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FILE – In this April 25, 2006, file photo, John Durham speaks to reporters on the steps of U.S. District Court in New Haven, Conn. On Monday, Aug. 24, 2009, Attorney General Eric Holder is assigned prosecutor John Durham to investigate CIA mistreatment of terror suspects. (AP Photo/Bob Child, File)

 

Yesterday I filed a “hot take” story on the breaking news that former FBI Attorney Kevin Clinesmith was set to plead guilty to a single charge of making a “False Statement” in violation of 18 U.S.C. Section 1001, in relation to his actions in altering key information about Carter Page’s history as a CIA cooperating source, which resulted in false information being submitted as part of the FISA process leading to a FISA warrant targeting Page.

A couple things happened during the course of the day that is unusual and raises questions in my mind based on my experience.  Before I get to those I want to address a few important facts about Clinesmith, and clean up a few details from my story yesterday that wasn’t precisely correct when taking into account both the Inspector General’s Report on Four FISAs that first “outed” Clinesmith’s illegal actions, and the description of those actions in the Information filed yesterday.

First, Kevin Clinesmith was not an FBI Agent.  He was an attorney hired by the FBI into a legal position — a position in the FBI’s General Counsel’s Office.  These are “in-house” lawyers at the FBI who handle all kinds of legal issues as part of the FBI’s internal operations but have limited involvement in the actual work investigating cases.  Their responsibilities depend on their assignment, but as a general matter, they ensure FBI policies and procedures are being complied with by Agents and Supervisors as they go about conducting counterintelligence and criminal investigations.  But depending on the case and the case agent, they can be tasked with performing specific tasks in support of an investigation.  In the case of Clinesmith’s misconduct, he was tasked by the original case agent with finding out from the CIA if Carter Page had any history of cooperation as a source of information about anything involving Russia.

One fact about Clinesmith’s employment history set forth in the Information I find shocking — the Information states that Clinesmith’s employment with the Bureau as an OGC attorney began July 12, 2015.  That is only slightly more than one year prior to Crossfire Hurricane (CH) being opened.  So the FBI assigned an attorney with ONE YEAR OF EXPERIENCE in the Bureau to work on a Counter-Intelligence investigation opened against he Presidential candidate of the party out-of-power to determine whether that candidate had illegal connections to a hostile foreign power????

My RedState colleague Michael Thau pointed out here that at the time of Clinesmith’s illegal actions he was working as part of the Special Counsel’s Office team put in place by Robert Mueller.

Shocking and unbelievable.  BUT it is not atypical in the Bureau where oftentimes the view is that agents/analysts/OGC attorneys are “fungible”.  By training and procedures, all are equal to each other.

As described in the IG report, the sequence of events that eventually ends with Clinesmith’s criminal activity began as follows — from Page 156:

[I]nformation about a FISA target’s relationship with another U.S. government agency is typically included in a FISA application….  OI would work with the FBI to fully understand any such relationship and describe it accurately in the relevant application.

Toward that end, on September 28, 2016, the OI Attorney emailed Case Agent 1 a draft of the FISA application, copying other members of the Crossfire Hurricane team. In a comment in the draft application, the OI Attorney asked “do we know if there is any truth to Page’s claim that he has provided information to [another U.S. government agency]-was he considered a source/asset/whatever?” In response to the OI Attorney’s question, on September 29, Case Agent 1 inserted the following comment in the draft:

“He did meet with [the other U.S. government agency], however, it’s dated and I would argue it was/is outside scope, I don’t think we need it in. It was years ago, when he was in Moscow. If you want to keep it, I can get the language from the [August 17 Memorandum] we were provided [by the other U.S. government agency].” Based upon this response, the OI Attorney did not include information about Page’s prior relationship with the other agency in the FISA application.

“OI” is the Office of Intelligence within the National Security Division of the Department of Justice.  OI Attorneys practice before the FISC and are responsible for the submission of FISA Applications – and ultimately the accuracy of those submissions.  A FISA application must be approved by OI before it can be moved to senior management officials for approval prior to submission.

Based on this section of the IG’s Report, Clinesmith was not involved in the original decision to not include any information about Page’s past relationship with the CIA, and Case Agent 1 did represent that he had read the attachment to the August 17 email from the CIA.  The Report continued:

However, the information Case Agent 1 provided to the OI Attorney was inaccurate. As described in the August 17 Memorandum from the other U.S government agency to the FBI, Page first met with the other agency in April 2008… and he had been approved as an operational contact for the other agency from 2008 to 2013…. [A]ccording to the August 17 Memorandum, Page provided information to the other agency in October 2010 about contacts he had with a Russian intelligence officer (Intelligence Officer 1), which the other agency assessed likely began in 2008. Page’s contacts with Intelligence Officer 1 in 2007 and 2008 were among the historical connections to Russian intelligence officers that the FBI relied upon in the first FISA application (and subsequent renewal applications) to help support probable cause… According to the August 17 Memorandum, the employee of the other U.S. government agency who met with Page assessed that Page “candidly described his contact with” Intelligence Officer 1. Page’s relationship with the other agency was not mentioned in any of the four FISA applications.

The original application and first two renewals never mentioned Page’s past involvement with the CIA.  In March 2018, it is widely speculated based on his guilty plea that James Wolfe, head of security for the Senate Select Committee on Intelligence, leaked the first Page FISA Application to a reporter he was sleeping with, and that reporter identified Page as having been subject to a FISA warrant two weeks later.  Prior to the third application to extend the FISA warrant, the IG Report found as follows:

In April and May 2017, following news reports that the FBI had obtained a FISA targeting Carter Page, Page gave interviews to news outlets denying that he had collected intelligence for the Russian government and asserting instead that he had previously shared information that he had learned with the U.S. intelligence community. In mid-June 2017, in response to concerns expressed by members of the Crossfire Hurricane team, [CLINESMITH] contacted the other U.S. government agency by email to seek clarification about Page’s past status with that agency. The other U.S. government agency responded by email to [CLINESMTH] by directing the attorney to memoranda previously sent to the FBI by the other U.S. government agency that informed the FBI that Page did previously have a relationship with that other agency and that the last contact occurred in July 2011… However, when asked about Page’s prior status with that other agency by a Crossfire Hurricane supervisor, SSA 2, who was going to be the affiant on the final FISA renewal application, [CLINESMITH ] told SSA 2 that Page had never had a relationship with the other U.S. government agency. In addition, [CLINESMITH] altered the email that the other U.S. government agency had sent to [CLINESMITH] so that the email stated that Page had not been a source for the other agency; [CLINESMITH] then forwarded the altered email to SSA 2, who told us he relied on the email.

Clinesmith was charged yesterday in the United States District Court for the District of Columbia via a single count “Information”.  This is a charging instrument that can be used as an alternative to seeking an indictment from a grand jury, but it is only valid in that respect if the defendant named in the Information agrees to waive his constitutional rights to have criminal charges filed against him originate from a grand jury in the form of an indictment.  That agreement is usually part of a “pre-indictment” agreement by the named defendant to plead guilty to the charges — in this case the single charge — set forth in the Information.

The Information filed by US Attorney Durham — under the title “Special Attorney to the Attorney General” — goes through the same basic sequence of facts but includes some additional evidence that the IG might not have had access to as part of his investigation given that he lacked subpoena power.

The Information tracks the same sequence of events in 2016 with regard to the initial inquiry of the CIA with respect to Page’s history as a source.  The Information then details what Page’s history was, including his prior contacts with Russian Intelligence, his communication with the CIA, and that none of the FISA applications had mentioned his historical communications with the CIA.

With regard to the Clinesmith’s actions, the Information states:

6. …. During the preparation of FISA # 4, an FBI Supervisory Special Agent (“SSA” ), who was the affiant on FISA #4 , asked the defendant to inquire with the [CIA] as to whether [Page] had ever been a “ source” for the [CIA].

7 . On June 15, 2017, the defendant sent an email to a liaison from the [CIA], stating: “We need some clarification on [Page].  There is an indication that he may be a “[ digraph]” source. This is a fact we would need to disclose in our next FISA renewal…  To that end, can we get two items from you? 1) Source Check/Is [Page] a source in any capacity? 2 ) If he is , what is a “[digraph]” source ( or what ever type of source he is) ?”

8 . Later that same day, the [CIA] Liaison responded by email in which the liaison provided the defendant with a list (but not copies) of documents. That list included a reference to the August 17 Memorandum the [CIA] had previously provided to certain members of the Crossfire Hurricane team . The liaison also wrote that the [CIA] uses

the [digraph] to show that the encrypted individual is a [U.S. person].  We encrypt the [U.S. persons] when they provide reporting to us. My recollection is that [Page] was or is … [digraph] but the [documents] will explain the details. If you need a formal definition for the FISA, please let me know and work up some language and get it cleared for use.

10.  On June 19, 2017, the SSA followed up with an instant message to the defendant and asked, “ Do you have any update on the [CIA Source] request?” During a series of instant messages between the defendant and the SSA, the defendant indicated that [Page] was a “ subsource” and “was never a source.”  The defendant further stated “ [CIA] confirmed explicitly he was never a source.”  The SSA subsequently asked “Do we have that in writing.”  The defendant responded he did and that he would forward the email that the [CIA] provided to the defendant.

11.  On June 19, 2017, immediately following the instant messages between the defendant and the SSA , the defendant … forwarded the [CIA] Liaison’s June 15, 2017 email to the SSA with alterations that the defendant had made so that the CIA Liaison’s email read as follows:

My recollection is that [Page] was or is “[digraph]” and not a”source” but the [documents] will explain the details.  If you need a formal definition for the FISA, please letme know and work up some language and get it cleared for use (emphasis added).

The defendant had altered the original June 15, 2017 email from the CIA Liaison by adding the words “and nota source” to the email, thus making it appear that the [CIA] Liaison had written in the email that [Page] was “not a source” for the [CIA].  Relying on the altered email, the SSA signed and submitted the application to theCourton June 29, 2017. The application for FISA #4 did not include [Page’s] history or status with the [CIA].

Normally the Information and a Memorandum of Plea Agreement are filed simultaneously, and the filing of the two documents is the basis upon which the district judge to whom the case is assigned will schedule a hearing to for entry of the guilty plea.  The arrangements are normally coordinated in advance of the filing — a simple telephone call to the Chambers of the assigned Judge is all that it takes after the papers are filed.  Typically the hearing takes place the same day as the filing where — as here — the filing happens in the morning.

But no Plea Agreement was filed yesterday.  One explanation might be that the random assignment of a judge resulted in the case being assigned to District Court Judge James Boasberg, who was recently named by Chief Justice Robert as the Chief Judge of the FISC.  Judge Boasberg has been handling the “Clean-Up on Aisle Four” mess that was the fall-out from the IG Report on Four FISAs, overseeing the FBI/DOJ revisions of the procedures by with FISA Applications are reviewed and submitted, as well as making determinations as to what sanctions/discipline might be imposed on officials who participated in the Page FISA.  It would be inappropriate for Judge Boasberg to now preside over the criminal case filed against Kevin Clinesmith with is part and parcel of the wider abuse of the FISA process by the FBI/DOJ in conducting the Crossfire Hurricane Investigation.

Hopefully,we will see the Plea Agreement next week, which will include — maybe — a more detailed factual recounting of Clinesmith’s crimes as part of his admission and guilty plea to the charge set forth in the Information.