Sunday, August 16, 2020

The Meaning Of The Word 'Intent'

As we know, Kevin Clinesmith's lawyer made a statement last Friday to the effect that Clinesmith would plead guilty to making a false statement, but that Clinesmith never intended to do so. Let's take a look at what "intent" is all about in these circumstances.

Generally speaking the law presumes that a person 'intends' whatever the reasonably foreseeable consequences of his actions are. Simple example: If I fire a handgun into a densely packed crowd and kill someone, it doesn't matter that I may not have *subjectively* intended to kill someone or to kill the specific person who was killed--the reasonably foreseeable consequence of my act was that someone would suffer great bodily harm or death. It's sufficient that my *act* was intentional and that the consequences of that act were reasonably foreseeable. I will be charged with and convicted of some form of homicide regardless of my state of mind (as long as I wasn't legally insane).

Criminal statutes will sometimes specify the type of intent required for a specific violation. Kevin Clinesmith was charged by John Durham with violating 18 USC 1001(a)(3). That section provides that to be found guilty the subject must:

(a) ..., whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

And here, from the information Durham filed, is how Durham plugs the specifics of the Clinesmith case into that provision of "1001":

13. On or about June 19, 2017, within the District of Columbia, the defendant, KEVIN CLINESMITH, did willfully and knowingly make and use a false writing and document, knowing the same to contain a materially false, fictitious, and fraudulent statement and entry in a matter before the jurisdiction of the executive branch and judicial branch of the Government of the United States. Specifically, on or about June 19, 2017, the defendant altered the [CIA] Liaison’s June 15, 2017 email by adding that Individual #1 “was not a source” and then forwarded the email to the SSA, when in truth, and in fact, and as the defendant well knew, the original June 15, 2017 email from the [CIA] Liaison did not contain the words “not a source.”

Notice the use of the word "materially". For the false statement to be criminal it must be "materially false, fictitious, or fraudulent"--in other words the falsehood must "make a difference." We've seen that the statement by Clinesmith's lawyer, as also expanded in the NYT, suggests that the alteration that Clinesmith made to the CIA email was made "in good faith" and that he *thought* his change to the CIA document was "accurate". In other words, he thought his alteration reflected the meaning of the original.

That's not really the point, however, when it comes to "intent," for a variety of reasons. The main reason is simply this: By changing the email in a material way, Clinesmith made the document his own. However, he presented it to others--who relied upon his representations--as the work product of the CIA representing the official CIA opinion regarding Carter Page's relationship with the CIA. And that, precisely, was the reasonably foreseeable result of Clinesmith's knowing and willing actions. By knowingly and willingly altering the email and then knowingly and willingly presenting this altered email to others as a CIA work product, it was reasonably foreseeable that those to whom Clinesmith presented the altered email would accept and rely upon the altered email as the work product of the CIA rather than for what it actually was--a new document that reflected Clinesmith's *own* representation regarding Carter Page's relationship to the CIA.

The "materiality" lies in this. Clinesmith had been contacted by the FBI Supervisory Special Agent (SSA) who would be signing the 4th renewal FISA application and swearing to its truth. Knowing that Carter Page had publicly stated that he had been a CIA "source", the SSA asked Clinesmith to contact the CIA and have the CIA confirm or deny the truth of what Page had publicly stated. The CIA responded, as they had previously, that Page had, indeed, been an "operational contact" who had provided "reporting." That sounds to me to be basically the same as what we used to call an "operational asset." In other words, the CIA was saying: Yes, Page is telling the truth. He was a source for us.

Clinesmith first told the SSA that Page had NOT been a source for the CIA--Page's public statements, according to Clinesmith, were false. Then, when the SSA asked for documentary confirmation (probably for his Woods file), Clinesmith altered the email to literally state *the opposite of what the CIA had said*--he inserted the words "and not a 'source'" and sent the altered email to the SSA. To alter a document to make it mean the exact opposite of what it originally stated is a material alteration--it is to "make a false writing". To present it to others as if it were the original and represented the true opinion of the author is to "use a false writing". Clinesmith's guilt appears very clear on the face of these facts.

There is also additional evidence that Clinesmith fully intended this result. The CIA officer who sent the explanatory email offered to provide further clarification and to assist in writing up a characterization of the CIA's relationship with Carter Page that would be suitable for presentation to non-intel officials. Clinesmith ignored that offer. Nor did Clinesmith write to the SSA to explain why he (Clinesmith) did not believe that the CIA designation "operational contact", and one who provided "reporting", did not qualify as a "source" in FBI-speak. Instead he simply sent a fraudulent, materially altered, document to the SSA without acknowledging the fact that he had altered it. That, to me, qualifies as fraudulent intent for purposes of 1001.

The law on this is well settled and very clear. If Clinesmith persists in what appears at this point to be an attempt to back out of a plea deal, I expect that this will end very badly for him. If he does, in fact, back out, Durham is almost guaranteed to indict with additional charges--such as obstruction. If the case then goes to trial, the jury instructions will tell heavily against Clinesmith simply because the jury instructions will reflect what is well settled law. Even in DC, I would fully expect him to be found guilty in those circumstances--especially with testimony from Page--a victim who was put through a lot of unwarranted grief--as well as from FBI and CIA officials. Then when it came to sentencing, I would anticipate a very angry judge to lower the boom on Clinesmith to the maximum extent possible for this contumacious waste of his time. Especially if Clinesmith testifies on his own behalf, which I can't see how he could possibly avoid that.

Now, there's one other matter. Shipwreckedcrew makes the point that the original case agent (Steve Somma, NYO?) argued to DoJ not to include the fact of Carter Page having been a CIA source because that relationship, 2008-2013, was too old to be relevant:

The original case agent took the position that the period of time Page  was in contact with the CIA was too far in the past, and didn't conflict with the contemporary "evidence" -- Steele memos -- of Russian contacts in the summer of 2016.

This is exactly why I wrote at such length about the importance of Carter Page's past relationship with the FBI--2009 to 2016. Yes, the FBI became very upset with Page--I explained why that was--but at no time did the FBI accuse Page of lying to them. In point of fact Page cooperated fully with the FBI and was instrumental in the FBI making a big case against the Russians--it's just that he was rather a goof and did something foolish. That is not evidence of being a foreign agent and doesn't negate his cooperation and truthfulness. And that period of cooperation takes Page's relationship with the FBI right up to the point at which he joined the Trump campaign. All this was mischaracterized (to put it mildly) in the FISA application. Guess what? I had sources who p*ssed me off, too. But I tried to maintain perspective.

Shipwrecked also appears to argue that Clinesmith's actions can be explained by inexperience and a desire to please. Or at least that Clinesmith will argue that at sentencing:

If Clinesmith wants to stay on the investigation with the "Rock Star" SCO lawyers Mueller brought in, he doesn't want to be seen as fooking up a simple tasking like "Find out from the CIA if Page has a relationship with them." 
Even something simple like that could cause an SSA to tell an SCO prosecutor "Let's not use that guy, I'm not confident in his work."   
Clinesmith is the famous anti-Trump "Viva la Resistance" emailer.  He ABSOLUTELY DOES NOT want to get booted from the SCO investigation. 
I'm not suggesting that is an argument to get out of being convicted. I'm guessing that is the nature of the admission he's going to make to the judge, and it would be for the purpose of minimizing any sentence of imprisonment the judge might impose.

The problem with this is that what it really shows is that Clinesmith knew what answer the SCO (Weissmann?) wanted, and altered the CIA email to fit the desired result. That seems like a very poor argument in mitigation as far as I'm concerned.

Finally, for reference, here are relevant excerpts form the information Durham filed:

6. Prior to the submission of FISA #4, [Page] had publicly stated that he [] had assisted the United States government in the past. During the preparation of FISA #4, an FBI Supervisory Special Agent (“SSA”), who was the affiant on FISA #4, asked the defendant to inquire with the [CIA] as to whether [Page] had ever been a “source” for the [CIA].

7. On June 15, 2017, the defendant sent an email to a liaison from the [CIA] (“[CIA] Liaison”), stating: “We need some clarification on [Page]. There is an indication that he may be a “[digraph]”[footnote 1] source. This is a fact we would need to disclose in our next FISA renewal... To that end, can we get two items from you? 1) Source Check/Is [Page] a source in any capacity? 2) If he is, what is a [digraph] source (or whatever type of source he is)?”

Footnote 1: The [CIA] uses a specific two-letter designation, or digraph, to describe a U.S. person who has been approved by the [CIA] for “operational contact.”

8. Later that same day, the [CIA] Liaison responded by email in which the liaison provided the defendant with a list (but not copies) of [CIA] documents. That list included a reference to the August 17 Memorandum the [CIA] had previously provided to certain members of the Crossfire Hurricane team. The liaison also wrote that the [CIA] uses:

"the [digraph] to show that the encrypted a [U.S. person]. We encrypt the [U.S. persons] when they provide reporting to us. My recollection is that [Page] was or is ... [digraph] but the [documents] will explain the details. If you need a formal definition for the FISA, please let me know and we’ll work up some language and get it cleared for use."

9. The defendant subsequently responded that same day to the [CIA] Liaison via email with “Thanks so much for that information. We’re digging into the [documents] now, but I think
the definition of the [digraph] answers our questions.”

10. On June 19, 2017, the SSA followed up with an instant message to the defendant and asked, “Do you have any update on the [CIA source] request?” During a series of instant messages between the defendant and the SSA, the defendant indicated that [Page] was a “subsource” and “was never a source.” The defendant further stated “[the CIA] confirmed explicitly he was never a source.” The SSA subsequently asked “Do we have that in writing.” The defendant responded he did and that he would forward the email that the [CIA] provided to the defendant.

A. Defendant’s False Statement

11. On June 19, 2017, immediately following the instant messages between the defendant and the SSA, the defendant, from his office in the Hoover Building, forwarded the [CIA] Liaison’s June 15, 2017 email to the SSA with alterations that the defendant had made so that the [CIA] Liaison’s email read as follows:

My recollection is that [Individual #1] was or is “[digraph]” and not a “source” but the [documents] will explain the details. If you need a formal definition for the FISA, please let me know and we’ll work up some language and get it cleared for use.

The defendant had altered the original June 15, 2017 email from the [CIA] Liaison by adding the words “and not a source” to the email, thus making it appear that the [CIA] Liaison had written in the email that [Page] was “not a source” for the [CIA]. Relying on the altered email, the SSA signed and submitted the application to the Court on June 29, 2017. The
application for FISA #4 did not include [Page’s] history or status with the [CIA].


  1. I may be too simplistic, but Clinesmith was not a teenager or an intern. And he had already displayed his bias. He was in a position of legal importance, assumed to know the law. What he did was material in that it affected whether the FISA warrant would be issued. He knew that. His partisanship got the best of him - maybe someone told him to do it and he aimed to please, but he had to have thought he could get away with it. I’ve never been a lawyer or a judge, but I believe I know how a jury or a judge would view him. What he did was inexcusable.

    1. "maybe someone told him to do it"

      As in maybe Clinesmith approached somebody and said in effect "We may have a problem," and that somebody instructed Clinesmith to perform certain actions to "resolve" the problem. And yes I'm referring to the notoriously dishonest SC...umbag who's been squawking hysterically comparing apple and orange materiality like he's got some personal stake in all this.

    2. Looking back on what Strzok and Page disclosed in their texts, I remember seeing that there was an attitude of working together for some great cause. They were going to rid the country of Trump, either before or after the election. A certain esprit de corps. Zealots. Could be heady stuff to a bunch of progressives aiming to be the ones who would pull it off...

    3. Some great cause--the Deep State!