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675 Days after Mike Flynn Blew Up His Probation Plea Deal, We Learn There Never Was an “Original 302”

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.

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.

 

Sidney Powell Switches Her FARA Villain Mid-Stream

In a still pending motion to withdraw Mike Flynn’s guilty plea submitted in January, Sidney Powell told this story about how the baddies in DOJ’s FARA unit — led by David Laufman — entrapped the General in lies.

I’ve linked to the exhibits where Powell claims her arguments are supported, though in places, they show the opposite — for example, Flynn lying to his lawyers claiming that he came up with the idea to write the op-ed himself — and in at least one case, the page Powell cites doesn’t exist.

The next day—Mr. Flynn’s first day out of the White House, with media camped around his house 24/7—Rob Kelner and Brian Smith of Covington, and Kristen Verderame, called Mr. Flynn to give him a status update on the FARA issues. Mr. Flynn accepted their recommendation that it was better to file, and he instructed the lawyers to “be precise.”11

On February 21, 2017, David Laufman, Heather Hunt, Tim Pugh, and multiple others from the FARA Unit telephone-conferenced with Covington. Ex. 8. Laufman directed the content, scope, and duration of the call. In this lengthy conversation, Kelner exacerbated his prior mistake, stating that “Flynn wrote [the op-ed],” and that Mr. Rafiekian, Mr. Flynn’s former business partner, provided “input.” Ex. 8 at 2. Kelner apparently misremembered or misspoke, but the SCO parlayed the description in the FARA form into a felony attributable to Mr. Flynn. Meanwhile, Covington—instead of owning any error and correcting it—began a campaign of obfuscation that deepened the conflicts, created Mr. Flynn’s criminal exposure, and led to repeated instances of ineffective assistance of counsel.12

That evening, Heather Hunt requested a meeting the next day at Covington’s offices to review the draft FARA filing in person. She and several others from the FARA unit, arrived and reviewed the FARA draft and discussed logistics. Mr. Smith made notes of matters to include in the filing, such as the New York meeting with Turkish officials, payments to Inovo, specifics of the Sphere contract, and Sphere’s budget (if established). The team noted that if Turkey was involved, it must be listed on the filing, and they created various reminders. Finally, Ms. Hunt reminded the Covington team to file by email and send a check to cover filing fees by a courier. 13 Ex. 9.

Covington filed the forms on March 7, 2017. Hunt acknowledged receipt at 10:50 p.m., prompting Smith to remark to his colleagues, “They are working late at the FARA Unit.” Ex.12.

Hardly had the FARA registration been uploaded on the FARA website when the onslaught of subpoenas began.14 On May 17, 2017, Special Counsel was appointed, and the much-massaged “final” Flynn 302 was reentered for use by the SCO. Soon thereafter, the SCO issued a search warrant for all Flynn’s electronic devices. Meanwhile, Covington’s August 14, 2017, invoice alone was $726,000, having written off 10% of its actual time. Ex. 13 at 3.

11 Ex. 7: Smith Notes of 2/14/17 call.

12 Covington lawyer Brian Smith’s notes of January 2, 2017, and reconfirmed in his 302 of June 21, 2018, show that Mr. Flynn stated Rafiekian wrote the first draft. ECF No. 151-12 at 17. ECF No. 150-5 at 7. Rafiekian told Covington this also, and the emails confirmed it. Ex. 10.

13 On March 3, 2017, Kelner emailed Hunt to tell her “we are not quite ready to file, but close.” Hunt wanted more detail and demanded to know, “close as in later today, or close as in next week?” Kelner responded, Tuesday, March 7, 2017. Ex. 11.

14 Covington received multiple subpoenas from the DOJ FARA unit, as well as subpoenas from the House Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, and then Special Counsel Office. In response to these subpoenas, Covington provided many thousands of documents in sixteen productions from April 2017 through October 2017 alone, and Mr. Flynn’s legal fees exceeded two million dollars.

Powell is shading here, covering up the fact that Flynn told Covington & Burling he was writing his Fethullah Gulen op-ed to benefit the Trump campaign rather than entirely for the benefit of clients he knew to be Turkish government ministers. The claim by itself demonstrates how Powell provides evidence that her client lied, even while wailing about unfair prosecution.

But for my purposes, I’m primarily interested in the villains of this story: Flynn’s Covington lawyers who repeated Flynn’s lies, FARA Unit lawyer Heather Hunt who promptly confirmed receipt of a filing, and David Laufman.

Laufman, then Chief of the Counterintelligence and Export Control Section at DOJ, was an early villain in the evolving conspiracies about the investigation into Trump and his flunkies, even while he is the hero of the Trump flunky’s complaints that Jim Comey didn’t let Julian Assange extort the US government with Vault 7 files.

I raise all this because I’m trying to determine whether the other two documents that Jeffrey Jensen’s team decided to date (notes from an ODAG meeting that Jensen purports took place on March 6, 2017 and notes from a meeting involving Bruce Swartz that Jensen purports took place on March 28, 2017) have affirmatively incorrect dates. Here are the notes “inadvertently” dated March 28:

In her filing accompanying the latter, Powell ignores that the notes show that Jeff Sessions asked two Turkish ministers what Flynn had been doing for them in an engagement that — Flynn’s official filing submitted on March 7, 2017 claimed — he wasn’t actually sure whether he had been working for Turkey. Rather than puzzling through why the Turkish foreign ministers would know the answer to that if Flynn was instead working for Ekim Alptekin, Powell instead complains that on March 28, 2017, Swartz “decided” to subpoena Flynn’s company even though (she claims) he had just been told that Flynn had satisfied the registration obligation.

Newly produced notes of Peter Strzok show: Strzok met with Bruce Schwartz, Lisa, and George at DOJ on March 28, 2017, where he noted Flynn Intel Group “satisfied the registration obligation” and “no evidence of any willfulness.” Nonetheless, “Bruce” decided to issue subpoenas to Flynn Intel Group “and more.” Exhibits C, D.

Whereas Laufman had been her villain, now Bruce Swartz is.

The thing is, that claim seems to be inconsistent with what her star witness, pro-Trump FBI Agent Bill Barnett, had to say in his interview with Jensen’s team (though since they’ve redacted Brandon Van Grack’s name it’s hard to tell). He seems to have said the Turkish case “was far stronger than the [Russian] investigation, in that there was specific information that could be investigated. BARNETT was working closely with [Van Grack]. BARNETT had worked with VAN GRACK on other matters.

In any case, the actual subpoena shows that it didn’t happen in March (as the purported date might suggest) but instead on April 5, a week later. And it wasn’t Swartz who filed it, nor even Van Grack, but EDVA AUSA William Sloan.

That doesn’t mean the date that Jensen’s team “inadvertently” applied to Strzok’s notes is wrong. It certainly may have taken a week to put together the subpoena.

But it does show that Powell’s current story doesn’t cohere with her past (still-pending) one.

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.

 

DOJ Admits Jeffrey Jensen’s Team Added Erroneous Date to Peter Strzok’s Notes, Asks for Mulligan

In a filing in the Mike Flynn case, DOJ has explained why an erroneous date was added to Peter Strzok’s notes from what DOJ has already submitted evidence happened on January 5, 2017.

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. The government has also confirmed with Mr. Goelman and can represent that the content of the notes was not otherwise altered.

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. Again, the content of the notes was not otherwise altered.

Along with the filing, they’ve included the three exhibits they added dates to (there’s a third where they added a date in a redaction covering over something that could be a date), asking that they be replaced.

DOJ offered no explanation about why they added an erroneous date that they’ve provided proof they know is erroneous to a filing that they had previously submitted without the erroneous date. Nor have they explained why this erroneous date range differs from the previous erroneous date range they gave to Sidney Powell that she used to launch an attack on Joe Biden.

I guess they’re hoping that Judge Sullivan was too tired after the long hearing last week to notice that that erroneous date had been worked into an attack by President Trump on Joe Biden just hours after the hearing.

Whatever they’re hoping, they’ve now admitted that Jeffrey Jensen’s team is either unbelievably incompetent, hasn’t read the evidence they claim they used to convince Billy Barr to dismiss the case, or simply tampering with the evidence to set up attacks from Sidney Powell and Donald Trump.

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.

With a Charitable Description that Bill Barnett Was “Confus[ed]” Jim Comey Undercuts the Agent’s Entire Interview

Long into yesterday’s Jim Comey hearing, Lindsey Graham suddenly called a break. I got the feeling, watching him, that he had finally figured out the hearing was having the opposite effect as he had intended. Jim Comey was repeatedly explaining the import of the Russian investigation, distinguishing the Carter Page application from the rest of the investigation, and Democrats were reviewing all the things the Committee could have been doing rather than chasing three year old allegations.

After the break, the remaining Senators (John Kennedy and Marsha Blackburn) and Lindsey Graham seemed intent on dirtying up Comey a bit, even if required discussing stuff that had nothing to do with Carter Page.

Still, this exchange between Comey and Lindsey also didn’t seem to go the way Lindsey wanted. In it, Jim Comey undercut the credibility of the William Barnett 302 in plenty of time for John Gleeson or Emmet Sullivan’s clerks to use it in the Flynn motion to dismiss opinion. First, Lindsey asked Comey if he was aware that Barnett didn’t believe Flynn committed a crime.

Lindsey Graham: Are you aware that Mr. Barnett, who is the lead investigator of the Flynn case recently said that he did not believe there was a crime involving General Flynn?

Jim Comey: I read his 302 and I think it does say he thought that before January 5, or before Flynn was interviewed.

Comey answered that that was true before January 24. Implicit in Comey’s answer (and something that Gleeson pointed out explicitly in Tuesday’s hearing) is that when Barnett said he “believed FLYNN lied in the interview to save his job,” Barnett was confirming that Flynn had committed a crime, lying to the FBI.

Lindsey ignored that though, going on to misstate Barnett’s testimony in a significant way.

Lindsey: How normal is it for the lead investigator to believe that the person he’s investigating didn’t commit a crime, and went so far as to say he thought the whole team was out to get Trump. Is that a normal thing in the FBI? Is that something the court should consider as to whether or not this is a legitimate prosecution?

Barnett did not say “the whole team was out to get Trump.” He said, “there was a ‘get TRUMP’ attitude by some at the SCO,” and specifically excluded Brandon Van Grack from that (though DOJ hid that by redacting Van Grack’s name). He then said “it was not necessarily ‘get TRUMP’ but more the conviction there was ‘something criminal there.'” Barnett’s most significant claims to substantiate this involve a real lead Weissmann chased down (involving Manafort and Tom Barrack), and a description of himself being a dick to Jeannie Rhee because she was doing her job; both involve people he didn’t work with closely.

In response to Lindsey’s observation that Barnett repeatedly stated — in response to Jeffrey Jensen’s cues — that he didn’t think there was evidence of a crime against Flynn, Comey pointed out the fundamental problem with the entire 302. This wasn’t a criminal investigation. It was a counterintelligence investigation.

Comey: I think Mr. Barnett was confusing the nature of the investigation which is a little bit concerning, if he was working on it. It was a counterintelligence investigation, not a criminal investi–

Lindsey: No, see, here’s the point, Mr. Comey. You set Flynn up to get prosecuted. This was a counterintelligence investigation. And there was no there there. This man was the incoming National Security Advisor, he had every reason in the world to be talking to the Russians about changing policy, but this whole rogue thing, setting up an interview in the White House, going around normal procedures bothered a lot of people.

After interrupting Jim Comey as he was pointing out how Barnett’s own 302 discredits every one of his claims [even ignoring that Barnett claimed to be ignorant of four known pieces of evidence], Lindsey nevertheless repeats the point (and then goes on to misread some texts about liability insurance that Barnett himself had debunked in his 302).

This was a counterintelligence investigation.

The fact that Jeffrey Jensen kept asking about crimes is proof that Jensen wants the investigation to be something other than virtually every witness, except Barnett, has testified both contemporaneously, and since. Even answering the question about what crimes he saw seems to suggest that Barnett didn’t understand what he was doing, didn’t understand that he was conducting a counterintelligence investigation.

Only, that’s not what Bill Barnett said in January 2017, just weeks before the interview, when he drafted a closing communication for the Flynn investigation.

The FBI opened captioned case based on an articulable factual basis that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.

Contrary to Comey’s least-damning interpretation, Bill Barnett wasn’t confusing whether this was a criminal investigation or a counterintelligence one. He noted in January 2017 that Flynn might have been unwittingly used by the Russians (and reading the transcripts, it’s obvious how Kislyak played to Flynn’s resentments and Trump’s ego.

When Barnett focused on crimes, rather than national security threats, he was playing a role.

And in playing that role, his interview will not withstand the kind of scrutiny he may one day face if — for example — his claims about Andrew McCabe’s micro-management get him deposed as part of McCabe’s lawsuit.

Over 72 Hours, Trump and Chuck Grassley Provide Emmet Sullivan Proof that Peter Strzok’s Notes Were Altered for Political Reasons

Over the past 72 hours, the following events have proven not just that Peter Strzok’s notes were altered, but that that was done for political purpose.

It started on Monday, when Strzok lawyer Aitan Goelman sent Judge Emmet Sullivan a letter confirming that the handwritten dates on two sets of his notes were, “not written by Mr. Strzok.”

That the notes memorializing what Jim Comey briefed others about a January 5, 2017 meeting were altered is not in doubt. Sidney Powell and DOJ have already provided the original notes (which I’ve annotated to show that the notes did not originally have a date) and the altered ones (which I’ve annotated to note where a date has been added).

The second set of notes were provided to Flynn’s lawyers on September 23 and submitted to the docket on September 24. It’s not clear whether they were altered before or after they got sent from DOJ. I hope Judge Sullivan gets to the bottom of that question.

Then, in Tuesday’s hearing, Sidney Powell admitted not just that she has spoken with the President about this case (insanely asking him not to pardon her client), but also that she speaks — apparently regularly — with President Trump’s campaign lawyer, Jenna Ellis, betraying that Flynn’s efforts to blow up his prosecution are a matter of interest to Trump’s campaign.

Then, hours later, on Tuesday night, the President made this prepared attack on Joe Biden during the 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.

As I noted when Jeffrey Jensen handed over the first set of notes pretending to be uncertain about what date they were from, by altering the date about a meeting that has been publicly dated as January 5, 2017 for over two years, it presented a false chronology whereby Joe Biden suggested the FBI investigate Flynn for the Logan Act (which is what DOJ is falsely claiming was the only basis for investigating Flynn, even though every single witness and every single contemporaneous record has said Flynn was interviewed under an 18 USC 951 predication to see if he would tell the truth about his calls with Sergey Kislyak), and then Jim Comey returned to the FBI and ordered his minions to do just that.  That is, it would create the (false) possibility that the meeting at the White House happened, and then a discussion between Strzok and Page discussing the Logan Act started. The reality is that Strzok and Page were talking about it the day before the meeting.

From that false appearance, Powell asserted in a representation to Emmet Sullivan that the meeting was believed to have happened on January 4 and Biden apparently had been the one to suggest Logan Act, thereby suggesting (falsely) that Biden was the one who raised 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. That became an admitted pretext to investigate General Flynn.

That transparently false accusation that Sidney Powell (who has been speaking with Trump’s campaign lawyer) made on June 24 then showed up as a prepared attack in President Trump’s very first campaign debate on September 29. The altered notes appeared in the docket on September 24, and then five days later the President of the United States made a false claim that depends on the alteration.

Sidney Powell is using her purported defense of Mike Flynn as a campaign prop.

Yesterday, Chuck Grassley — who has been chasing all matter of conspiracy in the service of President Trump and is staffed by diehard Republicans — gave up the game. At the Jim Comey hearing, this exchange occurred.

Grassley: Did you ever speak with President Obama or Vice President Biden about any aspect of the Flynn case. If so, what did you discuss?

Comey: I remember the Flynn investigation coming up once. I think it was January the Fifth, when President Obama held me back to urge me to do the case in the normal way, and to let him know if there was any reason that he should not be sharing sensitive information about Russia with the Trump transition. I assured him that I would keep him informed and that I would conduct the investigation in that way.

Grassley [reading a prepared question]: During the January 5, 2017 meeting between you, President Obama, Vice President Biden, Sally Yates, and Susan Rice, did you mention that Flynn’s calls with the Russian Ambassador appear, quote unquote, “appear legit”?

Comey: I don’t remember using that word. If I used it I would have meant “authentic” and “not fabricated.” I wouldn’t have meant appropriate. But I don’t remember using that word.

It’s clear, from the way Grassley is reading a prepared question and the way he provides details about that January 5 meeting that he already knew of the meeting, and that that’s why he asked Comey the initial question in the first place.

Critically, an 87-year old Senator reading from notes his staffers — whose portfolios include many other tasks in addition to writing imagined gotcha questions based off Peter Strzok’s notes — stated as unquestionable fact that the meeting occurred on January 5. Unlike Jeffrey Jensen, they have no doubt about the date.

That’s not at all surprising. After all, Chuck Grassley first started pursuing this question around August 2017, when he obtained Susan Rice’s notes to the file recording the meeting (from unknown sources, but I find it interesting that Barbara Ledeen obtained it as if receiving it directly in discovery even as Robert Mueller got it).

But the question Grassley read came straight from Strzok’s notes, the ones that got altered. And even he knows — with access to far less evidence than Jeffrey Jensen — that the meeting happened on January 5.

Again, it’s not clear who altered the notes — DOJ or Flynn’s lawyers. But in a sense, it doesn’t matter. The first fraud on the court came when Jeffrey Jensen claimed there was any doubt about what date the meeting occurred. Yesterday, Chuck Grassley just made it clear that no credible person could believe that.

On a Key Issue in Mike Flynn’s Case — which FBI Agent to Believe — DOJ Argued against DOJ

The epic five hour hearing in the Mike Flynn case just wrapped up.

The most notable events, one which may utterly sway Judge Sullivan’s opinion, were two details that would give Sullivan reason to say this is the exceptional case where he should not grant the motion to dismiss.

The first was Sidney Powell’s admission that she has spoken to the President about this case, and also spoken with Trump’s campaign lawyer, Jenna Ellis, about it, the latter apparently more than once. Powell tried to claim Executive Privilege for her conversation(s) with the President about the case, until Sullivan pointed out the sheer absurdity of that. Powell was never asked why she was speaking to a lawyer, Ellis, whose job it is to make sure the President doesn’t break any campaign finance laws about this case. Still, those admissions, handled with all the leaden aplomb that Powell exemplifies, will provide Sullivan ample basis (on top of Trump’s tweets and everything else) to prove that this was all politicized by the President.

The other detail that might really sway Sullivan was the judge’s mention of Aitan Goelman’s letter informing Judge Sullivan that someone — and Goelman did not speculate on who might have done this — altered the notes of his client. Sullivan said he was “floored” when he read the letter.  Later on, Powell accused Strzok of being the dirtiest FBI agent of all time. Some other things make me wonder — though this would make the logistics rather interesting — whether Powell was the one who altered the notes. In any case, Sullivan ordered that someone authenticate the filings submitted to the court.

Judge Sullivan was already bugged by the letter Sidney Powell wrote to Billy Barr asking that he do all the things he subsequently did, notably appoint a lawyer to review the entirety of the prosecution. The confirmation that Powell has been personally lobbying Trump’s (!!!) campaign lawyer for intervention seems to seal the proof that this is political.

Still, perhaps a more substantive problem with the pro-Flynn argument is that DOJ’s two representatives (Ken Kohl for the DC US Attorney’s Office) and the Solicitor General’s counsel, Hashim Mooppan) contradicted each other on a key issue.

Mooppan repeatedly claimed, “what if it were true that this was a witch hunt”? He relied, significantly, on two things. First, Bill Priestap’s notes clearly recording that FBI did the interview to figure out whether Mike Flynn would tell the truth.

Rather than focusing on what Priestap and every witness confirmed in real time and since was the purpose of the interview, Mooppan instead focused on Priestap’s notation of the debate before this, about whether they just wanted to get Flynn to lie. As John Gleeson pointed out, though, that would not make Flynn abnormal at all. That happens to defendants all the time. But in fact, Gleeson further noted, that’s not what happened; Peter Strzok and Joe Pientka actually cued Flynn with his own words to make sure he had an opportunity to fix the record, and Flynn did not do so. Moreover, all other witnesses said the same thing Priestap did: the point of the interview was to see if Flynn would tell the truth.

Plus, there’s a real problem with Mooppan’s reliance on Priestap’s notes. As the NYT reported, DOJ rushed to move to dismiss the case while Priestap’s 302 was being finalized.

Priestap, the former head of F.B.I. counterintelligence, two days before making their extraordinary request to drop the case to Judge Emmet G. Sullivan. They did not tell Judge Sullivan about Mr. Priestap’s interview. A Justice Department official said that they were in the process of writing up a report on the interview and that it would soon be filed with the court.

The department’s motion referred to notes that Mr. Priestap wrote around the bureau’s 2017 questioning of Mr. Flynn, who later pleaded guilty to lying to investigators during that interview. His lawyers said Mr. Priestap’s notes — recently uncovered during a review of the case — suggested that the F.B.I. was trying to entrap Mr. Flynn, and Attorney General William P. Barr said investigators were trying to “lay a perjury trap.”

That interpretation was wrong, Mr. Priestap told the prosecutors reviewing the case. He said that F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation.

The department’s decision to exclude mention of Mr. Priestap’s interview in the motion could trouble Judge Sullivan, who signaled late on Tuesday that he was skeptical of the department’s arguments.

In spite of its ability to turn Bill Barnett’s 302 around in a week, DOJ has never disclosed Priestap’s 302 debunking this claim to Judge Sullivan. These notes don’t say what Mooppan falsely claimed to Sullivan they did. And that may become more clear in days ahead.

The other thing Mooppan relied upon, repeatedly, was the claim that Pientka and Strzok didn’t believe Flynn had lied after they interviewed him (he also relied on a Jim Comey comment, made without knowledge of all the evidence that FBI subsequently gathered, that corroborated the evidence that Flynn had lied). Except that’s not what they said (and some of the texts that DOJ has released make this clear). They believed Flynn either believed what he said (though they’d get proof later he did not), or that he was just a very accomplished liar.

Meanwhile, Ken Kohl, who was named Acting Principal AUSA at around the same time as this motion to dismiss, and who seemed genuinely ignorant of key details of the case but nevertheless wanted to claim that DC USAO wasn’t acting politically (Roger Stone’s case did not come up), said a number of things that conflict with what DOJ has already said (including that any of this was Brady).

Significantly, however, he seemed really impressed with Bill Barnett’s 302, perhaps because he doesn’t know the case well enough to know how many glaring contradictions there are in the 302 (which makes me wonder whether he was a source for WaPo’s supine treatment of the interview). Kohl talked about all the claims — belied by actual primary documents, basic logic, and gravity — Barnett made that don’t hold up to scrutiny.

The question of whether Bill Barnett sent pro-Trump tweets on his FBI phone — making him the mirror image of Peter Strzok — never came up in today’s hearing.

But John Gleeson did note that Barnett had none of the doubts that Mooppan claimed (falsely) that Strzok and Pinetka had.

That means, ultimately, DOJ was arguing against DOJ.

Mooppan claimed that Strzok and Pientka’s alleged doubts that Flynn lied — refuted by documents already shared with Sullivan — proved DOJ had to dismiss the case. Kohl, meanwhile, claimed that Barnett’s 302 — which showed he had absolutely no doubt that Flynn lied to the FBI — proved DOJ couldn’t prosecute the case.

There’s not actually a controversy here: At least Strzok and Barnett agree that Flynn lied, which should be all it takes. (Indeed, Barnett could testify that Flynn did lie, if DOJ needs an aggressively pro-Trump agent to put on the stand.)

But the Solicitor General’s office relies on the agents who said that Flynn was a good liar and DC USAO sides with the agent who states clearly that Flynn lied.

John Gleeson has noted that DOJ can’t keep its story straight from week to week. In today’s hearing, they couldn’t even keep their story straight from lawyer to lawyer.