Will the Dam Break After Clinesmith’s Plea?
(AP Photo/Bob Child, File)
Will the Dam Break After Clinesmith’s Plea?
(AP Photo/Bob Child, File)
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News reports have downplayed the significance of former FBI lawyer Kevin Clinesmith’s guilty plea, acknowledging he altered an official document in the government’s Trump-Russia collusion probe. There has been some coverage, mainly because it is so rare to see FBI agents charged with a felony and because it is the first tangible result of U.S. Attorney John Durham’s sprawling investigation of the investigators. But mainstream news outlets have minimized its importance. It’s only one count, they say, and it deals with a relatively minor crime by a mid-level figure.

That’s spin, and it’s wrong. This plea is like finding water seeping from the base of a dam. The problem is not one muddy puddle. The problem is that it foreshadows the dam’s failure, releasing a torrent. That’s what the Clinesmith plea portends.

What Did Clinesmith Admit?

Clinesmith acknowledges he altered an email from the CIA to the FBI, answering a question about Carter Page. Page is an American citizen and a Naval Academy graduate who spent considerable time in Russia. His time abroad raised a question for the FBI’s counter-intelligence division. Was Page a Russian agent? Or was he on our side, helping the U.S. gather intelligence about the Kremlin? The CIA would know.

The answer mattered because the FBI and Department of Justice were preparing warrants to spy on Page as a hostile foreign agent. The CIA gave them a clear answer in August 2016, before the first warrant was issued: Page was working for us. That answer was given to a still-unnamed FBI case agent, and we don’t know what he did with it. Did he show it to those preparing the warrant applications? Why else would he even ask the CIA for the information?

In 2017, after Clinesmith was tasked to the Mueller investigation, their team asked him to clarify Page’s relationship with U.S. intelligence. That’s when he took the CIA document and added a single word, “not.” The altered document said Carter Page was not a CIA asset. It was a deliberate lie.

Clinesmith is pleading guilty to inserting that word and changing the document. That’s a felony. What made his crime more significant is that the altered document was then presented to the secret court overseeing actions taken under the Foreign Intelligence Surveillance Act. The special counsel included it in the fourth FISA application to spy on Page.

All four were chock-full of deception and dishonesty, but misrepresented to the court as “verified.” All of them said there “was probable cause that [Carter Page] was a knowing agent" of Russia. He wasn’t, and the applications’ authors had plenty of reasons to know it.

Why were they so determined to spy on a relatively minor figure like Carter Page? Because he was involved in Trump’s world and knew many others who were. James Comey’s FBI and Barack Obama’s White House wanted to know everything Trump was doing. Page was one window into that world. (Gen. Michael Flynn was an even better one, and we know he was exhaustively investigated.)

The FISA applications were meant to give some legal cover to this domestic espionage. The FBI first tried to get a warrant on Page in summer 2016, but the judges said it lacked sufficient evidence. They fixed that by adding the now-discredited Steele dossier and got the first warrant in late 2016. The FBI and DoJ never told the FISA judges that the crucial addition was funded by Hillary Clinton and the Democratic National Committee, filled with unverified allegations, and produced by a biased, partisan investigator. Clinesmith’s altered email was a later, and relatively minor, addition to this toxic mix.

What really mattered was less the inclusion of Clinesmith’s false document than the omission of the CIA’s truthful one. The truth would have raised a bright red flag. The judges would likely ask, “If Page has worked closely with the CIA, how can you simply ignore that and say he is a Russian agent?” In other words, an accurate document might have killed the warrant renewal and called the previous three into question. The Mueller team wanted to avoid that, so they never let the FISA judges see the authentic document or know about it. Their omission was fateful and almost certainly criminal.

The Bullet Points That Leave a Bloody Trail

Clinesmith’s plea deal matters mostly because it sheds light on Durham’s broader investigation and the malfeasance he’s uncovering. To see that, let’s focus on the “bullet points,” which leave a bloody trail to larger crimes.

  • It was no surprise to learn last week that Kevin Clinesmith had altered an official document. Inspector General Michael Horowitz had already reported it, without naming the culprit. Durham had that information and could have indicted Clinesmith long ago. He didn’t because he was interviewing others about FISA abuses and didn’t want to give them any information from Clinesmith’s indictment. Releasing that information now shows Durham has completed his work on FISA fraud.
  • Other, more senior FBI officials must have been involved in these FISA abuses, though Durham hasn’t said so yet. Some committed abuse themselves. Others knew about it or should have known. Still others must have discovered the misrepresentations, but failed to report them to the FISA court, as they were required to do. Those failures are felonies.
  • Clinesmith has said he gave other FBI members the true document, not just the altered one. The 23rd paragraph of the charging information says Clinesmith “provided the unchanged C.I.A. email to Crossfire Hurricane agents and the Justice Department lawyer drafting the original wiretap application.” That’s a smoking bazooka.
  • How can Durham prove the CIA’s truthful information was circulated and then hidden? By thoroughly checking the FBI’s internal document system. It should record everyone who received Clinesmith’s accurate (unaltered) document and those they later passed it to. If the agents and lawyers merely discussed the falsification, then prosecutors will need several witnesses to substantiate it.
  • The real leader of the Mueller team, Andrew Weissmann, is still blowing smoke about these mounting legal problems. On Friday, he tweeted, “Clinesmith is charged with adding the words ‘not a source’ to an email about Carter Page, but nowhere does the charge say that is false, i.e. that Page was a source for the CIA.” Notice, Weissmann is not saying he knew nothing or that Page really was a Russian source. He simply saying that a 180-degree change in the document’s wording doesn’t mean what your lying eyes think it means.
  • Weissmann’s comment shows the Mueller team is sticking with their existing disclaimer. Their report says they won’t speculate on "whether the correction of any particular misstatement or omission, or some combination thereof, would have resulted in a different outcome." In order words, “We don’t see something. We don’t say something. And we don’t know if it matters.”
  • Clinesmith actually worked on Robert Mueller’s team. He was tasked from the bureau to work with that team, which then submitted his falsified document to the FISA court. That’s crucially important. If attorneys on the special counsel team knew about his crime and did nothing to inform the court, if they continued to use a document they knew was fraudulent, they will face charges. That would implicate Mueller’s team for the first time in illegal activity to undermine the Trump presidency. That’s a much bigger matter than writing a biased report.
  • We know from other declassified documents that it wasn’t just Mueller’s FISA application that had false information. All four applications did. Indeed, they depended on it, especially on the Steele dossier. Then-Deputy FBI Director Andrew McCabe testified that, without Steele, the warrants would not have been granted. Yet none of the agents and prosecutors ever told the FISA court about fraud, misrepresentation, and bias from Steele, Clinesmith, or others.
  • The Mueller team must have known Clinesmith’s actions were a problem. They didn’t just get rid him, they tried to shift the blame. That’s the meaning of an opaque footnote in their report, which said that the bureau, not the Mueller team, supervised “an FBI attorney" who worked for the special counsel. Hey, it’s them, not us!
  • This CYA footnote, clever as it is, doesn't mean the Mueller team was ignorant of Clinesmith's fraud when they submitted the FISA warrant application. Nor does it absolve them of responsibility for failing to tell the court promptly when they suddenly “discovered” it was inaccurate.
  • Did Clinesmith act alone or did anyone tell him to alter the document? That’s a critical question, and Durham has not answered it yet. Nor has he said who knew what Clinesmith had done. Again, the key to proving that is either a paper trail or multiple cooperating witnesses. We should get Durham’s answers when he issues more indictments.

Who Should Be Nervous?

  • Anyone who worked on Crossfire Hurricane with Clinesmith. You can bet he is telling Durham everything he knows. Any plea deal would require complete disclosure. Durham could have charged him with a more serious crime, requiring a longer prison sentence. Prosecutors don’t grant such leniency without getting something valuable in return (unless they are investigating Hillary Clinton, whose top aides received immunity for free). Durham is no such patsy. He would not go easy on Clinesmith unless he got useful information in return.
  • Real trouble looms for anybody on the Mueller team or elsewhere at the DoJ and FBI who knew that Clinesmith had altered the CIA email to change its meaning. There’s even worse trouble ahead for those who ordered him to commit a crime. To prove those charges, Durham needs documents or multiple eyewitnesses. Clinesmith can point prosecutors in the right direction, but his word alone won’t do.

What Do We Still Need to Know About the FISA Investigation?

  • The main questions are “how wide is this corruption?” and “how high up does it go?” Those go well beyond Clinesmith’s altered document. They include all the other lies in the warrants.
  • Does Durham have enough evidence—and fortitude—to charge senior officials who signed false applications? They will say, as former-Deputy Attorney General Rod Rosenstein did to Congress, that they relied entirely on subordinates to give them complete, honest information. To rebut that, Durham needs hard evidence. He may also feel he needs evidence of intent. The higher up you go, the more evidence you need. We talk, rightly, about equality under the law, but, in practice, prosecutors want stronger, more unequivocal evidence to charge senior officials.
  • Were all the lies and misinformation a concerted effort, a true criminal conspiracy? That will be one of Durham’s toughest calls, and it would need approval from Attorney General William Barr. Such a charge would ignite a political firestorm, fueled by partisan media. But, then, so does everything these days.

To return to the metaphor of the endangered dam . . . the Clinesmith indictment is a telling puddle where the ground should be dry. It’s a troubling omen for those who violated Carter Page’s rights, spied on the Trump campaign, and systematically abused the powerful tools of law enforcement. They are living downstream, and they should be worried.

Charles Lipson is the Peter B. Ritzma Professor of Political Science Emeritus at the University of Chicago, where he founded the Program on International Politics, Economics, and Security. He can be reached at charles.lipson@gmail.com.



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