Legal

Former FBI attorney pleads guilty in Durham probe

Kevin Clinesmith admitted to altering an email used to seek surveillance warrants against former Trump campaign adviser Carter Page.

FBI headquarters

The Justice Department’s unusual probe into its own handling of the investigation into links between the Trump campaign and Russia netted its first guilty plea Wednesday as former FBI attorney Kevin Clinesmith admitted to altering an email used to seek surveillance warrants against former Trump campaign adviser Carter Page.

Clinesmith, 38, tendered the guilty plea to a single felony count of making a false statement in an official proceeding by telephone during a virtual hearing that lasted less than half an hour before U.S. District Court Judge James Boasberg.

The so-called colloquy between Boasberg and Clinesmith highlighted a nuanced defense on the part of the FBI lawyer, who played a key role in preparing Foreign Intelligence Surveillance Court applications to listen to Page’s phone calls, read his emails and search his property.

While Clinesmith acknowledged changing an email to indicate that Page was not a source for the Central Intelligence Agency, the former FBI lawyer insisted that he thought then that was actually the case, although he conceded he should not have doctored the message.

“You intentionally altered an email to add the language ‘and not a source’ with regard to Individual No.1 and you knew that that statement was not in fact true?” asked Boasberg, an Obama appointee.

A pause followed while Clinesmith consulted with his attorneys. The ex-FBI employee surfaced a short time later to try to clarify his stance.

“Sir, at the time, I believed that the information I was providing in the email was accurate but I am agreeing that the information I entered into the email was not originally there and I inserted that information,” Clinesmith said.

“In other words, you agree you intentionally altered the email to include information that was not originally in the email?” the judge asked.

“Yes, your honor,” Clinesmith replied.

In advance of the hearing, reports of the defendant’s nuanced admission prompted some criticism from critics of the FBI’s Russia probe, who suggested prosecutors might be acquiescing in a cover-up.

“Huge problem,” former national security adviser Michael Flynn’s lead attorney Sidney Powell wrote on Twitter last week after Clinesmith’s planned guilty plea was revealed. “Judge cannot accept that plea. Someone is not shooting straight. Highly suspicious. #Notbuyingit Indict him now on it all.”

However, Boasberg offered no indication Wednesday that Clinesmith’s explanation presented any concern about his plea or the deal he entered into with the Justice Department that precludes him from facing any other charges in the matter.

After inquiring about whether Clinesmith understood the rights he was giving up by pleading guilty and whether he understood that the maximum possible sentence in the case is five years in prison, Boasberg accepted the plea and set sentencing for Dec. 10.

Some of those who’ve railed against the FBI investigation suggested Wednesday that Clinesmith’s plea was a prelude to charges against others, despite recent signals that the prosecutor Attorney General William Barr selected to probe the origins of the Russia probe — U.S. Attorney for Connecticut John Durham — isn’t planning any earth-shaking cases.

“The wheels of justice are turning,” Sen. Lindsey Graham (R-S.C.) tweeted after Clinesmith’s plea. “It is imperative we restore trust to a broken system and the only way that is possible is for people to be held accountable for their actions. More to come.” But neither the official summary prosecutors offered of the facts surrounding Clinesmith’s actions nor the formal plea agreement between the prosecution and the ex-FBI lawyer’s attorneys indicated the government views him as part of a broader conspiracy.

The deal with Clinesmith does not call for him to provide ongoing cooperation with prosecutors, although he did agree to be debriefed by FBI personnel working on a review of the law enforcement agency’s filings with the Foreign Intelligence Surveillance Court.

The judge did note at the outset of Wednesday’s hearing that he currently serves as the chief judge of that secretive court, which he said could be considered the victim of Clinesmith’s false statement.

Boasberg said he flagged the issue to both sides in the case a couple of days ago, and he added that he’d be happy to recuse himself if either side objected. Neither did.

The altered email at the heart of the case against Clinesmith was among the most explosive findings in a review Justice Department Inspector General Michael Horowitz issued last December of the FBI’s handling of the surveillance warrants against Page. He also found the initial warrant and three renewals were riddled with errors and omissions, some of them significant.

The findings led the Justice Department to rescind two of the renewal warrants, though Horowitz did not ultimately conclude that the FBI lacked a basis to surveil Page altogether.

Barr, who had previously tasked Durham with investigating the origins of the Russia probe, added the potential crimes uncovered by Horowitz to Durham’s mandate. As a result, the case against Clinesmith is being handled by Durham’s office, although the charge was filed in federal court in Washington.

The government was represented at Wednesday’s hearing by an assistant U.S. attorney from Durham’s Connecticut office, Neeraj Patel, along with Washington-based Assistant U.S. Attorney, Anthony Scarpelli.

The two prosecutors were joined at the virtual court hearing by a retired FBI agent who is assisting Durham’s probe, Timothy Fuhrman. Scarpelli described Fuhrman, the former head of the FBI’s offices in Mobile, Ala., and Salt Lake City, as a “Department of Justice investigator.”

Scarpelli said the government was not asking that Clinesmith be detained pending sentencing, but they did get the judge to order that Clinesmith surrender his passport and get prior approval for domestic travel outside specified states.

Attorneys Justin Shur, Megan Church and Emily Damrau appeared for Clinesmith at the hearing.

Although the government’s case against Clinesmith does not suggest a broader conspiracy to take down or damage President Donald Trump, it is likely however, to fuel the president’s allegations that the FBI abused its power to spy on his campaign and damage him after the election.

Trump blasted Clinesmith at a news conference last week, calling him “a corrupt FBI attorney.”

“So that’s just the beginning, I would imagine, because what happened should never happen again,” Trump said.

Trump has called for widespread prosecutions of those in the FBI and intelligence community he perceives as his political enemies, contending that the entire investigation of his campaign’s contacts with Russia was a “witch hunt” against him. Horowitz’s probe, despite its findings of wrongdoing by Clinesmith and problems with the FISA applications, concluded that the FBI had a legitimate basis to investigate the campaign’s contacts with Russia.

Clinesmith’s alteration of the email followed a discussion with colleagues about whether Page had a history as a CIA source.

Clinesmith, in internal messages, indicated that he believed Page was a “subsource” but never a source, and when a superior asked whether he had it in writing, Clinesmith forwarded an email from a CIA liaison but added his own words to it to underscore his view that Page was “not a source.”

“Relying on the altered email, [the supervisory FBI agent] signed and submitted the application to the court on June 29, 2017,” prosecutors said.

Clinesmith was removed from special counsel Robert Mueller’s probe after Horowitz discovered internal messages that revealed he espoused anti-Trump sentiment. Mueller also removed FBI officials Peter Strzok and Lisa Page after discovering similarly anti-Trump messages, though all officials have argued their personal political views did not influence their investigative decisions.

Among the messages Horowitz uncovered was one sent the day after Trump’s election in 2016:

“Who knows if the rhetoric about deporting people, walls, and crap is true. I honestly feel like there is going to be a lot more gun issues, too, the crazies won finally,” Clinesmith wrote. “This is the tea party on steroids. And the GOP is going to be lost, they have to deal with an incumbent in 4 years. We have to fight this again. Also Pence is stupid.”

Two weeks later, when a colleague asked Clinesmith about whether he was rethinking his commitment to serving in the Trump administration, Clinesmith replied “Hell no” and added “Viva le resistance.”

While the false-statement charge Clinesmith admitted to carries a maximum punishment of five years in prison and a fine of up to $250,000, defendants typically get more lenient sentences in accordance with federal sentencing guidelines. Many who plead guilty to a false-statement charge receive no prison time.

Court filings indicate that the non-binding sentencing guidelines will call for Clinesmith to receive between zero and six months in prison and a fine of $9,500 or less, although the plea agreement allows prosecutors to argue for a sentence above the guidelines range.