WASHINGTON (CN) — The Justice Department admitted on Wednesday to “inadvertently” altering evidence in the case against former national security adviser Michael Flynn, a prosecution the Trump administration has for months fought to abandon.
Its concession comes a week after the judge on the case said he was “floored” by evidence that notes pertaining to Flynn from former FBI agent Peter Strzok appeared to have been altered in a Sept. 24 filing supporting the motion to dismiss.
Strzok’s notes document a Jan. 5, 2017, meeting where he briefed President Barack Obama, former Vice President Joe Biden, FBI Director James Comey and other top-ranking security officials on Flynn’s communications with Russian officials. At the time, Strzok was deputy assistant director of the bureau.
Flynn would plead guilty later that year to lying to the FBI about his contact with the then-Russian ambassador, but he has since withdrawn the plea and President Donald Trump’s Justice Department wants the case dismissed.
The government filed its explanation Wednesday, telling the court that distortion of Strzok’s notes was nothing more than a case of overlooked sticky notes.
“During the review, agents for EDMO placed a single yellow sticky note on each page of the notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned,” Justice Department attorney Jocelyn Ballantine wrote in a letter dated Oct. 1.
The sticky notes were placed by agents working with Jeffrey Jensen, U.S. attorney for the Eastern District of Missouri, whom Attorney General William Barr tasked with investigating how Flynn’s prosecution got off the ground.
This marks the third time DOJ and Flynn’s attorneys have misdated when the critical Oval Office meeting on Jan. 5 took place leading up to the former Trump adviser’s indictment.
The sticky notes misdated the meeting as possibly taking place on Jan. 4, 2017.
President Trump condemned Biden during the Sept. 29 debate for wanting to use the Logan Act, which criminalizes private citizens conducting foreign policy, to target Flynn.
But while Strzok’s notes include mention of Biden raising the Logan Act in the Jan. 5 meeting, the Justice Department has disclosed documents that reveal the idea was already in discussion at the FBI the day before.
Biden has admitted to being present for the Oval Office meeting routinely referenced in Flynn’s case, but claims he knew little about the FBI investigation. Strzok’s notes give no indication of whether the then-vice president brought up the Logan Act or discussed it in connection with another official raising the law.
Ballantine, the career prosecutor who signed the notice that cops to the sticky note bungle, plans to file replacement copies of Strzok’s notes without the dates.
Having conferred with an attorney for Strzok, she said that the notes were not otherwise altered and asked that the copies with the incorrect dates be destroyed.
FBI Deputy Director Andrew McCabe’s attorneys filed a similar letter on Monday, accusing the government of entering a heavily redacted page from McCabe’s notes on the Flynn docket with a misleading date added.
As of Wednesday afternoon, the Justice Department has not filed a notice indicating that McCabe’s notes were also copied with the date written on a sticky note.
Meanwhile, Flynn’s attorneys entered their own salvo Wednesday to have U.S. District Judge Emmet Sullivan recuse himself from the case.
Sullivan is unlikely to grant the motion, which he recommended be filed at a Sept. 29 hearing where Flynn’s attorney Sidney Powell relentlessly lobbed accusations of bias at him.
Her filing accuses the longtime Washington judge of harboring “terrifying” bias and “abject rancor” against Flynn, attitudes that she said became especially apparent during the Sept. 29 hearing. In the motion, the word “hearing” is set off by quotation marks.
“The bias of the court and accompanying assumptions are so thoroughly accepted on ‘the Left’ that the bias does not even register to them,” Powell wrote.
Quoting comments Sullivan made during Flynn’s sentencing hearing back in 2018 and quickly walked back — “you sold your country out,” he told Flynn — Powell claimed the judge’s “most abusive word choices” appear to have originated from “The Rachel Maddow Show” on MSNBC the night before.
In addition to Maddow, the attorney argues Sullivan was influenced by extrajudicial sources like former Watergate prosecutors who filed an amicus brief in the case, a group she claimed were “‘adverse and antagonistic’ to General Flynn.”
The 40-page motion lays out a long list of grievances against the judge, including that he was influenced by a Washington Post article by retired federal judge John Gleeson in tapping Gleeson as amicus curiae to argue against the government’s motion to dismiss.
“Within forty-eight hours, Judge Sullivan took Gleeson’s op-ed as a job application and appointed him to implement Gleeson’s plan,” Powell wrote.
Seeking to wipe Gleeson’s filings from the Flynn docket, Powell also asked the court to strike the letters filed by Strzok and McCabe’s attorneys.