Following an order from the presiding judge, the Justice Department filed declarations swearing to the accuracy of the exhibits it relied upon in a motion to dismiss the case against retired Lt. Gen. Michael Flynn and the documents that it provided to his legal team.
The Justice Department also called upon the judge to grant to the dismissal, which he has so far resisted doing, with roughly a week to go before Election Day.
Assistant U.S. Attorney Jocelyn Ballantine submitted a 46-page filing on Monday night, assuring the judge that “there have been no material alterations made to any of the 14 Government Exhibits filed in support of the motion to dismiss and the supplement to the motion to dismiss.” DOJ emphasized that it now “declares under penalty of perjury that the Government Exhibits and Discovery Documents are true and correct, are correctly identified, and have been faithfully transcribed.”
Judge Emmet Sullivan, who has fought the Justice Department’s efforts to dismiss the criminal charges against Flynn since May, ordered DOJ to provide sworn declarations “under penalty of perjury” last week 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 Jeffrey Jensen.
Sidney Powell, the lead attorney for Flynn, told the Washington Examiner last week 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.”
The DOJ said Monday that John Brown, the executive assistant director of the National Security Branch of the FBI, “has declared, under penalty of perjury, to the best of his knowledge, and based on the information provided to him, that all Government Exhibits described in” a new chart laying out the crux of the 14 exhibits “are true and correct copies of documents and records, including copies of select pages of larger records, maintained by the FBI pursuant to the applicable records retention policy.”
Assistant U.S. Attorney Sayler Fleming also “declared, under penalty of perjury, to the best of her knowledge” that a “summary chart of electronic communications created by attorneys at the D.C. U.S. Attorney’s Office and the Eastern District of Missouri U.S. Attorney’s Office to capture relevant electronic communications involving multiple FBI personnel while excluding irrelevant information and excess metadata … truly and correctly reflects excerpts from documents and records maintained by the FBI pursuant to the applicable records retention policy.”
In addition, the DOJ said that FBI special agent Keith Kohne “has declared, under penalty of perjury, to the best of his knowledge, and based on the information provided to him, that this exhibit” related to the FBI’s interview of FBI special agent William Barnett “is a true and correct copy of the report of that interview.” Barnett, one of the lead FBI agents involved with the inquiry into Flynn in 2016 and 2017, jokingly referred to the Trump-Russia investigation as “Collusion Clue” and argued that many investigators, including some on special counsel Robert Mueller’s team, were out to “get Trump.”
The Justice Department further said that it “has undertaken a comprehensive review of the documents produced in discovery in this case which were subsequently filed by the defendant as exhibits in support of the defendant’s supplementary filings” and that those documents had been “authenticated” too.
“The government acknowledges its obligation to produce true and accurate copies of documents. The government has fully admitted its administrative error with respect to the failure to remove three reviewer sticky notes containing estimated date notations affixed to three pages of undated notes (two belonging to former Deputy Assistant Director Peter Strzok, and one page belonging to former Deputy Director Andrew McCabe) prior to their disclosure,” DOJ said. “These dates were derived from surrounding pages’ dates in order to aid secondary reviewers. These three sticky notes were inadvertently not removed when the relevant documents were scanned by the FBI for production in discovery. 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.”
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.
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 conversations between Flynn and Kislyak in December 2016.
In rejecting an effort by the Justice Department and Flynn’s legal team to order Sullivan to drop the case immediately, the D.C. Court of Appeals did tell the judge that “as the underlying criminal case resumes, in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.” DOJ’s filing on Monday concluded by pointing to the appeals court opinion, saying that “consistent with the en banc D.C. Circuit’s statement … the government respectfully submits that the Court should immediately grant the unopposed motion to dismiss the criminal information with prejudice.”
Flynn, who briefly served as President 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.