The Clinesmith Plea Deal In Light Of The James Wolfe Plea Deal

Since sundance "outed" John Durham's lead investigator he has doubled down on his Grand Conspiracy involving the James Wolfe leak case. That case involved the claim (almost certainly true) that Wolfe--a longtime staffer for the Senate Select Committee on Intelligence (SSCI)--leaked a copy of the Carter Page FISA application to his journalist paramour, Ali Watkin. So, in addition to the criminal issues, all sorts of constitutional issues were involved--including Separation of Powers as between the Executive and Legislative branches and Press freedom under the First Amendment.

Wolfe ultimately pled guilty to lying to the FBI leak investigators but, because the FBI was unable to recover the actual transmissions by which Wolfe allegedly sent text pix of the FISA to Watkins, he was not charged with offenses relating to the actual leak.

HOWEVER, when it came time for Wolfe to be sentenced, DoJ argued for an 'enhancement' to Wolfe's sentence. In other words, they argued that Wolfe should get a stiffer sentence than a first time offender would be expected to receive under the sentencing guidelines for the False Statement statute (18 USC 1001). That DOJ argument for enhancement was supported by an affidavit from FBI SSA Brian Dugan (no, not the serial killer of the same name). In the affidavit Dugan argued that the preponderance of the evidence supported the contention that Wolfe had, in fact, leaked the FISA and that his false statements to investigators should be viewed in that light--as more serious than the bare false statement charge might indicate.

Paraphrasing and expanding a Shipwreckedcrew tweet, I explained how all that worked. The key to understanding this is the distinction between the burden of proof at a trial--proof beyond a reasonable doubt--and the burden of proof for sentencing purposes, which is the much lower standard of the preponderance of the evidence. Thus, while DoJ had not believed that they could prove the leak at a trial beyond a reasonable doubt, they were quite prepared to argue at sentencing that Wolfe should nevertheless receive a stiffer or 'enhanced' sentence based on the understanding that he had, in fact, leaked the FISA:

SSA Dugan's affidavit--in which he maintained that Wolfe had leaked the Page FISA--was submitted for Wolfe's sentencing. As such, it was submitted as part of the sentencing package that DoJ approved. At sentencing DoJ was arguing for facts--the leak of the FISA--that would support a longer sentence as an 'enhancement'. The standard of proof for an enhanced sentence is 'preponderance of the evidence', NOT 'beyond a reasonable doubt.' Beyond a reasonable doubt is the standard for a guilty verdict at a trial, but preponderance is a MUCH lower standard. So, DoJ was arguing in its sentencing memo that the Court should conclude that--while Wolfe had not pled to the leak and the government had not proved it beyond a reasonable doubt--nevertheless the preponderance of the evidence supported such a conclusion. THEREFORE, Wolfe should receive a stiffer sentence for the false statement than he would ordinarily receive under the sentencing guidelines.

I then pointed out that this argued quite strongly against sundance's Grand Conspiracy theory of a coverup and continuing corruption at DoJ:

That actually works very much against sundance. IF this was a big coverup, DoJ would not have allowed that affidavit to be part of their sentencing recommendation--the prosecutor controls that, not the agent. The fact, therefore, that DoJ was willing to argue to the judge that the judge should conclude for sentencing purposes that the false statement plea related to a leak of the FISA (which, however, was never proved nor pled to) argues to the basic good faith of DoJ = not a coverup.

Sundance doesn't understand any of that, but it doesn't stop him from making wild accusations. Therefore, not surprisingly, when disgraced former FBI lawyer Kevin Clinesmith pled guilty to a single count of False Statement--just like Wolfe--sundance immediately charged that AG Barr and John Durham were engaged in a corrupt deal to cover up the Russia Hoax. They had given Clinesmith a "Wolfe deal". The deal was structured to shield Team Mueller from scrutiny. So he said. All this at the same time that Team Mueller honcho Andrew Weissmann was absolutely freaking out on Twitter--Weissmann apparently doesn't read sundance's conspiracy theories and so hadn't gotten the message that Barr was shielding him (Weissmann).

At any rate, during discussion of the Clinesmith plea deal I pointed out that Clinesmith was, in fact, being held under the gun (so to speak). The implication being twofold: 1) he had already cooperated with John Durham to a probably significant extent, and 2) he would be held accountable for his behavior up to the time of sentencing, in December.

I'll paste in the most relevant portions of the Clinesmith Plea Agreement. You'll see immediately, as before, that Clinesmith is not getting some sort of a free pass. Beyond that, however, keep in mind that when the agreement discusses things like bad conduct by Clinesmith being raised at sentencing for things he wasn't charged with, the standard of proof will be that much lower preponderance of the evidence. That's part of the deal Clinesmith made--if he tries to get cute with Durham, Durham can potentially bring in all sorts of evidence and with a fairly low standard of proof. Things could get ugly in that case, so Clinesmith had best be on his best and most cooperative behavior between now and December.

4. Sentencing Guidelines Analysis 

... 

A. Estimated Offense Level Under the Guidelines 

The parties agree that the following Sentencing Guidelines sections apply: 

U.S.S.G. §2B1.1(a)(2) Base Offense Level 6 

The parties disagree on the whether the following enhancement applies: 

U.S.S.G. §3B1.3 Abuse of Position of Trust +2 

Total 8 

The Government reserves the rights to argue for the application of the 2-level enhancement at sentencing and the defendant reserves his right to object to the application of the enhancement. 

What that means is that the Government intends to argue at sentencing that Clinesmith should get a stiffer sentence because he abused a position of trust. Clinesmith will argue against that.

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.  

That's important. It's not clear to me that Clinesmith really did demonstrate acceptance of responsibility in his allocution.

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.

...

Now comes the part where the "preponderance of the evidence" standard most clearly applies--the Government reserves the right to describe ALL of Clinesmith's bad behavior, including stuff he wasn't charged with but which shows the seriousness of his misconduct--and the standard for that will be the "preponderance" standard, not proof beyond a reasonable doubt. That's an important thing that Clinesmith bargained away to get that deal for one count of 1001:

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. ...