It is called the allocution. It is the most important part of a guilty plea in federal court. It comes — if it comes — when the judge personally addresses the accused, who has been placed under oath, and asks him to explain in his own words how and why he is guilty of the crime charged.
Is Kevin Clinesmith willing to allocute? Is he willing to admit without reservation that he deceived his FBI colleagues and a federal court? The lack of clear answers to those questions is almost certainly the sticking point — the reason why, to this moment, there is only a false-statement charge against the former Bureau lawyer, not a false-statement guilty plea.
When it comes time to allocute, the court must ensure that the accused acknowledges committing the acts alleged and, just as significantly, doing so with the level of criminal intent prescribed in the relevant penal statute — the mens rea of the crime. If the accused does not admit guilt, and evince that he is doing so voluntarily and in full awareness of the possible consequences, then the judge should not accept the guilty plea.
After all, such a plea involves a waiver of constitutional and statutory rights — to due process, to putting the prosecution to its burden of proving all elements of the charge beyond a reasonable doubt at trial, to appeal. The plea further subjects the accused to potential imprisonment and significant fines; and the allocution itself could subject the accused to further prosecution for perjury if he lies while under oath.
From the Justice Department’s standpoint, moreover, a deficient allocution can mean that all bets are off. Prosecutors can withdraw the offer to settle the case by plea; they can file an indictment alleging additional crimes.
In addition, if the plea agreement contemplates cooperation in exchange for sentencing leniency, the allocution can be a make-or-break moment. If the accused is not forthright in admitting his misconduct and corrupt intent, that may well render him useless as an accomplice witness. The guilty plea may stand, but the Justice Department is apt to conclude that the accused has failed to live up to the cooperation terms, exposing him to the likelihood of a more severe sentence.
In a big investigation, particularly in the case of the first suspect to plead guilty, there is a lot riding on the allocution. In the case of “Russiagate,” while we are not privy to the negotiations, it sure looks like Connecticut U.S. attorney John Durham is not buying Clinesmith’s mealy-mouthed version of events — the version publicly touted by his lawyer.
Yesterday, Judge James E. Boasberg of the federal district court in Washington, D.C., scheduled what he described as a “plea agreement hearing” in the case. That is to occur, by telephone, tomorrow at 1 p.m. So it sounds like the parties are still negotiating.
At the end of last week, it seemed all systems were “go.” Thursday night, Attorney General Bill Barr publicly acknowledged that, on Friday, there would be a development in Durham’s investigation. He said it would not be “earth shattering.” That could have meant just the filing of charges, rather than a guilty plea. But then Clinesmith’s lawyer, Justin Shur, announced that his client was about to plead guilty. As I noted Friday evening, the false-statement charge was filed by the prosecutor as a criminal information. That had to mean Clinesmith had waived indictment by the grand jury. That often happens when a defendant has agreed to plead guilty, especially if there is a cooperation agreement. (As of now, no plea or cooperation agreement has been filed.)
Clinesmith’s case is very serious: As an FBI lawyer, he tampered with a document that was key to an investigation involving the president of the United States. Specifically, after learning from the CIA that former Trump campaign adviser Carter Page had been a CIA source against Russia, Clinesmith told an FBI agent that Page had never been a CIA source, and falsified a CIA email to make it look as though the agency had acknowledged as much. Worse, Clinesmith knew the FBI agent had asked about Page’s status because the agent was preparing to submit a sworn application to the FISA court for a surveillance warrant. This was to be the fourth such warrant, all premised on the FBI’s theory that Page had worked for Russia against the United States, not the other way around. Clinesmith knew the agent and the court would rely on the misinformation he had provided.
Given the gravity of this misconduct, Barr’s assessment that the charge was “not earth shattering” could be taken to signal that the Justice Department sees Clinesmith as a building block for the prosecution of more consequential suspects in Durham’s investigation. Or maybe Barr just meant that Clinesmith’s misconduct had been known for months, having been revealed by the Inspector General late last year. (See DOJ-IG FISA Report, pp. 247-56.) The AG could have figured that, because Clinesmith’s offense is clear cut, many people were already wondering why he hadn’t been indicted yet, and would not be surprised by the announcement of a criminal charge or a guilty plea.
Clear-cut or not, a crime still has to be proved, meaning all of its essential elements must be established.
Clinesmith is charged with making or using a false document in connection with a matter under investigation. Under the relevant statute (Section 1001 of the federal penal code), there is no crime unless the suspect acted “knowingly and willfully.” In the law, this is the highest mens rea proof requirement. To be guilty, the accused must have acted with full understanding of what he was doing (i.e., not by accident or mistake) and must have been aware of the wrongfulness of his conduct.
With that in mind, here is what Shur asserted last Friday in the statement he issued to the media about what was then being reported as Clinesmith’s imminent guilty plea:
Kevin deeply regrets having altered the email. It was never his intent to mislead the court or his colleagues as he believed the information he relayed was accurate. But Kevin understands what he did was wrong and accepts responsibility.
To the contrary, if Clinesmith claims that he had no intent to deceive, then he is not even admitting guilt to a false statement offense, much less accepting responsibility. It doesn’t matter if he understood in some cosmic sense that it was wrong to doctor an email; to be guilty, he has to have understood that it was wrong in the criminal sense; he has to acknowledge committing a knowing and willful act of deception against the FBI and the FISA Court.
A lawyer is his client’s agent. Unless and until we hear otherwise, we have to assume that Shur’s statement represents what Clinesmith is prepared to say.
To be sure, Clinesmith has a lot to lose. He is a young lawyer. To judge by the tack he took in the aforementioned inspector general’s investigation, Clinesmith calculates that the facts can be spun as murky, allowing him to finesse the guilty plea: Maybe he can get Durham and the judge to accept an allocution that is ambiguous regarding criminal intent; maybe he figures the prosecutor is so anxious to notch a guilty plea that he’ll settle for a dubious one. Or maybe Clinesmith hopes he can somehow avoid being permanently disbarred: Say the bare minimum he can get away with in admitting a regrettable lapse in judgment, yet deny that he intentionally defrauded a court.
Whatever Kevin Clinesmith is thinking, his allocution would not be sufficient if it mirrors Shur’s portrayal of what happened. If I’m the judge, I wouldn’t accept such a guilty plea. And if I’m the Justice Department, and I’m convinced Clinesmith’s story is a self-serving distortion, I wouldn’t agree to accept the plea, to drop any charges, or to sign Clinesmith up as a cooperating witness.
The stakes are high for John Durham, too. In a high-profile investigation, the first charges and the first guilty plea set the tone. They signal whether the prosecutor has a case, whether he is negotiating from a position of strength or weakness. And everybody is watching.