The federal judge presiding over the criminal case against former national security adviser Michael Flynn has ordered the Justice Department to conduct an unusual review of its filings in the case and certify by Monday whether any have been manipulated.
The order is a signal of intense distrust between the judge, Emmet Sullivan, and the department, whose filings are typically accepted at face value. In this case, DOJ has already acknowledged that two documents it previously filed — handwritten notes taken by former FBI counterintelligence agent Peter Strzok and former FBI Deputy Director Andrew McCabe — were altered “inadvertently” to include inaccurate dates.
Sullivan’s demand will force the Justice Department to confront tricky interpretations of handwritten notes that DOJ and Flynn’s legal team have relied on to seek the dismissal of the prosecution.
Flynn pleaded guilty in December 2017 to making false statements about his interactions with Russia’s then-ambassador to the United States in the weeks before President Donald Trump’s inauguration. Flynn encouraged the Russian envoy, Sergey Kislyak, to resist escalating a sanctions battle with the outgoing Obama administration, which sought to punish Russia for interfering in the 2016 election. But Flynn told FBI agents in a Jan. 24, 2017 interview — as well as other Trump administration officials — that sanctions were not raised on the calls.
Though Flynn pleaded guilty to lying and cooperated with special counsel Robert Mueller’s investigators for a year, he dropped his legal team in early 2019, hired anti-Mueller firebrand attorney Sidney Powell and reversed his posture, claiming he was entrapped into a guilty plea by corrupt FBI agents and DOJ prosecutors. Earlier this year, Attorney General William Barr appointed a Missouri-based U.S. attorney to review the case and, as Flynn mounted an effort to unravel his guilty plea, Barr moved in May to dismiss the charges altogether.
But Sullivan has resisted pressure to drop the case, instead appointing an outside adviser to argue against dismissal. That adviser, former Judge John Gleeson, has accused Barr of an overtly political effort to drop the Flynn case in order to protect a prominent Trump ally. Sullivan’s posture has led to contentious litigation, including a failed effort by Flynn’s team to ask the appeals court to elbow Sullivan aside while accusing him of bias. In the intervening months, the Justice Department and Flynn have continued to publicly post sets of documents that Flynn’s team has characterized as evidence of FBI misconduct.
Two of those documents included the notes that DOJ now acknowledges were altered, a revelation that Sullivan said last month left him “floored” and demanding answers. In his new order, Sullivan notes that DOJ did not respond to his request to authenticate all 14 exhibits it has filed in support of the dismissal motion.
“Although the government relies heavily on these 14 Exhibits, the government has not provided a declaration attesting that the Exhibits are true and correct copies,” he wrote Friday. Though he acknowledged there is typically a legal “presumption” that documents filed by the government are authentic, it doesn’t apply in this case. “Here, however, the government has acknowledged that altered FBI records have been produced by the government and filed on the record in this case.”
In his order, Sullivan demanded by Monday a sworn declaration that all other documents in the case are “true and correct copies.” That declaration, Sullivan says, must spell out the name, date and author of its contents — aspects that were sometimes left ambiguous by the publicly filed records. Sullivan also asks for DOJ to provide transcripts of the handwritten notes, which could also eliminate ambiguities related to some of the hard-to-read scrawlings.
The alteration in Strzok’s notes have already led to significant public confusion about a key aspect of the FBI’s investigation of Flynn. Strzok’s notes summarize a Jan. 5, 2017, Oval Office meeting at which President Barack Obama, FBI Director James Comey and other national security officials discussed Flynn’s contact with Russian officials. The document filed in court included a notation that indicated a date range of Jan. 4-5, 2017 — an addition that DOJ attributes to an inadvertently scanned sticky note.
Despite little ambiguity about the date of the Oval Office meeting, the inclusion of Jan. 4, 2017, as a potential earlier date helped Trump deploy the issue during a debate last month with former Vice President Joe Biden.
Strzok’s notes indicate that Biden mentioned the Logan Act — a mostly defunct 18th-century law that criminalizes efforts by private citizens to conduct U.S. foreign policy. The FBI internally discussed using the Logan Act as a basis for its decision to interview Flynn a few weeks later as it investigated his contacts with Russia’s ambassador to the United States. Ultimately, FBI and DOJ officials said the interview was conducted as part of the FBI’s counterintelligence investigation of contacts between the Trump campaign and Russia.
Strzok’s notes provide no context about why Biden raised the Logan Act, if it was in response to anyone else or how any officials responded. Biden has previously acknowledged being present in the Oval Office during the discussion of the Flynn matter and indicated he was broadly aware of the FBI investigation. “But that’s all I know about it. I don’t think anything else,” Biden said.
Trump, though, accused Biden of dredging up the Logan Act himself to go after Flynn.
“You gave the idea for the Logan Act against General Flynn,” the president said at the Sept. 29 debate.
Yet other documents released by the DOJ indicate that the notion of pursuing a Logan Act charge against Flynn originated inside the FBI on Jan. 4, 2017, a day before the Oval Office meeting occurred. Messages exchanged between Strzok and FBI attorney Lisa Page on that day reveal a discussion of the obscure law. Strzok provided the text of the statute to Page, as well as an analysis by the Congressional Research Service that noted the Logan Act had been in relative disuse for more than 200 years and could be unconstitutional.
On Thursday, the Justice Department also signaled in a public filing that it had completed its review of the Flynn case and had no additional documents to turn over. DOJ specifically pointed out that it found no evidence of an earlier draft of the FBI’s summary of Flynn’s Jan. 24, 2017 interview with Strzok and agent Joe Pientka. Flynn’s legal team, as well as outside allies including Trump himself, have suggested for more than a year that an “original” summary — known in FBI parlance as an FD-302 — of the interview exists and must be turned over, but DOJ said it scoured all FBI systems and had already turned over three drafts as well as the first finalized version, completed on Feb. 15, 2017.
“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,” Justice Department officials indicated. “[T]hese are the only draft versions of the FD-302 that we have located during our diligent searches.
“The department also indicated it found no additional relevant communications about Flynn’s case among FBI higher-ups that hadn’t already been disclosed.