Some interesting things to note about the false-statements charge which former FBI lawyer Kevin Clinesmith is pleading guilty today.
Criminal Information Charging False Statements
The charge is contained in a criminal information. That is a form of formal allegation the Justice Department uses when a defendant agrees to waive indictment (i.e., forego his right to have the grand jury find probable cause to charge a crime). It is often, but by no means always, used in connection with a defendant who is pleading guilty under a cooperation agreement.
We will know more about the terms under which the negotiated plea is being entered when Clinesmith appears in court. Federal law requires that all material understandings attendant to a guilty plea be disclosed to the judge.
The charge is false statements under Section 1001(a)(3) of the federal penal code. That provision makes it a crime knowingly and willfully to make and use a false writing or document, aware that it contains a materially false entry of some kind. It is punishable by up to five years’ imprisonment.
Background to the Charge
In a nutshell, Clinesmith was an FBI assistant general counsel assigned to the Bureau’s National Security and Cyber Law branch at headquarters in Washington, D.C. He worked there from mid July 2015 until he was terminated last year, shortly before the Justice Department Inspector General Report detailing his misconduct. His responsibilities included providing support to agents working on investigations, including “Crossfire Hurricane” — the Bureau’s Trump-Russia investigation that was formally opened in late July 2016. Crossfire Hurricane was both an investigation in its own right and an umbrella for four related sub-investigations, one of which focused on Carter Page, an American citizen and Trump campaign adviser.
One of Clinesmith’s duties was to help agents prepare applications to the Foreign Intelligence Surveillance Court for warrants that authorize eavesdropping and other monitoring of suspected agents of foreign powers. The FBI submitted four applications for 90-day FISA warrants on Page. The first warrant was issued in 2016, on October 21 (i.e., less than three weeks before the 2016 election). Three renewal warrants were issued on January 12, April 7, and June 29 — the last one expiring on September 22, 2017 (i.e., eight months into the Trump administration).
On August 17, 2016, before the FBI sought the initial FISA warrant, what the criminal information describes as an “Other Government Agency (OGA)” provided “certain members of the Crossfire Hurricane team” with a memo. The OGA has been identified in other reporting as the CIA. The August 17 memo indicated that Page (described as “Individual #1”) had been approved as an “operational contact” for the CIA from 2008 to 2013. The memo elaborated that Page had provided information “concerning [his] prior contacts with certain Russian intelligence officers.”
The charge states that “the first three FISA applications did not include [Page’s] history or status with the [CIA].” Though the criminal information does not say so (no reason it would), this must be a significant aspect of the continuing investigation by Connecticut U.S. attorney John Durham: Why did the Crossfire Hurricane team fail to inform the FISA court? More to the point, why did the Bureau continue to seek FISA warrants against Page on the theory that he was a clandestine agent of Russia when it had been told that he had worked as a covert informant for the CIA against Russia?
Comparing the Schiff Memo
Also, remember the Schiff memo? That is the farcical January 29, 2018, document produced by House Democrats, under the direction of Representative Adam Schiff (D., Calif.), then the Intelligence Committee’s ranking member (now its chairman), in an effort to refute the January 18, 2018, Nunes memo — the memo produced by committee Republicans, under the direction of then chairman (now ranking member) Devin Nunes (R., Calif.).
The Nunes memo contended that the FBI’s surveillance of Page was essentially baseless and materially dependent on the bogus Steele dossier. In an effort to rebut that claim, the Schiff memo highlighted pre-dossier information: “Page’s past relationships with Russian spies.”
“In fact,” Schiff maintained, “the FBI interviewed Page in March 2016 about his contact with Russian intelligence, the very month Donald Trump named him a foreign-policy adviser.” Nowhere did the now chairman of the Intelligence Committee mention that Page had been reporting his past relationships with Russian spies to the CIA as an operational source. To the contrary, those past relationships were emphasized as a basis, independent of the Steele dossier, to believe that Page and, indeed, the Trump campaign and Donald Trump himself, were in cahoots with the Putin regime.
Page’s Connections to Russian Government and Intelligence Officials: The FBI had an independent basis [from the Steele dossier] for investigating Page’s motivations and actions during the campaign, transition, and following the inauguration. [Bold and underlining in original.] As DOJ described in detail to the Court, Page an extensive record as [about one line is redacted] [footnote omitted] prior to joining the Trump campaign. . . . As early as [a reference to the year is redacted], a Russian intelligence officer [redacted] targeted Page for recruitment. Page showed [about a line and half is redacted.]
Page remained on the radar of Russian intelligence and the FBI. [Bold in original.] In 2013, prosecutors indicted three other Russian spies, two of whom targeted Page for recruitment. The FBI also interviewed Page multiple times about his Russian intelligence contacts, including in March 2016.[Footnote omitted.] The FBI’s concern about and knowledge of Pages’ activities therefore long predate the FBI’s receipt of Steele’s information. [Underlining in original.]
It would be interesting to know what Page told the Bureau about his contacts with Russian intelligence. Did he inform agents that he’d been giving information to the CIA? Did the FBI know that from both the agency and Page himself before it began seeking the FISA warrants?
Strangely, as I’ve noted several times (see, e.g., here), when the FBI and the Justice Department filed charges against the Russian spies, they incorporated information from Page — and added the fact that one spy who tried to recruit Page described him as an “idiot.” Yet this information, too, went unmentioned in Congressman Schiff’s memo. There is, moreover, no indication that the information was included in the FISA warrant application, which argued that Page was knowingly working for Russia against the United States and on behalf of the Trump campaign.
Clinesmith Doctors a Key Email
After media leaks about Chistopher Steele’s anti-Trump investigation (on behalf of the Clinton campaign), then the publication of the Steele dossier, Page protested his portrayal as a possible spy for Russia. He publicly and vehemently insisted that he had assisted the U.S. government against Russia in the past.
As the criminal information against Clinesmith recounts, in June 2017, the FBI was preparing the fourth FISA warrant. Page’s protestations prompted one of the Crossfire Hurricane agents — a supervisory special agent (SSA) who is not identified in the criminal information — to ask Clinesmith about these claims. It was especially important for the SSA to know because the SSA was to be the affiant on the sworn FISA warrant application. The SSA asked Clinesmith: Had Page ever been a “source” for the CIA?
On June 15, Clinesmith contacted a CIA liaison, asking whether Page was ever “a source in any capacity.” As summarized in the criminal information, the CIA liaison responded by listing documents, including the aforementioned August 17 memo, that the CIA had previously provided to “certain members of the Crossfire Hurricane team.” The criminal information then quotes the CIA liaison: “My recollection is that [Page] was or is . . . [digraph] but the [documents] will explain the details.” The “digraph” is a two-letter designation that the CIA uses to describe an American citizen, such as Page, who has been approved by the CIA to have “operational contact” with a foreign power.
One June 19, while still running down details in preparation to be the affiant on the fourth FISA warrant, the SSA sent an instant message to Clinesmith, asking whether he’d gotten an update on whether Page had been a CIA source. Clinesmith responded that he’d learned Page was a “subsource” and “was never a source.” The criminal information does not explain what is meant by “subsource,” but the assertion that Page had never been a source was false. So was Clinesmith’s additional emphatic assertion that the CIA “confirmed explicitly he [Page] was never a source.”
Clinesmith was told that the SSA wanted that in writing. Clinesmith replied that he would forward to the SSA the email exchange he had just had with the CIA. But before forwarding it, Clinesmith doctored it.
As I describe above, in the actual email, the CIA liaison said:
My recollection is that [Page] was or is . . . [digraph] but the [documents] will explain the details.
Clinesmith altered it (as I now highlight in bold italics) to say:
My recollection is that [Page] was or is … [digraph] and not a source but the [documents] will explain the details.
This false writing is the gravamen of the false statements charge.
Flimsy Counterintelligence or Flimsy Criminal Investigation?
One more aspect of the charge filed by U.S. Attorney Durham is intriguing. He describes the Bureau’s Trump-Russia probe as a criminal investigation from the start:
On July 31, 2016, the FBI opened a Foreign Agents Registration Act (“FARA”) investigation known as Crossfire Hurricane into whether individual(s) associated with the Donald Trump for President Campaign were witting of and/or coordinating activities with the Russian government.
Yet, when then FBI director James Comey (quite stunningly) acknowledged the investigation in March 2017 public testimony before the House Intelligence Committee, he described it as a counterintelligence investigation:
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.
Comey subsequently added, “As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.” As I have previously countered, that is not exactly right. The Justice Department generally considers it an abuse if counterintelligence surveillance authorities (which do not require proof of probable cause of a criminal-law violation) are exploited to steer criminal investigations (which do). What I believed Comey was referring to is the unremarkable fact that, if in the course of a legitimate non-criminal investigation, agents stumble upon criminal conduct, they are not required to ignore it. But it is not a regular aspect of a counterintelligence investigation to assess the intelligence gathered to determine whether crimes were committed.
Based on disclosures of documents generated by the investigation, as well as DOJ inspector-general reports, we now know that the FBI opened Crossfire Hurricane as both a criminal and a counterintelligence investigation. The charge filed by Durham today does not mention counterintelligence, even though FISA surveillance is derived from counterintelligence authorities. By contrast, Comey in his testimony framed the probe as a counterintelligence investigation; he only mentioned an assessment of possible criminal activity in passing, and did not mention FARA at all.
We can surmise why this is so.
As I related in Ball of Collusion, at the time the Trump-Russia investigation was being conducted, FARA had nearly never been regarded as grist for criminal prosecution. In the half century preceding its sudden invocation by Mueller prosecutors, the Justice Department had only charged FARA seven times, with just three convictions. Instead, it was DOJ practice to encourage people doing work for covered foreign powers or entities to comply with the law, not to indict them for failure to do so.
If an incumbent administration is going to authorize an investigation of its political opposition, there must be serious, compelling grounds — otherwise, that is Watergate-style interference in our democratic process. It is thus astonishing that the Obama administration would open a criminal investigation against its political opposition based on statutes that were not generally regarded as serious, prosecutable crimes.
In the Trump-Russia investigation, the FBI resorted to FARA and the even more absurd Logan Act (in connection with Michael Flynn), which is prosecuted even less frequently than FARA — never a single indictment in the history of the Justice Department. Otherwise, the FBI relied on FISA, on the premise that Trump campaign officials, and the campaign itself, were clandestine agents of Russia, complicit in the Kremlin’s cyberespionage. This outlandish claim was supported by scant evidence and Democratic Party opposition research. Durham’s continuing investigation is trying to establish how and why that happened.