Monday, August 24, 2020

Clinesmith Is Lying About Lying

That's the contention of Andy McCarthy's latest:

Clinesmith’s Guilty Plea: The Perfect Snapshot of Crossfire Hurricane Duplicity

McCarthy contends that, while Clinesmith's guilty plea allocution may have been legally sufficient, it was just barely so. McCarthy's expressed hope is that DoJ will have much more to say about that when it comes time for sentencing. In McCarthy's view it was only a "sort of" guilty plea.

In “admitting” guilt, Clinesmith ended up taking the position that I hoped the judge, and especially the Justice Department, would not abide ... 
... in my view, Clinesmith is lying about lying. His strategy is worth close study because it encapsulates the mendaciousness and malevolence of both “Crossfire Hurricane” (the FBI’s Trump-Russia investigation) and the “collusion” never-enders who continue to defend it. A defendant’s lying about lying does not necessarily make a false-statement guilty plea infirm as a matter of law. The bar is not high. Still, his story is ridiculous, in a way that is easy to grasp once it’s placed in context.

And so McCarthy proceeds to provide the context in masterful fashion. I highly recommend the article.

For our purposes, I want to point out just a few things.

First, McCarthy makes this very important point:

Clinesmith’s Motives Mirror His Superiors’ Motives

In doing so he explains Clinesmith's position in the FBIHQ pecking order, introducing facts from Trisha Anderson's testimony that we discussed when they first became available. The upshot, as we saw at the time and as McCarthy emphasizes, is that the Carter Page FISA received very special handling:

In June 2017, on the thin line between business as usual and epic embarrassment, stood Kevin Clinesmith. 
He was then a 30-something assistant general counsel in the bureau’s National Security and Cyber Law Branch. It is part of the FBI’s Office of General Counsel (OGC), then led by James Baker. 
Among the branch’s responsibilities, it reviews FISA warrant applications. The Carter Page applications, however, were handled in an unusual way. Details of the applications were scrutinized at the highest levels of the FBI and the Justice Department, to the point that the National Security branch’s once-over became superfluous. 
For example, Trisha Anderson, the OGC’s former deputy general counsel, told the House Intelligence Committee in 2018 testimony that, though she normally reviewed FISA warrant applications before they went to the upper ranks for statutorily required sign-offs, she did not do that with the October 2016 Page application. By the time it landed on her desk, it had already been reviewed “line by line” by such superiors as the FBI’s then–deputy director Andrew McCabe, as well as by then–deputy attorney general Sally Yates at Main Justice. It had even been perused by Anderson’s OGC superior, General Counsel Baker. Baker conceded to the committee that it was unusual for him to review a FISA warrant application, particularly at an early stage, as he did with the Page application. 
In the chain of command, Clinesmith ranked a few notches lower than Anderson: He reported to the National Security branch chief, who reported to Anderson, after which the chain ascended to Baker, McCabe, and ultimately Director James Comey. That is, Clinesmith was a junior officer — support personnel. The decision to represent to the FISC that Page was a Russian spy had been made way above his pay grade. The bosses were so invested in it, they were relying on it to investigate the sitting president of the United States. And just a few weeks earlier, when the president fired Comey in May 2017, a special counsel had been appointed to take over the investigation. The Mueller team’s mandate from the deputy attorney general was to get to the bottom of links between the Russian regime and former Trump-campaign advisers, such as Page. 
This was not a train Clinesmith could have started or stopped on his own.

Somebody like Clinesmith was following directions. As McCarthy says, his motives mirror those of his superiors. This is where the testimony of the likes of Clinesmith and Somma and Anderson may prove important. It will be supporting and cementing into place the testimony of bigger fish like James Baker, as discussed earlier this morning. McCarthy is right, and Anderson's testimony was a real bombshell, in a quiet way--by explicitly describing how her proper role was bypassed, Anderson pointed to those above her, ultimately to Comey and even Sally Yates.

Now, in what follows, McCarthy is very much on the money, but to capture the full import of it we need to make a correction--again, one that we pointed out earlier today. McCarthy is writing here about the problem facing Clinesmith that I've described before--he was dealing with a SSA who was new to the facts of the case, one who was asking inconvenient questions, from the standpoint of the coup plotters:

... in June 2017, as the third renewal application was being prepared, [the SSA] became concerned. It was around that time that the SSA heard about Page’s vehement public denials that he was a Russian spy and claims that he had engaged Russians on behalf of an American intelligence service. It dawned on the SSA that he would be expected to swear, under penalty of perjury, that he believed there was probable cause to conclude that Page was a clandestine agent of Russia, working against the United States. Page’s public protestations gave him pause. They also created a potentially catastrophic problem for the bureau, which the SSA later summarized for the IG (I’d italicize — but I’d have to italicize every word): 
[If Page] was being tasked by another agency, especially if he was being tasked to engage Russians, then it would absolutely be relevant for the Court to know . . . [and] could also seriously impact the predication of our entire investigation, which focused on [Page’s] close and continuous contact with Russian/Russia-linked individuals. 
If Page had been a CIA operative during meetings with Russians — meetings that the FBI had sworn to the court showed Page was a traitorous spy — then the FBI would have some serious explaining to do.

The situation the SSA describes is even worse for the FBI than McCarthy portrays it. Not only had Carter Page been in contact with Russians at the direction of the CIA, but he had also--as recently as 2013--been doing so at the direction of the FBI itself. He had been a cooperating witness for the FBI in a very important case against Russian IOs--one which, unlike virtually all other such cases, actually resulted in a prosecution. That case culminated in early 2016, just before Page joined the Trump campaign. It might be one thing for the FBI to somehow misunderstand and misrepresent Page's relationship with "another government agency," but how to explain away such a misrepresentation of his relationship with the FBI itself?

All this is why Clinesmith is being prosecuted for lying rather than being disciplined for a lack of candor. And, of course, it all goes back to the "dossier".

So, like McCarthy, I very much hope that Durham has a lot more to add about Clinesmith's "lying about lying" when sentencing time comes.


  1. "by explictly describing how her proper role was bypassed Anderson pointed to those above her,...."
    Should that run-on sentence be split, e.g. into
    "by explictITLY describing how her proper role was bypassed. Anderson pointed to those above her,...."?
    Or should it be a comma after "bypasseD?

    In any case, I should think that, seeing as they were seeking a Super-warrant vs. the Trump campaign, such a bid should've gotten special attn.
    Too bad it was on the basis of such a BS predicate!

  2. And, I'll bet you meant a later clause to be
    "a SSA who was NEW to the facts".

    1. Mark, when we intrepid proofreaders find little errors (very, very seldom considering the volume of work you put out) would you rather we sent them to you via email instead of posting on threads? I notice Don Surber requests that...

    2. Either way works. Since I enable all comments, that undoubtedly brings things to my attention more quickly than email. I use a browser called Falkon for this blog and I only just now learned how to enable the Spellchecker for the browser. If it works for the blog drafts that should help cut down on typos. It does irk me to find typos, so I appreciate the heads ups (?).

  3. McCarthy's Part II:

    >> <<

    1. Not worth bothering worth. What the CIA calls "digraph encryption" is what the FBI calls a "symbol number". For example, an "operational asset would be designated "****-OA", where the asterisks represent some string of characters. That would be essentially the same thing with the CIA. The digraph is simply the tail end that designates the type of source. It's all perfectly clear. Plug that in and you realize the lie is pretty transparent.

    2. A mystery arises reading McCarthy's second article:

      Faced with the dilemma of committing a false writing (if not evidence tampering,) McCarthy describes Clinesmith as having two choices: admit that CP was a "source" (if not an "operational contact") for CIA to the FISC, which would imply the three previous FISA applications improperly withheld this fact, or remain silent, and, to placate the new SSA who was to be the affiant on the final CP FISA application, tamper with the CIA email and alter it.

      But McCarthy ignores a third option: given the dilemma that Clinesmith faced, why not admit to the SSA what CIA told him, and recommend FBI abandon the final renewal, and call it a day, since obviously they weren't finding any evidence under the FISA that CP was a Russian agent?

      That would have allowed sleeping "lies by omission" to remain quietly asleep, with no one else the wiser.

      Yet instead of taking the path of least resistance, which would not require him to feloniously tamper with evidence, and create a false writing, he charged ahead putting himself at risk... for what?

      The obvious conclusion is that either there was implicit pressure on him to get the 3rd renewal approved and he wanted to be seen as a "team player" (albeit a very stupid one,) or there was direct pressure on him to make it happen.

      Why else would he put his career and freedom on the line for a renewal of a FISA that had not produces any real evidence that would support charging CP with any crime at all?

      Somebody desperately wanted this renewal. Who, and why?

      What was so important that it convinced Clinesmith to tamper with evidence to get the warrant without disclosing the embarrassing truth, when the 3 previous warrants had not producing prosecutable evidence?

    3. Of course, you're absolutely right, and McCarthy laid that out yesterday--without drawing your conclusion:

      "Clinesmith’s Motives Mirror His Superiors’ Motives"

      "This was not a train Clinesmith could have started or stopped on his own."

      The solution was to just say no.

    4. The other McC stuff about the FBI being humiliated and/or concerned for its image--while true in and of itself--is utterly irrelevant to this situation.

    5. Perhaps McC is saving what I point out for his concluding Part III?

    6. "while true in and of itself--is utterly irrelevant to this situation", in that them being humiliated hardly explains the extreme lengths to which they went in this case.
      Or, has such BS been, not extreme, but more common than we presume?

  4. Maybe it was his girlfriend/wife, Sally Moyer, pressuring him to follow through

  5. @sethjlevy

    “I forged an email for accuracy’s sake”

    Hell of an argument lmao.

  6. SWC's latest:

    >> <<

    Details the significance of the Clinesmith plea vis-a-vis circumstantial evidence of a criminal conspiracy.

    Key point: Clinesmith is one of a very small number of people who was involved with CH from its inception through and during it being taken over by Mueller.

    1. It's an excellent article. I've read it. Permit me to say that I've been making that point for quite a long time, now: "Clinesmith is one of a very small number of people who was involved with CH from its inception through and during it being taken over by Mueller."