Legal

Ex-FBI lawyer spared prison for altering Trump-Russia probe email

Kevin Clinesmith is only person charged in high-profile Durham investigation.

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The only person charged in the Justice Department’s investigation into the origins of the probe of former President Donald Trump’s 2016 campaign and its ties to Russia was spared prison time for altering an email used to support a surveillance application.

Former FBI attorney Kevin Clinesmith, 38, received the sentence of 12 months probation and 400 hours community service from U.S. District Court Judge James Boasberg Friday during a video hearing.

Clinesmith admitted that in June 2017 he sent an altered email to an FBI agent that indicated a target of court-ordered FBI surveillance, former Trump campaign adviser Carter Page, was “not a source” for the Central Intelligence Agency. The statement, passed along as the FBI was applying for a third extension of surveillance of Page, made Page’s actions seem more suspicious by downplaying his past cooperation with the CIA.

Clinesmith insisted that he thought the statement was true at the time and only altered the message to save himself the hassle of procuring another email from the CIA. Prosecutors contested that claim, arguing that the FBI lawyer intended to mislead his colleague, but Boasberg sided with the defense on that point.

“My view of the evidence is that Mr. Clinesmith likely believed that what he said about Mr. Page was true,” Boasberg said. “By altering the email, he was saving himself some work and taking an inappropriate shortcut.”

While Trump and his GOP allies have suggested that Clinesmith was engaged in a political vendetta against Trump, Boasberg noted that a Justice Department inspector general investigation failed to establish that political considerations played a role in Clinesmith’s actions or numerous other errors and omissions that impacted filings with the Foreign Intelligence Surveillance Court.

“I see no reason to disagree with that conclusion,” said Boasberg, who took over last year as the chief judge of the secretive surveillance court but handled the sentencing Friday as part of his more routine duties as a federal district court judge in Washington.

Clinesmith pleaded guilty last August to a felony false statement charge in a plea deal with John Durham, the prosecutor then-Attorney General William Barr tapped in 2019 to investigate the origins of the Trump-Russia probe. Barr formally designated Durham as a special counsel last fall, in an apparent bid to complicate any attempt by a new administration to shut down Durham’s inquiry.

Prosecutors argued that Clinesmith’s misconduct was so serious that he deserved between about three and six months in prison. Clinesmith’s lawyers asked that he not receive any prison time. The maximum sentence on the false statement charge is five years in prison, although judges usually sentence in accord with federal guidelines that called for Clinesmith to serve between zero and six months in prison.

“The defendant’s criminal conduct tarnished and undermined the integrity of the [Foreign Intelligence Surveillance Act] program,” Assistant U.S. Attorney Anthony Scarpelli told the court. “It has lasting effects on DOJ, the FBI, the FISC, the FISA process and trust and confidence United States citizens have in their government...The resulting harm is immeasurable.”

Clinesmith’s lawyer Justin Shur called his client’s actions “inexcusable,” but said they were “aberrations” in a life of dedicated public service. He also said they played a relatively small part in the overall surveillance process and the broader probe.

“There were many people involved in these applications and many mistakes that were made,” Shur said.

Boasberg agreed on that point as well, saying he wasn’t convinced that fully disclosing Page’s relationship with the CIA would have led to the surveillance of him being denied or ended.

“It is not at all clear to me the FISA warrant….would not have been signed but for this error,” the judge said.

Clinesmith also addressed the court, expressing contrition and describing his career as essentially destroyed by his misconduct and the ensuing prosecution.

“I am fully aware of the significance of my actions and the crucial error in judgment I made,” the lawyer said. “I let the FBI, the Department of Justice, my colleagues, the public and my family down. I also let myself down. I will live with the consequences and deeply-held feeling of regret, shame and loss caused by it for the rest of my life.”

While prosecutors urged the judge to send Clinesmith to prison to send a message to others in government not to try something similar, Boasberg said he believed that message had already been sent. He noted that Clinesmith has lost his job, may be disbarred and may never be able to work in the national-security field again.

“He went from being an obscure government lawyer to standing in the eye of a media hurricane,” the judge said. “He’s not someone who ever sought the limelight or invited controversy other than by his criminal action here....Anybody who’s watched what Mr. Clinesmith has suffered is not someone who would readily act in that fashion.”

The 90-minute sentencing hearing also featured an impassioned speech from Page, in which the energy industry analyst complained that his life was also turned upside down by the media firestorm that followed public disclosure that he was a focus of the FBI probe into potential Russian influence on the Trump campaign.

“My own personal life has been severely impacted,” Page said. “I was frequently harassed on the street and even under the street such as in the Washington metro beneath the courthouse....It was deadly serious. At the time I received many death threats as a ‘traitor.’”

However, Page did not ask for imprisonment for Clinesmith. “I hope the defendant can get back to his family as soon as you deem appropriate,” the former Trump campaign adviser told the judge.

That seem to strike a chord with Boasberg, who mentioned twice during the hearing that Page wasn’t seeking prison for the ex-FBI lawyer.

Last year, Clinesmith became a poster child of sorts for Republicans critical of Special Counsel Robert Mueller’s probe and the FBI investigation that preceded it. Indeed, many Mueller critics — including Trump — suggested Clinesmith was just the first of many government officials likely to be charged for crimes related to launching or conducting the investigation.

At a news conference last August, Trump called Clinesmith “a corrupt FBI attorney” and predicted more prosecutions.

“So, that’s just the beginning, I would imagine, because what happened should never happen again,” Trump said. The president and his allies also pressed for a report from Durham that Trump said would expose extensive malfeasance related to the investigation. No report was ever released, although Durham has continued his work.

Texts and other messages Clinesmith sent in 2016 contributed to claims that his actions were part of a deliberate effort to smear Page and target the Trump campaign.

Among the messages uncovered in the inspector general report was one sent the day after Trump’s election in 2016.

“Who knows if the rhetoric about deporting people, walls, and crap is true. I honestly feel like there is going to be a lot more gun issues, too, the crazies won finally,” Clinesmith wrote. “This is the tea party on steroids. And the GOP is going to be lost, they have to deal with an incumbent in 4 years. We have to fight this again. Also Pence is stupid.”

Two weeks later, when a colleague asked Clinesmith about whether he was rethinking his commitment to serving in the Trump administration, Clinesmith replied “Hell no” and added “Viva le resistance.”

Prosecutors said in a written sentencing submission that political bias may have led to Clinesmith’s misconduct.

“It is plausible that his strong political views and/or personal dislike of the current President made him more willing to engage in the fraudulent and unethical conduct to which he has pled guilty,” prosecutors wrote. “While it is impossible to know with certainty how those views may have affected his offense conduct, the defendant plainly has shown that he did not discharge his important responsibilities at the FBI with the professionalism, integrity, and objectivity required of such a sensitive job position.”

However, the FBI lawyer could not have single-handedly done much to affect or fuel the Trump-Russia probe, since he played a relatively minor role in the inquiry. In addition, his alteration of the email came in June 2017, at the tail end of the FBI’s surveillance of Page.

Indeed, when Boasberg granted Page permission to speak at Friday’s hearing, the judge told Page to limit himself to comments on the impact of the FBI’s June 2017 surveillance application and not the prior three surveillance orders the FBI won to snoop on Page.

In its push for prison time for Clinesmith, Durham’s office invoked some unexpected examples Friday. Among them were the 14-day sentence handed down in 2018 to another Trump campaign foreign policy adviser, George Papadopoulos, for lying during the early stages of the FBI’s Trump-Russia probe.

“In the government’s estimate, the defendant’s conduct was more egregious than Mr. Papadopoulos’,” Scarpelli told the judge. “Mr. Clinesmith was an FBI employee. He was someone that the agents should have been able to trust.”

Shur called the government’s analogy like “comparing apples and oranges.”

Boasberg also seemed to reject the government’s comparison, saying that while others may have been trying to protect themselves or their allies, Clinesmith seemed to have derived no benefit at all from his crime.