Feb 2, 2021 | Republished by LIT: Mar 24, 2021
The feds wanted to send a message but the judge was havin’ none of that with a timid 12 months probation.
Who’s the judge?
U.S. District Judge James “Jeb” Boasberg – who recently trashed a Justice Department brief for having three pages of footnotes.
Prosecutors are asking a D.C. federal judge for up to six months in prison for a former FBI lawyer who pled guilty to doctoring an email the agency used to obtain court authorization to surveil former Trump campaign foreign policy adviser Carter Page.
Attorneys with newly minted special counsel John Durham, the U.S. attorney for the District of Connecticut, told U.S. District Judge James Boasberg in a 20-page sentencing memo Thursday that giving Kevin Clinesmith, 38, this prison term “is appropriate and warranted,” as it reflects the seriousness of his crime.
“The court’s sentence should send a message that people like the defendant — an attorney in a position of trust who others relied upon — will face serious consequences if they commit crimes that result in material misstatements or omissions to a court,” the memo said.
Clinesmith, who left the agency last year, admitted to Judge Boasberg in August that he altered an email from a staff member at the CIA to say that Page was “not a source” for the agency and then forwarded the email to a supervising agent before the agency sought to renew its permission to conduct surveillance on Page for the fourth time. Clinesmith told Judge Boasberg he believed at the time the information he added was accurate.
Prosecutors argued in Thursday’s memo that the failure to disclose Page’s relationship with the CIA in part allowed the FBI to conduct the surveillance with permission from the U.S. Foreign Intelligence Surveillance Court based on a Foreign Intelligence Surveillance Act application that the U.S. Department of Justice later acknowledged lacked probable cause. Page sued FBI officials and the federal government Nov. 27, alleging “multiple violations” in its process and seeking $75 million.
The memo asserted that Clinesmith’s conduct has “fueled public distrust of the FBI and of the entire FISA program” the government used to obtain authorization from the FISC to conduct surveillance on domestic individuals and organizations for foreign intelligence purposes.
“As a licensed attorney and an officer of the court, the defendant took an oath, was bound by professional and ethical obligations, and should have been well-aware of this duty of candor,” the filing added.
It noted that Clinesmith was an experienced attorney with the FBI’s Office of General Counsel and was assigned to some of the bureau’s “most significant and high-profile investigations.”
“Although the defendant did not personally sign any FISA application, his deceptive conduct nonetheless was antithetical to the duty of candor and eroded the FISC’s confidence in the accuracy of all previous FISA applications worked on by the defendant,” prosecutors wrote.
Clinesmith is set to be sentenced Thursday. While his charge carries a maximum sentence of five years in prison, Judge Boasberg said at Clinesmith’s plea agreement hearing that the federal sentencing guidelines recommend up to six months and that he will decide the ultimate punishment.
In a separate 40-page memo Thursday, Clinesmith’s defense team asked for probation and community service. They wrote that their client “made a grievous mistake. He failed to live up to the FBI’s and his own high standards of conduct. And he committed a crime … and accepts full responsibility.”
Clinesmith’s conduct, while serious, has ruined his reputation, professional career and nonattorney job prospects — including his ability to obtain a private sector role relating to national security, the filing said.
“He has been unable to support his family financially at a time when he and his wife are expecting their first child [in March.] While he has nobody but himself to blame for those consequences, they are, in conjunction with a noncustodial sentence, a just punishment for Kevin’s critical lapse in judgment,” the filing added.
This is the first and only criminal case brought to date by Durham after being asked by U.S. Attorney General William Barr last year to review federal law enforcement actions in the early stages of what later became special counsel Robert Mueller’s investigation of Russian interference in the 2016 U.S. election.
Mueller’s 22-month probe did not establish a conspiracy existed between the Trump campaign and Russia for that country to interfere in the 2016 election, but several former Trump associates or aides pled guilty or were convicted on charges linked to the probe. The Mueller report also outlined efforts made by the president to thwart the probe and did not clear Trump of any wrongdoing.
Barr, who has called the Mueller probe a “bogus ‘Russiagate’ scandal,” told Congress on Tuesday he appointed Durham as a special counsel to continue his probe — a move that could protect Durham from firing after President-elect Joe Biden takes office in January. Barr said he made the appointment Oct. 19 so that Durham’s team, which launched in May 2019, “could complete their work, without regard to the outcome of the election.”
The allegations Clinesmith admitted to were also the subject of a report the DOJ’s Office of the Inspector General released roughly a year ago. The watchdog found that the FBI overstated its basis for seeking the warrants in applications to the court.
The OIG found no violation of FBI policy or political motivation behind the opening of the FBI’s Russia probe. But it highlighted several problems with the evidence used by FBI agents to support their FISA applications, saying they “fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are ‘scrupulously accurate.'”
In Thursday’s filing, the defense team reiterated that Clinesmith never intended to mislead the court or his colleagues with the altered email. His action was merely “the result of a performance failure during a time of tremendous stress,” they wrote.
But prosecutors countered that Clinesmith was previously investigated and ultimately suspended without pay for 14 days in July 2018 for sending improper political messages to other FBI employees. Prosecutors acknowledged “it is impossible to know with certainty” what Clinesmith’s intent was, but they maintained “it is plausible that his strong political views and/or personal dislike of the current president made him more willing to engage in the fraudulent and unethical conduct to which he has pled guilty.”
Representatives for the parties did not immediately respond to requests for comment.
The government is represented by Anthony F. Scarpelli of the U.S. Attorney’s Office for the District of Columbia and Neeraj Patel of the U.S. Attorney’s Office for the District of Connecticut, New Haven.
Clinesmith is represented by Justin V. Shur, Emily K. Damrau, Megan Cunniff Church and Jordan Rice of MoloLamken LLP.
The case is U.S. v. Clinesmith, case number 1:20-cr-00165, in the U.S. District Court for the District of Columbia.