Paul Sperry: Whither John Durham?

Paul Sperry today has a very thorough review of where the John Durham investigation stands and where it may be headed. The article naturally focuses on Kevin Clinesmith, the disgraced former FBI lawyer who has pled guilty to making false statements to the FISA court (FISC) with regard to the final application for FISA coverage of Carter Page. Clinesmith is due to be sentenced later this week:

New Evidence Implicates FBI Higher-Ups in Dishonesty of Anti-Trump Lawyer

Sperry begins by noting that "defenders of the FBI" [sic] claim that Clinesmith's false statement--he altered a CIA document that was submitted to the FISC, causing the document to say the opposite of what it originally said--was a "lapse of judgment" or some such thing. Clinesmith himself has maintained that he never intended to mislead anyone. He'd also like to offer you a deal on a famous bridge in New York. 

However, says Sperry, there is new information that may portend a reinvigorated Durham investigation:

"But such explanations are challenged by new revelations from court papers filed in the case, which some civil libertarians call the most egregious violation and abuse of the Foreign Intelligence Surveillance Act (FISA) since it was enacted more than 40 years ago.

"The little-noticed documents, which include never-before-seen exhibits, were submitted by Special Counsel John Durham and lawyers for Page, who has been granted time to address the court as a victim when it sentences Clinesmith Jan. 29 as part of a plea agreement. Page and his attorneys argue that the FBI obtained his electronic communications, both written and oral, based on fraudulent warrants in violation of his Fourth Amendment rights. He is suing Clinesmith and the FBI for $75 million in damages.

"The court filings reveal, among other things, that Clinesmith knew much earlier than has been reported about Page’s cooperation with the U.S. government, and was not alone in knowing that he had provided information on the Russians to the CIA -- or in covering up that knowledge.

"Several officials within his tightly compartmentalized chain-of-command — including former deputy FBI director Andrew McCabe, his counselor Lisa Page and counterintelligence chief Peter Strzok — learned of Page’s role with the CIA before they first sought to wiretap him during the 2016 presidential campaign. The CIA had confirmed his role two months earlier in an August 2016 memo it sent to the FBI. And Page’s status as a CIA contact had been documented in the FBI's own electronic files going back to 2009."

Carter Page's legal team is now headed by Leslie McAdoo Gordon. Based on her experience I expect her to make a very effective presentation to the court. It seems to me unlikely that McAdoo Gordon would seek this opportunity to address the FISC unless she intended to argue that Clinesmith was part of a bigger picture conspiracy involving Carter Page. The shape of that conspiracy against Carter Page can be determined from the list of individual defendants in Carter Page's $75 million dollar lawsuit for violation of his "Constitutional and other legal rights." (Highly recommended reading.) Here's that list. I wasn't aware that Pientka was included in the lawsuit, but I'm not surprised--as I remarked not long ago, despite the fact that Pientka asked to be off the Crossfire Hurricane team, I doubted that his hands could possibly be clean in all this:

JAMES COMEY

ANDREW McCABE

KEVIN CLINESMITH

PETER STRZOK

LISA PAGE

JOE PIENTKA III

STEPHEN SOMMA

BRIAN J. AUTEN

The question that interests us is, where is John Durham in all this? Is the Clinesmith sentencing going to be the end of the road for him, or will he try to leverage that into prosecutions of former FBI officials named in the Carter Page lawsuit (and possibly others, such as James Baker and Bill Priestap, as well DoJ officials like David Laufman)?

Sperry, in my opinion, makes a strong argument that that should be the case. Whether it will be the case is, of course, perhaps more dependent on political considerations than legal ones. Sperry's best argument uses information that I was not aware of, but which I find extremely telling--that McCabe approved Clinesmith as the lead FBI lawyer working on the Crossfire Hurricane team. (I would add in that regard that Clinesmith was probably recommended to McCabe, likely by Lisa Page and Peter Strzok):

"Some observers speculate that McCabe is a key target in Durham's ongoing investigation, which was initially based in Connecticut, where Durham serves as U.S. attorney, but is now operating primarily out of Washington.

"They point out that McCabe hand-picked Clinesmith, barely in his 30s, for his investigative team and gave him unusual authority over the highly sensitive case, compartmentalizing him within his office and making him the point man on all four FISA warrant requests. Clinesmith was involved from the start, and McCabe gave his efforts to surveil Page a high-level push through the Justice Department, where it initially met with resistance from skeptical lawyers who asked questions about Page’s prior relationship with the CIA.

"Moreover, McCabe was the FBI official who signed the FISA application tainted by Clinesmith’s crime. It was McCabe who certified that the controversial June 2017 application to renew the wiretap on Page was accurate, even though it omitted what the CIA had told Clinesmith and others at the FBI — that Page had been acting on behalf of the U.S. government in engaging with certain Russians. The application Clinesmith and McCabe shepherded through misled the court by citing his contacts with those Russians as evidence he was working on behalf of Moscow, not Washington, and a key reason the FBI claimed it was suspicious of him."

In support of this line of thinking, Sperry cites the view of former FBI Assistant Director Chris Swecker--and this is the type of prosecutive theory that would be presented to a jury if Durham seeks further prosecutions:

“It’s a very brazen move, doctoring an email from another agency; it’s unlikely Clinesmith would have been so brazen if he didn’t know he had protection from above ... It makes perfect sense from Clinesmith’s guilty plea that McCabe is in legal jeopardy.”

“It was my belief that McCabe skated on the false statements indictment because Durham had bigger and better things to run against him.”

Swecker's argument is totally persuasive as far as I'm concerned. However, the key to Sperry's contention that Durham may actually be intending further prosecutions lies in statements that Durham has made to the court with regard to the knowledge that other members of the Crossfire Hurricane team were aware that Carter Page was a US intelligence asset, and not a Russian agent at all. All of these Crossfire Hurricane team members worked closely with Clinesmith as well as reporting to McCabe:

"The special prosecutor makes a point of noting in court records that in addition to Clinesmith, the CIA had provided “certain members” of the Crossfire Hurricane team a detailed memo verifying that Page was acting on behalf of the CIA and had cooperated with the U.S. government on numerous occasions.

"Delivered on Aug. 17, 2016, as the FBI was opening investigations into Page and three other Trump campaign officials and discussing the first application for a FISA warrant on Page, the CIA memo stated that Page had been approved for "operational contact" from 2008 to 2013 and described Page’s interactions with Russian intelligence officers, including some cited nefariously in the FISA applications. It further informed Crossfire investigators that Page briefed the CIA about these contacts, and the CIA determined that Page was “candid" in his reporting.

...

"The memo was entered in the FBI’s system of record known as “Sentinel,” and everybody on the Crossfire team had access to it -- including Strzok and McCabe’s legal counsel Page -- and yet nobody told the FISA court about it. (Text messages and emails reveal that Strzok and Page were directly involved in the FISA process and worked closely with Clinesmith.)

...

"Durham notes in his sentencing motion that “instant messages and emails suggest that the SSA [supervisory special agent Joseph Pientka] and case agent [Somma] may have read those [CIA] documents in the past.” In a Sept. 29, 2016, email, in fact, Somma discussed the contents of the CIA memo with other members of the Crossfire team. There are also text messages between Clinesmith and Strzok discussing Carter Page’s status around the same time."

In the remainder of the article Sperry argues--citing my own views fairly extensively--that there are additional reasons for believing that the closely compartmentalized Crossfire Hurricane team was well aware of Carter Page's past cooperation with the US intelligence community--with the CIA but also with the FBI itself. Rather than quote from the article, I'll try to briefly summarize my views on this, as presented previously.

As Sperry emphasizes, the CIA informed the FBI at the beginning of Crossfire Hurricane, in August 2016, that Carter Page had been a trusted and reliable asset for the CIA for some five odd years: 2008 - 2013. In fact, however, as we have also just seen, the FBI had become aware of the CIA's relationship with Carter Page as early as 2009. How did that work?

The simple explanation is that both agencies were aware of Carter Page's contacts with Russians and both agencies were interested in those contacts--albeit from somewhat different perspectives. The FBI's awareness most likely came through routine FISA coverage on Russian officials (think: Flynn - Kislyak). The FBI, having learned of the CIA's relationship with Carter Page, was content to monitor Carter Page's contacts with Russian officials for some years. 

However, something changed in 2013. In 2013 the FBI realized that Carter Page was in contact with three Russian officials against whom the FBI hoped to develop a prosecutable case. In point of fact, the FBI realized that Carter Page could be used as a key witness in such a prosecution. I suggest, therefore, that it was by mutual agreement between the two agencies that the CIA terminated their relationship with Carter Page in 2013 and the FBI formally opened Carter Page as a cooperating witness. Presumably the two agencies agreed that the benefits of using Carter Page in a prosecution of Russian officials outweighed--in the bigger national security picture--whatever limited benefit the CIA may have been deriving from him.

Now, this case against the three Russian officials, which took place in New York, was a very big deal for the FBI. Prosecuted cases against foreign officials are few and far between. The arrest and prosecution of officials of a foreign power--especially a foreign power like Russia--has a major impact on international relations and would never have been approved simply at the local New York level. For that reason this case would have been closely monitored in Washington DC by both FBI and DoJ national security officials as well as by top DoS officials. And, of course, everything that occurred would be documented to multiple files--informant files and investigative files. In fact, this case would have been so important--such a feather in their cap for the FBI--that nothing would surprise me less than to learn that it had been briefed by disgraced former FBI Director Comey to the Obama White House at a very high level.

With all that in mind, it's simply unthinkable that the Crossfire Hurricane team could possibly have been unaware of who Carter Page was before Crossfire Hurricane was actually ginned up. Actually, we know for a fact that Peter Strzok was consulting with the FBI's New York office about Carter Page before Carter Page was officially part of the Trump campaign. In other words, well before Crossfire Hurricane was opened as an investigation, the FBI officials who became the key members of the Crossfire Hurricane team already knew about Carter Page and knew that he was a long time US intelligence asset--not a Russian agent. But they went ahead and misrepresented all of this to the FISC. Not once, but four times.

None of this is news to John Durham. Will he pursue the logical implications of all this, and seek to prosecute the full complement of persons responsible for what, as Sperry justly calls it, was "the most egregious violation and abuse of the Foreign Intelligence Surveillance Act (FISA) since it was enacted more than 40 years ago"? Or will politics intervene?

Obviously I'd like to see Durham forging ahead, as Sperry suggests may be in the cards. My caution is that any prosecution of people at the level of McCabe and Comey gets uncomfortably close to the Clinton and Obama organizations. This same cast of characters--certainly Comey, McCabe, Lisa Page, and Strzok--were central to the Hillary email investigation and coverup. Any prosecution of them for their bad behavior in the Russia Hoax could lead them to implicate higher ups. Will Durham dare to attempt to tread on that politically fraught terrain? Will the Biden Inc. regime--or the Joebama regime--allow Durham to do that? Those are some of the big questions that will ultimately be answered. And perhaps sooner rather than later.