Last week Judge Emmet Sullivan ordered the Department of Justice to “authenticate” the exhibits it had filed in support of its motion to dismiss the case against General Michael Flynn. He also ordered DOJ to authenticate records and documents that had been filed by Gen. Flynn’s attorney in her supplemental filings in support of DOJ’s motion to dismiss.
DOJ has been providing additional discovery pursuant to Judge Sullivan’s still applicable “Standing Order” that DOJ provide all “Brady” evidence to a defendant in a criminal case without the Defendant having to make a request or motion. Included in the documents provided by Gen. Flynn’s counsel by DOJ since the filing of the Motion to Dismiss are handwritten notes which DOJ identified to Gen. Flynn’s attorney when making the production that they were notes of Peter Strzok and Andrew McCabe from meetings at different points in time which contain information relevant to the case against Gen. FLynn.
On Monday, Assistant United States Attorney Jocelyn Ballentine filed the government’s response to Judge Sullivan’s Order. A dispute has now raised with regard to her characterization of what did or did not happen between her and the attorneys for Strzok and McCabe with regard to her efforts to comply with Judge Sullivan’s Order. Here is what she wrote with regard to the task at had as she understood it:
By that Minute Order, the Court directed the government to file… a declaration pursuant to penalty of perjury…that the 14 exhibits attached to its motion to dismiss (ECF 198) and supplement (ECF 249) (hereinafter “Government Exhibits”) are true and correct copies. The Court extended this order to documents produced by the government in discovery which were subsequently filed by the defendant as exhibits in support of the defendant’s supplementary filings (ECF Nos. 228, 231, 237, 248, 251, 257, and 264) (hereinafter “Discovery Documents”). With respect to both categories, the Court ordered the government to identify each “exhibit” and “discovery document” by “name, date and author.” Lastly, the Court ordered the government to “provide transcriptions of all handwritten notes contained in the Exhibits.”
Here is the exact text of Judge Sullivan’s order on this very issue:
Accordingly, the government is HEREBY ORDERED to file…a declaration pursuant to penalty of perjury…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. The government has also filed on the record in this case numerous notices of filing discovery correspondence and Mr. Flynn has generally filed the discovery produced on the record in this case as Exhibits to his supplementary filings…. 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.
This is NOT a requirement that the DOJ establish that the contents of the documents in question are “true” or “accurate” as a factual matter. This is the process of “authentication” — which is the basis for legally establishing that the document is what it is reputed to be.
So, for example, you would “authenticate” a page of handwritten notes as being the notes of Peter Strzok for the purpose of establishing that they are not the notes of some other person. Normally you would do that by having Peter Strzok say “The are my handwritten notes.”
That is not the same as saying that the contents of the notes are “true” or “accurate” as a factual matter — only that they are Strzok’s notes and not, for example, Lisa Page’s notes.
Someone who is cooperative can look at a copy and say “Yes, this appears to be a true and correct copy of my notes.” Someone who is not cooperative might say “I can’t answer that question without seeing my original notes and comparing the two documents side by side.”
Someone not cooperating my say “I decline to assist you by refusing to give you any answer to your question.”
As is being reported today, that it what the attorneys for both Strzok and McCabe told AUSA Ballentine when she asked them to “authenticate” as true and correct copies the notes that had been provided to Gen. Flynn in discovery, and represented to be the notes of Strzok and McCabe respectively.
In her Court ordered response on Monday, AUSA Ballentine wrote to the Court:
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…. 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 two attorneys, noted Democrat partisan Michael Bromwich, and less notable but still Democrat partisan Aitan Goelman, have now disputed in correspondence to the Court that they “confirmed” anything to ASUA Balletine. Politico reporter Kyle Cheney does his best to mash up and make unrecognizable the issues in a story today — I’m not going to link because it’s such a pile of trash — including getting comments from both Bromwich and Goelman.
Bromwich explicitly declined to cooperate, citing disagreement with the Justice Department’s efforts to dismiss the criminal charge against Flynn. And Goelman said he could not vouch for the documents without more time.
“We are unable to certify the authenticity of all of the attachments or the accuracy of the transcriptions,” Goelman wrote to Ballantine Sunday afternoon. “To do so, we would need both more time and access to the original notes, particularly given that U.S. Attorney Jensen’s team has already been caught altering Pete’s notes in two instances.”
“I did not verify the content of Mr. McCabe’s notes,” [Bromwich] said. “We specifically declined to provide any assistance to the government because we view its conduct in the Flynn matter as shameful and reprehensible.”
First, there are ways to “authenticate” documents without the assistance or participation of the document’s author. What I’m fairly confident happened here was that AUSA Ballentine was not going to allow herself to be held captive in filing her response with the Court by the recalcitrance of the attorneys for Strzok and McCabe — who were both fired for misconduct, and both of whom are now engaged in litigation with DOJ over their firings. I’m sure AUSA Ballentine and her supervisors recognized immediately that they were unlikely to get any cooperation from either of them.
The easier way for her to have established the notes were “true and correct” copies would have been to simply herself compare the copies filed with the Court to the originals in the possession of DOJ. The provenance of the documents could be established based on where they had come from. If the copies are identical to the originals, she didn’t need to say anymore, and she could have ignored Bromwich and Goelman’s refusal to assist.
The idea that her comment is somehow misleading to the Court is also petty nonsense. Note that she doesn’t put a date on when the attorneys “confirmed” the documents were “unaltered” — which is the only claim she made. She didn’t say they made that representation to her between the date of Judge Sullivan’s Order and the date she filed her response. Her comment could be based on past discussions with both attorneys.
Cheney’s story says that he was shown the email communications between Ballentine and the two attorneys, initiated by her on Sunday, Oct. 25, at 4:00 pm. But he doesn’t quote from the emails in laying out what she communicated.
I’d make a small wager that he declined to quote her because I’m going to guess that the email, if read in its entirety, probably included a statement by Ballentine that if she did not hear back from the attorneys by a certain time on Monday, she would indicate to the Court that they had confirmed — by their failure to object — that the copies had not been altered. You do something like that when you don’t want to be held hostage to the other side refusing to respond when there is a deadline involved.
I expect we won’t have to wait much longer to have a fuller understanding of the context — and I have zero confidence that Kyle Cheney or Michael Bromwich had any interest in this story being reported accurately.