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Wednesday, August 19, 2020

Will Clinesmith Plead Guilty?

While we're waiting to find out this morning, I can't think of a better way to wrap your head around what will be going on than to read a very clear article by Andy McCarthy that came out yesterday evening: Will Clinesmith Plead Guilty?

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.

McCarthy concludes:

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.

43 comments:

  1. This article's title needs a question mark.

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  2. If he's on the level, then Barr is trying to put down a revolution by using nothing but ordinary legal processes.

    If he succeeds, I'll contribute the first $100 to build a statue of him next to the Supreme Court building.

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    1. Yes, I understand, and that's why I have so little patience with sundance's posturing.

      But what means would you recommend he use in the circumstances, if not ordinary legal processes? Are you suggesting that 'extraordinary' legal processes of some sort are available? The only one I can think of off hand would be martial law.

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    2. RICO seems like a good start as the corrupt enterprise is still ongoing re Weissman's urging of DOJ officials to not participate in AG Barr and Durham's investigation.

      DJL

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    3. Can you explain why you think that RICO has anything at all to do with this? Please look it up at Wikipedia before responding.

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    4. The fraud that has been perpetuated upon the FISA court and the nation is good example. The fraud, and the attempted cover up of the fraud that is still ongoing by Weissman and others. Seems like a fair interpretation of one of the RICO chargeable offenses.

      DJL

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    5. Which chargeable offenses? "Fraud on the nation" is not a predicate offense. You also need TWO predicate offenses to demonstrate a "pattern of racketeering activity." You would also have trouble demonstrating a criminal enterprise to begin with.

      https://twitter.com/shipwreckedcrew/status/1292508604772171776

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    6. "Fraud on the FISA court" isn't a predicate offense either. Nor is 1001 or most of the other available charges.

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    7. Fortunately for me (and possibly for everyone), it's not my responsibility to make recommendations about what to do. I leave it to others. The Clintons have always used a combination of hard and soft tactics. They do it because it works.

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  3. The big reveal at CTH is that the real head of the Durham investigation is FBI Special Agent William Aldenberg? Know him?

    Not sure what SD and his gang are up to. Doesn’t seem good. Captured by aliens?

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    1. Shipwreckedcrew is on this…

      https://threadreaderapp.com/thread/1295843976251977728.html

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    2. My theory has been that he's a tool of the Jim DeMint group. I understand the animus against the GOPe Senate, but that's not something that an AG can readily solve.

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    3. Yes, that's what I was trying to say last night. SWC doesn't actually say it, but the way the Senate and the House obtain evidence can also be used to thwart prosecution by unscrupulous legislators. Imagine that! Sundance may not like it, I certainly don't. I'm quite sure Barr doesn't either. But how casting aspersions at Barr or naming an FBI agent who works for Durham is supposed to change any of that is strictly an appeal to baseless conspiracy theory.

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    4. I may be too simplistic (again) but this CTH thing seems to be a naked appeal to the conspiracy theorists, the tar and feathers and marching on Washington with pitchforks crowd. The laptop commandos, Perhaps he means well, but what good does undermining something this important with an election looming.

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    5. "he's a tool of the Jim DeMint".
      This referring to Aldenberg?

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    6. He is referring to Sundance / Conservative Treehouse

      >aNanyMouseAugust 19, 2020 at 10:44 AM
      >
      >"he's a tool of the Jim DeMint".
      >This referring to Aldenberg?

      Aldenberg I assume was unmasked by Sundance, as the chief investigator with Durham. Aldenberg shows up on some conspiracy theories about Sandyhook.

      Jim DeMint, was a South Carolina Senator. He did not play nice with the eGOP. He saw himself as a tea party candidate. He resigned to go head the Heritage Foundation. He was forced to resign.

      Jim DeMint is much closer to Trump's views. More America First.

      This article explains a lot of what is going on with the GOP.

      The Case for Trump
      There's little wrong with President Trump that more Trump couldn't solve.

      by Michael Anton
      Claremont Review of Books

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    7. Aldenberg was a first responder at Sandy Hook and joined a lawsuit against Info Wars. I don't know the details.

      Re DeMint, I actually agree with most of his expressed opinions, but I disagree with the libertarian leanings of many from that branch of the GOP.

      Re DeMint and the SCF, to say that his record has not been terribly helpful to Trump would be an understatement:

      "endorsed successful first-time Senate candidates Pat Toomey, Rand Paul, Mike Lee, Ron Johnson, Marco Rubio."

      My suspicion is that most of these endorsements may have had less to do with principle and more to do with payback to Senate GOP leaders. I can understand that to some extent, but the fact is that those SCF endorsed senators can't really be called "Trumpsters."

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    8. Sundance has compiled a very comprehensive detail of events over the past 5 years. If you go to Theconservativetreehouse.com you will find it all there, if you chose to take the time to read it all. His intent, supported by many others, is not to only pass this information on, but to let everyone know that WE know what was going on. We are all just asking for two thing; transparency and justice.

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    9. Alex Jones/Infowars publicly declared Sandy Hook a hoax and included the first responders - FBI, including Altenberg - in the hoax. When parents and relatives of those killed filed a lawsuit against Jones, Altenberg joined their complaint as he believed he had been defamed by Jones’s allegations that the FBI first responders were part of the hoax.

      When we run around googling names, we sometimes come up with more information about them than is relevant.

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    10. SD/CTH in 2017 predicted/proposed that DeMint would become part of PDJT’s administration in a highly promotional article. Suggested he replace the recently retired Reince Preibus, etc. Glowing praise with photos. It wouldn’t be surprising to find out he and SD had a connection.

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    11. Wait--you mean it WASN'T a hoax???? :-)

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    12. One more comment. It has been my observation that many have expressed their angst over the fact that there were not timely news bulletins out of the Durham investigation. Makes them feel that either there is nothing going on (an illogical conclusion) or that they are not in the know (ego). Just my 2 cents.

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    13. Yeah, re DeMint. I've always assumed that explains his huge focus on the Senate. I'm not saying DeMint is a bad guy or that the Senate isn't corrupt like the rest of DC, but we need to have a more complete perspective. Democracy is always gonna be this way. If you read US history, it's never been pristine. We're talking about the art of the possible here.

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  4. I'm sure he'll do what the deep state wants him to do.

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  5. On re-reading the NYT quotes of Shur, I'm not sure it's a denial of the 'crime,' but more a spin for the NYT readership. He's saying he didn't intend to mislead his colleagues and gave them copies of both msgs, but that's irrelevant for the crime. The crime is creating the false document, and saying it eliminated a footnote shows the intent to deceive the court. Shur didn't seem to say anything that cast doubt on those elements. We'll see at 1 this afternoon, though. Also, timing on these things is usually 100% dependent on court's calendar, not for convenience of parties' negotiations.

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    1. The way I read it--supplemented by the Times' story--Shur seems to be saying that, in altering the email, KC didn't intend to mislead anyone. The NYT says he thought his alteration was, in fact, accurate. The idea seems to be that he altered the email to reflect its real meaning, just to make things easier for the court. So the judge wouldn't have to worry his head about ambiguities. Here's the statement as quoted by McC. At the very least, it's not a robust, straightforward, acknowledgement of criminal intent. Note that he goes straight from altering the email to lack of intent to mislead:

      "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."

      We shall see.

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    2. Here's a SWC thread that presents what he thinks KC's position is. SWC appears to believe this is sincere. I don't. I don't think forgery by a lawyer of material that will be submitted in any legal proceeding is ever sincere. SWC's conclusion:

      "He will admit he altered the email--making if "false" in the sense that it was not the message he received when he forwarded it - but he thought it was an accurate answer to the substantive question."

      That should, IMO, be a losing proposition if presented to an unbiased jury.

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    3. I agree with your conclusions- especially when combined with his other texts and msgs. In the version of the NYT article I read, at first, I don't think it said "court" in the misleads...just his colleagues. Can't remember 100%, though. It was definitely his attempt to mislead- otherwise why do anything? I think someone raised it as a problem, and he decided (or was told) to be the hero that 'solved' the problem, and hoped to be able to blame the CIA later, if there was a problem. I don't trust NYT, though, even with a direct quote. haha

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    4. There was a lot of misleading information out there initially. For example, KC turned over the CIA information for the "original" FISA to the case agent. But the case agent and DoJ agreed not to submit that to the court because, they argued, it was "old" (2013). Again, they didn't want the court to see info. But this charge has to do with the 3rd renewal--not the original. Hiding relevant info from the court for an earlier submission hardly seems to mitigate forging info. I think the real problem was a new case agent who they weren't sure they could trust--that's why the forgery. Boasberg has written in his FISC opinions about agents/DoJ being required to let judges decide on relevance based on full info. I can't believe he'll be impressed with KC's position if he tries to maintain it.

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    5. no, judges tend to get most upset about matters that they interpret as a personal slight! Not giving a judge full disclosure on anything is a huge risk. Especially if it's a lawyer doing it, who should know all the rules and comply with them.

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    6. Comment at 10:21
      Here's a SWC thread that presents what he thinks KC's position is.

      Is there supposed to be a link in that sentence?

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    7. Yeah, unfortunately I can't edit comments--not even my own. However, I've quoted that thread in the new post.

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    8. "Not giving a judge full disclosure on anything is a huge risk."

      Seems the original clowncar of DoJ lawyers in the Flynn case we'ren't much concerned about their judge getting in a snit over withholding info, and they were correct. Sullivan seemed to be more perturbed by Powell's badgering for Brady mat'l than concerned about their, "My dog ate my homework," excuses.

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  6. This is the first real test of Durham's mettle and commitment to the rule of law (as opposed to the covert DC double-standard which allows the denizens of the Imperial Capital to typically skate with a slap on the wrist). The world is watching, and the future of Russia Hoax accountability will be revealed in today's proceedings.

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  7. I couldn't find a live stream, though I tried.

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  8. Shur’s comments are strictly for public consumption to shape public opinion and cast Clinesmith as a "victim".


    Has nothing o do with what will actually happen in court

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    1. In case you're wondering why I didn't enable your comments re RICO, it's because you don't know what you're talking about.

      Re this present comment, you also don't know what you're talking about. If Shur was doing this strictly for public effect he would never have entered a plea agreement.

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  9. there is a live call in number- Clinesmith is trying to parse the intent right now...that he thought info was true at time, but recognizes he changed email. Judge is still going through all his rights, to trial etc., call witnesses, etc., present evidence, etc. they're still treating it as a plea hearing...still in middle of all of it

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  10. Guilty plea has been entered and accepted by the Court. Sentencing set for Dec. 10, at 11 a.m. Very thorough questioning by Court, and thorough waivers by Clinesmith. Very minimal release conditions.

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    1. Thanks. I'll use your comment to update the new post.

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  11. "This is the first real test of Durham's mettle and commitment to the rule of law"

    Why? If the judge only gives a suspended sentence, or a 6 month sentence, is there anything Durham can do?

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