By Robert Willmann
On Friday, 14 December 2018, the office of "special counsel" Robert Mueller filed a reply to Gen. Michael Flynn's sentencing memorandum by the court's deadline, as noted on the court clerk's docket sheet–
"12/14/2018 56 REPLY by USA as to MICHAEL T. FLYNN to Defendant's Memorandum in Aid of Sentencing (Attachments: # 1 Attachment A, # 2 Attachment B)(Van Grack, Brandon) (Entered: 12/14/2018)".
Judge Emmet Sullivan in an order on 12 December stated: "In 50 defendant's memorandum in aid of sentencing, the defendant quotes and cites a 'Memorandum dated Jan. 24, 2017.' See page 8 n. 21, 22. The defendant also quotes and cites a 'FD-302 dated Aug. 22, 2017.' See page 9 n. 23-27. The defendant is ORDERED to file on the docket FORTHWITH the cited Memorandum and FD-302. The Court further ORDERS the government to file on the docket any 302s or memoranda relevant to the circumstances discussed on pages 7-9 of the defendant's sentencing memorandum by no later than 3:00 p.m. on December 14, 2018."
In response to Judge Sullivan's order, the Mueller group attached to its reply memo two noticeably blacked out (redacted) documents, which turned out to be the same ones that were referred to in Flynn's memo raising the issue of FBI conduct surrounding his interview, and were nothing additional or new!
The government's reply and two documents that were filed are here–
https://turcopolier.typepad.com/files/flynn_gov_sentence_reply_memo.pdf
https://turcopolier.typepad.com/files/flynn_gov_fbi_notes_20170124.pdf
https://turcopolier.typepad.com/files/flynn_gov_fbi_302_strzok_20170719.pdf
The two redacted documents are the "January 24, 2017" memo and the "FD-302 dated Aug. 22, 2017", which were cited in the court's order and which Flynn's lawyers apparently already had, or knew what they were about. Judge Sullivan ordered the Mueller group to produce "any 302s or memoranda relevant to the circumstances discussed on pages 7-9 of the defendant's sentencing memorandum", not just the two that were already known [emphasis added]. The "Attachment B" is not the form 302 by an agent who interviewed Flynn on 24 January 2017, but rather is a 302 report by an unknown person of an interview of now former FBI agent Peter Strzok on 20 July 2017, in which Strzok allegedly talks about some things that happened on 24 January.
Unless the "special counsel" filed a complete set of unredacted documents with a motion (request) for leave to file them under seal, the reply is on its face a violation of the court's disclosure order.
As 'blue peacock' said in a comment to the posting on this issue of 14 December, it will be interesting to see what Judge Sullivan does about the response by the Mueller group.
Both documents are heavily blacked out. The form 302 does include the language that the agents at the Flynn interview "had the impression at the time that Flynn was not lying or did not think he was lying". Since this had already been revealed in news and mass media reports, they basically had to disclose that little part, otherwise it probably would have been redacted as well.
On the bottom right corner of each page is a number, which is usually referred to as a "Bates stamp", after the name of the numbering machines that are often used to number and identify documents that are produced in a lawsuit [1]. The pages on the form 302 are numbered DOJSCO-700021201 to 05. The one-page typed paper (Attachment A) has number DOJSCO-700021215. There are nine pages between those pages, but what those might be is not disclosed.
The Justice Department, FBI, and other federal departments are capable of trying to play semantic word games with requests for information, such that if the exact name or abbreviation of the document or class of documents is not requested, they will leave them out of their response. In this instance, the judge asked for "any 302s or memoranda" relevant to the circumstances. The FBI has guidelines about the different types of records it keeps and they can have different names, such as LHM (letterhead memorandum), EC (electronic communication), original note material, the FD-302, and so forth. There are also different types of files and records systems. Thus, there may be some ducking and dodging of the court's order on the theory that the exact types of records were not in the order.
Documents and records may also be generated when any investigative activity is started or requires approval, such as an assessment, preliminary investigation, or a full investigation. Furthermore, an interesting issue is the type of authorized activity the Flynn interview was part of: an assessment, preliminary investigation, or full investigation. Although it is significantly redacted (in this instance whited out instead of blacked out), the FBI Domestic Investigations and Operations Guide contains some useful information for trying to figure out what is going on with this issue [2].
If this problem with disclosure is not bad enough, on 11 December the Justice Department Inspector General (OIG) issued a report with the bland title, "Report of Investigation: Recovery of Text Messages from Certain FBI Mobile Devices"–
https://oig.justice.gov/reports/2018/i-2018-003523.pdf
The OIG investigation began when it was discovered that there was a "gap in text message data collection during the period December 15, 2016, through May 17, 2017, from Federal Bureau of Investigation (FBI) mobile devices assigned to FBI employees Peter Strzok and Lisa Page relevant to a matter being investigated by the OIG's Oversight and Review Division". Those names are familiar. Thousands of the text messages were recovered.
In addition, the report states: "In view of the content of many of the text messages between Strzok and Page, the OIG also asked the Special Counsel's Office (SCO) to provide to the OIG the DOJ issued iPhones that had been assigned to Strzok and Page during their respective assignments to the SCO".
The result? After Strzok was forced to leave the special counsel's office, his iPhone was given to another FBI agent and reset, wiping out the data. The Mueller group's "records officer" told the inspector general's office that "as part of the office's records retention procedure, the officer reviewed Strzok's DOJ issued iPhone after he returned it to the SCO and determined it contained no substantive text messages". In other words, after the Strzok and Page scandal erupted because of text messages while Strzok was at the special counsel's office, the Mueller group decided itself that his other cellular phone issued to him by the Department of Justice for the special counsel's office had no "substantive" messages on it.
Strzok's paramour, Lisa Page, also had an iPhone issued to her by the Justice Department while she was at the special counsel's office. The Mueller group said it could not find her phone, but it eventually was located at the DOJ's Justice Management Division. It had been reset, wiping out the data, on 31 July 2017.
[1] http://www.batesstampmachine.com
[2] https://vault.fbi.gov/FBI%20Domestic%20Investigations%20and%20Operations%20Guide%20%28DIOG%29
