doing so would increase on-time mail [email protected]

    Judge Sullivan also ordered daily updates on “the number of extra and late trips occurring every day at national, regional and local levels, in addition to information about on-time deliveries. And starting Wednesday, the agency and the plaintiffs who sued USPS will meet in a daily videoconference to discuss status updates of how the agency is complying with Sullivan’s order.”

    Well hallelujah. I didn’t want to leave anything out so this is pretty much all lifted from the Politico article.

  15. elise says:

    great comments and links, all. thank you so very much.
    win or lose, this feels like the first roller-coaster ride i’ve ever enjoyed, because i know the engineers have placed the bumps strategically to make my hair white and spiky, and that i’ll ‘get there,’ no matter how long it takes.

    i’m elated to find that there has been good credit bestowed on marcy.

    ah, but at the same time, how devastating and sad to have America so badly infested!

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