The evidence from Special Counsel John Durham suggests that others at the FBI, including Andrew McCabe, Peter Strzok and Lisa Page, had a role in the FISA deceptions admitted by Kevin Clinesmith, above. He will be sentenced this week.
By Paul Sperry, RealClearInvestigations
January 25, 2021
Over the past year, FBI defenders have consistently downplayed the significance of an FBI staff attorney falsifying evidence in the government investigation into Donald Trump's relationship with Russia. They allege that Kevin Clinesmith's crime of altering a CIA document to cover up the fact that former Trump campaign manager Carter Page worked for American, not Russian, intelligence agencies was a rare error of judgment by an overworked bureaucrat. It was, his apologists say, not part of a broader conspiracy to hide exculpatory information from supervisor judges, who never learned of Page's history with the CIA before approving FBI orders to bug him as a suspected Russian agent. .
Kevin Clinesmith, above, in a whimsical Facebook photo: As part of his guilty plea deal, he agreed to talk about withholding the FBI from the spy court critical details that testify to Carter Page & # 39; s loyalty .
But such statements are being challenged by new revelations of court documents filed in the case, which some civil libertarians call the most blatant violation and abuse of the Foreign Intelligence Surveillance Act (FISA) since it was enacted more than 40 years ago.
The little-noticed documents, including never-before-seen exhibits, were filed by Special Counsel John Durham and Page's attorneys, who were given time to sue the court as victims when it convicted Clinesmith Jan. 29 as part of a plea agreement. Page and his attorneys allege that the FBI obtained his electronic communications, both written and oral, based on fraudulent warrants that violate his rights to the Fourth Amendment. He is suing Clinesmith and the FBI for $ 75 million in damages.
The court documents show, among other things, that Clinesmith knew much earlier than reported about Page & # 39; s cooperation with the US government, and was not the only one who knew that he had provided information about the Russians to the CIA – or that he had. glossed over. knowledge.
Several officials within his highly compartmentalized chain of command – including former FBI deputy director Andrew McCabe, his counselor Lisa Page, and counterintelligence director Peter Strzok – learned of Page & # 39; s role with the CIA before attempting to eavesdrop on him for the first time. the 2016 presidential campaign. The CIA had confirmed its role two months earlier in an August 2016 memo that it sent to the FBI. And Page's status as a CIA contact was documented in the FBI's electronic files dating back to 2009.
Yet they all kept this crucial information behind the spy court to testify to Page & # 39; s loyalty.
John Durham: Since Clinesmith pleaded guilty, the prosecution has narrowed his focus to the Crossfire Hurricane team, which included top FBI officials who worked closely with Clinesmith in wiretapping the Page.
United States Law Firm, District of Connecticut /
Many of them shared a strong preference for Trump. Clinesmith, a registered Democrat, sent some anti-Trump political messages about the FBI's computer system after Trump won in 2016. He said he was "just broke" and complained about "the systematic dismantling of the progress we've made over the past 8 years. ACA (Affordable Care Act) is gone. Who knows if the rhetoric about deporting people, walls and shit is true. I really feel like there will be a lot more gun issues, the madmen have finally won. This is the tea party on steroids.… We have to fight this again. Pence is stupid too. "
Weeks later, the Trump investigator added, & # 39; Viva le resistance, & # 39; indicating that he intended to join the left-wing resistance movement against Trump.
Clinesmith's views were secure within his chain of command. As Trump won in the polls in August 2016, Strzok promised a concerned page that according to their text messages, he would not become president. A week later, at a meeting in McCabe's office, Strzok and Page discussed drafting an & # 39; insurance policy & # 39; in case Trump won. "OMG I'm so depressed," Strzok wrote to Page after Trump's election victory. "I don't know if I can eat. I'm very nauseous," Page replied.
Since last summer, when Clinesmith pleaded guilty, Durham has limited his investigation to the activities of the so-called Crossfire Hurricane team, including top FBI officials who worked closely with Clinesmith in eavesdropping on the page, and whether the FBI was conducting the full investigation of the page. the Trump campaign without legal prediction, according to former Attorney General William Barr. As part of his plea deal, Clinesmith agreed to be "personally informed" about "FISA matters and any information he holds."
Timeline: Repeatedly Ignoring Evidence Carter Page No Traitor Paul Sperry, RCI
Former FBI officials say it is unlikely that Clinesmith would have operated alone without senior persons being aware of his misrepresentation of Page & # 39; s previous work for the CIA in June 2017.
They note that the criminal repression of that exculpatory information took place during a congested atmosphere at FBI headquarters. Several weeks earlier, President Trump had fired FBI Director James Comey, and Comey's deputy was secretly discussing desperate measures to hit back at the president, including covertly admitting to the Oval Office and removing him from power under the 25th Amendment. Keeping an eye on one of Trump's advisers became a priority of the agency.
Andrew McCabe, former deputy director of the FBI: He could be in Durham's crosshairs after Kevin Clinesmith's plea deal.
HBO / AP
Some observers speculate that McCabe is a prime target in Durham's ongoing investigation, which was initially based in Connecticut, where Durham serves as a U.S. attorney, but now operates primarily out of Washington.
They point out that McCabe, barely in his 30s, hand-picked Clinesmith for his investigative team and gave him unusual authority over the highly sensitive case, divided him into his office and made him the point of contact for all four FISA requests for orders. Clinesmith was involved from the start and McCabe did his best to monitor Page at a high level through the Justice Department, where it initially met with resistance from skeptical attorneys asking questions about Page's previous relationship with the CIA.
In addition, McCabe was the FBI official who signed the FISA filing contaminated by Clinesmith's crime. It was McCabe who stated that the controversial June 2017 request to renew the wiretapping on Page was correct, although it omitted what the CIA had told Clinesmith and others at the FBI – that Page was acting on behalf of the US government on certain Russians. The application, handled by Clinesmith and McCabe, misled the court by citing his contacts with those Russians as evidence that he was working on behalf of Moscow, not Washington, and a major reason the FBI claimed it distrusted him.
Chris Swecker, former assistant FBI director: “It is unlikely that Clinesmith would have been so bold had he not known he had top-down protection … It makes perfect sense from Clinesmith's guilty plea that McCabe legally is in danger. "
"Getting a doctor's email from another agency is a very brutal move; it is unlikely that Clinesmith would have been so bold had he not known he had top-down protection," said former FBI assistant director Chris Swecker , who served in the FBI's legal department for two years and is familiar with the role of attorneys like Clinesmith in such national security investigations. "It makes perfect sense from Clinesmith's guilty plea that McCabe is in legal jeopardy."
Swecker added, "It was my belief that McCabe skated on the false statement charge because Durham could take bigger and better things against him."
Prosecutors stopped efforts to prosecute McCabe last year because he repeatedly lied to federal investigators about his role in leaking sensitive information to the media during the 2016 election. McCabe was fired in 2018 and now works as paid CNN commentator.
Attempts to contact McCabe through his attorney were unsuccessful. But in recent Senate testimony, he said he would not have signed Carter Page's warrant if he had known it contained false information. When asked if he shared the blame for the fraudulent filing, he said, "I think we are all responsible for the work done in that FISA."
In August, Clinesmith pleaded guilty to a single felony count of deliberately making a false statement by falsifying a CIA email to show Page had not helped the agency. He added the words "no" source "to the document.
Carter Page: Hiding the Trump assistant's help from the US administration could have been driven by Clinesmith's "strong political views and / or personal dislike" of President Trump, the prosecution's conviction memo reads.
A CIA liaison had clearly told Clinesmith, who helped agents request FISA orders, that Page was in fact a source and had provided the agency with information about Russian spies for years. Clinesmith knew this inconvenient fact would have undermined the FBI's rationale for an eavesdropping – had it been disclosed to the FISA court. So Clinesmith forwarded the modified email to an FBI agent and convinced him Page was not a source for the CIA. This agent, in turn, swore an order in which he falsely portrayed Page as a possible Russian agent.
In a motion recommending Clinesmith to serve up to six months in prison, Durham claimed the six-year FBI veteran knew the email he faked would be used to support the issue of a June 2017 FISA warrant to to continue the wiretapping of Page, a US citizen, as part of the FBI's investigation into whether Trump employees were coordinating campaign activities with Russia, code-named "Crossfire Hurricane." The FBI accused Page, a former naval officer, of inventing a "conspiracy of cooperation" between the campaign and the Kremlin. Special Counsel Robert Mueller later found no such conspiracy and never charged Page with a crime.
Robert Mueller: Found no "conspiracy of cooperation" between the Trump campaign and the Kremlin and never charged Carter Page with any crime.
AP Photo / J. Scott Applewhite, File
Durham strongly suggested that Clinesmith – a registered Democrat who sent anti-Trump tirades to FBI colleagues after Trump won the 2016 election – had political motivations to suppress information about the Trump assistant's innocence.
"It is plausible that his strong political views and / or personal dislike of the current president have made him more willing to participate in the fraudulent and unethical conduct he has pleaded guilty to," Durham wrote in the sentencing. movement.
Clinesmith insists he never intended to deceive anyone.
Admitting to altering the email in June 2017 while the FBI was preparing a new application to spy on Page, Clinesmith claims he was confused about Page's status as a source and that & # 39; exhaustion & # 39; of working on the rapid Mueller investigation led him to take a regrettable "shortcut", according to a movement He and his lawyers filed a request for leniency with the sentencing judge. Mueller had taken over the Crossfire Hurricane case a month earlier.
Clinesmith further argued in his motion that his misconduct was an "isolated incident" in an otherwise ethical career with the agency. But documentary evidence submitted by Page reveals that Clinesmith also withheld knowledge of Page's longstanding relationship with the CIA in an earlier warrant.
In early April 2017, when Page was trashed in the media as a traitor following FBI leaks for which he was being investigated, he had a lawyer contact Clinesmith and let him know that Page had stood by the U.S. government for years against the Kremlin and cannot possibly be a Russian agent.
Page was not just an abstract FISA target for Clinesmith, Page's lawyers argue in recent court Submit. Page had been in direct contact with Clinesmith for several months before Clinesmith changed the email address in question.
Carter Page is suing $ 75 million for FBI abuse. Among those listed is Stephen Somma.
A month earlier, Page had personally told the FBI agent handling his case, Stephen Somma, that he was not a Russian agent and had previously assisted the FBI and the CIA in their Russian counterintelligence missions. He explained this to Somma during what Page's legal team calls several "ambush interviews" that Page's agent conducted in March 2017, when he and Clinesmith began preparing a third filing to spy on him. Somma was designated by the Inspector General of the Department of Justice as & # 39; primarily responsible for some of the major errors and omissions & # 39; in the eavesdropping applications on the page and referred for disciplinary review – a fact Clinesmith attorneys note in their movement for leniency in an attempt to blame Somma.
In his communication with Clinesmith in April 2017, Page's then attorney, Adam Burke, also pleaded with Clinesmith to publicly help clear Page's name to stop the death threats he received after it was reported in the media that he was being investigated for treason . Rather than agreeing to help, Clinesmith issued an implied threat: according to the same court Submit, the FBI attorney advised Burke to keep his client quiet and not defend himself in the media.
& # 39; Clinesmith chose to lie & # 39;
The FBI attorney even tricked Burke into telling him that Page was not the subject of investigation and was merely a & # 39; witness & # 39; even though Clinesmith knew that Page had been under FBI investigation since August 2016 and FBI surveillance since October 2016.
Just two months later, Clinesmith intercepted and altered a CIA email verifying what Page had told him directly. He knew that releasing this exculpatory information would reveal the material omission in the previous warrants and should go before and correct the FISA judges. "Faced with this choice, Clinesmith chose to lie," the court said Submit claimed.
Peter Strzok: The FBI's chief of counterintelligence was aware.
AP Photo / Manuel Balce Ceneta
But Clinesmith didn't act alone. Durham suggests that others played a part in deceiving the FISA court.
The special prosecutor remarks in court records that in addition to Clinesmith, the CIA had provided "certain members" of the Crossfire Hurricane team with a detailed memo confirming that Page was acting on behalf of the CIA and had cooperated with the US government on numerous occasions.
Extraordinary on August 17, 2016, when the FBI opened an investigation into Page and three other Trump campaign officials and discussed the first filing for a FISA warrant on Page, the CIA memo stated that Page had been approved for "operational contact" from 2008 to 2008. 2013 and described Page's interactions with Russian intelligence officers, including some maliciously cited in the FISA filings. It further informed Crossfire investigators that Page had notified the CIA of these contacts, and the CIA determined that Page was "candid" in its reporting.
The information was highly relevant to the FISA application the team was preparing and addressed directly the issue of Page & # 39; s loyalty. His long history as a CIA-administered resource supported the premise that he was a Russian agent. If disclosed, it would dramatically weaken the reasons for the wiretapping of Page as a threat to national security. In fact, it would hurt the prediction for the FBI's entire Russian & # 39; collusion & # 39; investigation, which depended on Page & # 39; s contacts with Russians.
Lisa Page: McCabe & # 39; s legal counsel was also informed.
AP Photo / Jacquelyn Martin
The memo was entered into the FBI's registration system known as & # 39; Sentinel & # 39 ;, and everyone on the Crossfire team had access to it – including Strzok and McCabe & # 39; s legal counsel Page – yet no one told the FISA court about it. (Text messages and emails reveal that Strzok and Page were directly involved in the FISA process and worked closely with Clinesmith.)
Instead, they provided false information to the FISA court that failed to disclose the extent and nature of Page's previous relationship with the CIA. As a result, as of October 2016, the FBI got away with monitoring Page for over a year.
Swecker, a former prosecutor, said the entire Crossfire Hurricane team, not just Clinesmith, had a vested interest in hiding their target's relationship with the CIA.
He said Durham probably squeezed Clinesmith for information on Lisa Page (no relationship with Carter Page) to get to McCabe. "He was working with Page and he would know if McCabe was pulling the strings behind the scenes."
Durham notes in his sentencing movement that "instant messages and emails suggest that the SSA (supervisor special agent Joseph Pientka) and case agent (Somma) have read these (CIA) documents in the past." In an email dated September 29, 2016, Somma discussed the contents of the CIA memo with other members of the Crossfire team. There are also text messages between Clinesmith and Strzok discussing Carter Page's status around the same time.
"It defies credulity that FBI headquarters officials like Peter Strzok were unaware of omissions in the FISA filing – they should be well aware of all the details of the case," said former FBI counter-spy Mark. Wauck.
Clinesmith claims he does not remember reading August's memo before helping the FBI obtain the first FISA warrant on Page. He also claims he could not access it. But Durham argued that the document was in fact available to him and others of the Crossfire team "at the Hoover Building."
"Lost" FBI files
Investigators have sought to learn more about what Crossfire's supervisors knew about Page's status and history, when they knew it, and which senior officials were involved in approving the FISA requests. But the certified original documentation generated during the early FISA application process is missing from FBI files. The FBI says the documents were inexplicably "lost" and needed to be reconstructed.
Former FBI officials say the removal or possible destruction of these critical documents in such an important case is highly erratic and suggests that those involved in the FISA scandal may have tried to cover their tracks . They say it also begs the question of whether the doctoral evidence in the final FISA filing was an isolated incident.
After Trump won the 2016 election upset, Clinesmith worried that the new Republican president would find out that the FBI had been following his campaign and that fingers would eventually point at him.
"My damn name is all over the legal documents investigating his (Trump's) personnel," Clinesmith said in a November 9, 2016 message to an FBI colleague. "So, who knows if that will break for him what he (Trump) will do?
To make matters worse, Page & # 39; s work for the CIA was not the only governmental relationship Clinesmith and his Crossfire teammates hid from FISA court. They also blinded the court to Page's previous collaboration with the FBI itself.
As RealClearInvestigations first reported, the agency took Page as its source in 2013 after the CIA vouched for him, and Page helped the FBI detain a Russian agent in 2016. Strzok and Somma were involved in the case. But neither she nor anyone else on the Crossfire team informed the FISA court of their own relationship with Page as an assisting witness.
"The truth was well known (among investigators that) Carter Page had for years been a reliable source for both the FBI and the CIA," said Wauck. It could be one thing if the FBI somehow misunderstands and misrepresents Page's relationship with another government agency, but how do they (explain) such a misrepresentation of his relationship with the FBI itself? "
Despite being portrayed in the media as a low-level attorney, Clinesmith was actually the primary FBI attorney assigned to the Crossfire investigation. He first began working for the FBI in 2013 and rose to become assistant general counsel in the national security arm of the office of the FBI's general counsel. In that role, he helped FBI agents and supervisors prepare applications for FISA warrants.
In May 2017, he was assigned to Mueller's team to support detectives there and even executed suspects. He returned to the FBI in February 2018, shortly after Inspector General Mueller provided some of his anti-Trump messages. In July 2018, he was suspended without payment for approximately 14 days for sending the inappropriate messages. Subsequently, the IG referred him for investigation for changing the CIA document. Clinesmith resigned from the agency in September 2019 before an internal disciplinary process could be completed.
As a central player in both the FBI and Mueller investigations, former FBI investigators say, Clinesmith is a valuable witness to Durham and could involve officials higher up the "food chain."
"There's a lot he could tell the Durham researchers, if he's well motivated," said Wauck. "Durham & # 39; s job is to provide Clinesmith with the right motivation."
James Boasberg: The judge who decides Clinesmith's verdict is an Obama appointee.
Diego M. Radzinschi / ALM via AP
In return for his cooperation, Clinesmith has been free of any personal recognition obligation since August, although his travels have been limited to Washington, D.C., Maryland, Virginia, Ohio, Michigan and West Virginia. He is not allowed to go outside of the US and must provide the Durham office with directions before traveling to other states. He must also contact regulators on a weekly basis.
Clinesmith's lawyers claim that he is not a filthy cop and that he should be spared jail time, especially as he and his wife are expecting their first child. They have asked the judge to also waive any fine, claiming he cannot afford one because he has "been unemployed for over a year and is barely making ends meet".
The statute that violated Clinesmith calls for a maximum prison sentence of five years and fines of up to $ 250,000. Instead of such sentences, his legal team proposes that the judge sentencing him to rehabilitation and community service. But some FBI veterans argue that Clinesmith should take jail time to dissuade others from committing similar corrupt acts and abuses of the government's secret FISA surveillance program.
"No lawyer who engaged in this type of behavior and confessed what he did – as Clinesmith did – would get away with less than a long jail term," said Wauck – "even if he cooperated (with prosecutors)."
Prosecutors are aiming for a shortened term of as much as six months due to the fact that he is a prime offender. The judge who decided Clinesmith's fate, US District Judge James "Jeb" Boasberg, was appointed to the DC bank by President Obama. Boasberg also oversees the FISA court.
Government watchdog groups see a pattern of criminal misconduct at the FBI that extends beyond Clinesmith.
"Hopefully this is just the first of many prosecutions by US attorney John Durham of those who have misused their powers and committed criminal acts in initiating Russia's collusion," said Peter Flaherty, president of the National Legal and Policy Center. .
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