The Clinesmith Plea Deal In Light Of The James Wolfe Plea Deal

Since sundance "outed" John Durham's lead investigator he has doubled down on his Grand Conspiracy involving the James Wolfe leak case. That case involved the claim (almost certainly true) that Wolfe--a longtime staffer for the Senate Select Committee on Intelligence (SSCI)--leaked a copy of the Carter Page FISA application to his journalist paramour, Ali Watkin. So, in addition to the criminal issues, all sorts of constitutional issues were involved--including Separation of Powers as between the Executive and Legislative branches and Press freedom under the First Amendment.

Wolfe ultimately pled guilty to lying to the FBI leak investigators but, because the FBI was unable to recover the actual transmissions by which Wolfe allegedly sent text pix of the FISA to Watkins, he was not charged with offenses relating to the actual leak.

HOWEVER, when it came time for Wolfe to be sentenced, DoJ argued for an 'enhancement' to Wolfe's sentence. In other words, they argued that Wolfe should get a stiffer sentence than a first time offender would be expected to receive under the sentencing guidelines for the False Statement statute (18 USC 1001). That DOJ argument for enhancement was supported by an affidavit from FBI SSA Brian Dugan (no, not the serial killer of the same name). In the affidavit Dugan argued that the preponderance of the evidence supported the contention that Wolfe had, in fact, leaked the FISA and that his false statements to investigators should be viewed in that light--as more serious than the bare false statement charge might indicate.

Paraphrasing and expanding a Shipwreckedcrew tweet, I explained how all that worked. The key to understanding this is the distinction between the burden of proof at a trial--proof beyond a reasonable doubt--and the burden of proof for sentencing purposes, which is the much lower standard of the preponderance of the evidence. Thus, while DoJ had not believed that they could prove the leak at a trial beyond a reasonable doubt, they were quite prepared to argue at sentencing that Wolfe should nevertheless receive a stiffer or 'enhanced' sentence based on the understanding that he had, in fact, leaked the FISA:

UPDATED: What Actually Is Sundance's Big Theory?

Commenter Mike Sylwester explains sundance's theory pretty well. Here's Mike's statement of the facts as I understand sundance to be presenting them. I'll add a bit more:

It seems that Senator Mark Warner told James Wolfe to leak the Page FISA warrant to the New York Times. Wolfe (and Warner) were caught by the FBI, but then DOJ/FBI covered up the crime. Wolfe was not charged for leaking the top-secret FISA warrant. Rather, he was charged only for lying to the FBI.

Exactly who made the decision to reduce the charge against Wolfe from leaking to merely lying? Who approved that decision? What was the justification?

There are three additional contentions that sundance is making in connection with the Wolfe case, and they all suffer from the same problem.

First, sundance also maintains that DoJ/FBI have an official position that the Page FISA wasn't leaked by Wolfe. To support that he cites the Wolfe sentencing memo:

The very obvious problem with this--as Shipwreckedcrew is quick to point out--is that the FBI (and DoJ) are NOT saying they don't believe Wolfe did the leak. They're only saying, in effect, that they don't have the evidence to prove that beyond a reasonable doubt. I happen to believe that sundance is right, that Wolfe did the leak. The circumstantial evidence is very strong. And although I'm not a betting person, I would happily bet that every single FBI agent who worked that case also believes Wolfe did it. The problem is the lack of physical evidence--destroyed by Wolfe. Here's SWC's explanation: