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More Reason to Question the Government’s Treatment of Andrew McCabe’s Notes

In this post, I noted that the three sets of Peter Strzok and Andrew McCabe notes to which FBI added dates (in at least one case, inaccurate dates) had had their Protective Order footers redacted, suggesting someone packaged them up for circulation (probably with two other documents shared that same day, one of which was a frivolous repackaging of Strzok’s texts with Lisa Page).

In this post, I pointed out several other irregularities with McCabe’s notes: that there’s an artifact in the left margin by one of the redactions (multiple people have said this is one or two post-it notes which left a shadow and covered up the margin) and there’s no declassification stamp.

Two more readers of the site have provided further reason to question FBI’s treatment of Andrew McCabe’s notes.

First, a tech expert separated out the objects in the PDF with the altered date, which shows what the original scan of McCabe’s notes looks like. It looks like this:

That is, the redaction that covered up where the footer would say, “SUBJECT TO PROTECTIVE ORDER,” was in the first scan of the document, even though the footer would be applied later (the Bates stamp and the Protective Order footer show up as metadata in the PDF).

Meanwhile, Cannonfire did some more toying with the document in PhotoShop, and shows that the Bates stamp footer and the redaction are of a different quality than everything else on the page.

It makes sense that the Bates stamp footer is–those are added at a later stage to the document along with the Protective Order stamp.

But for this document to have been produced in this way, the Protective Order stamp would have had to have been redacted out at a later date.

Both of those details suggest that the footer was redacted at a later date.

The Altered Andrew McCabe and Peter Strzok Documents Were Packaged for Circulation

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

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.

Shorter DOJ: We Made Shit Up … Please Free Mike Flynn

Congratulations to the lawyers who worked all weekend to meet Judge Emmet Sullivan’s deadline to certify all the documents (with just eight explicit caveats and then another slew built in) submitted in the Mike Flynn motion to dismiss proceeding. I doubted you could pull it off time-wise.

In your rush you seem to have provided Judge Sullivan even more evidence that nothing about this proceeding is normal. Indeed, some of this submission almost makes Sidney Powell’s submissions look tidy by comparison.

The slew of caveats

Effectively, the certification (signed by Jocelyn Ballantine, with individual declarations signed by three others, in part because there are things that Ballantine almost certainly knows are inaccurate or include material omissions), says there have been no material alterations to the documents submitted in the proceeding except for:

  1. Redactions done in the name of classification, law enforcement sensitive, or privacy that serve to hide material information pertaining to Brandon Van Grack, Bill Barnett, and the reason a third document was altered by adding a date (at a minimum)
  2. A set of texts where “irrelevant information and excess metadata” was excluded and an error introduced in the process of creating a table showing “corrected date, corrected time,” which raises far more questions about the provenance of the document
  3. The Bill Barnett interview report that DOJ had submitted to Sullivan as “a 302” is instead a “report” that is not being certified in normal fashion, in part, because DOJ is hiding redactions that withhold material information about Brandon Van Grack
  4. An NSL declaration done by Jocelyn Ballantine that may hide the existence of at least one earlier financial NSL served on Mike Flynn that WDMO didn’t ask her to summarize
  5. A new set of text messages between Peter Strzok and Lisa Page that DOJ admits they’re not relying on (but nevertheless committed an additional Privacy Act violation in releasing), which was not redacted to hide personal information
  6. Three documents submitted by Sidney Powell that DOJ won’t certify (two of which, however, are probably more accurate than what DOJ has submitted)
  7. “Unintelligible” markings in transcripts of notes where DOJ was unsuccessful at getting the author or their lawyer to conduct a last minute review over a matter of hours on a Sunday (DOJ does not specify how many of their transcripts this includes); some of these appear significant
  8. Inconsistencies on how redactions and unintelligible text were marked in transcriptions which, in some cases, is affirmatively misleading
  9. Lots of documents where the certification doesn’t list the Bates numbers, with some hilarious results
  10. Inconsistencies on whether DOJ certifies all copies of a particular document that got submitted multiple times, which in one case would raise questions about the production of these documents
  11. An admission that, for some reason, the motion to dismiss didn’t rely on the final 302 of Flynn’s January 24, 2017 interview
  12. A new inaccurate date, ironically describing a Kevin Clinesmith email
  13. A claim that both Strzok and McCabe’s lawyers have confirmed their clients’ notes were not altered, but only Strzok’s lawyer is quoted

For all of the exhibits that accompanied the motion to dismiss, DOJ uses the docket number, not the exhibit number, even though Sullivan is supposed to be ruling on that MTD that uses exhibit numbers. That’ll make it a lot harder for him to use the transcriptions, which otherwise would make it more obvious that DOJ misrepresented what some of these documents say, including their “smoking gun,” the Bill Priestap notes.

In addition, in a lot of the documents with problems (including all undated notes to which dates were added), DOJ doesn’t include Bates numbers in its certification, even though it does elsewhere. There’s good reason for this. In the case of the re-altered altered documents, those new exhibits should have new Bates stamps, but don’t. In other cases, DOJ submitted multiple versions of the same document with different Bates stamps, in others, when they resubmitted exhibits they retained the Bates stamp. That’s … not a legal process reflecting any regularity.

DOJ still pretends to have no fucking clue about documents they relied on in the motion to dismiss

Perhaps the most pathetic (and by that I mean, I would hate to be the lawyer banking my bar membership on this ploy) detail in this package is the way they try to deal with the fact they’ve made false misrepresentations about Strzok’s January 5, 2017 notes. In one place in the table of documents, they describe the date of the notes this way:

In another, they describe it — the very same notes, just repackaged so they could submit them with the wrong date — this way:

Above both transcriptions, DOJ includes the following note.

I understand why DOJ is still claiming to be unsure about the date. It’s an attempt to minimize the damage from previously providing false dates so as to avoid being punished for knowing misrepresentations in their alterations (they’re still at risk though, because they’re incorrect dates kept changing). But this will just make it very easy for Sullivan to point out that the people making this representation are therefore confessing to being completely unfamiliar with documents on which the MTD heavily relies, which means he shouldn’t take the MTD all that seriously.

The shell game behind the actual declarations

As noted, this declaration is a filing signed by Jocelyn Ballantine, submitting declarations from three other people:

  • Executive Assistant Director John Brown, whose job it is to submit declarations like this
  • EDMO AUSA Sayler Fleming, one of the AUSAs conducting this irregular investigation
  • Keith Kohne, one of the FBI Agents conducting the investigation

Brown starts by excluding three documents from his general certification (these are the ones that Fleming and Kohne will be on the hook for):

5. To the best of my knowledge, and based on the information provided to me, the Government Exhibits described in Exhibit A, 9 with the exception of ECF Nos. 198-8 and 249-1, are true and correct copies of documents and records, including copies of select pages of a larger record, maintained by the FBI pursuant to the applicable records retention policy. See ECF Nos. 198-2, 198-3, 198-4, 198-5, 198-6, 198-7, 198-9, 198-10, 198-11, 198-12, 198-13, and 198-14 9 9

6 To the best of my knowledge, and based on the information provided to me, the Discovery Documents described in Exhibit B, with the exception of ECF Nos. 228-3, are true and correct copies of documents and records maintained by the FBI pursuant to the applicable records retention policy. See ECF Nos. 231-1, 237-1. 251-1, 9 257-1. 259-1, 9 259-2, 259-3, and 264-1

Effectively, he is saying these documents are real and that Ballantine’s claims about the reasons for classification are valid.

He then says this about Ballantine’s own summary, which purports to be a summary of all the NSLs used against Mike Flynn, but which may not include one or more financial NSLs obtained in 2016.

One of the Discovery Documents is a summary substitution of classified materials that were provided to DC-USAO by the FBI. See ECF 257-2. This summary substitution was prepared by AUSA Jocelyn Ballantine, and was reviewed, approved, and declassified by the FBI To the best of my knowledge, and based on the information provided to me, the information contained therein truly and correctly summarizes the underlying classified information provided by the FBI and maintained by the FBI pursuant to the applicable records retention policy.

He’s saying that her summary accurately summarizes what she says it does, but he’s not saying that her description of it is accurate (which it wouldn’t be if EDMO told her to leave out 2016 NSLs).

Then it’s Fleming’s turn. After reviewing her role in this shoddy review and asserting that she has no reason to believe that the documents she got from FBI were irregular, she then explains why she did a summary of the texts that Strzok and a bunch of other people sent in early 2017: Just to get rid of unnecessary metadata, she says.

3. Among the documents and records that I reviewed were spreadsheets of electronic messages exchanged between FBI personnel involved in the Michael T. Flynn investigation and prosecution. The spreadsheets produced to EDMO contained messages and metadata that were not relevant to my review.

4. I created Government Exhibit ECF 198-8 and Discovery Document ECF 228-3. These exhibits truly and correctly reflect excerpts from documents and record maintained by the FBI pursuant to the applicable records retention policy that were provided to EDMO/DC-USAO for review.1

Then she admits someone — she doesn’t say who — made an error.

1 There is a single typographical error in these exhibits. A single message (“Will do.”) from DAD Peter Strzok, sent on 4-Jan-17, is incorrectly identified as having been sent at 2:17PM; the message was actually sent at 2:18PM.

What she doesn’t explain, though, is why her table has two headings that show she or someone else had to “correct” the dates and times in the spreadsheet (which may be where the typo got introduced, or retained).

Given that heading, she has no business treating the data she got as reliable, because either she or someone upstream from her had to fix it.

Then Keith Kohne steps in, the guy who conducted an incompetent interview (and possibly one of the guys who altered dates on government exhibits). He doesn’t provide any explanation of why he’s making the declaration — not even the standard boilerplate you’d find in an affidavit. He says only,

 I, Keith Kohne, hereby declare, pursuant to 28 U.S.C. § 1746, that the document attached as Exhibit 1 to the Government’s Supplemental Filing in Support of Motion to Dismiss … is a true and correct copy of the report of the interview of William J. Barnett conducted on September 17, 2020.

Understand that this declaration lacks the certification afforded by the rules of FBI record-keeping. It lacks Brown’s certification that the data in was redacted properly (this was not). And it doesn’t explain why it wasn’t finalized as a 302 and submitted into FBI record-keeping systems.

Collectively, then, these declarations stop well short of certifying those texts, Ballantine’s summary, or the Barnett’s interview.

We already know that the Barnett interview is withholding material information. I guess we should assume there are problems with the other two documents as well.

Documents and comments

Here are the documents:

Draft closing communication (198-2) [Docket 2, Exhibit 1]

In the certification but not the exhibit referenced, DOJ redacts Bill Barnett’s name, who wrote the document, as well as that of Joe Pientka, who approved it. That serves to make it harder to figure out that the closing EC materially conflicts with unredacted claims Barnett made in his interview, particularly with regards to Barnett’s awareness that the investigation was a counterintelligence investigation considering 18 USC 951 charges.

It’s all the more problematic given that DOJ has submitted two versions of this document with the same Bates numbers; the earlier one does have the names redacted.

Opening Electronic Communication (198-3) [Docket 3, Exhibit 2]

This doesn’t include Bates numbers.

Mary McCord 302 (198-4) [Docket 4, Exhibit 3]

As with other documents, this one was specially declassified for this release. Another copy has been released under BuzzFeed’s FOIA.

Sally Yates 302 (198-5) [Docket 5, Exhibit 4]

Flynn got a summary of this before he allocuted his guilty plea before Sullivan.

170302 Jim Comey Transcript (198-6) [Docket 6, Exhibit 5]

As DOJ notes, HPSCI used a court reporter on this, so they didn’t have to certify it.

170214 Draft Flynn 302 (198-7) [Docket 7, Exhibit 6]

For some reason (I’ll return to this), DOJ submitted a draft version of the 302, rather than the final one (both have previously been submitted in this docket, and a less-redacted version of the 302 was released prior to this in BuzzFeed’s FOIA). Nowhere in the motion to dismiss does Timothy Shea acknowledge that he wasn’t relying on the final 302.

Text massages and electronic messages (198-8) [Docket 8, Exhibit 7]

The certification doesn’t include Bates stamps.

This is the document that has an admittedly minor error in one of the time stamps, saying that Strzok texted “Will do” at 2:18 instead of 2:17. But the error is interesting given that the table’s headings read, “Corrected Date, Corrected Time,” meaning these aren’t just copied, the times (and dates) were “corrected” (which is presumably where the error was introduced), raising questions about what they were corrected from. [My annotation.]

This is one of the documents that FBI EAD John Brown did not certify, which ought to raise questions about how these dates and times got “corrected.” Instead, the authentication reads:

Truly and correctly reflects information contained in documents and records maintained by the FBI, pursuant to the applicable records retention policy that were provided to EDMO.

Without an explanation of how why this data needed to be corrected, I think there are real questions whether this fulfills the requirement here.

Emails about the Logan Act (198-9) [Docket 9, Exhibit 8]

The certification doesn’t include Bates numbers.

170121-22 Emails about providing briefings (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers.

170124 Emails of questions Flynn might ask (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the identical document with a different Bates number in the docket.

Emails about 1001 warnings (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the identical document with a different Bates number in the docket.

170124 Bill Priestap Notes (198-11) [Docket 11, Exhibit 10]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the same document with a different Bates number in the docket, yet both have the blue sticky that is hidden in later documents (raising questions about why there are two separate direct scans).

170124 Andrew McCabe write-up (198-12) [Docket 12, Exhibit 11]

This document doesn’t have a Bates stamp on it at all, which is especially problematic given that another less redacted version of the document is in this docket, with a Bates stamp of the same series as other documents submitted with the motion to dismiss.

The May version, with the Bates stamp, makes it clear that McCabe agreed with Flynn that leaks were a problem. [My annotations.]

The motion to dismiss version redacts that.

McCabe’s comment about leaks in no way qualifies under any claimed basis for redaction stated in certification.

It also appears to redact the prior declassification stamp.

One thing DOJ did by submitting this without a Bates stamp is avoided admitting that the document is not at all new, as the Motion to Dismiss suggested.

170124 Strzok and Pientka Notes of Flynn interview (198-13) [Docket 13, Exhibit 12]

These were released as the same exhibit, which given that they don’t use Bates numbers to identify which is which, effectively means they haven’t told Judge Sullivan which Agent’s notes are which, something that Sidney Powell wailed mightily about the last time it happened. They do, however, get it right in the transcript.

In the Pientka notes, however, there are numerous examples of things that are clear, at least from the context, that don’t get transcribed properly.

170822 Strzok 302 (198-14) [Docket 14, Exhibit 13]

This had already been produced in this docket.

200917 “Report” of Bill Barnett’s interview (249-1)

In the Government Supplemental Filing accompanying this interview, they claim that this is, “The FBI 302” of the Barnett interview. Here, they’re correctly noting that it’s not actually a 302, which makes it even more problematic than it already was.

The certification makes it clear that this “report” is maintained differently than normal 302s. Rather than certifying it as,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy.

It is instead certified as,

True and correct copy of the report of that interview.

I’m not sure Sullivan is going to be that thrilled that FBI itself is not treating this interview with the regularity of other investigative documents.

This “report” is probably one of the reasons why DOJ included this language in the filing.

There have been no material alterations made to any of the 14 Government Exhibits filed in support of the motion to dismiss and the supplement to the motion to dismiss. Several of the documents contain routine redactions made by the FBI to protect classified information, and/or law enforcement sensitive information, and/or made to comply with the Local Rule to remove Privacy Act information.

As I have laid out, DOJ withheld material information — most notably, all the nice things Barnett said about Brandon Van Grack — by redacting information that would otherwise be unsealed.

This is one of the documents that EAD John Brown did not certify; instead, one of the agents who did the interview did, which suggests it could not be certified properly. It also suggests that Ballantine, who knows it is withholding material information, doesn’t want to be in a position where she can see it (even though she sent an unredacted copy to Flynn).

Text messages (228-3)

The certification notes these are identical to the 198-8 text messages, with the error under heading, “corrected time.” It’s unclear why, in this one case, DOJ admitted to the same exhibit being filed multiple times, since in other cases they don’t note it.

170105 Strzok Notes (231-1)

The transcription of these notes don’t note the redactions. That’s significant because the only difference between this set of notes and the later, altered ones, is that they declassified a bit more information in the latter case.

170125 Gauhar Notes (237-1)

The transcription is inconsistent about whether it treats cross-outs as unintelligible or not, in one place treating a heading “Intro” as intelligible, but not references to “Thanksgiving” and “He said.”

170125 Strzok Notes (237-1)

By labeling these notes as Strzok’s, DOJ makes it more clear that they redacted information that must match other sets of notes from the same meeting.

170130 [Draft] Executive Summary of Flynn investigation (237-1)

The certification doesn’t reveal that this is a draft document, not a finalized one.

170330 Dana Boente Notes (237-1)

Undated McCabe Notes (248-2/259-1)

The transcription doesn’t note that McCabe crossed off his notes on Flynn. Nor does it admit that it redacted what appears to be a continuation of the discussion of Flynn.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-1)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

170105 Strzok Notes (248-3/259-2)

The transcription reveals that two of the three new things revealed in the new copy were unintelligible to DOJ, which raises real questions about why they left it unredacted.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-2)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

Undated Strzok Notes (248-4/259-3)

As with some others, the transcription doesn’t note all the redactions, which in this case raises questions about why they included notes from the day before.

In addition, they leave out a scribble in front of the word “willfullness” meaning Strzok switched what they were measuring with regards to whether Flynn’s lies about Turkey were deliberate.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-3)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

170306 Jim Crowell Notes (251-1)

As expected, DOJ was thoroughly dishonest with this document. They don’t reveal that they’ve redacted something — either a date, or names — where they indicate that they’ve added a date. One way or another, this transcription is false.

Plus, if they’ve redacted the names of non-senior people in the meeting (which is the non-suspect excuse for the redaction), then they need to note that in the transcription. The alternative, of course, is worse, that they knowingly altered the date.

This is one instance where not revealing whether DOJ consulted with the author is especially problematic. But since Crowell is now a DC judge just next door to Sullivan’s courthouse, maybe he can just go ask.

170329 Gauhar Notes (251-1)

180119 Schools Notes (251-1)

161226 Clinesmith NSL Email (257-1)

The certification provides the wrong date for this email, labeling it 12/26/16. [My annotations.]

it was 12/23/16.

Unlike some of the other things here, I think this is just a sloppy error, not an affirmative misrepresentation. But it is ironic that they made the error with Clinesmith.

200924 Ballantine Summary Substitution of NSLs issued in Crossfire Razor (257-2)

In her notice of discovery correspondence accompanying this, Ballantine doesn’t note that she wrote this summary for EDMO to review for them to, in turn, give back to her to give to Flynn. That’s important, because it’s unclear whether the summary shows all NSLs, or only NSLs for the period in question. Both Barnett’s testimony and the Kevin Clinesmith email included suggest the latter.

170125 OGC Notes (264-1)

This doesn’t include Bates numbers, which is interesting because an older 2019 Bates stamp not seen elsewhere is included (possibly indicating that this was previously shared with DOJ IG).

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

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.

Government Caught Between a Recusal Motion and Desperation

Last week, Sidney Powell made her first formal request that Judge Emmet Sullivan recuse.

In response, Judge Sullivan said (while noting the proper time for such a request was last year), file a motion.

Sidney did.

It was a shitshow.

Nevertheless, Judge Sullivan politely invited the government to weigh in.

They’ve now done so. While not disagreeing with Flynn, they argue that the way to proceed is on the motion to dismiss — and press for urgent response.

The United States of America, by and through its undersigned counsel, respectfully files this response to General Michael T. Flynn’s Motion to Disqualify Judge Emmet Sullivan, United States v. Flynn, 17-cr-232 (Doc. 161), filed on October 7, 2020. As this Court is aware, during the mandamus proceedings before the en banc Court of Appeals for the D.C. Circuit, General Flynn asked that “any further proceedings be conducted by a different judge.” In re Flynn, No. 20-2153, Doc. 1846621 at 24. While the government did not address that request in its written pleadings, when asked during oral argument, the government offered that it had “reluctantly come to the view that there is now at least a question about appearances of impartiality” because this Court’s filing of a petition for en banc review suggested a “level of investment in the proceedings that is problematic.” In re Flynn, No. 20-2153, Doc. 1859900 (Transcript of the August 11, 2020, Hearing) at 54. The D.C. Circuit rejected that view. In re Flynn, No. 20-5143, 2020 WL 5104220, at *16 (D.C. Cir. Aug. 31, 2020).

Based in part on subsequent events, including the hearing held before the Court on September 29, 2020, General Flynn again raises the serious charge that this Court is biased and has engaged in misconduct. The government does not believe that adjudicating General Flynn’s motion is the most appropriate way for this Court to proceed. Consistent with the en banc D.C. Circuit’s statement that “[a]s the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch,” In re Flynn, 2020 WL 5104220, at *7, the government respectfully submits that instead the Court should immediately grant the unopposed motion to dismiss the criminal information with prejudice. Doing so would avoid any further delay to General Flynn and to the government, and would eliminate any need for the Court to address the disqualification motion, which would be moot.

This is a nifty way to use the purportedly agreeing sides against each other.

The government wants this done by November 3. That makes Sulliavan’s response to Powell on recusal easier.

 

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

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

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

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

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

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production.

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

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

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

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

 

McCabe Casts Doubt on the Date Added to His Notes, Too

In my coverage of the way DOJ has added dates to undated notes, I’ve always said that I have no reason to believe that the date DOJ added to Andrew McCabe’s notes was erroneous.

Now I do.

In a letter that McCabe’s lawyer, Michael Bromwich sent to Judge Sullivan last week, he explains why the May 10, 2017 date added to McCabe’s notes couldn’t be remotely credible. That’s because he was busy cleaning up the Jim Comey firing.

The date “5/10/17” that appears on Exhibit B is not in Mr. McCabe’s handwriting and he did not enter the date that now appears there. Further, contrary to counsel’s claim, Mr. McCabe did not brief the Senate Intelligence Committee on anything on May 10. That was the day after President Trump had fired FBI Director Comey and Mr. McCabe was consumed with various other responsibilities. Mr. McCabe did participate in a public Senate Select Committee on Intelligence hearing and closed briefing on worldwide threats, along with other intelligence community officials, on May 11. Neither the public hearing nor the secret briefing had anything to do with Mr. Flynn. Counsel did not seek to confirm the accuracy of its claims with Mr. McCabe or us about Mr. McCabe’s notes before filing the Third Supplement.

Update: Bromwich is not saying that the date is not correct. He’s saying that the implication, created by the redaction, that McCabe briefed Flynn to SSCI on May 10, 2017 is incorrect.

These appear to be notes tracking McCabe’s day. The top half, redacted save the time and description, explains that at 5:15 PM on whatever day this was, McCabe was doing World Wide Threat hearing prep.

Then, on the same day but in no way related to it, he reviewed the Flynn case in some way or another.

The redaction also almost certainly splits the Flynn related information in half (note the bracket starting at “closed” and extending well into the redaction).

In any case, nothing in these notes suggest this happened after Comey’s firing, which is the point they’re trying to make of it.

Update: According to McCabe’s book, nothing happened after he attended a WWT prep session on May 10, because that took several hours, he had already been in two draining meetings at the White House that day, and he was pooped.

As the president requested, I went back to the White House that afternoon. When I arrived, at 2 P.M., the bodyguard Keith Schiller came down again and greeted me like I was his buddy, like someone he sees every day—Hey, what’s going on?

[snip]

When I left the Oval Office, I went straight to a prep session at the Bureau. Jim Comey had been preparing for two weeks to testify at the Senate Intelligence Committee’s Worldwide Threats Hearing—an annual event where the director of national intelligence and the heads of the FBI, CIA, National Security Agency, and Defense Intelligence Agency share their assessments of the most urgent threats to U.S. national security and answer questions from senators about those threats. Preparation for the hearing typically involves a number of lengthy background sessions with staff and a review of hundreds of pages of briefing material; it also requires drafting an official statement for the record.

[snip]

So when I left the Oval Office, I went straight back to a prep session that night. I had been to a lot of these meetings for Comey and Mueller—when I was involved in the prepping. Usually I had been the guy sitting at the right hand of the director, listening to everyone else’s contributions and trying to distill it all into better formulations.

Chiming in when you have a shapely little idea, I quickly discovered, is very different from sitting at the head of the table while a dozen people to your right and left argue the pros and cons of issue after issue, firing ideas and comments at you nonstop—all of which you have to take in while also assessing how those answers will be interpreted and processed by members of Congress, the president, and the media. I had never fully appreciated the complexity of that task. After two and a half hours of this, my tank was full. I had to get some sleep.

The passage makes clear that he had been a part of Comey’s prep before Comey was fired, and that prep had been going on for two weeks. Which suggests that McCabe could have attended a WWT hearing any time in the previous two weeks.

That’s not definitive, of course (though it was almost certainly written with the benefit of McCabe’s notes). But this passage suggests the date is wrong, and the Flynn briefing took place before Comey’s firing.

DOJ Has Submitted Proof They Knew the January 5, 2017 Meeting Took Place on January 5, 2017

I’ve been harping on the process that facilitated Sidney Powell — and then President Trump — falsely blaming Joe Biden for raising the Logan Act in the context of the government’s response to Mike Flynn’s attempts to secretly undermine sanctions on Russia.

That process started on June 23, when prosecutor Jocelyn Ballantine sent an undated copy of Peter Strzok’s notes to Sidney Powell, explaining that they had been found as part of Jeffrey Jensen’s review. Using the royal “we,” she professed uncertainty about when those notes were written.

The enclosed document was obtained and analyzed by USA EDMO during the course of its review. This page of notes was taken by former Deputy Assistant Director Peter Strzok. While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.

Sidney Powell, referencing those notes, claimed they were believed to date from January 4 and asserted that they showed Joe Biden raising the Logan Act.

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

Then, on September 23, Ballantine sent Powell a set of Strzok’s notes with a different Bates stamp than the first. When it was submitted — by Powell — to the docket, it had a date on it that did not appear on the earlier set: 1/4-5/17.

Then, five days after Powell (who has had multiple conversations with Trump’s campaign lawyer, Jenna Ellis, including about this case) loaded the now-dated notes onto the docket, President Trump publicly accused Joe Biden of giving “the idea for the Logan Act against General Flynn” in their first debate.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

Thus it happened that an error introduced into the Flynn proceeding got turned into a campaign prop.

The thing is, DOJ has abundant proof that Jeffrey Jensen knew (or should have known) there was no uncertainty about the date when those notes were handed over to Powell. Indeed, if he did not know, then the entire premise of their motion to dismiss falls apart.

In Timothy Shea’s motion to dismiss, he obliquely attributed the radical change in DOJ’s view of Mike Flynn’s prosecution to Jeffrey Jensen’s review of the case, citing three dockets where Powell uploaded information that Ballantine had shared with the explanation (one, two) that the material came out of Jeffrey Jensen’s review.

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.”

1 This review not only included newly discovered and disclosed information, but also recently declassified information as well.

All the purportedly “newly discovered” information, then, comes from Jensen.

Bill Barr cited Jensen’s review even more explicitly in an interview with Catherine Herridge.

What action has the Justice Department taken today in the Michael Flynn case?

We dismissed or are moving to dismiss the charges against General Flynn. At any stage during a proceeding, even after indictment or a conviction or a guilty plea, the Department can move to dismiss the charges if we determine that our standards of prosecution have not been met.

As you recall, in January, General Flynn moved to withdraw his plea, and also alleged misconduct by the government. And at that time, I asked a very seasoned U.S. attorney, who had spent ten years as an FBI agent and ten years as a career prosecutor, Jeff Jensen, from St. Louis, to come in and take a fresh look at this whole case. And he found some additional material. And last week, he came in and briefed me and made a recommendation that we dismiss the case, which I fully agreed with, as did the U.S. attorney in D.C. So we’ve moved to dismiss the case.

So this decision to dismiss by the Justice Department, this all came together really within the last week, based on new evidence?

Right. Well U.S. Attorney Jensen since January has been investigating this. And he reported to me last week.

In other words, both Shea and Barr represented that the case laid out in the motion to dismiss is the case that Jensen made that persuaded Barr to drop the prosecution.

That means we should expect Jensen to have deep familiarity with all the documents that — the motion to dismiss claims — formed the basis of his review.

I put a list of those exhibits here (along with an explanation that virtually everything cited in it was already known when DOJ first charged Flynn, when Michael Horowitz concluded the investigation was properly predicated, and when Bill Barr’s DOJ called for prison time in January).

Among those documents that Timothy Shea — and before him, Jeffrey Jensen — relied on to claim that DOJ should drop Flynn’s prosecution is the 302 from Mary McCord’s July 17, 2017 interview with Mueller’s team. The motion to dismiss cites McCord at least 26 times, relying on her interview to understand details of what happened in early January 2017, after the government discovered Flynn’s calls that explained why Russia didn’t retaliate for sanctions. Of particular note, the motion to dismiss that arose from Jensen’s analysis cites McCord’s interview regarding the discussion about the Logan Act — including that the investigation remained a counterintelligence one after discussing the Kislyak description. McCord’s description of the Logan Acti discussion reveals precisely who first raised it: ODNI GC Bob Litt.

General Counsel at the Office of the Director of National Intelligence (ODNI) Bob Litt raised the issue of a possible Logan Act violation. McCord was not familiar with the Logan Act at the time and made a note to herself to look it up later.

DOJ should never have let Powell form the conclusion that Joe Biden first suggested the Logan Act, because they were relying on a document that made it clear that Litt had already raised it. That’s where Jim Comey got the idea, before he went into that January 5, 2017 meeting.

Another document Shea and Jensen relied on in arguing that DOJ should end the Flynn prosecution is the 302 from Sally Yates’ August 15, 2017 interview with Mueller’s team. Shea’s motion to dismiss — based off Jensen’s analysis — cites Yates’ 302 at least 20 times, including in its discussion of the Logan Act. What Shea didn’t cite, but what shows up in the first substantive paragraph of the 302, is a description of how Yates first learned of the Flynn-Kislyak calls at a meeting at the White House on January 5, 2017.

Yates first learned of the December 2016 calls between (LTG Michael) Flynn and (Russian Ambassador to the United States, Sergey) Kislyak on January 5, 2017, while in the Oval Office. Yates, along with then-FBI Director James Comey, then-CIA Director John Brennan, and the-Director of National Intelligence James Clapper, were at the White House to brief members of the Obama Administration on the classified Intelligence Community Assessment on Russian Activities in Recent U.S. Elections. President Obama was joined by his National Security Advisor, Susan Rice, and others from the National Security Council. After the briefing, Obama dismissed the group but asked Yates and Comey to stay behind. Obama started by saying he had “learned of the information about Flynn” and his conversation with Kislyak about sanctions. Obama specified he did not want additional information on the matter, but was seeking information on whether the White House should be treating Flynn any differently, given the information. At that point, Yates had no idea what the President was talking about, but figured it out based on the conversation. Yates recalled Comey mentioning the Logan Act, but can’t recall if he specified there was an “investigation.” Comey did not talk about prosecution in the meeting. It was not clear to Yates from where the President first received the information. Yates did not recall Comey’s response to the President’s question about how to treat Flynn. She was so surprised by the information she was hearing that she was having a hard time processing it and listening to the conversation at the same time.

That long paragraph that very clearly describes the meeting at the White House captured in Peter Strzok’s notes directly precedes one that Shea (and so by association, Jensen) rely on heavily. According to Yates, Jim Comey was the one who raised the Logan Act in that meeting, not Joe Biden. And McCord, which they also rely on, makes it clear Comey got the idea from Litt.

Finally, the Shea motion to dismiss based on Jensen’s analysis relies on Jim Comey’s HPSCI testimony — one of just two documents that DOJ may not already have reviewed before Mike Flynn’s guilty plea. It cites the Comey transcript 16 times, including for a paragraph on the Logan Act.

As Sally Yates did, Comey described that the meeting at the White House involving the two of them took place on January 5.

I had not briefed the Department of Justice about this, and found myself at the Oval Office on the 5th of January to brief the President on the separate effort that you all are aware of by the Intelligence Community to report on what the Russians had done during the election. And in the course of that conversation, the President mentioned this [redacted] And that was the first time the Acting Attorney General, Sally Yates, had heard about it.

In no place does the Timothy Shea motion to dismiss, based off Jeffrey Jensen’s analysis, raise any questions about the veracity of these witnesses. Indeed, the motion relies on those documents as reliable descriptions of what happened in January 2017.

That means that either the DC US Attorney’s Office and Jeffrey Jensen are very familiar with the documents they rely on heavily to argue that Judge Sullivan must dismiss Flynn’s prosecution, in which case they affirmatively misled the court when they claimed to have no idea on what date the meeting described by both Yates and Comey occurred. That would mean, though, that Jensen affirmatively misled the court about a detail three months before the President used that error to make a campaign attack. And somehow an exhibit got altered to match that affirmative misinformation.

Alternately, none of the people claiming that these documents justify dismissing Flynn’s prosecution really know what these documents say.

Certainly, all parties should be on the hook for an exhibit that got altered to suggest the meeting could have taken place on January 4.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And yet that’s what DOJ has done.