Saturday, August 15, 2020

UPDATED: What's Up With That Clinesmith Guilty Plea?

Earlier I quoted Kevin Clinesmith's lawyer from an article by Adam Mill. According to that version the lawyer, Justin Shur, made the following statement:

Clinesmith’s lawyer, Justin Shur, contends his 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.”

Based on that I assumed that Clinesmith was trying to "share the blame". In other words, he was saying, in effect: "Hey, I changed the CIA email to mean the exact opposite of what it said, but the other agents and lawyers knew it. I'm not the only one to blame."

Now, however, I'm seeing accounts that are quite different, like this one from ABC:

"He will be pleading guilty," Clinesmith's attorney Justin Shur told ABC News in a statement Friday. "Kevin deeply regrets having altered the email. It was never his intent to mislead the court or his colleagues as he believed the information he relayed was accurate. But Kevin understands what he did was wrong and accepts responsibility."

Whoa!  You can't plead guilty to making a false statement under 18 USC 1001 if you didn't know the statement was false or fraudulent and intend to make it. Shur's statement--and he was, according to Shipwreckedcrew, a DoJ prosecutor for 5 years--is "not consistent with a guilty plea to a Section 1001 charge." No judge can accept a guilty plea to such a charge if the defendant claims he thought he was conveying "accurate" information.

The DoJ information against Clinesmith is, unfortunately, redacted. Here's what we have. The CIA email said:

“my recollection is that [Page] was or is …. [digraph]”.

When I read that I immediately recognized that "[digraph]" represented some CIA two-letter acronym that designated Page's exact relationship with the CIA in the way that the FBI also uses such designators: CW (cooperating witness), IA (informative asset), OA (operational asset), and so forth. The CIA's use of a designator of that sort is a clear indicator that Page was, in one way or another, recognized by the CIA as a "source." Thus, IG Michael Horowitz also wrote in his report that Page had been a CIA "operational contact" from 2008 to 2013--and I'm sure Horowitz didn't just make that up. That means Page was a CIA "source." No ifs, ands, or buts about it. The fact that the CIA could place a time period on their use of Page as an operational contact is a surefire indication that Page had a recognized, formal relationship with the CIA.

Clinesmith changed that passage to read:

“my recollection is that [Page] was or is … and not a source ….”

Clinesmith provided no notation to indicate that he had amended the email in any way. He presented it as if the email was the one sent by the CIA.

In the real world, how do you claim that that is not a falsehood? That you didn't intend to misrepresent your judgment as reflecting the judgment of whoever wrote the document that you altered?

As a former agent myself, and a lawyer, I can't imagine doing something like that. Even if Clinesmith claims he didn't intend to mislead, he certainly did intend to lead whoever read that altered CIA email away from the exact wording of the CIA email, lest they conclude that Page had, in fact, been a CIA source. Obviously--and I'm giving Clinesmith every benefit of the doubt--Clinesmith understood that other agents and lawyers reading the CIA email might well conclude from the words used by the CIA that Page had, in fact, been what would normally be understood to be "a source." Coming from a lawyer dealing with investigators and lawyers, that's inexcusable and has to be considered to be dishonesty. He was intentionally misleading the others regarding the actual content of an official document from another agency. If Clinesmith had honestly feared that there might be a possibility of misunderstanding what the CIA intended to say, the only remedy would be to clear that up through further communication--not by altering a CIA document.

Here is the NYT account, and it hints at the explanation I've just provided. Nevertheless, even the NYT seems to recognize that, in fact, that explanation is not really exculpatory:

Mr. Clinesmith incorrectly said that Mr. Page was “never a source” and sent the C.I.A.’s information to the supervisor. He altered the original email to say that Mr. Page had not been a source — a material change to a document used in a federal investigation.
The agent relied on the altered email to submit the application seeking further court permission to wiretap Mr. Page, the inspector general wrote. By changing the email and then forwarding it, Mr. Clinesmith misrepresented the original content of the document, which prosecutors said was a crime. 
Mr. Clinesmith’s argued that he did not change the document in an attempt to cover up the F.B.I.’s mistake. His lawyers argued that he had made the change in good faith because he did not think that Mr. Page had been an actual source for the C.I.A. 
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.

Let's start from the end. Clinesmith, says the NYT, provided the unchanged CIA email to lawyers and agents when the original FISA application was being drafted. But time changes circumstances. The agents and lawyers drafting the original application back in October, 2016, apparently omitted mention of Page having been a CIA source. At that point in time, Trump was a candidate who was expected to lose the election. The FBI was trying to help him lose. When, in June of 2017, the SSA--probably not a Russia Hoax insider--asked for confirmation regarding Page's relationship with the CIA (probably for purposes of his Woods file), Clinesmith provided the SSA with the doctored--the altered--email. Trump had been president for 6 months at that point, and the Russia Hoax conspirators were now attempting a lawfare coup against him. If Clinesmith had sent the SSA the unaltered email, the SSA might have insisted on including that information in the final renewal application, and that might have led to the FISA judge rejecting the application. That's how I read the final paragraph. That's an intentional submission of a false statement in my book.

Then, looking at the penultimate paragraph, we read that Clinesmith didn't think that Page had been an "actual" source for the CIA. What's an "actual" source? When investigators and lawyers speak of a "source" in a general conversation they may be referring to a number of different types of sources: an OA, an IA, a CW. In a formal filing with a court, they're more likely to include a characterization of the source depending on the source's use: Is the source an undercover penetration source, is the source merely relaying tidbits of information he/she may pick up second hand, etc. Those are all sources if the agency involved regards them as such. To alter an official document without permission in order to alter that perception is a deliberate misrepresentation. Period.

As it stands, Durham can't proceed with a guilty plea unless Clinesmith backs off from the claim that he didn't intend to mislead. As Shipwreckedcrew concludes:

This may be why there was no hearing yesterday, and why no Plea Agreement outlining the facts admitted to by Clinesmith has not been filed.  If this is not resolved in a manner that satisfies a federal judge, Durham may have no choice but to seek an indictment of Clinesmith from a federal jury — and there are more serious charges he could bring.

IMO, Clinesmith will regret that. And he won't thank his lawyer for this delay, because Durham will not be inclined to cut him any slack.

UPDATE: John Solomon spoke about this with Kevin Brock, a former FBI Ass't Director who helped put a lot of the FBI's intelligence procedures in place. I like having him on my side. When Solomon asked Brock about Clinesmith's attempt to minimize what he had done Brock scoffed and, like me, pointed out that the FBI had previously omitted to tell the FISC about Page's relationship with the CIA. Here's Brock explaining the significance of that omission, which could be the basis for additional charges involving more than just Clinesmith:

A lawyer for Clinesmith on Friday offered an apology for his client's action ahead of his guilty plea, but suggested Clinesmith didn't intend to mislead the court when he altered the CIA document. 
Brock dismissed that argument.
"The fact that the bureau was advised even before the first application that Carter Page was a source of the CIA and chose not to include it for the first three applications undercuts that argument," the retired FBI executive said. "It stretches credulity that Clinesmith would claim he believed he was providing accurate information. They already knew it was inaccurate."

Brock is referring to the August 17, 2016, memorandum from the CIA. However, as we've seen, the FBI was aware that Carter Page was a CIA source going all the way back to their first contact with him in 2009.


  1. Pretty rough start.
    Didn't they negotiate the terms of this plea?

    1. I'm sure they did, so it could turn out to be a rough ending for Clinesmith. Reneging on a plea deal, in effect, will not amuse Durham.

    2. Or Lawfare group now has his attorney under their wing along with the rest.

  2. IF the plea agreement were filed under seal, would it show up in the docket?

  3. At this point would Clinesmith have given up a few of his co-conspiraters or
    would that come after the plea?

    1. I would expect his cooperation to be bascially complete from the informational standpoint.

  4. A related observation many are making in the twitterverse:

    The Usual Suspects (Comey, Brennan, Strzok, L. Page, McCabe, et al.) are intriguingly silent since the announcement of Clinesmith's plea.

    The lone voice, thrashing in the wilderness like dying fish flopping about in hope of landing in a mud puddle, is Andrew Weissmann, who has been tweeting like made all manner of mendacious codswallup.

    Make of that what you will.

    I think the line from "Miller's Crossing" sums it up well with regard to suddenly quiet suspects: as the gangster's henchman is marching a guy into the woods, where he says " you know, if we don't find a stiff, we gonna leave a fresh one" -- the guy they are marching into the woods suddenly gets very, very quiet.

    The henchman then says: "You ever notice how the snappy dialogue dries up... once a guy starts soiling his union suit?"

  5. If Durham has to get a grand jury to indict Clinesmith, how much time does it add? Is it possible someone suggested to Clinesmith that dragging this out for months, while not without risks, could be the smart play, should Biden win?

    If Biden wins all this goes away. Attorney General Clinton won't prosecute.

    1. The indictment could be done very quickly. I wouldn't be surprised at all if Durham had a draft indictment prepared, and the grand jury probably wouldn't waste much time returning it. That's assuming the indictment would be focused on the altered email. It's a simple factual situation and could be handled within an hour, even with added obstruction counts and destruction of government records counts. Simple.

      What would take longer would be a trial. Obviously.

      I'd call that a very big risk. If Biden wins it goes away? Maybe not so much. If the indictment happens say, Monday, they could go to trial before Biden gets elected. And if they pulled that Durham would be absolutely out for blood.

    2. This was my question exactly. I'm glad to now have the answer, which Mark just nailed down tight.

  6. Shipwreckedcrew has updated his earlier article to address the oddity about the unfiled plea agreement, and Clinesmith's attorney's bizarre claim that Clinesmith didn't "intend" to mislead" ...

    >> <<

    1. Well, this tweet of his is shorter and says it all:

      Nothing stopped him from just offering his opinion. There is no innocent expiation for inserting 4 words into someone else said email and making it look like their statement.

    2. That was what Weissmann referenced yesterday in his tweets on this subject. This is all being spearheaded by deep state lawfare group consortium intended to drag this all out fight every battle and throw their deep pockets into it.

      It will be a slow painful process requiring patience on our part and diligence on every Durham move to calculate every possible outcome and twist.


  8. "If Biden wins it goes away? Maybe not so much."
    If he wins, all of it goes away, for all of them.
    Those who sang already had better hustle down to Antarctica, hoping that the DS ducks hunting for them in c. −50 °F temperatures.

  9. "altered the email ... never his intent to mislead"

    Yeah, uh no. He wasn't clarifying convoluted info from CIA, he made it convey the exact opposite. The altering itself is proof of intent.

  10. Anybody wondering why FBI was so damned sketchy for so long, take a long hard look at B.S. Mueller and the company he keeps.

  11. TechnoFog reports the Clinesmith's plea hearing is set for Wed. Aug. 19 at 1 PM. It's in front of Judge James Boasberg, who's the presiding judge on the FISC.