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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

October 27, 2020/23 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

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

October 27, 2020/27 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

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.

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

October 25, 2020/93 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

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.

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

October 23, 2020/69 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

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”

October 23, 2020/10 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

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.

The Desperation of the Jeffrey Jensen Investigation Already Made Clear that John Durham Won’t Indict

October 9, 2020/22 Comments/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

Yesterday, a sick man called into Maria Bartiromo’s show and wailed that his opponents had not been indicted.

Bartiromo: Mr. President. We now know from these documents that John Ratcliffe unveiled that it was Hilary Clinton’s idea to tie you to Russia in some way. It was successful. The whole country was talking about it for two and a half years. But what comes next, Mr. President? We can have all of these documents, we can see exactly what happened but unless John [Durham] comes out with a report or indictments unless Bill Barr comes out with a — a — some kind of a ruling here, do you think this is resonating on the American people?

Trump: Unless Bill Barr indicts these people for crimes, the greatest political crime in the history of our country, then we’re going to get little satisfaction unless I win and we’ll just have to go, because I won’t forget it. But these people should be indicted, this was the greatest political crime in the history of our country and that includes Obama and it includes Biden. These are people that spied on my campaign and we have everything. Now they say they have much more, OK? And I say, Bill, we’ve got plenty, you don’t need any more. We’ve got so much, Maria, even — just take a look at the Comey report, 78 pages of kill, done by Horowitz, and I have a lot of respect for Horowitz, and he said prosecute. He recommended prosecute and they didn’t prosecute. I was — I couldn’t believe it, but they didn’t do it, because they said we have much bigger fish to fry. Well, that’s OK, they indicted Flynn for lying and he didn’t lie. They destroyed many lives, Roger Stone, over nothing. They destroyed lives. Look at Manafort, they sent in a black book, it was a phony black book, phony, they made up a black book of cash that he got from Ukraine or someplace and he didn’t get any cash.

In the comment, he described speaking directly to Billy Barr about the urgency of prosecuting his political opponents.

In response to this attack, Billy Barr has started telling Republican members of Congress that John Durham isn’t going to indict before the election.

Attorney General Bill Barr has begun telling top Republicans that the Justice Department’s sweeping review into the origins of the Russia investigation will not be released before the election, a senior White House official and a congressional aide briefed on the conversations tell Axios.

Why it matters: Republicans had long hoped the report, led by U.S. Attorney John Durham, would be a bombshell containing revelations about what they allege were serious abuses by the Obama administration and intelligence community probing for connections between President Trump and Russia.

“This is the nightmare scenario. Essentially, the year and a half of arguably the number one issue for the Republican base is virtually meaningless if this doesn’t happen before the election,” a GOP congressional aide told Axios.

Barr has made clear that they should not expect any further indictments or a comprehensive report before Nov. 3, our sources say.

Barr is excusing the delay by saying that Durham is only going to prosecute stuff he can win.

What we’re hearing: Barr is communicating that Durham is taking his investigation extremely seriously and is focused on winning prosecutions.

According to one of the sources briefed on the conversations Barr said Durham is working in a deliberate and calculated fashion, and they need to be patient.

The general sense of the talks, the source says, is that Durham is not preoccupied with completing his probe by a certain deadline for political purposes.

This back and forth represents a fundamental misunderstanding of what must be going on.

The Durham investigation should not, at this point, be considered separately from the Jeffrey Jensen investigation attempting to invent a reason to blow up the Flynn prosecution. That’s been true since Barr appointed Jensen because Durham hadn’t yet discovered anything to dig Sidney Powell out of the hole she had dug Flynn. But it’s especially true now that documents that would be central to the Durham inquiry are being leaked left and right — whether it’s the report that the FBI knew that Igor Danchenko had been investigated (like Carter Page and Mike Flynn) as a possible Russian agent, or specific details about when the FBI obtained NSLs on Mike Flynn.

The investigative integrity of the Durham investigation has been shot beyond recovery.

Plus, the sheer desperation of the Jensen investigation raises real questions about whether a credible investigation could ever find anything that could sustain a prosecution, in any case. That’s because:

Jensen has repeatedly provided evidence that proves the opposite of what DOJ claims. For example, the Bill Priestap notes that DOJ claimed were a smoking gun actually show contemporaneous proof for the explanation that every single witness has offered for Mike Flynn’s interview — that they needed to see whether Flynn would tell the truth about his calls with Sergey Kisklyak. Plus, now there’s a Priestap 302, one DOJ is hiding, that further corroborates that point. That evidence blows all the claims about the centrality of the Logan Act to interviewing Flynn out of the water, and it’s already public.
Jensen’s investigators submitted altered exhibits to sustain easily disprovable claims. DOJ has claimed that this tampering with evidence was inadvertent — they simply forgot to take sticky notes off their files. That doesn’t explain all the added dates, however, undermining their excuse. Moreover, if they didn’t intentionally tamper with evidence, they’re left claiming either that they haven’t read the exhibits they’ve relied on thus far in this litigation, or that they’re so fucking stupid that they don’t realize they’ve already disproven their own assumptions about dates. Add in the way their “errors” got mainlined to the President via a lawyer meeting with Trump’s campaign lawyer, and the whole explanation gets so wobbly no prosecutor would want to proceed toward prosecution with problems that could so easily be discoverable (or already public).
Jensen’s investigators got star witness William Barnett to expose himself as a partisan willing to forget details to help Trump. Along with an analyst that was skeptical of the Flynn case (but who was moved off before the most damning evidence came in), Barnett would need to be the star witness in any case alleging impropriety in the investigation. But rather than hiding Barnett’s testimony and protecting his credibility, Jensen made a desperate bid to get his claims on the record and make it public. And what the 302 actually shows — even without a subpoena of Barnett’s personal ties and texts sent on FBI phones — is that in his interview, Barnett claimed not to understand the case (even though documents he filed show that he did, contemporaneously), and either did not remember or deliberately suppressed key evidence (not least that Flynn told Kislyak that Trump had been informed of his calls). The 302 further showed Barnett presenting as “truth” of bias claims that instead show his willingness to make accusations about people he didn’t work with, even going so far as to repackage his own dickish behavior as an attempt to discredit Jeannie Rhee. Finally, by hiding how many good things Barnett had to say about Brandon Van Grack, DOJ has made it clear that the only thing Barnett can be used for is to admit that he, too, believes Flynn lied, didn’t have a problem with one of the key investigators in the case, and that his views held sway on the final Mueller Report. Had Durham managed this witness, Barnett might have been dynamite. Now, he would be, at best, an easily discredited partisan.

Jensen is working from the same evidence that Durham is. And what the Jensen investigation has shown is that it takes either willful ignorance or deliberate manipulation to spin this stuff as damning. And in the process, Jensen has destroyed the viability of a witness and possibly other pieces of evidence that any credible prosecution would use.

DOJ might make one last bid in giving Trump what he wants, allegations against his adversaries, by using the initial response in the McCabe and Strzok lawsuits as a platform to make unsubstantiated attacks on them (DOJ got an extension in both cases, but one that is still before the election). But those attacks will crumble just like the Jeffrey Jensen case has, and do so in a way that may make it easier for McCabe and Strzok to get expansive discovery at the underlying actions of people like Barnett.

Billy Barr has largely shot his wad in drumming up accusations against Trump’s critics. And along the way, he has proven how flimsy any such claims were in the first place.

Sidney Powell Falsely Claims All Jeffrey Jensen’s Errors Have Been Corrected

October 9, 2020/1 Comment/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

Sidney Powell doesn’t want anyone writing Judge Sullivan correcting the erroneous record that she and DOJ have entered in the Mike Flynn case. She wrote a letter asking him to strike the letters from lawyers for Peter Strzok and Andrew McCabe informing him that exhibits Powell received via Jeffrey Jensen’s review and uploaded to the docket and integrated into her accusations against others were false.

I guess she realizes there are additional errors that need to be fixed.

More remarkably, after taking a swipe at Strzok and McCabe in her letter (sounding like President Trump wailing for indictments), she claims that the Jensen “errors” have been corrected.

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. The Department of Justice has already taken appropriate action to correct the unintentional error. The defense only filed what it had been provided by the government.

This is, of course, false. The original claim not to know when the January 5, 2017 meeting was remains, as does Powell’s own attack on Joe Biden based off that false claim.

This ought to draw more, not less, attention to how Judge Sullivan’s docket has become a seeding ground for false campaign attacks.

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

October 8, 2020/54 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

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.