Judge Boasberg’s “Sentencing” of Kevin Clinesmith Betrayed Us All.

The sentencing hearing of Kevin Clinesmith, the former FBI lawyer who pleaded guilty to altering a CIA e-mail to further the Foreign Intelligence Surveillance Act (FISA) warrant renewal on Carter Page, took place on the morning of Friday, January 21 before Judge Boasberg in Washington, D.C.

This hearing was the culmination of an investigation by those within the Department of Justice who actually sought to do justice in exposing the FBI’s misconduct in opening Crossfire Hurricane, and the FBI’s abuse of their power to spy on Carter Page and those associated with the Trump campaign. While the process continues with Special Counsel John Durham’s investigation, this was one loose end that was ready to be tied.

Those demanding Clinesmith to be incarcerated weren’t being unreasonable, though they were ultimately disappointed when Judge Boasberg sentenced Clinesmith to 12 months probation and no prison time. In fact, they have every right to be angry.

Background

As an FBI lawyer, Clinesmith was providing support to the FBI in their third FISA renewal against Carter Page. He acted as an intermediary between the FBI and the CIA, tasked in the summer of 2017 to determine whether Page had ever been a “source” for the CIA.

Clinesmith’s assignment was particularly important. Before the submission of the third FISA renewal (which was ultimately filed on June 29, 2017), Page publicly stated on May 11, 2017 on MSNBC that he had “helped both the FBI and the CIA” in the past.

The FBI had a problem if Carter Page was a CIA source. The FISA Court, which approved the initial Page FISA warrant and two subsequent renewals, requires the disclosure of material facts. Under the FISA Court’s Local Rule 13(a), if material facts are discovered after an application is approved, the government must immediately inform the Judge of the omission, make any necessary corrections, explain why the information was omitted, and generally explain how to proceed in light of the new information.

The necessity of these rules goes to the nature of the FISA Court. It is a secret court in which the government does not face an adverse party. This creates a “heightened duty of candor” so a Judge can be fully informed on his probable cause findings and to “provide an external check on executive branch decisions to conduct surveillance in order to protect the fourth amendment rights of U.S. persons.”

Whether Carter Page was a CIA source was certainly a “material fact.” Clinesmith knew as much, as he later admitted in an internal FBI discussion that the information would need to be provided to the court. It would explain Carter Page’s contacts with Russian nationals. It would suggest that he might not be an agent of Russia. It would go to the loyalties of Carter Page.

Moreover, it would potentially lead the FISA Court to look deeper into the veracity of the information the FBI and DOJ had presented to the Court in its efforts to seek the warrant against Page. The FBI didn’t want skepticism of their representations – they wanted acceptance without question.

This leads us back to the conduct in question before Judge Boasberg. There was no dispute that Clinesmith altered an e-mail he received from the CIA to state that Page was “not a source.” As explained in the government’s Criminal Information:

Judge Boasberg Opts for Leniency

Clinesmith, in his bid to escape incarceration and salvage his career prospects, argued he “did not knowingly lie about the relationship between [Carter Page] and the [CIA].”

He called his action a “performance failure during a time of tremendous stress.” He even had the nerve to suggest that by describing Carter Page as a “subsource” and not a “source,” he actually “invited additional scrutiny from his colleagues” as to Carter Page’s relationship with the CIA.

These were weak excuses by Clinesmith. But they worked on Judge Boasberg, who sentenced Clinesmith (against government recommendations of incarceration) to 12 months of probation and 400 hours community service. He was given no fines and no time in jail.

Judge Boasberg explained his reasoning:

“My view of the evidence is that Mr. Clinesmith likely believed that what he said about Mr. Page was true.”

This was a remarkably naïve statement by the Judge. “The evidence.” What evidence?

As the government noted in a motion before sentencing, there was no evidence that anyone ever told Clinesmith that Carter Page was a “subsource of a source rather than a source.”

Additionally, Clinesmith had been seen doubling-down on his efforts in a message to an FBI Supervisory Special Agent, where he lied that the CIA explicitly said Carter Page “was never a source.”

And do you see that part above where Clinesmith says “at least we don’t have to have a terrible footnote”?

Judge Boasberg commented that Clinesmith, “By altering the email, he was saving himself some work and taking an inappropriate shortcut.”

Again Judge Boasberg misses the mark. Clinesmith wasn’t “saving himself some work.” Rather, Clinesmith was taking efforts to keep material facts away from an FBI agent and ultimately the FISA Court – the very Court that Judge Boasberg presides over.

The Message from Judge Boasberg

After the Inspector General’s December 2019 Report on the Carter Page FISA applications and the Crossfire Hurricane investigation, there was hope for reform and accountability. The FISA Court (under then-Presiding Judge Rosemary Collyer) required a review of all prior filings involving Kevin Clinesmith. She admonished the government that the FBI’s handling of the Carter Page applications called into question other FBI applications. The government promised reforms. Maybe we’ll get reform. Maybe not.

But one thing is certain. The Clinesmith sentence isn’t accountability. What does it say about the FISA Court’s “heightened duty of candor” if there aren’t heightened punishments for violating that duty?

In sparing Kevin Clinesmith incarceration, the Presiding Judge of the FISA Court has set a standard: government officials who lie and alter evidence in pursuit of secret warrants against U.S. citizens will not be imprisoned.

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