Both John Durham and Michael Sussmann submitted their applications last night in Limin, which are documents to argue about what can be admitted in court. They address a number of issues that I will cover in several posts:
- Allow the witnesses’ concurrent recordings of conversations with the FBI General Counsel
- Admit emails referenced in the indictment and other similar emails
- Certain actions and statements (including the Defendant’s February 2017 meeting with a government agency, his testimony before Congress in December 2017, and his former employer’s testimony to the media in October 2018) as direct evidence or alternatively under Federal Rule of Evidence 404( b )
- Eliminate evidence and arguments regarding alleged political bias on the part of the Special Counsel
- Admit a Clinton campaign tweet on October 31, 2016
I will serially link my discussions.
In John Durham’s offer to present notes by Bill Priestap and Trisha Anderson, he submitted a color scan of Anderson’s notes [red annotation added]:
But he presented a black and white scan of Priestap’s notes [red annotation added]:
This is important for two reasons. First, because blue tape was involved in altered documents filed in the Mike Flynn case. On another page of Priestap notes filed in Flynn’s case was a piece of blue tape.
There were things that appeared to be blue and red Sticky notes seen on the original version of some of Peter Strzok’s notes submitted in this case.
When the government finally admitted adding dates (definitely misleading in at least one case) to both Strzok notes…
And some notes from Andrew McCabe…
… The government claimed that the date added to some Andrew McCabe notes was added via a blue sticky note – which sounds like the same sticky note we saw in the Priestap notes.
In response to questions from the court and attorney, the government has learned that during the review of the Strzok notes, FBI agents tasked with EDMO review placed a single yellow sticky note with estimated dates on each page of the Strzok notes (the notes themselves are undated). These two sticky notes were accidentally not removed when the notes were scanned by FBI HQ before being forwarded to our office for production. The Government has also confirmed with Mr Goelman and can represent that the content of the notes has not otherwise been altered.
The government has also learned that At some point while reviewing the McCabe notes, someone stuck a blue “flag” on the McCabe notes with clear glue with an estimated date (The notes themselves are also undated). Again, the flag was accidentally not removed when the notes were scanned by FBI HQ before being forwarded to our office for production. Again, the content of the notes has not been otherwise altered. [my emphasis]
If that’s true, then whoever altered the McCabe notes altered them with the same type of blue sticky notes that appear on the Priestap notes Durham plans to file in court.
Whether this date was added via blue sticky note has never been publicly tested. Rather than submitting unmodified versions of McCabe’s notes in the Flynn file, the DOJ — metadata suggests Jocelyn Ballantine did so — simply removed the date and a footer, effectively submitting a recreated exhibit instead of an altered one. So it cannot be ruled out that this date was written directly on the notes themselves. McCabe was specifically barred by the DOJ from reviewing his original notes during this period, not even to prepare for testimony by the Senate Judiciary Committee, so he was unable to test that either.
That alone suggests that some of the changes that were an issue in the Flynn list were changed before they were communicated to Jeffrey Jensen.
But that’s all the more interesting given a detail that Michael Sussmann included in his motion to have those notes excluded. In Priestap’s testimony before the grand jury in that case, he testified that he didn’t know why he had written the comment “no specific customer” in a slant or why those notes were “perhaps darker or thicker than some of the other notes.”
The indictment characterizes the Priestap notes as a simultaneous recording of Mr. Priestap’s conversation with Mr. Baker. See ID. But aside from the fact that they “looked like his writing and organizational style,” said Mem. of Special Counsel’s Interview of EW Priestap, SCO-3500U-018701, on June 2, 2021 at -01, Mr. Priestap said he “[doesn’t] remember why [he] wrote them down and who gave [him] the Information,” Grand Jury Test by EW Priestap of June 3, 2021, SCO-3500U-018746, at -98. Not only that, but Mr. Priestap”[does] can’t remember actually writing those notes”, id. at SCO-3500U-018815, nor can he confirm that the notes do indeed reflect a conversation he had with Mr. Baker as opposed to a conversation he had with someone else, id. Indeed, Mr. Priestap said he did not recall Baker providing him with the information about Sussmann, said Special Counsel’s Mem. of June 2, 2021 interview with EW Priestap at SCO-3500U 018702, and was “not sure if.” th[e] Conversation reflected in the notes. . . was with Mr. Baker or maybe someone else’, EW Priestap’s Grand Jury Test of June 3, 2021. at SCO3500U-018815. Mr. Priestap also has “[n]o idea’ why the phrase ‘said not to do this for any client’ – written diagonally next to the body of the notes – was written in the first place, and could offer no explanation as to why these words were ‘perhaps darker or thicker than some of the other notes .” ID. at SCO-3500U-018816.
The date in Priestap’s January 24, 2017 notes is even more irregular — across his other notes on the page and in uneven ink — and I’ve always wondered if that Date was also added.
Lo and behold, the Anderson notes Even appear to have a sticky note right next to the date (as commented), albeit apparently a red one, although some of the tags on the Strzok notes were a similar color. She also found aspects of her notes surprising.
Ms. Anderson’s notes (the “Anderson Notes”) include at the top “Deputies Mtg. 9/19/16,” and then, after redaction and under a second heading, reading “9/19[/]16,” they continue, “Sussman[n] Mtg w/ Baker” and “No specific client but a group of cyber academics spoke to him about research” followed by the phrase “Article this Friday – NYT/WaPo/WSJ”. Anderson Notes at SCO-3500U-000018. The sentence fragment in question does not contain a subject that indicates who “[n]o specific customer” or any other context for this expression. Ms. Anderson, who was first asked about these notes by the Special Counsel more than five years after they were written, has no meaningful memory of the notes or their context: She has only a “vague memory” of discussing this issue with Mr. Baker and can’t “remember details”. Repositories of Special Counsel’s January 5, 2022 interview with T. Anderson, SCO-3500U-000087, at -88, -96. When shown the notes, Ms. Anderson explained that she was “surprised” to learn of the phrase “no specific client” and that she “d[id] don’t remember hearing Baker use that phrase now; she could only assume that she got that sentence from Mr. Baker, “because her notes reflect it[ed] it.” ID card. at -88.
Durham provided only a partial scan of these notes, hiding that the date, 9/19/16, appears earlier on the page and describes a different type of meeting. This is consistent with what the added date and redacting on the McCabe notes did: it served to indicate that McCabe had reported the Flynn case to SSCI the day after Jim Comey was fired. Here, the September 19 date that appears next to the sticky note is necessary for Durham’s case to claim that Anderson made those notes on the same day of the meeting and not some time after.
But why would Anderson date her notes twice?
After a find was reported in this case, Sussmann checked edited versions of the original Priestap notes that were still in the notebook, Priestap picked them up.
On October 13, 2021, the defense requested, among other things, the original notes made by a former deputy chief of counterintelligence at the FBI, which reflected the defendant’s alleged false testimony. The original notes were in a hardbound notebook at FBI headquarters and contained extremely sensitive and top-secret information on a variety of topics and unrelated investigative matters. The government immediately agreed to provide the defense with the original notebook in redacted form, and the defense conducted its review of the notebook on October 20, 2021.
But to test why there are sticky notes on all these notes, and why the data is so unreliable (and definitely misleading in the case of the January 5, 2017 change to the Strzok notes), Sussmann would need to review all the notes together, probably with support from the original ones authors.
It’s still not clear who changed the notes filed in the Flynn file, the extent of those changes, or why the government is submitting sticky-note evidence as evidence in court. The DOJ’s Flynn case filing blamed the misleading date on the Strzok notes on an FBI agent associated with the Jeffrey Jensen investigation (which would suggest that change dated after Durham’s access to it), but it was not said who had changed the McCabe notes.
But by showing that the blue sticky notes were present in Durham’s copy of the exhibits, Durham makes it clear that some of the changes exposed in the Flynn file happened before he shared the documents with Jensen’s investigations, if that’s how the notes were passed around .
The misleading date added to the Strzok notes was ultimately part of a packaged Trump attack on Joe Biden at the first debate, which Sidney Powell, who has since been sanctioned for making fraudulent claims in trying to keep Trump in office, seems to have had a part in.
President Donald J. Trump: (01:02:22)
We caught them all. We have everything on tape. We caught them all. By the way, you came up with the idea for the Logan Act against General Flynn. You better look at this, because we kind of got you, and President Obama was sitting in the office.
Given that even Chuck Grassley realized the change added to the Strzok Notes was wrong, it’s hard to believe this was a harmless mistake.
And yet, 18 months later, the DOJ is still trying to submit notes with all those sticky notes as exhibits, without explaining why or how they got there.
And Durham’s decision to present the Priestap notes in black and white — with what appears to be the same blue post-it as on his earlier notes, as well as the blue post-it written to change the McCabe notes — suggests he may know that that’s a problem.