McCarthy reviews most of what we know about the case, but at less length than is his usual wont. For purposes of the hearing this morning, he explains what the key to this hearing will be, and why it is likely the reason for the delay in the plea:
It is called the allocution. It is the most important part of a guilty plea in federal court. It comes — if it comes — when the judge personally addresses the accused, who has been placed under oath, and asks him to explain in his own words how and why he is guilty of the crime charged.
Is Kevin Clinesmith willing to allocute? Is he willing to admit without reservation that he deceived his FBI colleagues and a federal court? The lack of clear answers to those questions is almost certainly the sticking point — the reason why, to this moment, there is only a false-statement charge against the former Bureau lawyer, not a false-statement guilty plea.
When it comes time to allocute, the court must ensure that the accused acknowledges committing the acts alleged and, just as significantly, doing so with the level of criminal intent prescribed in the relevant penal statute — the mens rea of the crime [mens rea is Latin for 'guilty mind']. If the accused does not admit guilt, and evince that he is doing so voluntarily and in full awareness of the possible consequences, then the judge should not accept the guilty plea.
The consequences for a defendant who backs out can be very serious:
... a deficient allocution can mean that all bets are off. Prosecutors can withdraw the offer to settle the case by plea; they can file an indictment alleging additional crimes.
... If the accused is not forthright in admitting his misconduct and corrupt intent, that may well render him useless as an accomplice witness. The guilty plea may stand, but the Justice Department is apt to conclude that the accused has failed to live up to the cooperation terms, exposing him to the likelihood of a more severe sentence.
McCarthy rightly stresses that Clinesmith's case--even though it stands at one count of false statement for now--is in reality very serious. That is so both as regards the position of trust that Clinesmith held, his status as a lawyer for the government, and the gravity of the matter under investigation. Moreover, the judge before whom Clinesmith will appear is one who will have a full understanding of just how serious an assault on the integrity of our national security justice system Clinesmith's conduct was. Given that his actions were at the heart of the Russia Hoax, I find it hard to believe that DoJ will be willing to play patty cake with Clinesmith.
Whatever Kevin Clinesmith is thinking, his allocution would not be sufficient if it mirrors Shur’s portrayal of what happened. If I’m the judge, I wouldn’t accept such a guilty plea. And if I’m the Justice Department, and I’m convinced Clinesmith’s story is a self-serving distortion, I wouldn’t agree to accept the plea, to drop any charges, or to sign Clinesmith up as a cooperating witness.
We should know what the situation is soon enough. The hearing will be conducted by telephone at 1PM today. McCarthy takes the timing as an indication that the parties may still be negotiating.