Briefly: FISA As Deep State Joke; Housekeeping

I'm embedding this excellent and important Maria Bartiromo interview from yesterday. Featured are Devin Nunes and Kash Patel--former federal prosecutor and defender, investigator for Nunes on the HPSCI, NSC official, and most recently a top official at DoD. 

The interview begins with the Clinesmith wrist-slap-a-doodle last Friday. For anyone who was less than appalled by Shipwreckedcrew's ill-informed and frankly absurd gaslighting of that travesty of justice, please listen to this interview. I've made my views known in comments: SWC either doesn't understand or misrepresents the nature of extensions of FISA warrants. Since these extensions authorize the collection of new data 'going forward' they are essentially new warrants--which is why each application for an extension must stand on its own and cannot merely reference the 'original' application. Any mistakes or omissions in the 'original' must be corrected and all new information made known to the FISC. To suggest, as SWC does, that Clinesmith's forgery only affected the final 'extension' but not the 'original' misconceives the nature of the whole process. It also ignores what I've stressed--the nature of Carter Page's probably 10 year long cooperation as an intelligence asset of the US government (both CIA and FBI) was known by all relevant FBI personnel before the 'original' FISA application was submitted. It was not fully disclosed and, in fact, the extent and nature of Page's cooperation was deliberately misrepresented--that was a lie to the FISC.

Now, however, we learn that the FISC--under the direction of John Robert's Obama-judge appointee--is openly in bed with the Russia Hoaxers and the Uniparty Resistance. That's the obvious takeaway from this interview, which gives a frankly dismaying picture of the demise of constitutional order in the United States. Listen and consider what's being said. That FISA has turned out to be a sick Deep State joke perpetrated on the American people and their republic is perhaps the least of what's now known.

One interesting omission from the discussion is the true role played by Bluto Barr and John Durham. It's possible that Maria held back because she's angling to maybe entice Barr to appear on her show. I doubt he'll do it. On that score, I've seen sundance's argument that Barr was an agent of a vast coverup from the beginning. I personally doubt that and believe that he simply blinked when push came to shove. I base that on Barr's public statements going back some years--including before his memo to Rosenstein. It's enough for me to understand that Barr betrayed his own oath of office, and then had the gall to accuse Trump of that offense--on the flimsiest of pretexts. Here's the interview:

MULTIPLE UPDATES: The Deep State Is Laughing At America

Kevin Clinesmith got 12 months probation and 400 hours of "community service"--I think that means he has to work for Dem political campaigns for 400 hours. Or maybe donate the time to the Southern Poverty Law Center. If you want a laugh--at your own expense and that of our country--read about it here.

The Dem who performed the ritual wrist-slap on Clinesmith--some guy called James Boasberg--teared up during the circus proceedings:

James Boasberg on Friday during Clinesmith's sentencing hearing said Clinesmith had suffered by losing his job and standing in the eye of a media hurricane. 

Boasberg gave him 12 months probation, 400 hours of community service, and no fine. 

Government prosecutors had been asking for Clinesmith to spend several months in jail. 

No word yet on whether Bluto Barr or Bullsh*t Durham think Boasberg "betrayed his office." Nor any word on whether Boasberg shed a tear for another guy who suffered real financial hardship and found himself in the eye of a true media hurricane--the like of which Clinesmith certainly never experienced but to which Clinesmith contributed by his felonious conduct--Carter Page.

Really--it's almost as if Boasberg wants us to believe that Clinesmith found himself out of his cushy federal job and in the eye of a "media hurricane" by some sort of weird accident or coincidence. He pled guilty to a felony, for goodness sake! And not just any felony, but a felony that strikes at the very heart of our rule of law, our electoral system, our constitutional right to be free of unwarranted surveillance. He did this, committed this felony, in an underhanded, dishonest way--forgery--as an officer of the court. 

Here's an alternative take on this travesty, reported by Paul Sperry--DC Fails To Disbar Anti-Trump FBI Lawyer Despite Guilty Plea:

As the U.S. government seeks prison time for a former FBI lawyer who admitted falsifying evidence to spy on a former Trump aide, the District of Columbia Bar association hasn’t begun an investigation to strip him of his law license, records show.

The defendant, Kevin Eugene Clinesmith, is still listed as an “active” attorney in “good standing” with the Democrat-controlled D.C. Bar, despite his having pleaded guilty more than five months ago to illegally altering a document used for authorization to electronically eavesdrop on former Trump campaign adviser Carter Page as part of the FBI’s Russiagate probe.

A search of the D.C. Bar’s Office of Disciplinary Counsel database of "disciplinary proceedings" turns up no such proceedings against Clinesmith, even though his guilty plea was reported to the bar and the bar's board has received at least one formal complaint demanding his disbarment.

“The only appropriate sanction for committing a serious felony that also interfered with the proper administration of justice and constituted misrepresentation, fraud and moral turpitude is disbarment,” the National Legal and Policy Center said in a complaint it filed with the bar on Sept. 10. “Anything less would minimize the seriousness of the misconduct.”

The 38-year-old Clinesmith, a registered Democrat who sent anti-Trump rants to FBI colleagues after the Republican was elected in 2016, awaits sentencing on Friday.

I'm just shaking my head. But Bluto Barr should be hanging his.

UPDATE 1: Perfect:

why doesn’t anyone trust our institutions? it’s a mystery. pic.twitter.com/daW7QBoDVD

— Logan Hall (@loganclarkhall) January 29, 2021

UPDATE 2: From the belly of the beastly Estabishment:

FISA vs. Liberty

A surveillance judge clarifies that the FBI can falsify evidence without much fear of punishment.

The government employees of the “resistance” who never accepted Donald Trump as our president have finally performed a useful public service. Together with the judges of the U.S. Foreign Intelligence Surveillance Court, they have demonstrated for all Americans how easy it is to turn the spying tools of the federal government against domestic political opponents.

Even after the Obama-appointed inspector general of the Department of Justice found “at least 17 significant errors or omissions” in a series of approved surveillance warrant applications to spy on Trump associate Carter Page—and even after a criminal conviction of an FBI attorney for doctoring an email to make it appear that the patriotic Mr. Page had never assisted U.S. intelligence—the FISA judges are still refusing to apply any significant punishment to the government officials who misled them.

UPDATE 3: I goofed up somehow (!). I thought that I had quoted Shipwreckedcrew's brief--so far--comment. I guess I was distracted juggling several things. Here's what he says that I found pertinent--Clinesmith never accepted responsibility for his criminal act, and Boasberg only gave him the wet noodle treatment anyway:

Prosecutors from Special Counsel John Durham’s office asked for a sentence of incarceration due to Clinesmith’s position of authority and responsibility as an FBI attorney who was obligated to provide accurate information, and the act of altering the email was inconsistent with that responsibility.  They argued further that by clinging to the excuse that he thought his alterations were consistent with the facts as he understood them, Clinesmith was not “accepting responsibility” for his criminal conduct as required by law to receive any leniency in his sentencing.

 There is simply no question but that Clinesmith committed a criminal act. And yet he continued with a totally BS claim that he "didn't mean to mislead". Nonsense. No sentient person accepts that.

UPDATE 4: From a WSJ editorial--what's not behind the paywall. Everyone is focused on the CIA email--understandably--but as I've been saying for lo these many months, it's just as big or bigger a deal that the FBI failed to disclose to the court that Page was a highly reliable FBI source until Spring 2016. Still, they're right--why should we take the FISC seriously? Or the FBI? Or DoJ? Or the Federal judiciary?

How can the American people take the Foreign Intelligence Surveillance Court seriously when it doesn’t do so itself? That’s our view of Friday’s sentencing of former FBI lawyer Kevin Clinesmith, who admitted to falsifying evidence submitted to the court for a warrant to spy on onetime Trump foreign-policy adviser Carter Page.

Federal Judge James Boasberg spared Mr. Clinesmith prison in favor of 12 months probation and 400 hours of community service. The judge said the evidence persuaded him that “Mr. Clinesmith likely believed that what he said about Mr. Page was true.”

In their brief, prosecutors made clear how unlikely this is. The evidence of Mr. Clinesmith’s animus toward Donald Trump is considerable. As for being an honest mistake, remember that Mr. Clinesmith changed an email confirming Mr. Page had been a CIA source to one that said the exact opposite, explicitly adding the words “not a source” before he forwarded it.

In their brief arguing for prison time, prosecutors contended that Mr. Clinesmith’s behavior “struck at the very core” of the candor the FISA court “fundamentally relies on” and “allowed the FBI to conduct surveillance on a U.S. citizen based on a FISA application that the Department of Justice later acknowledged lacked probable cause.” Prison time for Mr. Clinesmith, they said, was also necessary to “deter others from committing similar crimes.”

Friday’s sentencing will fuel cynicism about two-tiered justice. While George Papadopoulos served time in prison for making false statements to the FBI, and a federal judge refused to drop charges against former national security adviser Michael Flynn after the Justice Department said they had no basis, a top law enforcement official who abused his police powers while operating in secrecy escapes with probation.

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:

Kevin Clinesmith Sentencing Put Off Till January 29

Go figure. Excellent progress, that.

New filing in USA v. Kevin Clinesmith: Set/Reset Deadlines/Hearings

PACER Docket: https://t.co/d6uAMvVKzA

— Big Cases Bot (@big_cases) December 23, 2020

Read Thomas Lifson Re Clinesmith

You can find the article here--please read the whole piece:

FBI lawyer Kevin Clinesmith, who lied on Carter Page FISA warrant, may get a slap on wrist

Lifson presents the situation lucidly:

But now comes news that Durham is asking only for a sentence of a few months, at most, for an officer of the court who knowingly lied to the court [in a situation of extraordinary peril to our national security, endangering the performance of CinC duties--both military and foreign policy--by a sitting president].

and concludes with the common sense, gut level observation:

Something odd is going on with all of this, but I don't know what it is.  Is it possible that Clinesmith has made a deal implicating higher-ups, but that it is not reflected in the court documents available to the public?  That sounds like a bit of a fantasy to me, even though it would be my own deepest wish.

The idea that a rogue official complicit in lying to a court to spy on a presidential campaign would get off with probation is repulsive.

 

Context matters--including in the law. Talk of sentencing guidelines becomes meaningless babble in this context. Every person with a sense of decency should be revolted. To my way of thinking, no lawyer who engaged in this type of conduct and confessed to what he did--as Clinesmith did do--should get away with less than a serious jail sentence. Even if he cooperated.

SWC: Get Over It, Russia Hoax Conspiracy Theorists!

Shipwreckedcrew makes no pretense of hiding his disdain for those of us who believe--based on evidence--that candidate and then President Donald J. Trump was the victim of a "grand conspiracy":

Clinesmith Sentencing Statement Filed by Durham -- No Grand Conspiracy Revealed Regarding Clinesmith's Crime

The article curiously ignores key facts and shows little concern for the damage done to the credibility of the American federal justice system--which, he likes to remind us, he served for 22 years.

Here's how he begins:

This is sure to break the spirit of some, and reinforce the views of others that Attorney General Barr and now Special Counsel Durham are actively engaged in grand cover-up along with FBI Director Chris Wray regarding the FISA warrant obtained against Dr. Carter Page.

Why, one might ask, does SWC choose to frame the views of those who may disagree with him in such a harsh light? I have recently harshly criticized Barr regarding his actions, both as to his comments on the election as well as his curious appointment of John Durham as a Special Counsel. I haven't alleged a "grand cover-up"--more like a lack of courage or misguided concept of "healing wounds" by ignoring the cause of the wounds to the body politic. I'm sure there are many others who would share my point of view.

To SWC the "simple facts" are and have always been obvious: Clinesmith honestly, if mistakenly, believed that Trump was a "Russian operative":

UPDATED: Lindsey Graham Would Be Shocked

I watched Senator Graham on with Sean Hannity last night, and he didn't actually look shocked when the two discussed all the trouble Team Mueller lawyers had with their government issued phones. Amused would be the word I would use to describe Graham's reaction, although he did point out the obvious: If these guys and gals couldn't manage their own phones, why would we trust them with a major investigation?

Then he added:

But stay tuned, Sean. You think you're mad about the phones being wiped? Stay tuned! We'll talk in about ten or twelve days and we'll see if there's something else you could get mad about. Just stay tuned.

That's a tease, but also, in my opinion, a promise. I've said many times that I'm sure that Graham has coordinated closely with AG Barr. Graham has taken a lot of flack for the slow pace of his committee's investigations, but I'm convinced that that has to do with the necessity of not compromising John Durham's investigation. Graham has played it close to the vest but, like others in DC, he knows more than he's letting on. Perhaps the slow drip of revelations about the Flynn case will produce that "something else"--days before the scheduled hearing in front of Sullivan. That would be unsurprising, now that Kevin Clinesmith's plea deal is cemented in place. The substance behind the plea deal had to do with the Carter Page FISA, but Clinesmith was heavily involved in Team Mueller ops, too. But that's a guess based on timing  and could be coincidental. We'll see, but I doubt that Graham is just blowing smoke at this point.

And that would fit in with this, from his introductory remarks, about what would shock him:

As to future prosecutions--I would be shocked if the only person prosecuted is Clinesmith.

UPDATE 1: By the way, if some wiseguy tries to sucker you into betting that the government will never be able to recover the data from those wiped phones, do not take him up on that. Jen Dyer has the tech details: Should we despair over phones wiped by Mueller team members? Maybe not; see the Strzok/Page text incident. The bottom line is that the phones were government property and were for (mostly) official business only--which means, they were for creating government data which the government is entitled to recover and retain. As Dyer explains, there may well be ways to do this. And it's possible that this revelation is intended to shake certain members of Team Mueller out of a false sense of security. We know that revelations coming from Barr's DoJ are almost always have some purpose.

UPDATE 2:

Paul Sperry
@paulsperry_

U.S. Attorney John Durham's #SpyGate investigation is one of the most important and consequential investigations in this nation's history. He has to get it right. No pressure.

3:11 PM · Sep 10, 2020·

Fortunately for Durham, we know he's not simply on his own. He's got help. Along with Barr, there's Bash, Jensen, maybe others.

The Mifsud 302

Techno Fog has posted a copy of the FD-302 for the FBI's interview of Joseph Mifsud. That interview took place in the lobby of the Shoreham Hotel in Washington, DC, on February 17, 2017. At that time Mifsud had come to DC for some sort of conference.

What will immediately strike the reader will be the perfunctory nature of the interview, if the 302 accurately reflects the interview (which could be a big IF). As presented, outside of background information regarding Mifsud himself how he knew George Papadopoulos, it appears that the interviewing agents--in one way or another, the exact line of questioning isn't made clear--raised the issue of whether Mifsud had discussed Russian possession of DNC emails. Mifsud responded that he himself had no such knowledge and that the topic had not been raised between Mifsud and Papadopoulos. This meeting took place in the UK in approximately September of 2016.

Here are the two views of the 302 that we have. Note that the administrative section is cut off, so we don't see the names of the interviewing agents or the case type (which would indicate what case the interview was conducted under and what type of violation was purportedly invovled)--which I assume would have been redacted in any case:

Clinesmith And The Big Picture Conspiracy

Shipwreckedcrew has a terrific article today, the title of which won't really suggest to non-prosecutors the substance of what he discusses: Andrew Weissmann Wants Kevin Clinesmith to “Stop Snitchin”. What he's talking about is a topic near and dear to me, one that we've discussed here for a long time--the "big picture conspiracy." SWC goes into the way in which such a case is built.

While SWC largely leaves the focus of the Durham investigation as something for the reader to infer, that focus should become apparent very quickly. As I've maintained, the original Crossfire Hurricane (CH) investigation--CH before Team Mueller--is basically small potatoes as compared to the concerted effort of to force Trump from office by hook or by crook. That, of course, is what Team Mueller was all about. I'm not discounting the criminality of what took place beginning in the summer of 2016 up to Trump's inauguration, nor the Flynn setup, but Team Mueller marked the point at which all the resources of the FBI and DoJ could be openly marshalled against Trump. There was no longer a need to hide what was going on. The coup forces were protected from effective counterattack under the color of law. This is why Barr and Durham are so focused on Team Mueller, as I've long maintained.

Thus, SWC begins his article by basically pointing out that Weissmann's entire focus was on Trump. If there was a conspiracy--and there was--Trump was at the heart of it:

John Ratcliffe: Durham's Investigation Is About Predication

Maria Bartiromo had Director of National Intelligence (DNI) on her show this morning for a fairly wide ranging interview. All the topics were of interest, but one that especially caught my attention was the segment dealing with the John Durham investigation. We've been hearing rumors about Durham nearing, if not the end of his whole investigation, then the end of a certain phase of it. The Clinesmith guilty plea has whet our appetites for more information, but it's been slow in coming--despite promises that we'll be hearing more before the end of the summer. Before we get into that, however, a few remarks.

As we know, as a Congressman, Ratcliffe was a key part of the investigation into the Russia Hoax--as an experienced former prosecutor he showed himself to be a skilled questioner who knew the value of careful preparation. Trump's decision to replace veteran Deep State operative and former senator Dan Coats with Ratcliffe as the head of the Intelligence Community was a shrewd pick. Coming at a time when the Barr/Durham investigation was picking up momentum, there was an obvious need for a DNI who could break through the bureaucratic logjams that Coats and others had constructed to protect the Deep State. The fact that Ratcliffe was an experienced former prosecutor who would understand what was involved in such a major investigation and, especially the legal issues involved in coordinating with a grand jury investigation was an important plus. When you add to that he years of experience in Congress investigating the Russia Hoax, his knowledge of the all the players both in Congress and the Deep State as they overlapped, it came as little surprise that the Deep State and GOP senators closed ranks against Ratcliffe. In the end, however, Trump (and probably Barr) persisted and won the day.

In the transcript of the relevant portion of the interview, note that Maria has focused on some key issues that we've been discussing in recent days. First, of course, she located the tape of then Congressman Ratcliffe clearly referring to disgraced former FBI lawyer Kevin Clinesmith's "changing evidence." Maria astutely relates the Clinesmith guilty plea to the entire three year investigation--and Ratcliffe picks up on that.

Note that Ratcliffe relates what Clinesmith did--"changing evidence"--not just to the final FISA application but to the origination of the entire Crossfire Hurricane investigation. As he puts it, what Clinesmith did had to do with continuing the entire investigation. What's left unsaid, however, is that the continued focus of Durham--and Ratcliffe!--on the predication for Crossfire Hurricane also relates directly to the predication for Team Mueller witchhunt--the two are one and the same. Further, at the heart of his is Joe Pientka, who was the supervisor for the Crossfire Hurricane team and who wrote the EC recommending its closing. Also note that Ratcliffe, without being prompted, brings up the topic of the Intelligence Community Assessment--that can't be a coincidence.

Place Pientka into this context when you read about the ongoing coordination between Ratcliffe and Durham. The willingness of Durham to allow Ratcliffe to declassify some of the Pientka related documents and to allow Pientka to talk to Senate investigators in a tightly controlled setting suggests that Durham is still very much focused on the big picture conspiracy. Things appear to be coming to a head.

Here's A Guy Who Gets It

He gets what I've been saying all along--most recently in Clinesmith Is Lying About Lying:

Not only had Carter Page been in contact with Russians at the direction of the CIA, but he had also--as recently as 2013--been doing so at the direction of the FBI itself. He had been a cooperating witness for the FBI in a very important case against Russian IOs--one which, unlike virtually all other such cases, actually resulted in a prosecution. That case culminated in early 2016, just before Page joined the Trump campaign. It might be one thing for the FBI to somehow misunderstand and misrepresent Page's relationship with "another government agency," but how to explain away such a misrepresentation of his relationship with the FBI itself?

This guy gets it:

@EuphoniusNuts 

What are the chances that a couple of months after the Buryakov spy ring is busted in the Spring of 2016, the Rooskies would make Carter Page, the guy who busted said ring, the linchpin of the world’s most audacious double-naught spy caper? 

1:55 PM · Aug 25, 2020·

Really. Think about that. The whole thing is ridiculous. 

Clinesmith Is Lying About Lying

That's the contention of Andy McCarthy's latest:

Clinesmith’s Guilty Plea: The Perfect Snapshot of Crossfire Hurricane Duplicity

McCarthy contends that, while Clinesmith's guilty plea allocution may have been legally sufficient, it was just barely so. McCarthy's expressed hope is that DoJ will have much more to say about that when it comes time for sentencing. In McCarthy's view it was only a "sort of" guilty plea.

In “admitting” guilt, Clinesmith ended up taking the position that I hoped the judge, and especially the Justice Department, would not abide ... 

... in my view, Clinesmith is lying about lying. His strategy is worth close study because it encapsulates the mendaciousness and malevolence of both “Crossfire Hurricane” (the FBI’s Trump-Russia investigation) and the “collusion” never-enders who continue to defend it. A defendant’s lying about lying does not necessarily make a false-statement guilty plea infirm as a matter of law. The bar is not high. Still, his story is ridiculous, in a way that is easy to grasp once it’s placed in context.

And so McCarthy proceeds to provide the context in masterful fashion. I highly recommend the article.

For our purposes, I want to point out just a few things.

First, McCarthy makes this very important point:

Clinesmith’s Motives Mirror His Superiors’ Motives

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:

Q & A On The Clinesmith Plea

With the flurry of comment regarding the Clinesmith plea hearing yesterday behind us, it may be well to address the overall meaning of the plea agreement. Yes, I know--certain commenters who seem to regard sundance as some sort of universal genius who understands everything that he's never had any experience with are already citing his views to demonstrate that all is lost, the republic is conclusively down the tubes. In fact, of course, sundance is a mouthpiece for participants in our political process who have a particular axe to grind and have reasons for wanting AG Barr to be perceived as a failure.

That said, of course what Barr came out of a comfortable retirement to address does constitute an uphill struggle. He has few if any true allies in the DC establishment--only some in the legal establishment. He's attempting to return a country gone astray to the straight and narrow of the rule of law before it runs entirely off the rails, but some think their own interests are better served by sniping and denigrating Barr's crusade--interests of the nation be damned. The country may yet go down the tubes--see the excerpts from The Challenge of Marxism--but it will be in spite of Barr's efforts, not because of them.

I was an agent, not a prosecutor, and I was never involved in political corruption cases per se. Shipwreckedcrew is a former prosecutor, albeit we don't know what his specific area of experience was, except that it wasn't national security. On his Twitter thread lately he's been fielding comments from CTH bots and others who are alarmed at what they believe is a sell out. I've constructed a sort of Q & A from those tweets that may help in coming to an understanding of what's going on. But the first thing to keep firmly in mind is that John Durham is not going to show anyone his hand--except, presumably, Bill Barr.

Here we go--it's lightly edited for typos and such:

UPDATED: Clinesmith Agrees To Plea Deal

But we don't know the details. Yet.

Sean Davis
@seanmdav 

Boasberg points to a 10-page plea agreement between Clinesmith and DOJ, signed by Clinesmith, and asks if that is the plea agreement Clinesmith intends to be binding. Clinesmith says that is correct. 

That 10-page plea agreement has not yet been made available to the public. 

12:21 PM · Aug 19, 2020·

For reference, the information is 5 pages long. Unfortunately I can't tell you whether that's meaningful or not. No doubt we'll be hearing more.

UPDATE 1: Commenter Tom Bop updates:

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.

I pretty much expected this from Boasberg. While he's unquestionably liberal in his politics and policy preferences, his past record seems to show that he's not inclined to introduce partisan preferences into his decisions on the bench. He has also shown seriousness as Chief Judge of the FISC. That's not an endorsement of anything he does in the future--simply my judgment on what we know about him at this point. The fact that Clinesmith's crime hit struck directly at the integrity of the entire FISA regime will be very much on Boasberg's mind unless I'm much mistaken.

The thoroughness of the proceedings indicates to me, for those of us who had some doubts, that Durham was having none of what Clinesmith and Shur had on offer.

UPDATE 2: Shipwreckedcrew takes on a number of matters re what has transpired with this plea. Three of these tweets were before the plea went down, the final one after:

For all who thought Andrew Weissmann was telling you the truth about Clinesmith needing to "admit" or the gov't to assert that Carter Page was a CIA "source", you now know he was lying to you.  That was never required under a "false writings" charge. 

The email that Clinesmith altered before forwarding to the SSA is the "false writing" and its falsity is established by virtue of the alteration, not the substance of the alteration.  It was not what it was reputed to be -- a written response from the CIA. 

It was material because the SSA told Clinesmith he wanted the CIA's answer in writing.  The "fact" of the writing is the materiality -- not its substance.  

Weissmann knows this -- he lied on purpose. 

He did so to gaslight followers and to drive the opinion that Durham is doing something improper. 

An Obama appointed Judge just went right through the plea and didn't even pause over the fact that Clinesmith said he "thought" the substance of the email as altered was accurate. 

12:53 PM · Aug 19, 2020·

What that last comment by SWC means, re Boasberg not even pausing, is that Boasberg dismissed Clinesmith's statement as so irrelevant as not even worth commenting on.

I would add that if Clinesmith is ever called to testify in a trial on any of this, I doubt that that statement about what he "thought" would be admissible. I'll stand corrected if anyone knows better, but I doubt it. It's simply not relevant. What will be relevant is what he pled to.

UPDATE 3: Leslie McAdoo Gordon provides the details of most interest to most readers ("JB" refers to Judge Boasberg):

JB going over the Statement of Facts now.  KC agrees he signed it and it is accurate.  JB specifically asking about him adding the "and not a source" language to the email and whether that is a false statement.  LOOOOOOOONG silence. 

Clinesmith saying at the time he thought the information was accurate, but he agrees that he altered the email. 

JB just confirms that back to him.  Doesn't challenge it. Asks if he's had enough time to talk to his lawyers and whether he's happy with them.

Again, the reason this is a false statement is that the FBI SSA told Clinesmith he wanted written confirmation of the CIA response--meaning, not Clinesmith's verbal opinion but the CIA's written opinion. Instead, Clinesmith falsified the email and sent it to the SSA, purporting to be sending an authentic CIA document--which it no longer was.

As I mentioned in a comment, I believe what was behind this was this: Clinesmith originally intended to not even mention the CIA thing in the 4th renewal, just as had gone down in the three previous applications. However, my understanding is that this SSA was a new case agent and neither Clinesmith nor the others knew whether they could trust him. So they altered the email. I also strongly suspect that someone in authority--Weissmann?--told Clinesmith, Hey, don't worry, Page wasn't an "actual" source the way we mean it so it doesn't really matter if you falsify the email to say what we all know the CIA should've said. I don't, myself, believe Clinesmith's claim. But it doesn't matter for the plea.

UPDATE 4: One more update should just about do it. SWC again, but I'll just quote his conclusion, since most of the article is another rehearsal of what we already know. The conclusion, however, is important for the future--although I have to believe that this has already been gone over by Durham and is the reason Durham agreed to this plea deal:

It remains to be seen whether Clinesmith has anything meaningful to provide to Durham.  I suspect he does.  It might not be evidence of “criminality” of the actions by either investigators or prosecutors on the Mueller SCO team. 

But Clinesmith worked with the Mueller SCO team up until February 2018 — a period of 8 months after Mueller was appointed.  He certainly can provide Durham with an “insider’s” account of the conversations and attitudes that existed.  There is no privilege that applies. 

THAT, in my opinion, is what Weissmann is trying so desperately to prevent from happening.

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:

Clinesmith Plea Hearing Wednesday

Hat tip, commenter JHUM:

Techno Fog
@Techno_Fog

The Kevin Clinesmith plea agreement is now set for August 19.

It will be before Judge James Boasberg - who happens to be the presiding judge over the Foreign Intelligence Surveillance Court.

9:28 AM · Aug 17, 2020

I assume the liberal Boasberg will nevertheless take a dim view of people who submit forgeries to the FISC. Here are two rulings he has issued this year at the FISC. They're not fire breathing demands for reform, but ...

False Statements, Obstruction, What Else?

Hey, I'm not expert in this stuff. I never worked investigations of government officials. Check this out:

shipwreckedcrew
@shipwreckedcrew

This is the charge Durham is keeping in his back pocket.  It could produce a much longer sentence if Clinesmith refuses to go forward.

Quote Tweet

OneFlewOver_USA
@OneFlewOver_USA

Replying to @shipwreckedcrew
Why wasn't 18 usc 1519 (evidence tampering) the original charge?  He'd better be doing a lot of singing to get off with a 1001.

8:34 PM · Aug 15, 2020·

Here we go:

18 U.S. Code § 1519.

Destruction, alteration, or falsification of records in Federal investigations and bankruptcy

Whoever knowingly alters ... any ... document ... with the intent to ... influence the investigation ... of any matter within the jurisdiction of any department or agency of the United States ... shall be fined under this title, imprisoned not more than 20 years, or both.

Not more than 20 years? Ya mean, up to 20 years? Ouch!

Clinesmith better know what he's up to.

Two Must Read Articles Re Andrew Weissmann

It's well known by now that Andrew Weissmann--widely regarded as the moving force behind the Team Mueller witchhunt--is freaking out over the Clinesmith plea deal. It's likely that he's part of a movement in the Deep State to somehow induce Clinesmith to back out of the deal.

This afternoon we have two major articles about Weissmann and his efforts to somehow derail the Barr/Durham investigation.

First up is the indefatigable--and I do use that word advisedly--Shipwreckedcrew:

There Is A Big “CYA” Footnote In The Mueller Report Seeking to Put Distance Between FBI Attorney Clinesmith and Special Counsel Prosecutors

who gives full credit to CTH for this catch. I can't cover the whole thing, but I urge everyone to read it all.

Basically, there is a footnote in the Mueller Report that insinuates that Kevin Clinesmith never worked for Team Mueller, that at all times he was under the supervision of the FBI:

The Meaning Of The Word 'Intent'

As we know, Kevin Clinesmith's lawyer made a statement last Friday to the effect that Clinesmith would plead guilty to making a false statement, but that Clinesmith never intended to do so. Let's take a look at what "intent" is all about in these circumstances.

Generally speaking the law presumes that a person 'intends' whatever the reasonably foreseeable consequences of his actions are. Simple example: If I fire a handgun into a densely packed crowd and kill someone, it doesn't matter that I may not have *subjectively* intended to kill someone or to kill the specific person who was killed--the reasonably foreseeable consequence of my act was that someone would suffer great bodily harm or death. It's sufficient that my *act* was intentional and that the consequences of that act were reasonably foreseeable. I will be charged with and convicted of some form of homicide regardless of my state of mind (as long as I wasn't legally insane).

Criminal statutes will sometimes specify the type of intent required for a specific violation. Kevin Clinesmith was charged by John Durham with violating 18 USC 1001(a)(3). That section provides that to be found guilty the subject must:

(a) ..., whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

And here, from the information Durham filed, is how Durham plugs the specifics of the Clinesmith case into that provision of "1001":

13. On or about June 19, 2017, within the District of Columbia, the defendant, KEVIN CLINESMITH, did willfully and knowingly make and use a false writing and document, knowing the same to contain a materially false, fictitious, and fraudulent statement and entry in a matter before the jurisdiction of the executive branch and judicial branch of the Government of the United States. Specifically, on or about June 19, 2017, the defendant altered the [CIA] Liaison’s June 15, 2017 email by adding that Individual #1 “was not a source” and then forwarded the email to the SSA, when in truth, and in fact, and as the defendant well knew, the original June 15, 2017 email from the [CIA] Liaison did not contain the words “not a source.”

Notice the use of the word "materially". For the false statement to be criminal it must be "materially false, fictitious, or fraudulent"--in other words the falsehood must "make a difference." We've seen that the statement by Clinesmith's lawyer, as also expanded in the NYT, suggests that the alteration that Clinesmith made to the CIA email was made "in good faith" and that he *thought* his change to the CIA document was "accurate". In other words, he thought his alteration reflected the meaning of the original.