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Friday, August 14, 2020

UPDATED: Kevin Clinesmith Pleads To One False Statement

This is the development AG Barr was speaking about during his interview with Sean Hannity last night.

I'm not entirely sure what to make of this, given that we know of only one surefire violation by Kevin Clinesmith, the former FBI lawyer. I assume that the false statement (18 USC 1001) is related to his altering of an official government document--an email--with regard to the final Carter Page FISA renewal, the one sought and obtained by Team Mueller. I also assume that, had they wished to, additional charges could have been brought, including obstruction, but also perhaps relating specifically to mishandling of official government property. His professional life is ruined.

Based on those assumptions, I'm inclined to make the further assumption that the plea deal will include a commitment by Clinesmith to cooperate fully with Durham's investigators. In point of fact, if that's the case then Clinesmith will have already cooperated in anticipation for the actual plea. It's always possible, of course, that Clinesmith committed other violations that are not public knowledge.

All in all, this appears to be a step in the right direction and a signal that more is to come. While not a true high level player in the coup conspiracy, Clinesmith was close to some who were, and could provide (probably has already provided) information that at a minimum could point the investigators in fruitful directions that tie his action(s) in to the larger conspiracy. It's also possible that he could directly implicate others in criminal offenses in furtherance of that conspiracy. The latter possibility would be most likely if others knew of his alteration of the email.

We shall see, and I'll look forward to what former prosecutors may make of this plea deal.

In the meantime, here's the Fox News account, in relevant part:

Former FBI lawyer Kevin Clinesmith will plead guilty to making a false statement in the first criminal case arising from U.S. Attorney John Durham's review of the investigation into links between Russia and the 2016 Trump campaign, Clinesmith's attorney told The Associated Press on Friday. 
Clinesmith was referred for potential prosecution by the Justice Department's inspector general's office, which conducted its own review of the Russia investigation. Specifically, the inspector general accused Clinesmith, though not by name, of altering an email about former Trump campaign adviser Carter Page to say that he was "not a source" for another government agency. Page has said he was a source for the CIA. The DOJ relied on that assertion as it submitted a third and final renewal application in 2017 to eavesdrop on Page under the Foreign Intelligence Surveillance Act. 
Clinesmith is being charged in federal court in Washington and is expected to plead guilty to one count of making a false statement, his attorney Justin Shur told The Associated Press.

UPDATE 1: Since Clinesmith would probably have been working directly with Andrew Weissmann at the time in question it's probable that 1) Weissmann saw this plea coming and 2) understands that he's in the crosshairs. The question is: Can Clinesmith deliver?

Another aspect. Clinesmith was heavily involved in the Papadopoulos case. Is it possible that his cooperation runs in that direction as well?

UPDATE 2: Sean Davis' account at The Federalist offers a useful reminder--emails Clinesmith wrote right after the election. Note that Clinesmith's emails appear to show a sense of guilt over participating in the investigation of Trump's campaign. If Crossfire Hurricane had been on the up and up, why that sense of guilt, why the concern for his name being on "legal documents investigating his staff" if he was doing his job honestly? That's very suggestive of complicitness in a conspiracy involving wrongdoing. And then the "Viva le resistance [sic]" can be interpreted in context to signify a willingness or even an intent to continue in that wrongdoing. These emails could be used by a prosecutor to demonstrate that Clinesmith's testimony is reliable or that he was willing to follow wrongful directions from a superior. It's not conclusive, but it's possibly part of a complex picture. We'll have to wait and see, and we should be seeing evaluation from former prosecutors, as well.

Here are those emails, from Davis' article:

Clinesmith’s name first made national news after his anti-Trump text messages to another FBI attorney, Sally Moyer, surfaced following a separate OIG investigation of anti-Trump bias from top FBI attorneys and investigators. 
“I’m just devastated,” Clinesmith texted to Moyer shortly after Trump won the presidential election in November of 2016. “Plus, my god damned name is all over the legal documents investigating his staff,” Clinesmith wrote. 
“Is it making you rethink your commitment to the Trump administration?” Moyer later asked Clinesmith, ostensibly referring to Clinesmith’s plan to remain at the FBI after Trump’s inauguration. 
“Hell no,” Clinesmith responded. “Viva le resistance.”

54 comments:

  1. So for those who felt Barr's reveal would be Sundance related... It appears Barr wasn't referring to Sundance at all.

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    1. Did anyone think that? Lol...honeybadger Barr needs no approval from bloggers :)

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    2. I’d take that a step further and question whether AG Barr even knows who Sundance is.

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  2. Intriguing that Clinesmith's attorney is the one making this announcement, rather than Durham or DOJ.

    I think it will be worth waiting to see what Durham has to say....

    Q. for MW: am I correct in assuming that a guilty plea can be presented to the court without a GJ indictment?

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    1. There has to be a formal charge. In other words, either GJ indictment or criminal information. In a plea deal a criminal information would be common. Here's an article that explains.

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    2. Articles all say “will plead guilty”.

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  3. This reminds me though of 2017-18 when Flynn and PapaD were copping to false statements charges and MSDNC was saying this is the beginning of the end and Andy McCarthy was saying no this is actually the end of the saga for these guys--if they were going to be used as witnesses to go after bigger fish their guilty pleas would be saved until after their cooperation was complete, otherwise you've got admitted liars as your star witnesses. Applying the same logic, what use can Clinesmith provide as a witness against the big name conspirators now that he's a convicted perjurer?

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    1. No, this is a different situation. As I said, the likelihood is that Clinesmith has long since completed cooperating, which would have been the condition for the plea deal. In negotiating the plea deal he and his attorney would have made a formal proffer, but the actual finalization of the plea would wait until he made good--which could include testimony at a trial.

      https://en.wikipedia.org/wiki/Proffer_letter

      It's up to a jury to decide on his credibility, if it comes to a trial in which his testimony is used. There are various ways for a prosecutor to show his trustworthiness.

      I suspect that McC was speaking of situations in which the plea is finalized before any cooperation begins. Here, Clinesmith will have cooperated first. He has agreed to plead guilty and, at any trial, will have to admit that, but the plea isn't final yet.

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    2. Well yes, and no. If you read the details of what he was alleged to have done, pretty close to 100% of it was public knowledge. There was no disclosure of anything in this document that was not already known by everyone. I'm not sure withholding a charge would have mattered that much in this case since the publicly known information could have been used against any statements made by Clinesmith. I'm not an expert on legal matters, but I would imaging any defense attorney could use that information to impeach Clinesmith's credibility, and if there were no charge that same attorney could raise that as an issue to suggest motivation to lie.

      We also do not know what else Clinesmith had to say. Were there other things he did that were improper that he revealed as a result of this plea? He may have been able to confirm actions taken by others that help tie up other loose ends or provide information and leads for Durhamm to pursue that could be productive.

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    3. "any defense attorney could use that information to impeach Clinesmith's credibility"

      It would be an ATTEMPT to impeach his credibility. It remains to the jury to evaluate his credibility, and the prosecutor would attempt to "rehabilitate" him. This happens all the time. Most criminal conspiracies involve this dynamic.

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    4. fwiw, the whole world of pleas is different in the electronic age. Someone who can give a roadmap can be very valuable to prosecutors, and never have to testify. Having a first case that's totally documentary and a slam dunk is good, imo, to dampen charges that this is a BS, political prosecution. With gov't document retention procedures and the JV nature of these people as 'secret agents,' who had a strong belief HRC was going to win, it may be that most of these cases are documentary.

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    5. Good point--and one which I get into a bit in my new post. And documentary cases are by far the best.

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  4. >> https://www.courtlistener.com/docket/17445533/1/united-states-v-clinesmith/<<

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    1. OK, so an information has been filed. But no guilty plea yet entered. This should explain why it's Clinesmith's attorney who made the announcement.

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    2. Any guesses as to
      1) why would his lawyer did this today, other than at Durham's "urging"?
      2) why would Durham do it this way, instead of him filing the plea right after the lawyer's announcement?

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  5. In the URL posted by EZ, remove the two angle brackets at the end...

    Thanks for posting pleading- much diff than the news stories.

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  6. Thanks EZ. What is it with the CIA always insisting everyone else in the government call them OGA--who do they think they're fooling anyway? As I read this indictment--or is a statement of offense or information (not a lawyer here)--it strikes me that the value of Clinesmith as a witness would not be as a witness per se. Once again, if I'm a juror who doesn't know anything about Bob Mueller or Andy Weismann other than their glowing press coverage I'm not going to take the word of a confessed perjurer that they lied and defrauded the FISC over their denial. But these charges speak to an awfully voluminous paper trail. If all Durham needs Clinesmith for is to prove that Mueller, Weismann, et al, say these emails from the CIA and approved the last FISA warrant renewal application anyway...

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  7. Read the pleading- first time I saw that it's a felony charge. Also looks like 3 or 4 other charges could be easily added if they go that direction. Makes mincemeat of his lawyer's BS that he didn't mean to do anything wrong...it's over some time and very calculated.

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    1. If KC also pled to higher charges, and was granted immunity on them, would that info have been released today, or would Durham be better off hiding that for now?

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    2. That's not how it would work. See the new post. Durham is at the point where he appears to have basically wrapped up the FISA investigation. He may still use Clinesmith in other matters, but may be able to avoid doing so depending on the paper or digital trail.

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    3. "That's not how it would work."
      Even if there was huge overlap, between his FISA lies probe, and the Other Matters?

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    4. My guess is that since this crime occurred when he was part of Team Mueller, the overlap (possibly re the PapaD case, for example) would all be closely connected. In that situation there would not be separate cases on KC.

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  8. After reading Shipwreckedcrew's article that just posted on RedState, it seems that much of the information used by the SCO came from the fruit of the poisonous tree of the ill-gotten FISAs. How might that affect some the SCO indictments and convictions and how much further does this spread across the entire scheme?

    DJL

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    1. I'll be writing on that article immediately. However, I doubt that the indictments and convictions came from the Carter Page FISA. In fact, based on the renewals, I believe that FISA was entirely unproductive.

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    2. Do you know the sentencing guidelines for his crime? Might he be facing real jail time?

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    3. You're probably right, but I recall reading some discussion about how these FISAs were used to "branch out" from the initial target to spy on others. There was a specific phrase used other that "branch out" that allowed for spying on second and third order individuals in the orbit of the initial target.

      DJL

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    4. @Titan 28: Yes, he could face jail time, based on the serious nature and consequences of the false statement as well as his position as an attorney who was also entrusted with a high degree of responsibility in justice and national security. We don't know the terms of the deal--will Durham make a recommendation or leave it totally to the judge, and remain silent?

      @DJL, I can't think of anything that was used against PapaD or Manafort or Flynn that could be traced to the FISA. The fact that Team Mueller didn't seek another renewal suggests 1) it wasn't productive, and 2) they were concerned about relying on this hot--illegal--potato.

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    5. Although just because the FISA gambit wasn't productive (assuming it wasn't) doesn't mean it was for lack of trying. It's possible they squeezed that lemon for all the 2-hop soury goodness it was worth but (switching metaphors) found, alas, there indeed was no real blood to be gotten from the turnip.



      I'm not suggesting for a second that you were suggesting otherwise - just putting out there that if they did use FISAs to hunt far and wide and repeatedly came up empty, that should be a fairly sharp arrow in the Barr/Durham quiver.

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    6. Obama used the CIA/FBI to "audit" Trump just as he used the IRS to "audit" conservatives.
      Imagine how a jury would (will?) view that behavior by "our" "law enforcement" agencies. The FBI can now "audit" anybody they feel like? Every juror would recoil.
      Based on my legal experience (which consists of watching Tom Cruise screaming at old white guys) this would be a powerful case to present to any jury.

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  9. Clinesmith is low-hanging fruit. I hope that Barr and Durham have higher goals. If they do not, then we'll have our answer about America's future.

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  10. Look at what Techno Fog caught:

    >> Techno Fog
    @Techno_Fog
    Important excerpt from the Kevin Clinesmith Criminal Information:

    On 8/17/16, the CIA informed the Crossfire Hurricane team that Carter Page had been a CIA source.

    They hid this fact from the FISA Court.

    I bet the DOJ will invalidate the first 2 FISAs. <<

    >> https://twitter.com/Techno_Fog/status/1294319899351887873 <<

    This is something I was not aware of previously, buried in the Clinesmith Criminal Information.

    This, I suspect, ties into another anomaly in the criminal information: Clinesmith's feeble attempt to claim he sincerely believed CP was a CIA "sub-source" not a "source," and hence his insertion of "not a source" in the CIA email wasn't an intentional falsehood.

    The issue is what is the evidentiary basis on which Clinesmith tried (unsuccessfully) to justify his creative editing of the CIA memo?

    If Certain CH members saw the CIA memorandum of August 2016, they KNEW CP wasn't a Russian asset, and his contact with Russian intel was pursuant to his assistance with CIA AND FBI (Buryakov case.) That means they misused the CP contact with Russians to create a false impression in the FISA application starting with the very first one. And it likely is the basis on which Clinesmith knew he needed to bury the implication in the CIA email that he was an asset in the final renewal applaication.

    IOW, it makes no sense for Clinesmith to suddenly decide to change the email from CIA, unless he understands how devastating it is to the renewal of the FISA, and is somehow invested (co-conspirator) in that renewal being successful, and protecting previous erroneous versions that left out CP's true status with CIA. IOW, the motive for Clinesmith's crime was to protect discovery that all previous version of the CP FISA application were false by omission and misrepresentation of CP role relative to Russian intelligence.

    IIRC that at the time of his crime, Clinesmith was working for Mueller.

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    1. Yes, true. And see my new post, in which I also emphasize the FBI's misrepresentations re Carter Page in the NYO case. There's more to this.

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  11. Another Q for MW:

    Is it possible, Durham reveals this plea, but holds back one or more criminal information/plea deals with Clinesmith that could include conspiracy, in order to keep co-conspirators in the dark until he's ready to move on them?

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  12. I wonder if Clinesmith is going to be ... disBARRed.

    Sorry, I just couldn't ... "Resist".

    Okay, I'll show myself out.

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  13. Re shipwreckedcrew's article, he makes what I think is an important observation. Clinesmith claims he gave the original email to others. And in the NY Times, the spin is that "there was no conspiracy" because Clinesmith delivered the original, and therefore there is nothing really wrong here. But that is precisely the problem (for those he shared the original with).

    If his superiors knew, but continued to pursue the FISA warrant regardless, that ensnares those individuals in the same crime. There's your conspiracy. That is in interesting observation. If this information is revealed now, then it means whoever those targets are now know for certain they are targets, and likely Durham has already followed up with them.

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    1. Yes, very important. As I discuss in new post, there will then likely be a doc trail within the FBI.

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    2. I think this was my question to the lawyers in the group earlier that I followed up on with speculation in a subsequent post. Clinesmith seems worthless to me if I were a juror and he were testifying about what Mueller, Weismann, et al knew and when they knew it and the latter denied the claims of the confessed perjurer Clinesmith. But if his cooperation was proving that Mueller, Weismann, et al had read the documents the CIA sent o/a 17 AUG 2016 saying Page had been one of their sources then Durham can prove then entire Special Counsel team perjured themselves... Am I understanding the gist of the hypothesis correctly?

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  14. Anonymous, if you're gonna make jokes like that make sure to tell the audience to be sure to tip their waitress ;-)

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  15. Haven’t read the charging doc yet, but wouldn’t investigators have asked Clinesmith at some point, “Why’d you do it? Why did you knowingly risk ruining your life by altering that email - a felony that could easily be discovered and that would be all but impossible to wriggle out of?”

    His answer would have to be at least plausible, I’d think, to avoid getting the book thrown at him, which a determined DOJ certainly would have had the pawer to do here. Any plausible answer would have to include that there was sky-high pressure to get the FISA through (a guy in Clinesmith’s position doesn’t do such stuff on a lark), and that would bring up the question of, “what specific things were going on that made you feel such tremendous pressure?”

    I’m obviously just doing my usual runaway speculation here, but it sure seems like Clinesmith would have a helluva time explaining what caused him to feel like he needed to risk ruining his life without revealing what would appear to any normal person as a group of people conspiring to get someone or someones. He could only feel so much pressure or incentive to risk it all if he saw things happening that were not normal, especially things being done not at all “by the book” (haha), and not just a few random incidents here or there. I mean, if everyone around him was doing things the normal and proper way, where would he get the idea that running the very high risk of ruining his life by committing an unmistakable felony was what the situation called for?

    Lastly, to add fuel to this fire, he did all this knowing that he was framing an innocent man in Carter Page, which not only makes his actions that much more wrong, and jail-worthy, but also exposes him to even more charges. And since there’s no way his motive was to get Carter Page per se, what was his real motive in making sure that FISA got through? And he’s a lawyer, for the government, who would know all this very well, and think it all through before acting, and probably wouldn’t do it without anyone else knowing. Once again, people with everything in life to lose, like Clinesmith, don’t do these things on a lark, so I think his getting just a single false statement charge implies that when they asked him why he did what he did, the answers he gave were helpful, maybe even very much so.

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    1. Never forget that the true-believers in FBI, DOJ, and the IC all believed that Hillary would win the election, and thus none of this illegal activity would have ever come to light.

      It's much easier to rationalize stealing the cookies from the cookie jar if you think no one will ever notice the cookies are missing.

      Clinesmith sent an email or instant message right after the election, in which he freaked out about all the documents with his signature on them. That's evidence of a guilty mind.

      He explained his motive as being that he didn't want a glaring footnote in the FISA application that would blow it up. And his creative editing occurred AFTER the election, while he was working for Mueller.

      IOW, he doubled down on the crime in the hope to keep the earlier criminal omissions in the FISA applications covered up.

      The lesson: it's the cover-up that gets you caught.

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    2. EZ - great points, all of them.

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    3. One clarification that just occurred to me: Clinesmith was engaged in a post-election cover-up of the pre-election crime by omission of CP's CIA status from the first three FISAs. The editing of the CIA memo was necessitated by whomever asked him from clarification of CP's CIA status on the final renewal, in order to cover up the omission in the three previous FISA applications.

      Now, this is what's interesting. Clinesmith sent the original CIA memo and documents to CH team members, including supervisors in AUG 2016, a few weeks after the CH was opened! That means that CH team members who knew better were involved in preparing a FISA application that omitted key facts about CP, which, if known to the FISC, would have contradicted the putative predication for not only the FISA application, but the entire investigation of CP!

      Clinesmith was not actively involved in that deception, it appears, at least from this filing.

      That means Clinesmith's felony was committed post election, to help cover up the felonies of others! He was saving other people's asses, not his own.

      Who does that, unless they are already part of a conspiracy?

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    4. Yes. Also, it's been pointed out (I forget by whom) that Brian Auten, the senior FBI analyst, suggested/requested Clinesmith to amend FISA app in view of Danchenko interview. Clinesmith did not. More, who was the DoJ lawyer in charge of the FISA app. Stu Evans had some part in it, but not all. Was it David Laufman? Not sure.

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    5. Check out Weissmann's painful and embarrassing contortions:

      https://twitter.com/AWeissmann_/status/1294329373181583361

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    6. Weissmann's twitter account is getting hammered with negative stuff about him. He's getting slammed by many 3 to 1 if not more. This is great.

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    7. Andrew Weissmann
      @AWeissmann_
      Question for Barr: how are Flynn’s confessed lies to the FBI (repeated to the VP) not a crime, but Clinesmith changing an email (the full version of which he also sent to DOJ) is?

      Responses:
      Flynn didn't lie to FBI or the VP. Your team (in conjunction with his conflicted lawyers) convinced him to plead guilty to lying in exchange for not prosecuting Flynn & Son for FARA violations. A judge later ruled there was insufficient evidence for that as a matter of law.

      Because he didn’t lie.

      You know Van Grack got caught by Barr & Jensen hiding exculpatory evidence from the Court and the Flynn defense team, right?
      In direct defiance of an explicit Brady disclosure ruling, right?
      You know that’s why the DOJ filed to dismiss the Flynn case, right?
      Of course you do.

      Mr. Weissmann knows the answer to his own question.

      The Weissmann led Special Counsel used the Page FISA as a basis for gathering evidence against Trump, his campaign team, and associates. If Clinesmith doesn't alter the email, the FISA isn't renewed and can't be used by SCO.


      I mean you can't make this stuff up... He's got to know court of public opinion is crawling all around him.

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    8. And I very much suspect that the Deep State/Establishment will throw Weissmann to Durham and Barr without blinking. He probably knows that by now.

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  16. In the New York Times 'spin' on the Clinesmith plea, Adam Goldman writes:

    "Mr. Clinesmith’s lawyers also argued that their client did not try to hide the C.I.A. email from other law enforcement officials as they sought the final renewal of the Page wiretap. Mr. Clinesmith had provided the unchanged C.I.A. email to Crossfire Hurricane agents and the Justice Department lawyer drafting the original wiretap application."

    Of course, when Clinesmith's actions took place, from June 15-29, 2017, Mueller and Weissmann had taken over Crossfire Hurricane. If Clinesmith's lawyers' spin is true, then Mueller and Weissmann knew (or should have known) that the version of the CIA email submitted with the 4th FISA renewal was altered and false.

    Add this to the high likelihood (discussed in today's comments) that Clinesmith would never have risked his career to alter the CIA email without the approval of his superiors.

    I'm looking forward to Durham's next submission.

    https://www.nytimes.com/2020/08/14/us/politics/kevin-clinesmith-durham-investigation.html?action=click&module=Top%20Stories&pgtype=Homepage

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    1. Clinesmith's lawyer is publicly saying: There were other guys, and logically those are guys above Clinesmith.

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  17. Durham needs to run ads in the Washington newspapers adn CNN/MSNBC:

    "Half-off sale on Pleas Deals ends next Friday! Don't wait, or you'll be too late! CAll 1-800-PLEADEAL today!"

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