Politics & Policy

Clinesmith Guilty Plea: Lying about Lying

J. Edgar Hoover F.B.I. Building in Washington, D.C. (Mary F. Calvert/Reuters)
He went to great lengths to lie to a federal court and, when caught, lied by saying he didn’t really intend to lie.

Author’s Note: This is the last of a three-part series (see Part 1 and Part 2).

To recap, in June 2017, as the FBI was preparing to submit a fourth sworn application to the Foreign Intelligence Surveillance Court (FISC) to surveil former Trump-campaign adviser Carter Page, FBI lawyer Kevin Clinesmith came up with a story to conceal Page’s history as a CIA informant.

On June 15, a CIA liaison had told Clinesmith that Page had been a witting informant who reported information to the agency, a status denoted by a classified digraph (a two-letter symbol). Clinesmith, however, disingenuously claimed to have been told that Page was never a CIA informant; rather, he was purportedly an American who unwittingly passed information to the CIA by communicating with an unidentified third person who was an actual CIA informant. This was a distortion of what the CIA liaison had told Clinesmith.

He concocted the story, nonetheless, by fixing on the liaison’s use of the word encrypt. In its intelligence reports, the FBI routinely conceals (i.e., encrypts) the identities of Americans whose information is incidentally captured because they communicate with third parties who are FBI informants or surveillance targets. Clinesmith purported to construe the digraph as signifying that the CIA had concealed Page’s identity for a similar reason — i.e., he was not source, but he had dealt with someone who was a source.

Clinesmith studiously declined the CIA liaison’s offer to discuss the matter further, for that would have made it impossible to feign confusion. But he still had to get his fictional version of Page’s status past two officials.

The first was the Justice Department attorney who was reviewing the FISA (referred to in the IG report as the “OI Attorney,” for Office of Intelligence). On June 16, Clinesmith sent the OI attorney the CIA liaison’s responsive email about encryption, but he took pains to withhold his own email — the one that posited Clinesmith’s questions about the digraph and Page’s status as a source, which were necessary context if one was to understand the liaison’s response.

Thereafter, Clinesmith and the OI attorney had a half-hour phone conversation. When eventually questioned by the IG in the FISA-abuse investigation, Clinesmith gave contradictory accounts about the call. Initially, he claimed to have given the OI attorney a detailed briefing and to have assured the OI attorney that Page had not been a CIA source. Yet, months later (i.e., after he knew the IG was interviewing all the relevant witnesses), Clinesmith developed amnesia, claiming not to recall the conversation.

As Clinesmith must have hoped, the OI attorney proved to be a rubber stamp. Whatever fleeting glance he may have given the CIA liaison’s email, the OI attorney blithely emailed Clinesmith to say, “Thanks I think we are good and no need to carry it any further.” Grasping that this meant there would be no disclosure to the court about Page’s status with the CIA, a relieved Clinesmith responded, “Music to my ears.”

When interviewed by the IG, the OI attorney claimed not recall his communications with Clinesmith.

Clinesmith Lies to the Supervisory Special Agent and Falsifies the CIA Email

If Clinesmith figured he’d dodged the bullet, he didn’t count on the Supervisory Special Agent. If the SSA was going to swear under oath to the truth of the next FISA warrant application, then he insisted on being told without ambiguity what Page’s status was so he could forthrightly represent it to the FISC. Thus, the SSA pressed the matter with Clinesmith. On June 19, the pair had an instant-message exchange. In conjunction with the CIA email that Clinesmith falsified, it is the most damning proof in the false-statement case.

As noted in Part 2, days earlier, when the SSA first asked Clinesmith to check with the CIA about Page’s status, it is unclear whether either man was familiar with the “digraph” term. But by the June 19 discussion, both were familiar with it. Plainly, the SSA suspected the truth — i.e., that the digraph signified that Page had been a CIA informant. In their discussion, the SSA expressed skepticism regarding Clinesmith’s insistence that, according to the CIA, the digraph signified that Page had not been a real CIA informant. Clearly, that is why Clinesmith ended up falsifying the CIA’s email; he knew the SSA was not going to accept that representation — was not going to rely on it in swearing to the court that the FISA warrant application was true and accurate — unless the CIA had put it in writing.

In the flurry of instant messages, Clinesmith told the SSA that the Page warrant application had been “cleared” by the Justice Department because “[digraph] = USPER” (meaning: the two-letter code signifies the encryption of a U.S. person’s identity).

The SSA was not satisfied. Apparently based on the reading he had done, he calculated that Page must have been a CIA informant; so he asked if, by “[digraph] = USPER,” Clinesmith was saying that Page had in fact been a CIA source at one point, but that then “the relationship officially ended.”

Clinesmith falsely countered that, no, Page “was never a source.”

Clinesmith tried to shift the discussion to the OI attorney’s approval, and to the seemingly happy fact that the FBI “need not address [Page’s status with the CIA] in the FISA” application. But the SSA was determined to stick to the main topic. He pressed Clinesmith to clarify whether Page himself “was a [digraph]” or whether Clinesmith was saying that Page “was a subsource of the [digraph].”

After first dithering that it “sounds like a subsource of the [digraph],” Clinesmith became emphatic, falsely declaring that the CIA had “confirmed explicitly [Page] was never a source” (emphasis added).

The SSA was still not convinced. “Interesting,” he noncommittally replied.

Clinesmith responded by appealing yet again to the SSA’s appreciation of how important it was to avoid an embarrassing admission in the bureau’s FISA application: “But like, interesting good, right? I mean, at least we don’t have to have a terrible footnote.” The footnotes are the places in FISA warrant applications where the FBI and Justice Department try to bury information that they hope the court will overlook; they are where sometimes dizzying efforts are made to explain prior lapses.

The SSA was still not buying it and indicated that he and other FBI officials had been reading the documents provided by the CIA ten months earlier: “Just interesting they say not a source. We thought otherwise based on the writing. . . . I will re-read.” He also put it point-blank to Clinesmith: “Do we have that in writing” from the CIA? Clinesmith said he had, indeed, gotten it in writing, and that he would “forward” the CIA’s email to the SSA.

Yet, Clinesmith well knew that he did not have it in writing. His story was a fabrication. The CIA had never told him — much less explicitly told him — that Page was not an informant. In truth, the liaison had told him the opposite, but Clinesmith had chosen to feign misunderstanding. Now, the SSA was calling him on it. The only way Clinesmith could harmonize the CIA’s email with his false story was to falsify the email.

And that is exactly what he did.

In forwarding the email to the SSA, Clinesmith first did what he had done when he sent it to the OI attorney: He disingenuously omitted his own prior email to the CIA liaison, so the SSA would see only the liaison’s response, with no context. Then, Clinesmith altered the liaison’s email. Recall that the liaison had said:

My recollection is that Page was or is . . .  [digraph] but the [documents previously provided by the CIA] will explain the details.

Clinesmith changed it by adding the words “and not a ‘source’” as follows:

My recollection is that Page was or is . . .  [digraph] and not a “source” but the [documents previously provided by the CIA] will explain the details. [my bold italics]

Consider for a moment how much effort Clinesmith must have put into tampering with the document: A government lawyer thinking about whether to falsify a document from another government agency, understanding that a court would be deceived, and crafting the alteration in a way that would not tip off an experienced supervisory FBI investigator.

It is worth thinking about, not least because, when the IG first asked about the alteration, Clinesmith insisted that he was not sure how it had happened. Only when he knew he was caught did Clinesmith confess to tampering with the email. Only then did he shift to his new and improved story: Yes, he had gone through the trouble of manipulating the document, but it still accurately reflected the “impression” he’d formed from telephone conversations with the CIA liaison that only he recalls having.

Clinesmith Minimizes His and the FBI’s Misconduct . . . Yet Prosecutors Accept the Plea

So how could Clinesmith plead guilty to a false statement while insisting the statement wasn’t false? On the narrowest of grounds. In essence, Clinesmith is saying that while he believed that the substantive information he was conveying was accurate, he understands that the SSA was asking for a statement in writing from the CIA, and he instead gave SSA a statement in writing from Clinesmith, which he deceptively led the agent to believe was from the CIA.

Is that good enough to sustain a guilty plea? Technically, it probably is.

The false-statement statute calls for the transmission of false information to be not just knowing but willful. There has to be a purpose to do wrong, an intent to deceive. My quarrel has been that Clinesmith is not admitting to an intent to deceive, because he has claimed he believed that the information he transmitted to the SSA accurately reflected the CIA’s position, and therefore that he was not really deceiving the SSA or the court. In pleading guilty through gritted teeth, Clinesmith concedes only that he knew the SSA was expecting to get a document written by the CIA, and instead Clinesmith gave him a document Clinesmith had altered. In factitiously parsing, Clinesmith continues to maintain that the deception of the SSA was minor and that he — and, derivatively, the FBI — did not intentionally deceive the FISC at all. It’s just a misunderstanding.

I don’t blame Judge Boasberg for accepting the plea. I don’t like it. But to be fair, as long as the defendant barely admits making a false statement of some kind, there is no requirement that the defendant’s allocution accord with the prosecution’s more robust construction of falsity. The court may properly accept the plea as long as the defendant’s statements do not negate guilt. The judge’s main job is to protect the defendant’s rights, not uphold the prosecution’s theory of the case.

What I don’t understand is why Clinesmith’s guilty plea is satisfactory to the Justice Department — to the Durham team, which negotiated the plea and is poised to drop any other potential charges against Clinesmith in exchange for the admission of guilt as he has farcically articulated it.

Clinesmith knew he was giving the SSA false information, not just a falsified document. That is the rational interpretation of the facts. The claims that Page was not a CIA informant and that the CIA had said as much were, in fact, false. Clinesmith also appears to have attempted to mislead the IG about, at a minimum, his communications with the CIA liaison, his discussions with the OI attorney, and his understanding of how the CIA email came to be altered. And most important for present purposes, Clinesmith had a powerful motive to lie.

The FBI, including Clinesmith personally, had bounteous reasons to know that the first three Carter Page FISA warrants had been obtained under false pretenses in sworn presentations to the FISC judges. As an FBI attorney who worked on FISA submissions, Clinesmith knew that the bureau has a heightened duty of candor in making presentations to the court and is expressly required under the rules to notify the court promptly when the FBI learns that the court has been given misinformation. In one of its most consequential investigations ever, the FBI had serially flouted these obligations.

To concede error — error that undermined the claimed predication for the Crossfire Hurricane investigation — would have resulted in a scandal. Officials who had weighed in from the start on the Page warrant applications, including Clinesmith, would have been grilled over the numerous reasons they had to reject the theory that Page was a Russian spy. These, of course, included the fact that the CIA had told the bureau Page was a witting CIA informant, and that the FBI itself had acknowledged this fact in its own records. For example, the IG report relates that (p. 158), after the bureau interviewed Page in 2009, an FBI summary report noted that Page stated that he had been providing information to the CIA, and that the interviewing FBI agents “acknowledged this fact and stated to Page that no questions would be asked about Page’s dealings with the other U.S. government agency during the interview.” And in 2013, Page again discussed with the FBI his interaction with the CIA.

Clinesmith tampered with the CIA’s email precisely because he could not have explained it away. As it was written, it acknowledged that Page had been a CIA informant. From their instant-message exchange, moreover, Clinesmith knew the supervisory special agent, who was to swear to the truth of the FISA warrant application, strongly suspected (correctly) that Page had been a CIA informant. To concede that fact would have been to raise questions. The FBI did not want those questions asked, especially by the FISC.

Clinesmith thus made false statements to cover up serious misconduct. Under the circumstances, being permitted to settle all potential criminal liability by pleading guilty plea to a single count carrying a maximum of just five years’ imprisonment (and a possibility of no jail time) is a coup for Clinesmith. Prosecutors do not typically give such benefits away. They make the wrongdoer earn the benefit of a favorable plea deal by a full and forthright admission of guilt. That is especially true with a defendant who is the first to plead guilty in a major investigation — as Clinesmith is in the Durham probe. And it is something prosecutors would be wise to insist on when, as in its Russiagate investigation, anti-Trump partisans are attacking the Justice Department for conducting a purportedly baseless, politicized investigation.

Clinesmith’s story is that he never intended to deceive a federal court when he falsified evidence. It is an absurd story. I wish the prosecutors had told him to try peddling it to a jury.

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