Politico

DOJ faces new questions about accuracy of Flynn filings


The Justice Department is already facing sharp questions from a judge about altering sensitive documents in the case of former national security adviser Michael Flynn. Now, two lawyers connected to the case say DOJ has made new mischaracterizations in its attempt to clean up the mess.

The department claimed late Monday that it had consulted with lawyers for former FBI deputy director Andrew McCabe and former FBI agent Peter Strzok and confirmed that two sets of handwritten notes — key evidence in Flynn’s case — were valid and free of any alterations.

But correspondence between the two attorneys and DOJ reveal that neither vouched for the accuracy of the documents. In fact, McCabe’s lawyer Michael Bromwich and Strzok’s lawyer Aitan Goelman affirmatively refused to do so, according to a review of their email exchanges with Assistant U.S. Attorney Jocelyn Ballantine.

Instead, Bromwich explicitly declined to cooperate, citing disagreement with the Justice Department’s efforts to dismiss the criminal charge against Flynn. And Goelman said he could not vouch for the documents without more time.

“We are unable to certify the authenticity of all of the attachments or the accuracy of the transcriptions,” Goelman wrote to Ballantine Sunday afternoon. “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.”

Yet in DOJ’s filing, Ballantine said both attorneys had “confirmed” the accuracy of the notes taken by McCabe and Strzok.

“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,” Ballantine wrote in the filing, which was submitted just before a midnight deadline.

The discrepancy between Ballantine’s assertion and the two lawyers’ claims is significant. The judge, Emmet Sullivan of the federal district court in Washington D.C., has already raised loud alarms about the credibility of the Justice Department’s earlier filings in its attempt to drop the case against Flynn. Sullivan is weighing whether to dismiss the case — which Trump himself has loudly demanded for months — or to take the rare step of rejecting DOJ’s dismissal and potentially sentencing Flynn to prison.

The notes in question relate to internal FBI discussions about the case against Flynn.

Strzok’s notes describe a Jan. 5 Oval Office meeting in which President Barack Obama, Vice President Joe Biden and top national security officials discussed the Flynn case. But an alteration made by DOJ — which the department described as inadvertent — indicated erroneously the notes might have been taken on Jan. 4, an error that lined up with a false attack Trump lodged against Biden during the first presidential debate.

McCabe’s notes, which are undated but which were altered to indicate falsely that McCabe briefed the Senate Intelligence Committee on May 10, 2017, generally described the status of the Flynn case at the time.

In an email to POLITICO on Monday, Bromwich confirmed he did not vouch for the accuracy of the notes filed by DOJ.

“I did not verify the content of Mr. McCabe’s notes,” he said. “We specifically declined to provide any assistance to the government because we view its conduct in the Flynn matter as shameful and reprehensible.”

DOJ’s late-Thursday filing was the result of Sullivan’s demand the department verify that all of the exhibits it has submitted to support dropping the case were accurate and unaltered. Sullivan made this demand after learning from Strzok and McCabe’s lawyers that their clients’ notes had previously been altered to include dates — in Strzok’s case a verifiably inaccurate one — that were not part of the original notes.

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

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

Ballantine reached out to Bromwich on Sunday at 4 p.m., according to the email correspondence, to ask whether McCabe’s handwritten notes were accurate in all respects other than the previously misapplied date. Bromwich replied that he had consulted with McCabe and that they opted not to participate in DOJ’s efforts to drop the charge against Flynn.

Goelman, Strzok’s attorney, declined to comment on the matter but shared correspondence with Ballantine as well.

As with Bromwich, Ballantine reached out at 4 p.m. on Sunday. Goelman responded on Monday declining to cooperate and to indicate that another exhibit appeared to be mislabeled. He also objected to DOJ’s characterization of one of Strzok’s text messages during oral arguments before Sullivan last month. When Ballantine asked him to characterize whether another document in the case — a set of notes chronicling the FBI’s Jan. 24, 2017 interview of Flynn — was attributable to Strzok and FBI agent Joe Pientka, Goelman replied, “They appear to be.”

It’s unclear whether Sullivan will be made aware of the additional discrepancies. Strzok flagged them on Twitter earlier Tuesday afternoon. But the issue arises amid DOJ’s five-month-old effort to dismiss its case against Flynn, an abrupt reversal that occurred amid a review of the case ordered by Attorney General William Barr in January.

Flynn pleaded guilty in December 2017 to lying about his contacts with Russia’s U.S. ambassador in the weeks leading up to Trump’s inauguration. The outgoing Obama administration had just leveled sanctions at Russia for interference in the 2016 election, and Flynn had urged the ambassador to convey to the Kremlin not to escalate the situation — to which Russia ultimately agreed.

But Flynn told FBI agents who interviewed him in January 2017 that he didn’t recall discussing sanctions with the ambassador. Flynn was preparing for sentencing in December 2018 when Sullivan offered him an opportunity to complete his cooperation with special counsel Robert Mueller and other prosecutors. Shortly after that hearing, Flynn replaced his legal team with Sidney Powell, an anti-Mueller firebrand, and soon sought to unravel his guilty plea, accusing the FBI and DOJ of “egregious misconduct in the case. DOJ’s decision to dismiss the charge accelerated that effort.

Rather than acquiescing, Sullivan appointed an outside adviser to review DOJ’s decision to dismiss the case. The adviser, former judge John Gleeson, accused the department of seeking to protect a political ally of the president under the thinly veiled pretense of FBI misconduct.

Sullivan heard arguments from Gleeson, Flynn and DOJ late last month and was weighing the matter when he made the demand for DOJ to certify its evidence.

In the rest of Thursday’s filing, which was lodged on the court docket at 11:42 p.m. on Oct. 26 by Ballantine, DOJ includes sworn affidavits from current FBI and DOJ personnel asserting that the bulk of the exhibits were “true and correct” copies of the original documents, and contained no alterations beyond the ones previously identified.

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