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Special Counsel John Durham Asks Judge to ‘Send a Message’ to Former FBI Lawyer; Sentence Him to Prison Despite Wife’s Pregnancy


Kevin Clinesmith

The government submitted its sentencing memorandum on Thursday in the case of disgraced former FBI lawyer Kevin Clinesmith, who has admitted that he altered an email that was used in a FISA warrant application to surveil former Trump campaign foreign policy adviser Carter Page. U.S. Attorney John Durham, identified in the filing as Special Counsel, called for Clinesmith to be sentenced “at least between the middle and upper end of the applicable Guidelines range.”

Durham emphasized a “need” for Clinesmith to be punished with up to six months of imprisonment in order to emphasize the seriousness of the offense and to deter others from committing the same crime.

In Nov. 2019, the Department of Justice (DOJ) Inspector General (IG) Michael Horowitz issued a criminal referral for Clinesmith’s role in the FBI’s surveillance of Carter Page. According to Horowitz’s final report on FISA abuse, Clinesmith–identified as “Office of General Counsel attorney“–altered an email used in a surveillance renewal application.

According to Horowitz, an FBI “Supervisory Special Agent 2” had requested “a definitive answer to whether Page had ever been a source for another U.S. government agency before he signed the final renewal application” of the third FISA warrant application seeking to maintain the wiretap on the former Trump 2016 campaign advisor.

A Central Intelligence Agency (CIA) liaison told Clinesmith that Page “did, in fact, have a prior relationship with that other agency,” the IG report continued. Clinesmith, however, “altered the liaison’s email by inserting the words ‘not a source’ into it, thus making it appear that the liaison had said that Page was ‘not a source’ for the other agency” and passed it along to the FBI’s supervisory agent.

“Relying upon this altered email, [Clinesmith] signed the third renewal application that again failed to disclose Page’s past relationship with the other agency,” Horowitz concluded.

According to Durham, this was a “very serious” offense that had “significant repercussions”:

The defendant altered an email that misled an FBI supervisory special agent and caused the supervisory special agent to sign a FISA application that failed to disclose that Individual #1 had been a source of another government agency—a fact that bore on whether the individual was acting as a knowing agent of a foreign power. By inserting the words “not a source” into the OGA Liaison’s email, the defendant fabricated support for the false notion that Individual # 1 had not acted as a source for the OGA. The defendant also essentially used the OGA Liaison’s identity— without his/her permission—and falsely attributed words to the OGA Liaison, which gave credibility to his alteration and made the SSA believe that Individual #1 was not a source. The resulting failure to disclose Individual #1’s relationship with the OGA, combined with other material misstatements and omissions that the OIG found in the FISA applications, 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.

Durham slammed Clinesmith for “undermin[ing] the integrity of the FISA process” and violating his oath as a lawyer. For this, Durham said, “there is a need for just punishment that includes a term of imprisonment to reflect the seriousness of the offense.”

He 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.”

In August, Clinesmith told the judge that, “[a]t the time, I believed the information I was providing in the email was accurate […].”

“[B]ut I am agreeing the information I inserted was not originally there and I inserted the information,” Clinesmith said.

Boasberg followed up by asking, “You agree you intentionally altered the email to include information not originally in the email?”

Clinesmith answered with a simple, “Yes, your honor.”

Notably, Durham said he was unsure if Clinesmith’s conduct was actually motivated by anti-Trump bias. In fact, he said it’s “impossible to know with certainty” how of if the defendant’s dislike of President Donald Trump factored into the crime:

The public record also reflects that political or personal bias may have motivated or contributed to his offense conduct. As noted in the OIG Report and PSR, the defendant was previously investigated, and ultimately suspended, for sending improper political messages to other FBI employees. See OIG Report at 256 n.400. For example, on the day after the 2016 presidential election, the defendant wrote “I am so stressed about what I could have done differently.” Id. When another FBI colleague asked the defendant “[i]s it making you rethink your commitment to the Trump administration[,]” the defendant replied, “Hell no,” and then added “Viva le resistance.” Id. The defendant was referred to the Office of Professional Responsibility for investigation for these and other related messages, and in July 2018 he was suspended, without pay, for 14 days. The defendant’s prior disciplinary infraction for expressing his political views in a work setting is a relevant aspect of his background. Indeed, 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. While it is impossible to know with certainty how those views may have affected his offense conduct, the defendant plainly has shown that he did not discharge his important responsibilities at the FBI with the professionalism, integrity, and objectivity required of such a sensitive job position.

Special Counsel Durham also said that Clinesmith should go to prison even though his wife is pregnant and due to give birth in March.

“[W]hile the defendant and his wife would like the defendant to avoid jail so he can be at home to help his wife through her pregnancy and help with future childcare after the upcoming birth of their child in March, the defendant’s family circumstances are not so unusual as to warrant special consideration,” Durham said, noting that the court “routinely sentences defendants who have children, significant others, and family, to periods of incarceration.”

He said Clinesmith’s “situation is not unique or extraordinary” and that he should be treated like any other defendant. Durham also emphasized that it is Clinesmith who put himself in legal jeopardy.

“To be sure, the government recognizes the impact incarceration will have on the defendant’s wife, who may have to care for their child alone for a period of time, depending on the sentence the Court imposes,” the special counsel said. “However, this hardship is a result of the defendant’s own decision to commit the crime for which he is being sentenced and is no different than any other defendant this Court sentences to a term of imprisonment.”

Clinesmith is the only person who has been charged as a result of Durham’s criminal investigation of the Russia investigation’s origins. The investigation began more than 18 months ago.

Attorney General Bill Barr revealed on Tuesday that he appointed Durham as special counsel back in October.

Read the sentencing memo below:

[Image via Clinesmith for Columbia Heights AND campaign]

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Matt Naham is the Senior A.M. Editor of Law&Crime.