Q & A On The Clinesmith Plea

With the flurry of comment regarding the Clinesmith plea hearing yesterday behind us, it may be well to address the overall meaning of the plea agreement. Yes, I know--certain commenters who seem to regard sundance as some sort of universal genius who understands everything that he's never had any experience with are already citing his views to demonstrate that all is lost, the republic is conclusively down the tubes. In fact, of course, sundance is a mouthpiece for participants in our political process who have a particular axe to grind and have reasons for wanting AG Barr to be perceived as a failure.

That said, of course what Barr came out of a comfortable retirement to address does constitute an uphill struggle. He has few if any true allies in the DC establishment--only some in the legal establishment. He's attempting to return a country gone astray to the straight and narrow of the rule of law before it runs entirely off the rails, but some think their own interests are better served by sniping and denigrating Barr's crusade--interests of the nation be damned. The country may yet go down the tubes--see the excerpts from The Challenge of Marxism--but it will be in spite of Barr's efforts, not because of them.

I was an agent, not a prosecutor, and I was never involved in political corruption cases per se. Shipwreckedcrew is a former prosecutor, albeit we don't know what his specific area of experience was, except that it wasn't national security. On his Twitter thread lately he's been fielding comments from CTH bots and others who are alarmed at what they believe is a sell out. I've constructed a sort of Q & A from those tweets that may help in coming to an understanding of what's going on. But the first thing to keep firmly in mind is that John Durham is not going to show anyone his hand--except, presumably, Bill Barr.

Here we go--it's lightly edited for typos and such:

Q: Can the 6 month exposure change given the underlying intention to disrupt and overthrow a democratically elected President?  It was treasonous in essence. 

That's an important question. It's one we've had to field numerous times. It's true that the intent of the crime was--in the normal understanding of the word--treasonous. The framers of our constitution thought that the charge of treason was so subject to abuse, however, that they put a highly restricted definition of treason in the constitution itself. If you want a different definition you'll need to amend the constitution. We can argue whether that was a good idea or not, but that's the reality Barr and Durham are dealing with. So pay attention to how SWC deals with that.

A: Absolutely.  It is within the discretion of the Judge to select a term of imprisonment, and the only boundary he has is the maximum of 5 years set forth in the statute. He could absolutely say the consequences for the nation that came from what Clinesmith did have been so grave and then go on to sentence him to any term between 0 and 60 months. 

In other words, he can include the consequences for the nation in his sentencing decision, but he is still restricted by the statutory penalty for the crime involved here: 18 USC 1001.

Q: Ship, in your honest OPINION, do you think Clinesmith flipped and/or is there any other big OR bigger fish Durham is chasing....and do you think the Brennan interview will turn up anything significant? 

A: He has certainly "flipped" -- but all that means is that he's answering questions about what he knows.  Whether he knows of anything consequential is a different subject. 

Which is exactly the point. The first thing the investigators would have done when they realized that they had Clinesmith dead to rights--which means, as soon as they read Horowitz--would have been to try to determine the extent of Clinesmith's access and knowledge. We know some of that, but not all. I agree that his knowledge certainly ran beyond just FISA, but how deep it went is only conjecture at this point.

Q: [My reframing: re Clinesmith's bogus claim that he thought he was being accurate]: In your experience does this argument work well for defendants? 

A: What it does is allow the idea of "failing to accept responsibility" to come into play.  This is the issue that Sullivan raised when Flynn expressed reservations.  "Excuses" for criminal conduct suggest to the Court you don't really accept the seriousness of what you did. 

It's a two edged sword. Clinesmith wants to minimize his intent, but for a lawyer to try to convince a judge that, in essence, submitting a forgery to influence the court's decision was no big thing, or that he thought he was being accurate so why bother telling anyone--I'd say that's playing with fire. He's lucky that Boasberg's leeway is somewhat limited.

Q: Do [prosecutors] offer pleas without knowing if the defendant has info to share?

A: No.  Info comes first, plea deal comes second.  Rest assured. 

The prosecutor has all the cards.  Durham didn't need to give Clinesmith a deal.  He could just charge him and convict him at trial.  It's the defendant who wants the deal, wants to cooperate, and wants a shorter sentence as a result. 

That's an oversimplification. No defendant would ever get a plea deal unless they had some leverage--something of value to offer to the prosecutor, be it simply a saving of time and effort all the way up to major league convictions, or the hope of that. In this case, there are definitely other charges that Durham could have brought that would have had more serious consequences for Clinesmith. That's why SWC is so confident that there has already been cooperation.

Q: After the CLINESMITH plea today, Lindsey Graham teased it as the start of dominos falling, saying "The wheels of justice are turning" and "More to come." But if there is, there's no hint of it in the plea agreement. 

A: Why would there be? 

And the Statement of Offense isn't attached.  As noted in the plea agreement, it could be more extensive that the single false document count he pled to.  Read it again -- or quit commenting on it if you don't understand it. 

His plea agreement states the government agrees to not prosecute him for crimes that are described in the "Statement of Offense"--a second document that hasn't been seen yet. He remains subject to prosecution for other things the Government might yet discover. He's cooperating to mitigate that. 

In other words, if you're Clinesmith and you get a call from Durham asking you to come in for a chat, are you really going to reply: Get lost--I already cooperated with you and I've got my plea deal! Knowing that Durham could yet have come up with something else to charge you with? Or will tell the judge that you show no remorse? I think you're gonna say, Yes sir! Right away, sir!

Here are the passages I believe SWC is referring to. It may not sound threatening to you, but it almost certainly will be understood in that light by Clinesmith and his lawyer:

B. Acceptance of Responsibility

"The Government agrees that a 2-level reduction will be appropriate, pursuant to U.S.S.G. § 3E1.1, provided that your client clearly demonstrates acceptance of responsibility, to the satisfaction of the Government, through your client’s allocution, adherence to every provision of this Agreement, and conduct between entry of the plea and imposition of sentence."

"Nothing in this Agreement limits the right of the Government to seek denial of the adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, and/or imposition of an adjustment for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, regardless of any agreement set forth above, should your client move to withdraw your client’s guilty plea after it is entered, or should it be determined by the Government that your client has either (a) engaged in conduct, unknown to the Government at the time of the signing of this Agreement, that constitutes obstruction of justice, or (b) engaged in additional criminal conduct after signing this Agreement."

6. Reservation of Allocution

"The Government and your client reserve the right to describe fully, both orally and in writing, to the sentencing judge, the nature and seriousness of your client’s misconduct, including any misconduct not described in the charges to which your client is pleading guilty, to inform the presentence report writer and the Court of any relevant facts, to dispute any factual inaccuracies in the presentence report, and to contest any matters not provided for in this Agreement."

That's actually very broad language--note especially the reference to "conduct" and "misconduct," without specifying "criminal", just bad behavior, like, showing that he's not really contrite and accepting responsibility. This is a significant club in the government's hands.

Q: DOJ undercharged James Wolfe in order to protect the institution. This seems to be out of same playbook?  Why offer a plea at this stage?  Seems like Barr/Durham throwing Trump a bone to get him off their back.  Kabuki. 

A: The handling of Wolfe is hard to decipher right now, other than the threat by Wolfe's attorney to subpoena Senators to testify at trial.  But for Clinesmith, there was no reason to not offer the plea and gain his cooperation. 

I have a feeling that in the 20 months that Clinesmith was assigned to Crossfire Hurricane, he sat in on A LOT of meetings, and his name is listed on A LOT of memos.   

Durham will probably ask about every one of them. 

Q: I was hoping to read something in the Clinesmith plea agreement about him being required to cooperate. Was it in there and I just missed it? Or is that not usually spelled out in a plea agreement? 

A: Two answers.  1. If there is an agreement to provide a sentence reduction in exchange for cooperation, that will be set forth in writing.  But here the outcome was simply to let Clinesmith plead to the least serious charge, for which he'll likely get little or no jail time. 

2.  The agreement says he must be debriefed about all FISAs he was involved with.  It also says the plea agreement ONLY covers criminal activity that is expressly set forth in the statement of offense -- a separate document. 

What that means is that the separate document likely describes all the criminal conduct he has told them about.  Anything he knows about but HAS NOT told them about he's still subject to being prosecuted for. 

You don't make the plea deal until you have the information that you want.  But you make it in such a way that the defendant is compelled to keep giving you info even after he pleads guilty.  That's what they did here. 

There are always new angles that might pop up and you go back and ask some more questions.  BUT I'm sure Clinesmith has been interviewed multiple times already. 

Dont' tell everyone what you don't see if you really don't understand what you are looking at. 

Durham's reputation is that of the relentless irresistible force. 

Comment: If there's one thing about Sundance, he can always look at a type of filing hes never seen before and immediately grasp all its nuances and implications... Oddly they always seem to match his preconceptions.

So, that's what's in play here.