Ex-FBI lawyer Kevin Clinesmith pleads guilty in Durham investigation by Jerry Dunleavy, Justice Department Reporter
The former FBI lawyer charged in U.S. Attorney John Durham’s investigation of the investigators pleaded guilty Wednesday to a false statements charge for fraudulently altering a CIA email to obtain surveillance against a former Trump campaign associate.
Clinesmith, who worked on the investigation into former Secretary of State Hillary Clinton’s private email server as well as on the FBI’s Crossfire Hurricane inquiry and special counsel Robert Mueller’s team during the Trump-Russia inquiry, admitted that he falsified a document during the bureau’s efforts to renew Foreign Intelligence Surveillance Act authority to wiretap Carter Page, who had been a foreign policy adviser to now-President Trump’s 2016 campaign.
Judge James Boasberg, the presiding judge in the criminal case against Clinesmith (and also the presiding judge for the Foreign Intelligence Surveillance Court), accepted the plea during the hearing conducted by phone before the U.S. District Court for the District of Columbia due to the coronavirus pandemic.
Clinesmith, 38, claimed in early 2017 that Page was “not a source” for the CIA when the CIA had actually told the bureau on multiple occasions that Page was indeed an operational contact for them. Durham submitted a five-page filing to the federal court on Friday, noting Clinesmith was being charged under 18 U.S.C. § 1001(a)(3) for “False Statements.”
Anthony Scarpelli, an assistant U.S. attorney for the District of Columbia and a Durham team member, appeared for the Justice Department. Clinesmith’s lawyer, Justin Shur, was representing him on the call.
The judge asked Clinesmith if he agreed everything outlined in Durham’s criminal information court filed Friday against Clinesmith was true, and he replied, “Yes, your honor.”
Boasberg then asked if Clinesmith agreed that “you intentionally altered an email to add the language ‘not a source’ related to Individual 1 and that you knew such a statement was not in fact true.”
A pause ensued as Clinesmith’s lawyers muted the call and conferred with him.
“At the time, I believed the information that I was providing in the email was accurate, but I am agreeing that the language that I entered into the email was not originally there and that I inserted that in there,” Clinesmith eventually replied.
The judge then asked him how he pleaded to the false statements charge, and Clinemsith said, “Guilty.” Boasberg accepted the plea.
Prior to that, the judge noted that there was a 10-page plea agreement, which has not been made public yet, and Clinesmith said he was entering into it without any threats or coercion. The judge said the agreement states that the government will not prosecute him for anything else listed in the statement of offense and agrees not to seek to detain him between now and sentencing. The judge noted the maximum penalty for the false statements charge was five years in prison but that the sentencing guideline calls for zero to six months behind bars.
Boasberg also noted early in the hearing how he is “currently the presiding judge for the Foreign Intelligence Surveillance Court,” but that “this case, however, is a criminal case, it is not a FISC case, and it is a case that was randomly assigned to me.” He said the FISA court could potentially be seen as a “victim” in the case, but thought he could preside over the case fairly without recusing himself, though he added that if either the prosecution or defense wanted him to recuse, then he would. Neither side did.
The judge set Clinesmith’s sentencing for Dec. 10 at 11 a.m. Until then, all parties agreed that Clinesmith would continue to be released on his own recognizance, but that he must surrender his passport, not obtain foreign travel documents, and limit his travel to Washington, D.C., Maryland, Virginia, Ohio, Michigan, and West Virginia.
It was first revealed on Friday that Clinesmith was expected to plead guilty.
“On or about June 19, 2017, within the District of Columbia, the defendant, Kevin Clinesmith, did willfully and knowingly make and use a false wiring and document, knowing the same to contain a materially false, fictitious, and fraudulent statement and entry in a matter before the jurisdiction of the executive branch and judicial branch of the Government of the United States,” Durham told the court on Friday.
“Kevin deeply regrets having altered the email,” Clinesmith’s lawyer said Friday. “It was never his intent to mislead the court or his colleagues as he believed the information he relayed was accurate. But Kevin understands what he did was wrong and accepts responsibility.”
Andrew Weissmann, the Mueller “pit bull” who has been critical of Durham and U.S. Attorney General William Barr and who misrepresented an element of the special counsel’s congressional testimony during an appearance on MSNBC this week, had fired off multiple Twitter threads seeking to undermine the possible plea deal, but to no avail.
Judge Rosemary Collyer, then the presiding judge over the FISA court, ordered an FBI review of every FISA filing that Clinesmith had ever touched following the release of DOJ Inspector General Michael Horowitz’s December report on the FBI’s Russia investigation. The FISA court criticized the FBI’s handling of the Page applications as “antithetical to the heightened duty of candor described above” and demanded corrective action from the bureau.
Clinesmith, an assistant general counsel in the National Security and Cyber Law Branch of the FBI’s Office of General Counsel from July 12, 2015, through Sept. 21, 2019, is not named in Horowitz’s report, but it is clear he is the “Office of General Counsel attorney” who had been acting in response to a question by an FBI agent who was part of the team investigating the Trump campaign.
A supervisory agent, dubbed “SSA 2” who swore in an affidavit for all three FISA renewals against Page in 2017, told Horowitz’s investigators that on the third renewal, he wanted “a definitive answer to whether Page had ever been a source for another U.S. government agency before he signed the final renewal application.” While in contact with what was reportedly the CIA’s liaison, Clinesmith was reminded that in August 2016, predating the first Page warrant application in October 2016, the other agency informed the FBI that Page “did, in fact, have a prior relationship with that other agency.”
An email from the other government agency’s liaison was also sent to Clinesmith in 2017, who then “altered the liaison’s email by inserting the words ‘not a source’ into it, thus making it appear that the liaison had said that Page was ‘not a source’ for the other agency” and sent it to “Supervisory Special Agent 2,” Horowitz found.
“Relying upon this altered email, SSA 2 signed the third renewal application that again failed to disclose Page’s past relationship with the other agency,” the inspector general wrote.
Horowitz’s report criticized the Justice Department and the FBI for at least 17 “significant errors and omissions” related to the FISA warrants against Page and for the bureau’s reliance on the Democrat-funded discredited dossier compiled by British ex-spy Christopher Steele. Declassified footnotes from Horowitz’s report indicate that the bureau became aware that Steele’s dossier may have been compromised by Russian disinformation, and FBI interviews show Steele’s primary subsource undercut the credibility of the dossier.
In January, the Justice Department determined that the final two of the four Page FISA warrants “were not valid.” The FBI told the court it was working to “sequester” all the information from the Page wiretaps, and FBI Director Christopher Wray testified to Congress that he was working to “claw back” that intelligence. The FBI director also testified that the bureau likely illegally surveilled Page.
In a scathing July 2018 inspector general report on the FBI’s Clinton emails investigation, Clinesmith was mentioned (again not by name) numerous times as being one of the FBI officials who conveyed a possible bias against Trump.
In a lengthy instant message exchange between Clinesmith and another FBI employee on Nov. 9, 2016, the day after Trump’s presidential victory, he lamented: “My god damned name is all over the legal documents investigating his staff,” Clinesmith said, adding, “So, who knows if that breaks to him what he is going to do?”
Other messages showed Clinesmith, listed in Horowitz’s report as “FBI Attorney 2,” expressed favor toward Clinton and said “Viva le resistance” in the weeks after Trump’s win.
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