The judge presiding over the case against retired Lt. Gen. Michael Flynn ordered the Justice Department to provide sworn statements declaring under penalty of perjury that the more than one dozen exhibits it cited in its motion to dismiss earlier this year are accurate, a move that may push the case beyond the November election.
The move by Judge Emmet Sullivan, who has fought the Justice Department’s efforts to dismiss the criminal charges against Flynn since May, comes after the Justice Department acknowledged that it had inadvertently included sticky notes with estimated dates on handwritten notes from former FBI special agent Peter Strzok and former FBI Deputy Director Andrew McCabe in documents recently handed over to the Flynn team as part of the discovery process during a deep-dive review by U.S. Attorney for the Eastern District of Missouri Jeffrey Jensen. The U.S. District Court for the District of Columbia judge said he now wants the DOJ to attest by Monday that all of the exhibits in its dismissal motion are legitimate.
“The government has not provided a declaration attesting that the Exhibits are true and correct copies,” Sullivan said, adding that “the government is HEREBY ORDERED to file … a declaration pursuant to penalty of perjury … in support of its motion to dismiss that the Exhibits attached to its motion and supplement are true and correct copies. It is FURTHER ORDERED that the government shall provide transcriptions of all handwritten notes contained in the Exhibits.”
Sidney Powell, the lead attorney for Flynn, told the Washington Examiner that “DOJ is not the problem here. This is another stall tactic from an impossibly biased judge.” Flynn’s lawyers argued earlier this month that Sullivan’s “increasingly hostile and unprecedented words and deeds in what has become his own prosecution of General Flynn mandate his disqualification.”
Sullivan also said Friday that “the government is HEREBY ORDERED to file … a declaration pursuant to penalty of perjury … that the discovery documents provided to Mr. Flynn and filed on the record in this case are true and correct copies.”
Sullivan acknowledged that “the presumption [of regularity] applies to government-produced documents” and that “to the extent it is not rebutted — requires a court to treat the government’s record as accurate.” But he claimed that “here, however, the government has acknowledged that altered FBI records have been produced by the government and filed on the record in this case.”
Assistant U.S. Attorney Jocelyn Ballantine told the court in early October that “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)” and “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.” She said investigators confirmed with Strzok’s lawyer “that the content of the notes was not otherwise altered.” Ballantine also told the court that “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).” She said that “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.”
The handwritten notes by Strzok seem to quote former Vice President Joe Biden raising the “Logan Act” related to Flynn during an Oval Office meeting, according to an apparent conversation Strzok had with then FBI Director James Comey afterward. Strzok wrote that Comey said the calls between Flynn and then-Russian Ambassador Sergey Kislyak “appear legit.” Former President Barack Obama emphasized that “the right people” should look into Flynn. The sticky note estimated that the notes were from Jan. 4, 2017, or Jan. 5, 2017, but the Oval Office meeting they were referencing occurred on Jan. 5, 2017.
Biden is now the Democratic presidential nominee.
A draft communication closing the Flynn case dated Jan. 4, 2017, showed the bureau had turned up “no derogatory information” on Flynn. But the same day, texts from Strzok reveal he intervened to keep it open at the insistence of the FBI’s “7th floor” leadership after the bureau obtained intercepts of Flynn’s and Kislyak in December 2016.
During the first presidential debate in late September, President Trump told Biden that “you gave the idea for the Logan Act against General Flynn.” But members of the FBI had raised the Logan Act the day before, with Strzok sending former FBI lawyer Lisa Page a research paper on it on Jan. 4, 2017.
In interviews this year, Biden contradicted himself on what he knew about the Flynn investigation.
He attended the Jan. 5, 2017, Oval Office meeting with Obama, Comey, former Deputy Attorney General Sally Yates, then-CIA Director John Brennan, then-Director of National Intelligence James Clapper, and then-National Security Adviser Susan Rice. Obama asked Yates and Comey to stay behind when the meeting concluded, while Biden and Rice also stayed behind.
Yates also told the Senate Judiciary Committee in August that “I don’t remember” if Biden raised the Logan Act then.
“I was never a part or had any knowledge of any criminal investigation into Flynn while I was in office,” Biden told MSNBC in May. The Trump campaign pointed out that Biden didn’t talk about his knowledge of the FBI’s counterintelligence investigation into Flynn, which had been initiated in August 2016. The 2020 Democratic nominee contradicted himself when asked about Flynn in an interview with ABC News after the Justice Department filed to drop its charges against Flynn.
“I know nothing about those moves to investigate Michael Flynn,” Biden said, then adding, “I thought you asked me whether or not I had anything to do with him being prosecuted. I was aware that there was, that they asked for an investigation, but that’s all I know about it.”
Flynn, who briefly served as Trump’s first national security adviser, pleaded guilty in December 2017 to lying to FBI investigators about his December 2016 conversations with a Russian envoy. But after changing legal teams in the summer of 2019, Flynn claimed he was innocent, withdrew his guilty plea, and pushed for the case to be dismissed.
