Judge orders DOJ to attest to Flynn evidence after former FBI agent accuses prosecutors of altering documents

A federal judge on Friday ordered prosecutors in the Michael Flynn case to swear under penalty of perjury to the accuracy of evidence they had filed after a former FBI agent accused prosecutors of altering documents.

Judge Emmet Sullivan gave the Department of Justice (DOJ) until Monday to attest to the evidence, which includes handwritten notes from former FBI agent Peter Strzok. He also ordered the prosecutors to provide the dates and authors for each filing as well as a transcription for each handwritten document.

Strzok’s attorney, Aitan Goelman, flagged the alterations in a letter to Sullivan late last month, saying that the DOJ had added dates to the documents and that at least one of them was inaccurate.

The DOJ told the court earlier this month that investigators reviewing the case had mistakenly included the dates on the documents that were submitted.

“In response to the Court and counsel’s questions, the government has learned that, during the review of the Strzok notes, FBI agents assigned to the EDMO review placed a single yellow sticky note on each page of the Strzok notes with estimated dates (the notes themselves are undated),” Jocelyn Ballantine, a DOJ attorney, wrote in a court filing.

“Those two sticky notes were inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production,” Ballantine added. “The government has also confirmed with Mr. Goelman and can represent that the content of the notes was not otherwise altered.”

The DOJ is relying on the documents to support its motion filed in May to drop its charge against Flynn for lying to the FBI, despite the former three-star general having already pleaded guilty.

Prosecutors now say that the documents help show that the 2017 interview where Flynn allegedly lied about his contacts with a Russian diplomat was not carried out with a “legitimate investigative basis” — an accusation that has been disputed by former FBI officials and attorneys from the special counsel’s office, which initially brought the prosecution against President Trump’s former adviser.

Sullivan is still weighing whether to grant the DOJ’s motion to drop its case.

At a hearing last month, John Gleeson, a former federal judge who Sullivan tapped as outside counsel to argue against the DOJ’s motion, argued that the court should seriously examine the prosecutors’ rationale for the move and whether Flynn is receiving special treatment from the administration he once served.

“You’re not only entitled, you’re obligated to demand the reasons and evaluate the theories,” Gleeson said at the hearing. “And though you must presume them to be the real reason, you’re not required to act like you were born yesterday.”