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Sunday, August 23, 2020

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. ...

23 comments:

  1. Looks like Barr is ready to kick Clinesmith's a$$ if he doesn't toe the line and do as his master demands. Good news.

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  2. I think the "circumstantial evidence" was essentially this:

    Shortly after Wolfe received the 82-page FISA warrant, he texted 82 images to a journalist.

    The journalist was Wolfe's former lover.

    Before Wolfe faxed the 82 images, only Wolfe and Senator Warner looked at the FISA warrant that had been received in the Committee' facility.

    The FISA warrant that was delivered to Wolfe had a wrong date, and the journalist (Wolfe's former lover) reported that wrong date.

    Because this evidence was merely "circumstantial", Wolfe was not charged with leaking the FISA document to the journalist.

    That non-prosecution decision is corruption, pure and simple.

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    Replies
    1. As I've said, I don't dispute that that's what happened. Given that I stated that I have a 'moral certitude' about that, if I were on a jury I would have voted 'guilty.' So, as far as that goes, you're preaching to the choir.

      It's interesting, however, that the person at the head of the FBI at the time this happened was none other than Andrew McCabe. You might have thought that McCabe would quash the investigation--but he didn't. Instead, I think you'll agree, the FBI conducted a very thorough and professional investigation. The reason was certainly because they saw this as a very serious breach of the working relationship that IC has with the SSCI. No doubt they were even more disturbed to learn that one or both of the two top senators on the SSCI then warned Wolfe.

      The sentencing memo itself is a very strong doc--despite not naming the two senators it doesn't really pull any punches. It does, however, cite separation of powers issues. My own view--and it is speculative--is that this was not a corrupt prosecutorial decision. What it was was a shot across the bow of the SSCI, warning that a second instance of political corruption that threatened a breach of the established oversight regime that relies upon a relationship of mutual trust could lead to precisely the result that you would want. We both might disagree with that decision on how to handle what the DoJ/FBI apparently regarded as basically unprecedented corruption on the part of the SSCI, but the strong language in the memo does point toward the conclusion that this was not prosecutorial corruption PURE AND SIMPLE. It was an effort to force the SSCI back into constitutional line.

      For better and worse, the Executive Branch departments and agencies have to live and work with the Congressional committees. It's often messy, and singling out a situation like this and putting the entire onus on the prosecutors doesn't do justice to the complexity of the situation. It was an attempt to avoid an all out war between the two branches and restore order.

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    2. Everything that Sylvester is reporting is hearsay from Sundance and COMPLETELY IMAGINARY.

      It is nowhere stated or even suggested in any filing that Wolfe sent pictures to Ali. He sent her texts. It is just repeated by Sundance that there were "82 photos" like Nazi propaganda until its taken as gospel with no reference to underlying evidence.

      There is no evidence that "only Warner and Wolfe" saw the FISA before its details were leaked. Not like thats relevant. There is no basis upon which to suggest Warner even has a MOTIVE to wish let alone DIRECT the illegal leaking of a FISA which represented an intelligence investigation on his political opponent. WHY would Warner want to compromise and jeapordize an investigation into Carter Page?

      Lastly, there is no evidence let alone common sense to allow us to believe that Agent Dugan submitted a "doctored FISA" to serve as a "leak tracer" as Sundance submits. You cannot submit FRADULENT DOCUMENTS to Oversight!

      Of course if Sundance convinced you to swallow all three of those massive, completely impossible/improbable ideas, then its no surprise one would believe the "non-prosecution decision is corruption, pure and simple". You've been completely swamped with disinfo.

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    3. "the 'circumstantial evidence' was essentially this: Shortly after Wolfe received the 82-page FISA warrant, he texted 82 images to a journalist."

      That's what I recall. Sloppy.

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    4. MonsieurAmerica at 8:33 PM
      It is nowhere stated or even suggested in any filing that Wolfe sent pictures to Ali. He sent her texts. It is just repeated by Sundance that there were "82 photos" like Nazi propaganda until its taken as gospel with no reference to underlying evidence.

      Sundance cites the Wolfe indictment's paragraph 19:

      [quote]

      19. On about March 17, 2017, WOLFE exchanged 82 text messages with REPORTER #2, and that evening engaged in a 28-minute phone call with REPORTER #2.

      [end quote]

      True, the indictment does not say that the 82 pages were images of the FISA's 82 pages, but everyone -- except Monsieur America -- understands that they were.

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    5. The charging docs don't mention "pages" either. It mentions 82 "texts".

      Your unnecessary assumption which you claim "everyone understands" fails to explain how, if 82 images of an entire FISA were transmitted, every single outlet reporting on it got the issue date wrong, stating it was signed "last summer" as opposed to October 21st. How did that happen if they had a copy of the document?

      This is where you (and Sundance) will remain speechless and without any answer, OR you will double-down on absurdity and further unnecessary assumptions such that a "doctored" FISA was illegally submitted to SSCI as part of a "leak hunt" which assumed a FISA would be leaked BEFORE IT WAS EVEN DELIVERED to Wolfe. Isn't that how it works? Anything to keep the theory afloat, eh?

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  3. "The FISA warrant that was delivered to Wolfe had a wrong date"

    I think I remember reading at the time, one way the various leak investigations were being run, was to put a wrong date somewhere. Anyone who tried to use the document which had the incorrect date was caught in this trap.

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    1. This idea is a CARTOONISH absurdity. The FBI cannot serve FRAUDULENT DOCUMENTS TO THE SSCI as part of some Scooby Doo "leak hunt". Just think about what you are saying.

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  4. Thanks, Mark. Very helpful

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  5. I like Sundance and CTH, but, he, I am assuming a he, can make leaps that just don’t appear reasonable and can, many times, be a massive damper to the fire he generates. The Eeyore Syndrome as I call it.

    That said, he gets the broad strokes and was informing long when it was massively derided as a conspiracy theory.

    The fact that this is soo complex and involving many of players of both political parties can lead one down a path of despair especially in light of the lack of prosecutions.

    This dwarfs Watergate on scale and scope by many magnitudes and it took about 2 years for that investigation to get to the point that President Nixon decided it was best to step down.

    I don’t fault the various institutions wholesale, though. The FBI, DOJ, and the once Democrat demon CIA are not, in my view, soo corrupt that it must be dismantled to their foundations.

    This view flies in the face of my experience in personal and professional experience.

    This is the major flaw of Sundance. At some point, if we dismantle all this, why stop there. The entire US government is thus suspect and THAT view is the view of ANTIFA and BLM. Unwittingly Sundance is playing into their views and interests.

    I seriously doubt AG Barr has staked his entire life’s legacy and, yes, his heirs, sins of the father crud, to just coverup corruption and the soon to be destruction of the institution and country he holds dear. The logical result of such thinking would mean Barr is giving more gas to the fire already engulfing Democrat states and cities that will jump the fire breaks to burn him and all of us.

    The desire, intent, and motive by Barr on that has not been expressed by him by word or action. Even his past career and associations cannot justify such a view on Barr, but may give one a jaundiced eye just in case. It’s always good to be cynical, but not to the point you assume everyone and their words/actions to be against you or your world view.

    - TexasDude

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    1. Don't forget, a Wolfe trial would have involved 2 sitting US Senators. Now we can't have that. They would have to answer questions under oath. No politician wants that!

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  6. Another thing to my last reply ...

    Not every bad guy/criminal is bad/criminal to the core. Even with the worst, there is a sliver of humanity poking through.

    In other words, corrupt/bad guys will do virtuous things at times.

    - TexasDude

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  7. Yes. Brian Dugan changed the date in order to assess intel leaks.

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  8. The FISA warrant, a highly sensitive and classified document, was leaked smearing an innocent US citizen and the punishment was.....minuscule. This is a major crime and the lightness of the sentence has implications. sundance probably has it right.

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    1. Well, let's be real. It was a fictitious doc so it wasn't sensitive at all and never should have been classified--at least not the "probable cause" part of it.

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    2. But Mark...on a deeper level of 'realness', the confidential and classified (whether legitimately or not) FISA application falsely accused Carter Page of being a Russian agent and as bobguzzardi says smeared "an innocent US citizen".

      Since the public assumes that FISA documentation prepared by the FBI and DOJ and approved by a US Court is, to say the least, true and reliable...then I would tend to agree that this is a very serious crime. I bet Carter Page agrees.

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    3. Of course. But targeting the leak while the perpetrators of the FISA fraud skate--and the POTUS himself is smeared by implication--seems a more serious crime. The leak of the FISA should perhaps have been welcomed as salutary transparency. Kinda like Snowden and Assange.

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    4. "...a fictitious do...never should have been classified"

      Altering a date on a document means it is no longer classified?

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  9. MonsieurAmerica at 8:33 PM
    It is nowhere stated or even suggested in any filing that Wolfe sent pictures to Ali. He sent her texts. It is just repeated by Sundance that there were "82 photos" like Nazi propaganda until its taken as gospel with no reference to underlying evidence.

    In my previous response, above, I quoted only the indictment's paragraph 19. I now expand my response by adding paragraph 18.

    Sundance cites the Wolfe indictment's paragraphs 18 and 19:

    [quote]

    18. On about March 17, 2017, the Classified Document [the 82-page FISA warrant] was transported to the SSCI [Senate Select Committee on Intelligence]. As Director of Security, WOLFE received, maintained and managed the Classified Document on behalf of the SSCI.

    19. On about March 17, 2017, WOLFE exchanged 82 text messages with REPORTER #2, and that evening engaged in a 28-minute phone call with REPORTER #2.

    [end quote]

    True, the indictment does not say that Wolfe's 82 text messages -- which Wolfe sent to the journalist on the very same day that Wolfe received the 82-page FISA warrant -- were pictures.

    However, everyone -- except Monsieur America -- understands that they were.

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  10. Margot Cleveland of The Federalist digs a little deeper with this article, focused on Stephen Somma, whom the NYT outed as Case Agent 1, and others:

    https://thefederalist.com/2020/08/24/fbi-lawyers-guilty-plea-suggests-spygate-corruption-goes-way-higher/

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    1. Tx. He could be a very important part of the investigation.

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