by Paul Sperry
For the past year, defenders of the FBI have consistently downplayed the significance of an FBI staff lawyer falsifying evidence in the government’s investigation into Donald Trump’s relationship with Russia. They argue Kevin Clinesmith’s crime of altering a CIA document to obscure the fact that former Trump campaign aide Carter Page worked for U.S., not Russian, intelligence was a rare lapse in judgment by an overworked bureaucrat. It was not, his apologists say, part of any broader conspiracy to conceal exculpatory information from surveillance court judges, who never learned of Page’s history with the CIA before approving FBI warrants to wiretap him as a suspected Russian agent.
But such explanations are challenged by new revelations from court papers filed in the case, which some civil libertarians call the most egregious violation and abuse of the Foreign Intelligence Surveillance Act (FISA) since it was enacted more than 40 years ago.
The little-noticed documents, which include never-before-seen exhibits, were submitted by Special Counsel John Durham and lawyers for Page, who has been granted time to address the court as a victim when it sentences Clinesmith Jan. 29 as part of a plea agreement. Page and his attorneys argue that the FBI obtained his electronic communications, both written and oral, based on fraudulent warrants in violation of his Fourth Amendment rights. He is suing Clinesmith and the FBI for $75 million in damages.
The court filings reveal, among other things, that Clinesmith knew much earlier than has been reported about Page’s cooperation with the U.S. government, and was not alone in knowing that he had provided information on the Russians to the CIA – or in covering up that knowledge.
Several officials within his tightly compartmentalized chain-of-command – including former deputy FBI director Andrew McCabe, his counselor Lisa Page and counterintelligence chief Peter Strzok – learned of Page’s role with the CIA before they first sought to wiretap him during the 2016 presidential campaign. The CIA had confirmed his role two months earlier in an August 2016 memo it sent to the FBI. And Page’s status as a CIA contact had been documented in the FBI’s own electronic files going back to 2009.
Yet they all withheld this critical information attesting to Page’s loyalty from the spy court.
Many of them shared a strong bias against Trump. A registered Democrat, Clinesmith sent a number of anti-Trump political messages over the FBI’s computer system after Trump won in 2016. He said he was “just devastated” and lamented “the systematic disassembly of the progress we made over the last 8 years. ACA [Affordable Care Act] is gone. 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. This is the tea party on steroids. … We have to fight this again. Also Pence is stupid.”
Weeks later, the Trump investigator added, “Viva le resistance,” signaling he planned to join the Left’s resistance movement against Trump.
Clinesmith’s views were safe within his chain of command. As Trump gained in the polls in August 2016, Strzok promised a worried Page “we’ll stop” him from becoming president, according to their text messages. A week later, during a meeting in McCabe’s office, Strzok and Page discussed devising an “insurance policy” in the event Trump won. “OMG I am so depressed,” Strzok wrote to Page after Trump’s election victory. “I don’t know if I can eat. I am very nauseous,” Page replied.
Since last summer, when Clinesmith pleaded guilty, Durham has narrowed his investigation to focus on the activities of the so-called Crossfire Hurricane team, which included top FBI officials who worked closely with Clinesmith on the Page wiretaps, and on whether the FBI launched the entire investigation of the Trump campaign without legal predication, according to former Attorney General William Barr. As part of his plea deal, Clinesmith agreed to “be personally debriefed” about “FISA matters and any information he possesses.”
Former FBI officials say it’s unlikely Clinesmith would have operated on his own without higher-ups knowing about his June 2017 misrepresentations about Page’s prior work for the CIA.
They note that the criminal suppression of that exculpatory information occurred during a supercharged atmosphere at FBI headquarters. Just weeks earlier, President Trump had fired FBI Director James Comey, and Comey’s deputy was secretly discussing desperate measures to strike back at the president, including covertly recording him in the Oval Office and removing him from power under the 25th Amendment. Keeping one of Trump’s advisers under surveillance became a bureau priority.
Some observers speculate that McCabe is a key target in Durham’s ongoing investigation, which was initially based in Connecticut, where Durham serves as U.S. attorney, but is now operating primarily out of Washington.
They point out that McCabe hand-picked Clinesmith, barely in his 30s, for his investigative team and gave him unusual authority over the highly sensitive case, compartmentalizing him within his office and making him the point man on all four FISA warrant requests. Clinesmith was involved from the start, and McCabe gave his efforts to surveil Page a high-level push through the Justice Department, where it initially met with resistance from skeptical lawyers who asked questions about Page’s prior relationship with the CIA.
Moreover, McCabe was the FBI official who signed the FISA application tainted by Clinesmith’s crime. It was McCabe who certified that the controversial June 2017 application to renew the wiretap on Page was accurate, even though it omitted what the CIA had told Clinesmith and others at the FBI — that Page had been acting on behalf of the U.S. government in engaging with certain Russians. The application Clinesmith and McCabe shepherded through misled the court by citing his contacts with those Russians as evidence he was working on behalf of Moscow, not Washington, and a key reason the FBI claimed it was suspicious of him.
“It’s a very brazen move doctoring email from another agency; it’s unlikely Clinesmith would have been so brazen if he didn’t know he had protection from above,” said former FBI Assistant Director Chris Swecker, who served in the FBI’s legal counsel division 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.”
Added Swecker, “It was my belief that McCabe skated on the false statements indictment because Durham had bigger and better things to run against him.”
Prosecutors last year abandoned efforts to pursue criminal charges against McCabe for repeatedly lying 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 a paid CNN commentator.
Attempts to contact McCabe through his attorney were unsuccessful. But in recent Senate testimony, he said he would not have signed off on the Carter Page warrant had he known it contained inaccurate information. Asked if he shared blame for the fraudulent application, he said, “I think that we are all responsible for the work that went into that FISA.”
A CIA liaison had clearly told Clinesmith, who helped agents apply for FISA warrants, that Page was in fact a source and had provided the agency information on Russian spies for several years. Clinesmith knew this inconvenient fact would have undermined the FBI’s rationale for a wiretap – if it were disclosed to the FISA court. So Clinesmith conveyed the altered email along to an FBI agent, convincing him Page was not a source for the CIA. This agent, in turn, swore out a warrant falsely portraying Page as a possible Russian agent.
In a motion recommending Clinesmith serve as much as six months in prison, Durham asserted the six-year FBI veteran knew the email he forged would be used to support the issuance of a June 2017 FISA warrant to continue eavesdropping on Page, an American citizen, as part of the FBI’s investigation into whether Trump associates were coordinating campaign activities with Russia, code-named “Crossfire Hurricane.” The FBI accused Page, a former Navy officer, of masterminding 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.
Durham strongly suggested Clinesmith — a registered Democrat who sent anti-Trump rants to FBI colleagues after Trump won the 2016 election — had political motivations for suppressing information about the Trump aide’s innocence.
“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,” Durham wrote in the sentencing motion.
Clinesmith insists he never intended to deceive anyone.
While he admits altering the email in June 2017 as the FBI was preparing another application to spy on Page, Clinesmith maintains that he was confused about Page’s status as a source and that “exhaustion” from working on the high-tempo Mueller investigation led him to take a regrettable “shortcut,” according to a motion for leniency he and his lawyers filed 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 at the bureau. But court exhibits filed by Page reveal Clinesmith also withheld knowledge of Page’s longstanding relationship with the CIA from an earlier warrant.
In early April 2017, as Page was being trashed in the media as a traitor following FBI leaks that he was under investigation, he had a lawyer reach out to Clinesmith and inform him that Page had assisted the U.S. government against the Kremlin for many years and couldn’t possibly be a Russian agent.
“Page was not simply an abstract FISA target for Clinesmith,” Page’s attorneys argue in a recent court filing. “Page had interacted directly with Clinesmith several months before Clinesmith altered the email at issue.”
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” the agent conducted of Page in March 2017, as he and Clinesmith began preparing a third application to spy on him. Somma was singled out by the Justice Department inspector general as “primarily responsible for some of the most significant errors and omissions” in the Page wiretap applications and referred for disciplinary review — a fact Clinesmith’s lawyers make a point of noting in their motion for leniency in an attempt to shift blame to Somma.
In his April 2017 communications with Clinesmith, Page’s then-lawyer Adam Burke also pleaded with Clinesmith to help publicly clear Page’s name in order to stop death threats he was receiving after media stories depicted him as being under investigation for treason. Instead of agreeing to help, Clinesmith issued a tacit threat: According to the same court filing, the FBI lawyer advised Burke to keep his client quiet and not defend himself in the media.
‘Clinesmith Chose to Lie’
The FBI attorney even misled Burke by telling him Page was not the subject of investigation and was just a “witness” – even though Clinesmith was aware that Page had been under FBI investigation since August 2016 and under FBI surveillance since October 2016.
Just two months later, Clinesmith intercepted and altered a CIA email that verified what Page had told him directly. He knew that disclosing this exculpatory information would expose the material omission in the previous warrants and require going before the FISA judges and correcting them. “Faced with this choice, Clinesmith chose to lie,” the court filing asserted.
But Clinesmith didn’t act alone. Durham suggests others played a role in deceiving the FISA court.
The special prosecutor makes a point of noting in court records that in addition to Clinesmith, the CIA had provided “certain members” of the Crossfire Hurricane team a detailed memo verifying that Page was acting on behalf of the CIA and had cooperated with the U.S. government on numerous occasions.
Delivered on Aug. 17, 2016, as the FBI was opening investigations into Page and three other Trump campaign officials and discussing the first application for a FISA warrant on Page, the CIA memo stated that Page had been approved for “operational contact” from 2008 to 2013 and described Page’s interactions with Russian intelligence officers, including some cited nefariously in the FISA applications. It further informed Crossfire investigators that Page briefed the CIA about these contacts, and the CIA determined that Page was “candid” in his reporting.
The information was highly relevant to the FISA application the team was preparing and went directly to the issue of Page’s loyalty. His lengthy history as a CIA-handled source undercut the premise that he was a Russian agent. If it were disclosed, it would dramatically weaken the grounds for wiretapping Page as a national security threat. In fact, it would hurt the predication for the FBI’s entire Russia “collusion” investigation, which hinged on Page’s contacts with Russians.
The memo was entered in the FBI’s system of record known as “Sentinel,” and everybody on the Crossfire team had access to it – including Strzok and McCabe’s legal counsel Page – and yet nobody 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 inaccurate information to the FISA court that failed to disclose the extent and nature of Page’s prior relationship with the CIA. As a result, the FBI got away with monitoring Page for more than a year, starting in October 2016.
Swecker, a former prosecutor, said the entire Crossfire Hurricane team, not just Clinesmith, had a vested interest in concealing their target’s relationship with the CIA.
He said Durham is likely squeezing Clinesmith for information on Lisa Page (no relation to Carter Page) to get to McCabe. “He worked with Page and he would know if McCabe was pulling the strings behind the scenes.”
Durham notes in his sentencing motion that “instant messages and emails suggest that the SSA [supervisory special agent Joseph Pientka] and case agent [Somma] may have read those [CIA] documents in the past.” In a Sept. 29, 2016, email, in fact, 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 could have been unaware of omissions in the FISA application — they would have had to be well up on all the details of the case,” former FBI counterintelligence attorney Mark Wauck said.
Clinesmith claims he doesn’t recall if he read the August memo before assisting the FBI’s efforts to obtain the initial FISA warrant on Page. He also claims he did not have access to it. But Durham argued that, in fact, the document was available to him and others on the Crossfire team “at the Hoover Building.”
‘Lost’ FBI Files
Investigators have tried to learn more about what Crossfire supervisors knew about Page’s status and history and when they knew it, as well as which high-level officials were involved in approving the FISA requests. But the certified original documentation that was generated from the early FISA application process is missing from FBI files. The FBI maintains that the documents were inexplicably “lost” and had to be reconstructed.
Former FBI officials say that the removal or possible destruction of these critical documents in such an important case is highly irregular and raises suspicion that those involved in the FISA scandal may have attempted to cover their tracks. They say it also raises the question of whether the doctoring of evidence in the final FISA application was an isolated incident.
After Trump won the 2016 election in an upset, Clinesmith worried the new Republican president would find out the FBI had monitored his campaign and that fingers would eventually point back to him.
“My goddamned name is all over the legal documents investigating his [Trump’s] staff,” Clinesmith fretted in a Nov. 9, 2016, message to an FBI colleague. “So, who knows if that breaks to him what he [Trump] is going to do?”
Making matters worse, Page’s work for the CIA wasn’t the only government relationship Clinesmith and his Crossfire teammates hid from the FISA court. They also blinded the court to Page’s past cooperation with the FBI itself.
As RealClearInvestigations first reported, the bureau took Page on as a source in 2013 after the CIA vouched for him, and Page helped the FBI put away a Russian agent in 2016. Strzok and Somma were involved in the case. But neither they nor anyone else on the Crossfire team informed the FISA court about their own relationship with Page as a cooperating witness.
“The truth was well known [among investigators that] Carter Page had for years been a trusted source for both the FBI and the CIA,” Wauck said. “It might be one thing for the FBI to somehow misunderstand and misrepresent Page’s relationship with another government agency, but how [do they] explain away such a misrepresentation of his relationship with the FBI itself?”
Despite some media portrayals of him 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 assistant general counsel in the national security branch of the FBI’s office of 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 investigators there, and even conducted interrogations of suspects. He returned to the FBI in February 2018 shortly after the inspector general provided Mueller with some of his anti-Trump messages. In July 2018, he was suspended, without pay, for some 14 days for sending the improper messages. Then the IG referred him for investigation for altering the CIA document. Clinesmith resigned from the bureau in September 2019 before an internal disciplinary process could be completed.
As a central player in both the FBI and Mueller probes, former FBI investigators say, Clinesmith is a valuable witness for Durham and could implicate officials higher up in the “food chain.”
“There’s a lot he could tell Durham’s investigators, if he’s properly motivated to do so,” Wauck said. “Durham’s job is to provide Clinesmith with the proper motivation.”
In exchange for his cooperation, Clinesmith has been free on a personal recognizance bond since August, though his travel has been restricted to Washington, D.C., Maryland, Virginia, Ohio, Michigan and West Virginia. He is not allowed to go outside the U.S. and must provide Durham’s office an itinerary before traveling to other states. He also must check in with supervisors weekly.
Clinesmith’s lawyers argue he is not a dirty cop and should be spared a prison sentence, especially since he and his wife are expecting their first child. They’ve asked the judge to also waive any monetary penalty, claiming he can’t afford one because he “has been unemployed for over a year and is barely getting by financially.”
The statute Clinesmith violated calls for a maximum five-year prison term and fines of up to $250,000. In lieu of such punishments, his legal team suggests the judge sentence him to probation and community service. But some FBI veterans insist Clinesmith should do jail time to deter others from attempting similar corrupt acts and abuses of the government’s secret FISA surveillance program.
“No lawyer who engaged in this type of conduct and confessed to what he did – as Clinesmith did do – should get away with less than a serious jail sentence,” Wauck said – “even if he cooperated [with prosecutors].”
Prosecutors are seeking a reduced term of as much as six months due to the fact he is a first-time offender. The judge deciding Clinesmith’s fate, U.S. District Judge James “Jeb” Boasberg, was appointed to the D.C. bench by President Obama. Boasberg also oversees the FISA court.
Government watchdog groups see a pattern of criminal misconduct at the FBI extending beyond Clinesmith.
“Hopefully, this is just the first of many prosecutions by U.S. Attorney John Durham of those who abused their powers and committed criminal acts in initiating the Russia collusion probe,” National Legal and Policy Center Chairman Peter Flaherty said.
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Paul Sperry is a contributor to Real Clear Investigations.