John Durham and ex-FBI lawyer duel over prison sentence for FISA email deception


Newly appointed special counsel John Durham and fired FBI lawyer Kevin Clinesmith filed dueling court filings on Thursday, with the former Crossfire Hurricane attorney trying to dodge any jail time and the federal prosecutor asking the court to sentence him to up to six months in prison after he pleaded guilty to FISA email deception.

Clinesmith, who worked on the investigation into former Secretary of State Hillary Clinton’s private email server and on the FBI’s Trump-Russia inquiry as well as special counsel Robert Mueller’s team, admitted in August that he falsified a document during the bureau’s efforts to renew Foreign Intelligence Surveillance Act authority to wiretap Carter Page, who had been a foreign policy adviser to now-President Trump's 2016 campaign. Clinesmith fraudulently edited a CIA email in 2017 to state that Page was “not a source” for the agency when the CIA had told the bureau on multiple occasions that Page had been an “operational contact” for them.

“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 … His deceptive conduct … 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,” Durham wrote on Thursday, adding, “The defendant’s conduct also undermined the integrity of the FISA process and struck at the very core of what the FISC fundamentally relies on in reviewing FISA applications.”

Durham, who used the title of “special counsel” in the filing, pointed out that Clinesmith's deception “fueled public distrust of the FBI and of the entire FISA program itself.” The special counsel argued 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 government respectfully submits that a sentence of incarceration that is at least between the middle and upper end of the applicable Sentencing Guidelines range is appropriate and warranted,” Durham said. “This case is outside the heartland of typical cases under 18 U.S.C. § 1001 [false statements], and such a sentence would reflect the seriousness of the offense.”

In a filing which included more than 55 letters of support from Clinesmith’s family, friends, and colleagues, his lawyer argued for leniency.

“Kevin Clinesmith made a grievous mistake. By altering a colleague’s email, he cut a corner in a job that required far better of him. He failed to live up to the FBI’s and his own high standards of conduct. And he committed a crime. Kevin pled guilty and accepts full responsibility. He deeply regrets his conduct and apologizes to all those who have been affected — including his former colleagues, the FBI, the DOJ, the Court, the public, and his family,” Clinesmith’s lawyer said.

Clinesmith’s lawyer said his client “knew the original email did not contain those additional words, and he knew that the agent would, upon receiving the forwarded email, believe that it did.”

“Significantly, however, Kevin did not knowingly lie about the relationship between Individual #1 and the other government agency. When Kevin informed the agent (and others) that Individual #1 was not a source, he genuinely believed he was conveying accurate information,” Clinesmith’s lawyer also contended. “Kevin’s reputation has been ruined, his professional career is in shambles, and he has been unable to support his family financially at a time when he and his wife are expecting their first child. While he has nobody but himself to blame for those consequences, they are, in conjunction with a non-custodial sentence, a just punishment for Kevin’s critical lapse in judgment.” He requested probation and community service.

Clinesmith will be sentenced by the presiding judge on Dec. 10.

Attorney General William Barr revealed this week that, days before the November election, he elevated Durham to special counsel status, tasked with investigating any further violations of law related to the inquiries conducted by the FBI and Mueller’s team.

“The government expects that the defendant will claim that although he altered the email and created a false document, he did not intend to mislead anyone and was either confused or truly believed that Individual #1 had not been a source for the OGA. By his own words, however, it appears that the defendant falsified the email in order to conceal Individual #1’s former status as a source and to avoid making an embarrassing disclosure to the FISC,” Durham wrote on Thursday.

Durham said that “to the extent the defendant argues that he has already been punished due to loss of employment and his possible disbarment due to this felony conviction, these circumstances should not mitigate his sentence” because “these collateral consequences are entirely the result of his own wrongdoing.”

A supervisory agent, dubbed “SSA 2” in DOJ Inspector General Michael Horowitz's report about the FBI's Russia investigation, told investigators that on the third renewal he wanted “a definitive answer to whether Page had ever been a source for another U.S. government agency.” While in contact with the CIA's liaison, Clinesmith was reminded that in August 2016, predating the first Page warrant application in October 2016, the agency informed the FBI that Page “did, in fact, have a prior relationship with that other agency.”

An email from the CIA's liaison was sent to Clinesmith, who “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,” Horowitz found. “Relying upon this altered email, SSA 2 signed the third renewal application that again failed to disclose Page's past relationship with the other agency.”

Horowitz’s report criticized the Justice Department and the FBI for at least 17 “significant errors and omissions” related to the FISA warrants against Page and for the bureau's reliance on the Democrat-funded discredited dossier by British ex-spy Christopher Steele.

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