U.S. District Judge James E. Boasberg said that Clinesmith’s conduct had undermined the integrity of the Foreign Intelligence Surveillance Court, which approved the FBI’s flawed applications to surveil Page. “Courts all over the country rely on representations from the government, and expect them to be correct,” Boasberg said.
But Boasberg also said he agreed with a prior finding by the Justice Department Inspector General that Clinesmith and other FBI officials’ actions were not motivated by political bias, and he believed Clinesmith’s contention that he thought, genuinely but wrongly, the information he was inserting into the email was accurate. On top of his probation sentence, Boasberg ordered Clinesmith to perform 400 hours of community service.
The case against Clinesmith is the first and only criminal allegation to arise from U.S. Attorney John Durham’s review of the FBI’s Russia case, and it has become a political lightning rod.
Clinesmith’s lawyers have argued altering the email was a mistake meant to save Clinesmith time and personal embarrassment. But former president Donald Trump and his political allies have highlighted the case as part of their allegations that the bureau was biased and seeking to undermine Trump with the investigation that explored possible ties between Russia and his campaign. The case was ultimately taken over by special counsel Robert S. Mueller III.
Clinesmith said in a lengthy statement in court that he took “full responsibility” for what he termed a “lapse in judgment.”
“I let the FBI, Department of Justice, my colleagues, the public, and my family down. I also let myself down,” he said, adding later, “Please do not let my error reflect on those who continue to serve our country.”
In arguing that Clinesmith deserved to go to prison, Durham’s team highlighted anti-Trump texts Clinesmith had sent and argued that it was “plausible that his strong political views and/or personal dislike of [Trump] made him more willing to engage in the fraudulent and unethical conduct to which he has pled guilty.” Clinesmith was suspended for two weeks over the messages.
“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,” prosecutors wrote.
Prosecutor Anthony Scarpelli said in court that Clinesmith’s conduct was “more egregious” than that of George Papadopoulos, whose offhand remark in a London bar in May 2016 helped trigger the Russia investigation and who later pleaded guilty to lying to the FBI. He was sentenced to 14 days in prison.
Federal sentencing guidelines in Clinesmith’s case called for a penalty of anywhere from zero to six months in prison, though the U.S. Probation Office recommended a term of probation, according to court filings.
Justin Shur, Clinesmith’s lawyer, argued that probation was appropriate. Clinesmith, he said in court, had otherwise lived a life “in service of others.” Raised on a farm in Michigan, Clinesmith was the first of his family to go to college, and he was inspired to work in national security after 9/11, Shur wrote in a court filing. Clinesmith is married and is expecting his first child, a son, in March.
Shur wrote that while Clinesmith acknowledged he had “made a grievous mistake” in altering the email, he did so thinking, wrongly, that the information he was adding was accurate. He argued that Clinesmith made the move because of the intense stress that came with the Russia investigation, and because he was trying to help his mother as she dealt with Alzheimer’s disease.
“While there is no satisfactory answer, any explanation must start with the considerable pressure he was under at the time — both at work and in his personal life,” Shur wrote.
The basic facts of the case are not in dispute, though prosecutors and defense attorneys seem to disagree on what motivated Clinesmith and how sinister his actions were. Clinesmith was an FBI attorney helping investigators on the Russia probe, and in June 2017, he was asked to clarify whether Page was ever a source for the CIA. That was important because the FBI — with the approval of the Foreign Intelligence Surveillance Court — had been surveilling Page as a possible agent of a foreign government, and was applying for permission to keep that surveillance going.
If Page was a CIA source, though, that would have to be disclosed to the court, as it would raise significant questions about whether he should be tracked as a possible foreign agent.
Page had provided information to the CIA as “operational contact,” and when Clinesmith sought clarity, a CIA liaison told him as much, using jargon and pointing to documents that made his role clear. But, according to Clinesmith’s lawyers, Clinesmith believed Page was not a direct source, but rather, a subsource of the agency.
He said as much to an FBI supervisor inquiring about the matter, and — when the supervisor asked if the CIA had put that in writing — forwarded an email from the liaison, but added the text, “not a ‘source.’ ”
Testifying at the hearing, Page said he had been harassed on the street and while riding the D.C. Metro, and that he received death threats and was called a “traitor” after the surveillance of him was publicly disclosed and he was cast in media reports as a possible Russian asset. He said, though, he had no desire to see Clinesmith suffer.
“I know what it is like to have your life destroyed, although in my case, it didn’t happen because of something I myself did,” Page said.
Shur wrote that Clinesmith genuinely believed Page had not been a source, and doctored the email as part of a “misguided attempt to save himself time and the embarrassment of having to backtrack on his assurance he had it in writing.” He vigorously disputed that Clinesmith had acted out of animus toward Trump, noting that Clinesmith had separately sent an un-doctored copy of the CIA liaison’s email to the FBI case agent. Shur wrote that Clinesmith had initially resisted surveilling Page, rejected surveillance of another Trump campaign adviser and opposed inserting an FBI source into the Trump campaign.
“Had Kevin been personally motivated to harm President Trump, he would never have done any of those things,” Shur wrote.
Prosecutors, however, cast Clinesmith’s actions as more nefarious, and advocated for a sentence “of incarceration that is at least between the middle and upper end” of what sentencing guidelines called for. In discussing whether Page was an FBI source with the FBI supervisor, they wrote, Clinesmith recognized that disclosing such a fact would be “a terrible footnote,” because it would mean the FBI had hid that information in prior applications. They wrote that Clinesmith’s misconduct had “fueled public distrust of the FBI and of the entire FISA program itself.”
“The act of altering the email to change its meaning may seem simple and a momentary lapse of judgment on the part of the defendant, but the resulting harm is immeasurable,” Scarpelli said, adding that Clinesmith’s assertion that he genuinely believed Page was not a source was “fanciful.”
In the wake of the Justice Department inspector general’s findings about Clinesmith, along with other significant errors in the applications to surveil Page, lawmakers have questioned whether the FBI should maintain its authority under the Foreign Intelligence Surveillance Act. Under pressure from the Foreign Intelligence Surveillance Court, the bureau has vowed and implemented reforms. Clinesmith apologized in court for imposing that “additional burden” on his former colleagues.
“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,” prosecutors wrote.
Shur said that Clinesmith’s career already is “in shambles,” as he has been unemployed for more than a year and his case has received extensive public attention. Boasberg signaled that he was sympathetic to the costs Clinesmith already had paid, noting he went from being a government lawyer with no public profile to “standing in the eye of a media hurricane.”
Durham’s investigation is ongoing, though it is unclear who beyond Clinesmith, if anyone, might face criminal exposure, or what public findings it may ultimately produce. In his final months as Trump’s attorney general, William P. Barr appointed Durham as a special counsel, giving him extra legal and political protection from being relieved of his assignment in the Biden administration.