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Judge Orders DOJ to Confirm—Under Penalty of Perjury—That Michael Flynn Evidence Is ‘True and Correct’


Michael Flynn

The much-criticized federal judge presiding over the Michael Flynn case said in a lengthy minute order on Friday that he can no longer presume that the evidence the Department of Justice submits to the court is accurate.

The awkward order from Judge Emmet Sullivan follows a DOJ admission that it accidentally and erroneously produced altered exhibits of notes written by fired FBI agent Peter Strzok and fired FBI Deputy Director Andrew McCabe.

Sullivan noted on Friday that the courts regularly presume that the government’s records are accurate, but given the recent problems on that front, he’s requiring the DOJ to file a declaration under penalty of perjury—stating that the exhibits DOJ is submitting as part of its motion to dismiss the Flynn criminal case are, in fact, “true and correct copies” [some citations removed]:

On October 7, 2020, the government filed Notice of Compliance in which it stated that: (1) Federal Bureau of Investigation (‘FBI’) agents assigned to review Mr. Strzok’s notes had placed sticky notes on the document with estimated dates, and the sticky notes had not been removed prior to scanning the documents for production purposes; and (2) a sticky note with an estimated date had been placed on the notes of Andrew McCabe, and the sticky note had not been removed prior to scanning the document for production purposes. The government stated that the notes of Mr. Strzok and Mr. McCabe were otherwise unaltered, and it provided the unaltered versions of Mr. Strzok’s and Mr. McCabe’s notes.

However, the government did not address the Court’s authentication request despite the government’s acknowledgement that altered FBI records have been produced to Mr. Flynn and filed on the record in this case.

Sullivan said the government “relies heavily” on 14 exhibits in its motion to dismiss, but “has not provided a declaration attesting that the Exhibits are true and correct copies.”

“‘The presumption [of regularity] applies to government-produced documents’ and ‘to the extent it is not rebutted–requires a court to treat the government’s record as accurate,'” Sullivan quoted and cited Latif v. Obama, saying that the government essentially rebutted the presumption of regularity by admitting it produced altered documents in the Flynn case.

“Accordingly, the government is HEREBY ORDERED to file, by no later than October 26, 2020, a declaration pursuant to penalty of perjury under 28 U.S.C. sec. 1746 in support of its motion to dismiss that the Exhibits attached to its motion and supplement are true and correct copies,” Sullivan wrote.

28 U.S. Code § 1746 defines the purpose and form of unsworn declarations made under penalty of per­jury:

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:


(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

Sullivan also ordered the DOJ to identity in a declaration “each discovery document by name, date, and author”; and to “provide transcriptions of all handwritten notes contained in the Exhibits.”

Sullivan has been threatened over his handling of the Flynn case. One man accused of criminally threatening the judge was denied pre-trial release on Thursday.

[Image via Alex Wroblewski/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.