The Justice Department told the judge presiding over Michael Flynn’s case Wednesday that it “inadvertently” forgot to remove post-its it had attached to documents it produced to Flynn as part of the Bill Barr-ordered review of Flynn’s prosecution.
The post-its, when left on the documents while they were scanned for their production, looked like alterations to the documents themselves. The documents were 2017 notes taken by top FBI officials who were leading the Russia probe.
The FBI notes had been produced to Flynn as part of the review of his case led, on Barr’s directive, by U.S. Attorney Jeff Jensen. The DOJ has claimed that information Jensen has turned up in the review has promoted doubts about the case, which have led the Department to seek its dismissal. Flynn’s attorneys, meanwhile, filed the 2017 FBI notes in court to further their claims that Flynn was railroaded by a Deep State coup against President Trump.
The Justice Department’s admission on Wednesday adds to the picture of how Trump’s allies have been able to skew the timeline around the Russia probe to amp up claims that former Vice President Joe Biden — Trump’s presidential opponent — was deeply involved in the FBI’s supposed anti-Trump plot.
One of the FBI officials whose notes have been touted by Flynn, former counterintelligence chief Peter Strzok, flagged for Flynn’s judge the seeming alterations last week, on the eve of the hearing the judge held on the DOJ’s request to dismiss the case.
U.S. District Judge Emmet Sullivan said he he was unsettled by the alteration allegations at the hearing and ordered the Justice Department to explain them, leading to the explanation it produced Wednesday.
According to Wednesday’s DOJ response, the post-its reflected what the Jensen team “estimated” were the dates that the 2017 notes were taken.
The post-its suggested that Strzok’s 2017 notes were from either January 4 or January 5 of that year. As the legal commentator Marcy Wheeler has pointed out on her website, other documents released from the investigation pointed clearly to the notes being contemporaneous to a White House meeting that took place on January 5. (Wheeler has also pointed out that versions of the notes without the added dates were previously filed in the case.)
Strzok’s lawyer, in his notice to the court last week, pointed out this discrepancy as well.
“On at least one occasion, the date added to the notes is wrong and could be read to suggest that a meeting at the White House happened before it did,” Strzok’s lawyer wrote to the court.
Yet, since the effort to get the case dropped took off, both the DOJ and Flynn’s team have injected some ambiguity into this timeline. In a June 23 letter to Flynn’s team, the Department said the meeting referenced in Strzok’s notes could have taken place on Jan. 3, 4 or 5. In a filing the same day, Flynn’s lawyers focused on Jan. 4.
“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,” Flynn’s lawyers said.
The Flynn filing emphasized the Biden connection, pointing to indications in Strzok’s notes that appeared to show “that Vice President Biden personally raised the idea of the Logan Act.” The Logan Act criminalizes private citizens negotiating with foreign governments on behalf of the U.S.
In September, Flynn’s team filed the version of the notes with the Jan. 4-to-Jan. 5 post-it attached.
The Flynn filings have prompted headlines in Trump-aligned media playing up the role Biden supposedly played in the Russia probe, which right-wing commentators have sought to cast as a politically motived attempt by the Obama administration to undermine the incoming President. Trump himself repeated a version of the allegations at last week’s debate, by claiming that Biden gave “the idea for the Logan Act against General Flynn.”
However, as Politico noted, other documents released in the case have shown that the Logan Act was being discussed among FBI officials before the Jan. 5 meeting, undercutting the suggestion that Biden was somehow the genesis of the idea.
The post-it appended to the Jan. 5 notes was not the only post-it that “inadvertently’ got scanned into the versions of the documents produced for Flynn. Another set of Strzok notes were scanned and produced to the Flynn team with the Jensen team’s post-its, as were a set of notes from former FBI Deputy Director Andrew McCabe.
The post-it on McCabe’s notes suggested they were from May 10. Flynn’s team has used that date, in conjunction with the content of the notes, to allege that McCabe was “trying very hard to pin something on General Flynn” while supposedly briefing the Senate Intelligence Committee.
But as McCabe’s lawyers pointed out in their own notice to the court last week, there was no such McCabe Senate Intel briefing on that day.
“That was the day after President Trump had fired FBI Director Comey and Mr. McCabe was consumed with various other responsibilities,” the letter to the court said. “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.”