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Sentencing for Ex-FBI Lawyer Who Pleaded Guilty in Durham Probe Gets Pushed Until After Biden Inauguration


The sentencing of disgraced former FBI lawyer Kevin Clinesmith just got bumped to January 29, which will be nine days after Joe Biden’s inauguration as the 46th president of the United States.

Clinesmith pleaded guilty to felony charges stemming from his alterations of an email used in a FISA warrant application. That warrant application had been to surveil former Trump campaign foreign policy adviser Carter Page.

Attorney General Bill Barr, whose last day in the cabinet position is today, appointed Connecticut U.S. attorney John Durham in October as special counsel. Clinesmith pleaded guilty well before that appointment back in August. Barr said he appointed Durham as special counsel to ensure that his work investigating the origins of the Russia investigation will be completed.

In court, Durham railed against Clinesmith for “undermin[ing] the integrity of the FISA process” and violating his oath as a lawyer – and called for a sentenced to be imposed that is “at least between the middle and upper end of the applicable Guidelines range” – which would mean three to six months imprisonment. Jailtime, according to Durham, would “reflect the seriousness of the offense.”

Arguing against Clinesmith’s request for leniency, Durham asked U.S. District Judge James E. Boasberg to “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.”

Clinesmith’s lawyers have argued that probation is appropriate in his case, particularly given that Clinesmith’s wife is pregnant. Many legal experts agree, given that probation would be the more typical outcome for Clinesmith’s offense. Former federal prosecutor Ankush Khardori, for one, argued this is a case that “almost certainly would not have been brought in a different administration.”

The pending request before Judge Boasberg, that the court give a perceived Trump enemy prison time, proceeds as Trump allies, Mueller probe convicts, and former GOP congressmen are pardoned by the dozen.

What the next month brings in the Clinesmith case remains to be seen. Jeffrey Rosen will take over after Barr leaves and he will likely remain acting Attorney General until Biden takes office. Could a Biden AG direct Durham to change the government’s position on Clinesmith’s sentencing prior to Judge Boasberg’s ruling? Political investigations lawyer Ross Garber told Law&Crime that a move like that is “unlikely” since it would raise clear and “serious” concerns about political interference.

“The sentencing memo in the Clinesmith case was filed by John Durham and two other veteran federal prosecutors. Durham himself is a career prosecutor who is not known to be a Trump partisan or indeed a partisan of any kind,” Garber said. “It is unlikely we will see a Biden Attorney General intervene to undermine the sentencing recommendation of career prosecutors. Were that to happen it would raise serious and legitimate concerns of inappropriate partisan interference in prosecutorial decisions.”

It’s unclear at this time, anyway, if the judge will sentence Clinesmith in accord with Durham’s recommendation.

Clinesmith remains released on a Personal Recognizance Bond.

[image via Clinesmith for Columbia Heights AND campaign]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos