Prosecutors are asking for a prison sentence for a former FBI lawyer who admitted altering an email sent to a colleague working on the investigation into alleged Russian influence on Trump campaign affiliates.
Kevin Clinesmith pleaded guilty to a felony false-statement charge in August, soon after he became the only person charged in connection with the investigation Attorney General William Barr ordered last year into the origins of the Trump-Russia probe. Barr earlier this week appointed the veteran prosecutor leading that review, Connecticut U.S. attorney John Durham, as a special counsel, empowering him to continue the investigation into President-elect Joe Biden’s term.
In his plea, Clinesmith admitted adding words to an email used to bolster the case for a surveillance warrant on Carter Page, a former Trump campaign adviser. The alteration was one of a series of errors, omissions and inaccuracies identified by the Justice Department inspector general that sharply undercut the FBI’s treatment of Page, who was monitored from October 2016 until late 2017 under orders from the secretive Foreign Intelligence Surveillance Court.
Clinesmith faces a maximum possible sentence of five years in prison, but is likely to be sentenced in accordance with federal guidelines that call for a term of zero to six months in custody in his case.
His attorneys are asking that he be spared any prison time. They say he has suffered enough, with his career “in shambles” and his reputation ruined.
Prosecutors, on the other hand, are seeking a jail term of “at least” three to six months for Clinesmith, contending that his offense was so serious that he deserves incarceration.
“The Court’s sentence should send a message that people like the defendant — an attorney in a position of trust who others relied upon — will face serious consequences if they commit crimes that result in material misstatements or omissions to a court,” prosecutors working for Durham argued in their submission Thursday night.
Prosecutors also said the judge shouldn’t consider the fact that Clinesmith’s wife’s is pregnant when calculating a sentence, noting that “defendant’s family circumstances are not so unusual as to warrant special consideration.”
Clinesmith’s team, led by attorney Justin Shur, describes the ex-FBI lawyer’s conduct as a “grievous error” that was the result of a decision to “cut a corner” rather than to harm Page. His lawyers say he was under constant stress at the time of the decision to alter the email and that he believed he was conveying accurate information even if it was improperly added to another official’s email.
“In short, when Kevin altered the email in June 2017, he was spread thin and exhausted at work and in his personal life,” his lawyers said. “That is no excuse. But it does help explain how Kevin came to do something so out of character.”
However, the prosecution argues that Clinesmith’s change to the email may not have been driven by haste or personal convenience, but by his revulsion for Trump.
“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.”
Clinesmith’s alteration of the email followed a discussion with colleagues about whether Page had a history as a CIA source. Clinesmith, in internal messages, indicated that he believed Page was a “subsource” but never a source, and when a superior asked whether he had it in writing, Clinesmith forwarded an email from a CIA liaison but added his own words to it to underscore his view that Page was “not a source.”
While Clinesmith’s attorneys tried in their submission to emphasize his contrition, they also suggested that the impact of his misstatement was modest. Some outside lawyers have said the inaccuracy was virtually inconsequential and therefore failed to meet the legal standard that limits criminal charges to cases where a false statement was “material” to some ongoing government investigation, case or proceeding.
In a surprising development, a member of Special Counsel Robert Mueller counsel’s office filed a letter urging leniency for Clinesmith that took just that stance, saying his statement may not meet the legal standard to support a criminal charge — in part because Clinesmith ultimately forwarded the unaltered email to other colleagues hours later.
“Even though it is hard for me to understand how that is a material misrepresentation to the court or the [National Security Division], or even the FBI supervisor, it is nevertheless, at the very least, inexcusable,” said the official, whose name was redacted from the court filing.
It’s unclear whether and how the materiality issue may affect the case or Clinesmith’s sentence. During the guilty plea hearing in August held by telephone with U.S. District Judge James Boasberg, after a brief exchange on the issue, the judge accepted the plea — apparently concluding the facts offered were enough to support it.
“Sir, at the time, I believed that the information I was providing in the email was accurate but I am agreeing that the information I entered into the email was not originally there and I inserted that information,” Clinesmith told the judge then.
Boasberg, who became the presiding judge of the surveillance court in January but is handling the criminal case in his routine capacity as a Washington-based district court judge, is scheduled to sentence the ex-FBI lawyer next Thursday.
Clinesmith was among a handful of officials removed from Mueller’s probe after Justice Department inspector general Michael Horowitz discovered internal messages that revealed he espoused anti-Trump sentiment. In his request for a lenient sentence, Clinesmith’s attorneys emphasized that he viewed expressing sentiments toward Trump as a mistake because it created an appearance of bias but that their client never let his personal views affect his conduct at the FBI.
Clinesmith’s lawyers also emphasized that he acted on his own, not at the behest of anyone else at the FBI or as part of some broader anti-Trump plot, as Trump and his allies have long suggested.
Character witnesses who sent dozens of letters to the judge in the case described Clinesmith as loyal, empathetic and — in many cases — fun. They described him as a regular host of board game nights, a Taylor Swift fan and a NASCAR devotee.