In a 20-page sentencing filing, attorneys with special counsel John Durham wrote that a sentence of at least two to six months was just, given the seriousness of the offense. The case “fueled public distrust of the FBI and of the entire” program under which federal law enforcement obtains court approval to surveil domestic targets in foreign intelligence cases, the filing said.
“An attorney — particularly an attorney in the FBI’s Office of General Counsel — is the last person that FBI agents or this Court should expect to create a false document,” prosecutors Anthony Scarpelli and Neeraj N. Patel wrote. “This Court’s sentence should be designed, in part, to send a powerful message to the community that this type of conduct — falsifying information to hide facts from a court — will not be tolerated.”
Clinesmith is scheduled for sentencing Jan. 7.
The charge carries a maximum five-year prison term. Judge James E. Boasberg of the U.S. District Court for the District of Columbia has said federal guidelines call for zero to six months in prison for someone in Clinesmith’s circumstances.
Separately on Thursday, Clinesmith’s attorneys asked for probation and community service. They cited his record of public service and the self-inflicted damage to his reputation, prospects for practicing law or working in national security positions, and the ability to support his wife and their first child, who is due in March.
“By altering a colleague’s email, he cut a corner in a job that required far better of him. He failed to live up to the FBI’s and his own high standards of conduct,” lead Clinesmith defense attorney Justin V. Shur wrote in a sentencing request that included 55 letters from friends, family members and former FBI and government colleagues.
Shur added, “Kevin’s conduct, while serious, was an aberration in a life otherwise characterized by hard work, determination, and dedication to the service of others.”
Clinesmith’s is the sole criminal case brought to date in an investigation led by Durham, the U.S. attorney for Connecticut who was assigned last year by Attorney General William P. Barr to review the FBI’s handling of the investigation of possible coordination between Russia and the Trump campaign during the 2016 U.S. election.
Durham’s probe was the focus of intense partisan scrutiny before November’s election, with Republicans hoping for vindications of their criticism of the Russia probe and Democrats fearing that Barr would twist its work in a campaign-altering “surprise” to aid President Trump.
Trump, however, has also directed anger at Barr over Durham’s lack of more public results. It is unclear what Durham is focused on more broadly or whether his findings will reach higher-level officials. Barr has said Durham’s first priority is to investigate and charge criminal cases, though he will also probably produce a report detailing his findings.
On Tuesday, the Justice Department revealed that Barr in October secretly appointed Durham as a special counsel, probably to ensure that his work will not be shut down under the incoming administration of Joe Biden, people close to Barr said.
The allegations against Clinesmith emerged when Justice Department Inspector General Michael Horowitz referred to them in a report last year detailing serious failings in how the bureau applied under the Foreign Intelligence Surveillance Act to monitor Page, whom agents suspected was a foreign agent.
Page had a previous relationship with the CIA, however, which could complicate any interpretation of his foreign contacts. In plea papers, prosecutors wrote that the CIA had notified certain FBI investigators in the Russia probe that Page had been approved as an “operational contact” from 2008 to 2013 and that he provided information on his contacts with Russian intelligence officers.
That memo, prosecutors wrote, was available to agents on that case and Clinesmith “upon request.”
The FBI, though, did not disclose Page’s CIA connection when it applied to surveil him in 2016. It was not until Page began talking about the matter publicly that an FBI agent preparing the application to renew the surveillance asked Clinesmith to clarify what Page’s connection to the agency was, according to court documents.
Clinesmith, according to the documents, knew that if Page was a CIA source, that would have to be disclosed to the Foreign Intelligence Surveillance Court. He told investigators with the inspector general’s office that it could “drastically change” the way the application was handled, according to the documents.
But in messages with the FBI agent, Clinesmith said Page was a “subsource” but “never a source,” according to the documents. When the agent asked for written documentation, Clinesmith forwarded an email from a CIA liaison that indicated some type of relationship but inserted the phrase “and not a ‘source’ ” into the text. The agent then did not disclose Page’s relationship with the CIA in the surveillance application.
Clinesmith’s attorneys wrote that he never intended to deceive anyone and that he sent the original, unaltered email to an FBI case agent involved in the warrant application.
U.S. prosecutors told the court that claim was unsupported by evidence. They wrote that Clinesmith was suspended for 14 days for sending improper political messages to other FBI colleagues, asserting, “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,” while conceding it was impossible to know with certainty.