What happened: The Justice Department "inadvertently" altered a document it filed in court in its ongoing effort to dismiss charges against former national security adviser Michael Flynn, prosecutors said Wednesday, attributing it to a wayward "sticky note" that was scanned onto a key piece of evidence department officials have cited in seeking to abandon the case.
The document is a set of undated notes from former FBI agent Peter Strzok summarizing 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 scanned sticky note, however, included a date range of Jan. 4-5, 2017.
“The government has learned that, during the review of the Strzok notes, FBI agents assigned to the … review placed a single yellow sticky note on each page of the Strzok notes with estimated dates,” Assistant U.S. Attorney Jocelyn Ballantine wrote.
Why it matters: Despite little ambiguity about the date of the Oval Office meeting, the inclusion of Jan. 4, 2017, as a potential earlier date allowed President Donald Trump to weaponize the issue during his debate last week with Democratic nominee Joe Biden.
Strzok’s notes indicate that Biden mentioned the Logan Act — a little-used 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 say 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.
But other documents released by the DOJ indicate that the notion of pursuing a Logan Act charge against Flynn first emerged 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.
The erroneously dated notes also mark the third time the DOJ and Flynn’s legal team misdated the meeting as potentially occurring before Jan. 5. On June 24, the DOJ filed an earlier version of Strzok’s notes that included an inaccurate date range as well.
"While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5," the Justice Department wrote at the time.
A day later, Flynn’s team cited the notes in its own filing and said they were "believed to be of Jan. 4, 2017."
"According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act," Flynn’s lawyers wrote.
The controversy over the labeling of the notes alarmed the judge in Flynn’s case, Emmet Sullivan, who told lawyers for Flynn and DOJ last week that he was "floored" when he first learned about the alterations.
The changes were first raised to Sullivan’s attention by Strzok’s attorney, Aitan Goelman, in an unsolicited filing, prompting the judge to demand an explanation from DOJ. It’s unclear how the department’s response might factor into his decision-making as he considers whether to grant its motion to dismiss the case against Flynn.
In its Wednesday reply to Sullivan’s request, DOJ also acknowledged scanning a date onto notes taken by former Deputy Director Andrew McCabe, also filed as part of the Flynn proceedings. McCabe’s attorneys have contended that the date applied to McCabe’s notes, May 10, 2017, is erroneous, and that Flynn’s team incorrectly suggested that McCabe participated in a briefing of the Senate Intelligence Committee that day.
“That was the day after President Trump had fired FBI Director Comey and Mr. McCabe was consumed with various other responsibilities,” his attorneys said in an Oct. 2 letter to Sullivan. “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.”
The background: Flynn pleaded guilty in December 2017 to lying to FBI agents about his contacts with Russia’s U.S. ambassador in the weeks before Trump’s inauguration. Though he cooperated with special counsel Robert Mueller for a year, he has since moved to rescind his guilty plea and allege misconduct by the FBI and prosecutors, who he accuses of coercing his initial plea to pursue a case against Trump. Attorney General William Barr ordered a review of the case in January and ultimately agreed to drop in in May. But Sullivan has so far resisted acting quickly, instead appointing an outside adviser, who has accused Barr of acting overtly to shield an ally of the president.
Comey testified last month that he had no recollection of Biden raising the Logan Act during that Jan. 5, 2017 meeting and isn’t sure why Strzok’s notes included the notation.
"I would remember it because it would be highly inappropriate if a president or vice president suggested prosecution or investigation of anyone. And it did not happen," Comey said.
Former national security adviser Susan Rice, who also attended the meeting, wrote in an email she sent to herself memorializing the Jan. 5 meeting that Obama’s only comments on the matter were to urge the FBI to handle the Flynn case “by the book.” Obama also asked whether he should have any concerns about sharing intelligence with the incoming administration, given Flynn’s contacts with the Russian ambassador, Rice said.
Flynn’s team has been seeking Sullivan’s recusal from the case, alleging he has exhibited bias against Flynn. On Wednesday, Flynn attorney Sidney Powell formalized that effort in an 80-page filing contending that Sullivan’s actions and statements disqualified him from continuing to preside over the case.
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