How Durham Gets to Intent on False Statements with Kevin Clinesmith

A lot of skeptics of the John Durham investigation have raised questions about the false statements charge against Kevin Clinesmith and intent.

Clinesmith claimed to DOJ IG that he did not intend to mislead when he altered an email saying that Carter Page was a “source” for CIA, but that he did so because he believed Page not to be a recruited asset but instead some kind of sub-source.

The OGC Attorney told us that- his belief that Page had never been a source for the other U.S. government agency, but instead interacted with a source-was based on telephone conversations with the Liaison. He said he recalled the Liaison “saying that [Page] was not a source of theirs,” but rather “incidentally reporting information via a source of theirs” and that they “ended up not actually opening him.”396


We asked the OGC Attorney about this instant message exchange with SSA 2 in which he told SSA 2 that Carter Page was never a source. The OGC Attorney stated, “That was my, the impression that I was given, yes.” We also asked why he told SSA 2 in the instant message exchange that the other U.S. government agency “confirmed explicitly that he was never a source.” The OGC Attorney explained that his statement was just “shorthand” for the information provided by the other agency about Page and that he had no particular reason to use the word “explicitly.”


We asked the OGC Attorney about the alteration in the email he sent to SSA 2. He initially stated that he was not certain how the alteration occurred, but subsequently acknowledged that he made the change. He also stated it was consistent with his impression of the information that he had been provided by the Liaison.

Clinesmith’s lawyer told a similar story to the NYT, so he either still believes that or has settled on that story to avoid further legal exposure.

Mr. Clinesmith’s argued that he did not change the document in an attempt to cover up the F.B.I.’s mistake. His lawyers argued that he had made the change in good faith because he did not think that Mr. Page had been an actual source for the C.I.A.

Neither Michael Horowitz nor Durham appear to believe this story. Durham quotes the CIA liaison saying that Clinesmith had no basis to formulate that belief.

The Liaison focused on the portion of the exchange in which the 0GC Attorney stated that Page “was never a source.” The Liaison told us that this statement was wrong, as was the 0GC Attorney’s statement that Page “was a U.S. sub-source of a source.” The Liaison said that such an assertion is “directly contradictory to the [documents]” the agency provided to the FBI. The Liaison also said it was inaccurate to describe Carter Page as “like a sub-source of [a digraph]” and to state that the other agency had “confirmed explicitly that [Page] was never a source.” We asked the Liaison whether the Liaison ever told the 0GC Attorney that Page was not a source. The Liaison said that, to the best of the Liaison’s recollection, the Liaison did not and would not have characterized the status of a “[digraph]” without either first reaching out to the other agency’s experts responsible for the underlying reporting, or relying on the proper supporting documentation for an answer. The Liaison stated, “I have no recollection of there being any basis for [the 0GC Attorney] to reach that conclusion, and it is directly contradicted by the documents.”

And Horowitz subtly suggested that Clinesmith formulated this belief without reading the documents that the CIA liaison had told him to refer to to understand Page’s tie with the CIA.

The Liaison responded that same day by providing the OGC Attorney with a list of documents previously provided by the other agency to the FBI mentioning Page’s name, including the August 17 Memorandum.


We asked the OGC Attorney if he read the documents identified by the Liaison in her June 15, 2017 email. The OGC Attorney told the OIG that he “didn’t know the details of…the content of the [documents]” and did not think he was involved in reviewing them. He also said he “didn’t have access to the [documents] in the OGC space,” but that the investigative team was provided the list of documents and that they would have been reviewing them.

This is a detail that Durham repeated in the Criminal Information charging Clinesmith.

Later that same day, the OGA Liaison responded by email in which the liaison provided the defendant with a list (but not copies) of OGA documents.

Both seem to suggest that Clinesmith provided no credible explanation for how he came to conclude that Page was not a source, even if he maintains that he believed in good faith that an operational contact was not a source.

Still, the only proof of that is (at least as far as the public record goes) the CIA liaison’s imperfect memory of that conversation. He says, she says. Not a strong case that Clinesmith intentionally changed the email to mislead.

So how, a number of Durham skeptics are rightly asking, will Clinesmith allocute to guilt in changing the document, when he has consistently claimed he did not intend to mislead anyone by changing the email.

That’s not how Durham has formulated this false statements charge.

Clinesmith is not charged with lying about whether Page was a source. Rather, he’s charged under 18 USC 1001(a)(3), which reads:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

That is, he’s not charged with lying, but instead with using a false document that he knew to contain a materially false statement.

The Information explains that,

Specifically, on or about June 19, 2017, the defendant altered the OGA Liaison’s June 15, 2017 email by adding that Individual #1 “was not a source” and then forwarded the email to the SSA, when in truth, and in fact, and as the defendant well knew, the original June 15, 2017 email from the OGA Liaison did not contain the words “not a source.”

This shifts the burden on intent significantly, because while Clinesmith contends he did not intend to mislead, he doesn’t deny altering the email, for whatever purpose. SSA 2 (SSA in the Information) has already testified to the IG (and presumably said the same thing to Durham) that that altered verbiage was material to him.

We discussed the altered email with SSA 2, who told us that the OGC Attorney was the person he relied upon to resolve the issue of whether Carter Page was or had been a source for the other U.S. government agency. SSA 2 told us that the statement inserted into the Liaison’s email-that Page was “not a source”- was the most important part of the email for him. SSA 2 said “if they say [he’s] not a source, then you know we’re good.” SSA 2 also said that if the email from the Liaison had not contained the words “not a source” then, for him, the issue would have remained unresolved, and he would have had to seek further clarification. SSA 2 stated: “If you take out ‘and not a source,’ it’s not wrong, but it doesn’t really answer the question.” He also said that something lesser, such as a verbal statement from the Liaison through the OGC Attorney, would not have resolved the issue for him. SSA 2 also told us it was important to him that the OGC Attorney had first sent the Liaison’s response email to the 01 Attorney, because if they discussed the issue and they have “decided we don’t have to do a footnote that he’s not a source … we’ve resolved this. We’re good to move forward.” He also said that he “would assume that the [OI Attorney]. .. received exactly what [SSA 2] received since it was a forward.”

SSA 2 has testified, then, that Clinesmith’s alteration of the email was material to his understanding of Page’s status; anything less than those words would have led him to include a footnote in the fourth Page application.

While I know a lot of Durham skeptics (including bmaz, who’ll promptly call me and yell at me) think Durham has a problem with allocution here, I think by crafting this under 18 USC 1001(a)(3), Durham avoids those problems. It doesn’t matter why Clinesmith altered the email (whether you believe him or not — and again, I don’t think Durham does). All Clinesmith is charged with is intentionally altering the email, which he has already admitted to.

One more point about intent. The frothy right has falsely claimed Clinesmith newly implicated his colleagues in altering this email. There’s nothing new here. The DOJ IG Report stated that Clinesmith forwarded the email, unaltered, to people who weren’t the affiants on the FISA application.

That same day, the OGC Attorney forwarded the Liaison’s email response to Case Agent 6 and an FBI SSA assigned to the Special Counsel’s Office, without adding any explanation or comment. The SSA responded by telling Case Agent 6 that she would “pull these [documents] for you tomorrow and get you what you need.”

This passage doesn’t get the frothy right where they think it does, either, at least not yet. They forget, for example, that Mueller has testified that he was not involved in the FISA process. And the information about Page’s role with the CIA was important to Mueller’s team for different reasons — most notably because in June 2017, Mueller’s team would be trying to assess what to make of FBI 302s where Page is recorded as equivocating about whether he had told anyone he was Male-1 in the Victor Podobnyy indictment, which would amount to an attempt to deny that he had gone out of his way to maintain contact with Russia even after it became clear those contacts were with intelligence officers.

It’s possible Durham thinks that something these two people did led Clinesmith to start lying about what kind of source Page was. But in addition to working with them, he also immediately told his boss that Page was a subsource–the explanation he has offered since.

64 replies
  1. viget says:

    My question is, so what if it does implicate other FBI folks? As you rightly point out, EW, these would have likely been the CI squad members assigned to Mueller, who had nothing to do with the Mueller report itself.

    Also, this kerfluffle only applies to the 3rd FISA renewal, which by that time (June 2017), I thought the general consensus was that Page’s usefulness as a conduit for intelligence was practically nil. So how does discrediting this one renewal do anything to discredit the rest of the Intel from Page?

    • emptywheel says:

      If the Mueller team can be found to have misled Clinesmith, then Durham might argue there was a concerted effort to keep the investigation into Page going.

      I’ve repeatedly raised questions about whether Durham is even aware of the Mueller results. For example, several witnesses actually “corroborate” the Steele dossier (though not in compelling fashion) wrt Page’s sketchy trips to Russia. If Durham doesn’t know that then he may believe that the investigation really was baseless, which it was not.

  2. Notabot says:

    Clinesmith’s altering a forwarded email, materially, is super sketchy regardless of what he is charged with. What I’m not clear on: would the FISA applications be denied if this information was included? If so, why? His relationship with the CIA ended in 2013.

    • bmaz says:

      It is NOT “super sketchy”, it is NOT necessarily “material” at all, Intent is a problem, reliance is a problem, and NO it would NOT make one whit of difference to the approval of any of the warrants under existing warrant law and standards. This Carter Page hand wringing Is just getting tedious at this point. It is all such complete bullshit it is ridiculous.

      • Notabot says:

        Have to disagree with you there. If someone edited my email before forwarding, to change what I had sent to make it look like I had sent it, I’d be kinda upset. It is the piece of information they were looking for to complete the application, and the reason why he edited an email; maybe it would not make a difference, I dunno, but should not have been done.

        • bmaz says:

          You can disagree all you want. But you will need to address the full facts as to what, in toto, was “forwarded”, which you have not done and actively misrepresent. Because you are biting off on Fox News level bullshit.

          And then you will have to go research and learn underlying federal warrant law, which you obviously have no clue about. Full stop, just NO. Start with Franks v. Delaware. Then keep going until you grasp a clue.

          And, again, NO, “the piece of information they were looking for to complete the application” is such ludicrous and absurd horseshit it is laughable. Please stop spewing this bullshit.

          • Notabot says:

            You may have misread me – I don’t claim any expertise in these matters at all. What I meant was that altering an email in that way is not normal course of business *anywhere*, let alone law enforcement. Set that aside, and thanks for the pointer to Franks, but I really *am* asking the question that is relevant in Franks: would the warrant have been granted anyway? Why would Page’s prior relationship with the CIA matter at all, if it ended years prior?

            • bmaz says:

              Fair enough. Yes, all of the Page warrants, initial and renewals, would stand up just fine under Franks and subsequent authority. It is not even a close question really. As to Page’s relationship, no there really was not a significant one, and to any extent there ever was any relationship, it was so stale as to be irrelevant.

              • ButteredToast says:

                I guess the value for the RW of emphasizing this CIA relationship is to give them a ready talking point to excuse Page’s associations with Russian agents, neatly eliding the fact that the relationship ended years earlier. “Page was just trying to get information. See, he was a selfless spy for US!” I’ve already seen someone say, “Where’s the evidence he wasn’t still a CIA source?” Sort of like Mark Meadows asking if there’s evidence mass voting fraud *doesn’t* exist.

  3. Epicurus says:

    Barr wants the Mueller Report and everything associated with it discredited. Everyone knows this. The never to be answered question is why Durham would serve as the discrediting agent: following orders?, believes as Barr?, historical notoriety? all of the above? Reminds me of the musical Hamilton – The Room Where It Happens.
    “No one really knows how the
    Parties get to yesssss (Parties get to yesssss)
    The pieces that are sacrificed in (Ev’ry game of chesssss)
    Ev’ry game of chesssss
    We just assume that it happens (Assume that it happens)
    But no one else is in (The room where it happens)
    The room where it happens”

  4. joel fisher says:

    What’s missing–the dog that’s not barking–is mention of a cooperation agreement. While there may be an obligation on Clinesmith’s part to assist Durham, I haven’t read about it yet. If there are more shoes to drop, good practice is to bring out the best witnesses first (August) and last (October). If this represents “best”, Barr/Durham are scraping the barrel for breakthrough-type information. But, then not much is needed to churn up the morons.

    • bmaz says:

      Clinesmith is a criminal target, he does not “have an obligation” to do anything. People have simply lost their minds over this nonsense.

  5. Chetnolian says:

    As a mere foreign lawyer, may I ask an innocent question? Is it simply tedious and ridiculous, as bmaz suggests, to spend so much public money on prosecuting Clinesmith for something so self-evidently trivial, or is it legally based political persecution of an individual worthy of the USSR at its worst?
    Perhaps that’s why Clinesmith has decided to accept guilt, just to get the whole thing over with. Would that also give him a chance to make a comment on the court record upon the enormity of all of this?.

    • bmaz says:

      As to paragraph one, I’m going to just say yes. As to paragraph two, I have no idea what Clinesmith and his lawyer are doing or why. If I was Clinesmith, the last thing in the world I would want to be doing is making a record, whether in allocution or sentencing.

        • bmaz says:

          Maybe. But to what and why? It isn’t this one pissant charge as a stand alone. You would have to be an idiot to do that.

          On an unrelated note, it is bizarre seeing the circus in Catalunya with not a soul in the stands. For some reason, it seems more obvious here than Austria or Silverstone.

          • madwand says:

            Yeah don’t understand the plea either, perhaps they have some other unrelated personally compromising material currently not known. Durham is simply a hit man and there is more to come which contradicts DOJ guidelines on releasing results of investigations within 90 days of an election. So I view it as intentionally political. Barr who has gone on Fox numerous times to explain the investigation certainly has the Republican base frothing. Conservative friends tell me “wait for Durham” which is a little like waiting for conditioned ignorance on the part of my conservative friends.

          • Desider says:

            I’d think McCabe’s pushback would give Clinesmith some staying power to hold out, but maybe at only 38 he’s not so brave to fight off the vindictive AG’s office.

  6. vicks says:

    It appears “they” are attempting to promote Clinesmith to a role as a major player in the deep state conspiracy to take down DJT.
    Here is a good example of the spin
    They have him tied to Flynn, Page and Papadopoulos
    Clinesmith was also one of the 5 unnamed agents in the Horowitz report on FBI bias unmasked by Mark Meadows.
    Last night Fox “news” was reporting that there was a plea deal that included no charges in exchange for cooperation but after looking around to back that up and all I can find is speculation that there is a deal because of how the charge was filed.
    I am clearly out of my depth here but isn’t this enough for the Trump organization to spin out on to their hearts content on Russia-gate until the election?
    Will this and middle east “peace” be enough to save Trump’s ass?

    • madwand says:

      Or perhaps a vaccine a week before the election will be in the ass saving business also. A lot of this stuff is distraction. While we pay attention to Durham, and middle east peace and the post office fiasco are they looting the exchequer in advance of loosing the election?

  7. Jenny says:

    I realize this is OT; however everything is connected. Who knew? More being exposed.

    Limits of power?
    The power of the president is enormous – and may be even more so with presidential emergency action documents (PEADs), classified orders granting vast presidential authority in response to extraordinary situations. PEADs are so secret even Congress cannot see them – and that troubles constitutional scholars. “Sunday Morning” special contributor Ted Koppel reports.


    • Savage Librarian says:

      This seems like it should receive more public attention. In addition to what was discussed in the segment, another specific thing came to my mind. And that is the weirdness in Jeff Wall’s presentation to the en banc that is discussing Sullivan’s appeal in regard to Flynn’s case. When Merrick Garland was questioning him, Wall made reference to “secret stuff” that he couldn’t discuss. At the time, it seemed unprofessional. But now it seems creepier.

      • subtropolis says:

        I don’t know about a connection to Wall’s weird almost-hypothetical, but I am put in mind of something that T said not long ago. I don’t have the quote handy, but it was essentially that he had special presidential powers that nobody knows about. I assumed that he was referring to something like PEAD.
        Fun times, eh?

    • mass interest says:

      I’ve suspected something along these lines for some time, although this is the first time I’ve heard of PEADs.

      Trump’s long list of shredded norms and traditions, Barr/DOJ shenanigans, Senate Republicans shrugging their shoulders at various moral and ethical outrages, and finally Trump’s thumbing his nose at the recent SCOTUS decision around DACA. No doubt more that I’m not remembering as I write.

      I’m not surprised at all to learn of this, and hope light is shone on the whole issue sooner rather than later.

    • timmer says:

      jaysus! As if I was not paranoid enough with voter suppression, COVID relief, privatization attempt of the USPS and the whole state of the nation with the B(uffoon)OTUS at the helm, this gets tossed in. Secret shit that Billy and Yoo have available to them.

      Please, one of you smart folks, please alert MSNBC or other reasonable outlets to report fercryssake. I love you guys and the depth of knowledge seen on this site, but how does the media prioritize all the possible f*ups available to this corrupt administration?

  8. earlofhuntingdon says:

    It’s beginning to look a lot like… Clinesmith is pleading to avoid something he thinks would cause him greater damage. Is it simply that DoJ did its usual thing, and threatened to overcharge the hell out of him if he went to trial? Or are he and they hiding something more substantive or embarrassing? If this proceeds, the penalty phase will be interesting.

    As for the DoJ, this looks like a small rash, not even a boil. Imagine how much important work is not getting done while DoJ obsesses over this. Is this all they have or is it a building block for a structure we can’t yet see?

    • Tom says:

      Or is Clinesmith playing a martyr role to highlight how differently Barr’s DOJ deals with you when you’re not a friend of the President.

    • Marinela says:

      Durham disagrees with Horowitz findings …

      At the time, Durham said that he disagreed with a finding included in the inspector general report that said the FBI had adequate reason to open their counterintelligence investigation in 2016, basing the statement, he said, on evidence from people in the US and outside of the US that may have been unreachable to the inspector general’s investigators.

      So it looks like the world travels of Barr and Durham on tax payer money produced the result they wanted to get.

  9. N.E. Brigand says:

    This is very helpful post, for me at least. Thanks for digging out the relevant parts of the IG report to make the Information more comprehensible. And thanks in particular for catching what I overlooked in the Information: when Clinesmith forwarded the unaltered version of the CIA liaison’s email, he was sending it to different people than the person to whom he sent the altered version.

  10. scribe says:

    Not the most outrageous example of a false statements-family of charges I’ve seen.
    Once, 15 or 20 years ago, a colleague was representing (and I was called in to second-chair) a guy (“Guy”) accused of wire fraud. Here’s the factual setup:

    Guy was a stockbroker, married to Wife. Guy was shitcanned by his employer for non-production. Fearing Wife’s wrath (which she had in Abundance), Guy didn’t tell her. He kept
    going off to “work”, looking for work.

    As the calendar turned, it soon came to be bonus time. This is a big deal for brokers (as many or most of you know) because most brokers get most of their annual income from their bonus rather than their low base salary. No bonus comes.

    Wife wants to know about the bonus, seeing as she has plans for spending it (as she’s done in past years).

    Guy tells her “it’s going to be late, but it will get here”.

    She continues harping on him over a period of time, to no avail. “It’s going to be late but it will get here” is Guy’s story and he’s sticking to it.

    She wants proof.

    Tiring of the harangue, Guy finds an old sheet of letterhead from the old job. He cooks up a letter from his old boss saying, in so many words, “the bonus will be late this year, but it will get here”. The next time the harangue starts, Guy shows Wife the letter to shut her up.

    It works, for a while.

    When the bonus still doesn’t arrive, Wife decides to take matters into her own hands. She tears the house apart and finds the bogus letter, then faxes it to Former Boss with her own inquiry: “when is the bonus going to arrive?”

    Former Boss, wisely, immediately turns the fax over to Compliance.

    Compliance recognizes Guy not only doesn’t work here any more, but also he was never entitled to a bonus. They call the feds.

    Feds, figuring some kind of scam is going on here, charge Guy with wire fraud. Not because he intended to deceive his former employer (he didn’t but by the time the feds got that story things were too far down the road and they chose to not believe him), but rather because he intended to deceive his wife into silence (any deception would suffice) and the deception he used went across the wires.

    Guy pleaded out, lost his securities license, convicted felon, etc. He would have done better to have lost the wife but by the time he came to us it was far too late for that. That damage had been done.

    Lesson: when there’s anything involving the federal government and some kind of falsity, if they choose the feds can charge for it and win. And if like most people you don’t have the resources of a Barry Bonds (remember the depraved case the feds pursued against him), you will plead and wind a up a notch in some AUSA’s belt.

    Also, Marco Andretti won the pole at Indy. Yay!

    • earlofhuntingdon says:

      If every broker who lied to their spouse lost their license, there would be no stock market.

      Never mind that the “letter” was private, and never distributed, broadcast, or mailed by the defendant. The Wife, not the writer, mailed it to make an inquiry, not to perpetrate a fraud against an employer that never considered the lie true or relied on it in any way. The Wife’s divorce lawyer should have been able to use it to good effect, but otherwise it’s not a law enforcement matter. That the employer didn’t recognize that says a lot about what passes for judgment on Wall Street.

      But it’s funny in a Woody Allen sort of way about how shit happens, and why it’s not a good idea to talk to the feds without bmaz at your elbow.

      • scribe says:

        Respectfully, you’re mostly wrong.

        The letter became “not private” the minute Wife faxed it. (Not that “private” has much relevance here.)

        It was “distributed” the minute Guy showed it to Wife. (Not that “distributed” has much relevance to a wire fraud charge.)

        It was part of a scheme or artifice to deceive or defraud the minute Guy forged his old-boss’ signature, continued as such when he showed it to Wife, and continued as such through being faxed (use of interstate wire communications). That no one lost any money (no money changed hands) is irrelevant.

        Actually, in a securities and wire-fraud context, Former Employer was quite correct in recognizing it was, in fact, a law-enforcement matter. It was the employer’s letterhead being used to generate a bogus claim to money, over a forged signature of an officer of the employer (the “vice-president” titles these managers get are not just to make them look good – they actually do have legal effect and relevance). All the regulatory authorities (not to mention their owners/shareholders) take very dim views of brokerages just paying out money in response to bogus claims. Nor do they look kindly on Compliance or officers like Former Boss saying, in effect, “oh, that Guy and Wife, what a bunch of kidders. We’ll just throw this in the trash and forget about it.” That’s how Compliance employees lose their jobs.

        Moreover, despite Guy’s honest claim it was written to shut Wife up, from the POV of the brokerage (and the former boss) it very much looked like a conspiracy between Wife and Guy to defraud the brokerage. Seen from the POV of Former Boss and the brokerage, if Former Boss had done anything other than immediately turn it over to Compliance, he would have been suspect as a part of such a conspiracy to defraud the brokerage. And he, too, would have been turned over to the authorities. In addition to being fired on the spot. And getting his own license in trouble.

        The only point you’re correct on is the wisdom of letting the BMAz’s of this world do your talking when it’s the feds asking the questions.

        The point I was making, which seems to have been overlooked, is that it is quite easy to run afoul of one or another of the family of false-statement laws out there. And, once someone runs afoul of them, there’s really no way out of it.

        As to the divorce lawyer (IDK whether there was one involved), the best thing that could have happened to Guy was to get divorced from Wife. She was a walking, talking, breathing train-wreck. Crashed her car into mine in the parking lot. Left a trail of destroyed lives, jobs and peace wherever she went. Trust me on this.

        • earlofhuntingdon says:

          I got your point. With all due respect, we disagree, except about the wife. Her divorce lawyer would have been able to use the husband’s demonstrable lies to impugn his credibility. But that assumes there was any money left, which there probably would not have been, unless they inherited a lot.

          I don’t see how a request for information, normally handled by HR, is an attempt to defraud without more there there. A fairly obvious domestic dispute.

        • earlofhuntingdon says:

          I take your point about the feds massively overreaching. The bogus scheme would have been dependent on the couple acting in concert, as co-conspirators. If there was substantial evidence of that, then I would be wrong and the case would have been stronger.

          But since the wife committed an essential act related to the fraud, how do you charge the guy without charging the wife and establishing the conspiracy?

          • vvv says:

            Fascinating. I had a wife like that … ;-D

            But (like Clinesmith?) the guy in Scribe’s story blinked and pleaded out.

            Maybe he was that broke, disheartened, or otherwise exposed?

            • earlofhuntingdon says:

              Maybe he thought time at Club Fed was the easiest way out of his marriage. Clearly, he wasn’t thinking straight. The serial fraud against his wife created a mess. But when he created that false letter on company letterhead, he performed the act Dick Cheney so often recommended to his Democratic colleagues. When his wife delivered it to his former employer, through a medium the feds have jurisdiction over, the shit hit the fan. But yea, the Wife sounds like a harpie.

  11. viget says:

    More mundane reason for plea… He wanted to avoid the spectacle of a trial? Both for professional (save face for the FBI and DOJ) and personal reasons? Maybe they didn’t bother to charge him until now because Barr just recently put the screws to Durham? Still think there’s no there there.

    Anyway, what’s Barr’s endgame here anyway? To try and discredit the Page FISA? This was the final renewal, even if you could get this FISA nullified, the other Intel still stands. Plus, it has nothing to do with the origin of the investigation…

    • earlofhuntingdon says:

      The more mundane reasons don’t square with the potential for federal prison time, unlikely, or loss of job and probable lost of one’s license to practice law. Plus, he’s a lawyer – for the feds. WTF would he plead without there being more there?

      • viget says:

        I mean if the theory of the case is how Marcy states it, he’s guilty. He altered an official document in a way that was material to another government official’s duty. As Marcy said, you don’t need to prove intent that Clinesmith knew it was false under that part of the statute.

        I don’t like it any more than anyone else on here, but absent jury nullification (which plays right into Team Barr’s hands wrt Flynn, Stone, and other crimin’ GOPers), DOJ has him dead to rights. He will not win at trial. Why let Barr’s handpicked stooges introduce all sorts of irrelevant evidence at trial to make this a bigger deal than it is?

        I suppose he could go through the motions of fighting it and hope for a Biden admin to dismiss the charges, but that’s not guaranteed. Even if Biden were to win, they still might press on with this prosecution to set a new tone, follow the rules, or else.

        Really think the smart thing here is to plead out, he is a first time offender and will not get prison time. Maybe someday he will be able to tell his side of the story, but honestly this looks like a stupid decision that was made in the heat of the investigation in a time crunch. Ultimately, it may have been the right one for all we know, but Trump’s gonna make sure someone is paying for it, cf. Strzok, Lisa Page, Andy McCabe, etc.

        • bmaz says:

          Bullshit. You have to prove everything. Every. Single. Element.

          “Go through the motions of fighting”?? You clearly do not know jack about this. Don’t embarrass yourself with claptrap.

          • Troutwaxer says:

            How much would it cost to fight the charge and is a Federal employee likely to have the money? In a case like this is there any way for Clinesmith to get a less-expensive lawyer?

            • bmaz says:

              Now that is a great question. For which there is not an easy answer. It would depend on what the real underlying charges might would be, and I am not sure we know that fully. If it is really just what you see here as to the false statement allegation, not that much. “That much” depends on a lot of factors though.

              Keep in mind, avoiding a federal criminal record and keeping your license is worth quite a bit. And, sure, he theoretically could get a FPD, federal public defender, or federal panel attorney. And those are actually usually pretty good lawyers.

              Just a great question though. We have no good way to know his relative finances, family or friends’ ability to help etc.

    • ButteredToast says:

      Maybe this is too simplistic…but I think Barr/Durham are just digging for anything at all they and rightwing media can spin as discrediting the Mueller investigation and anything associated with it. It won’t matter if the Durham “investigation” in reality does no such thing. Barr is a master at playing the media (admittedly, they make it pretty easy). He’ll throw out a summary of “principal conclusions” in which he excludes contrary evidence and misinterprets the law in a way that sounds convincing to less informed people. Maybe before November, he’ll just report generalities about “lack of basis for investigations” or “politically motivated intelligence analysis” or some such garbage. What I wonder is whether Barr is trying to discredit the Mueller investigation simply for political purposes, or also as part of a coverup of criminal activity (by Trump or the GOP) that hasn’t yet come to light publicly. But I also suspect that Barr actually might believe the conspiracies Fox and people like Herridge spew on a daily basis.

      • Marinela says:

        Barr, Trump, Durham reasons are transparent, it is clear they are pushing this plea for political reasons.

        Still doesn’t explain the Kevin’s plea.
        In fact Kevin is fueling Barr’s insinuations, why is Kevin Clinesmith doing this?

  12. Vicks says:

    From my limited knowledge it seems to me that if Clinefield was able to make a decent case for (as he knew it at the time) “correcting” Page’s status as an informant, the allegations would not meet the “knowingly ” and “material” part of 18 U.SC….1001
    My question is, since there does appear to be evidence that Clinefield did what has been alleged in the filing, if Durham were to have reason to believe that the intent part is shaky, could something like this document be filed anyway, just to feed the beast?

    • bmaz says:

      Clinefield does not have to establish anything. And the line in the post that “This shifts the burden on intent significantly” is not quite right. The burden of proof never shifts in that manner. That burden is not on Clinesmith at all, it remains on the government.

      • vicks says:

        Sorry, looks like I have you calling him “Clinefield” instead of Clinesmith as well, I do not know of anyone with either name,so I’m not sure why I have decided to have a preference.
        I was calculating Durham being made aware during the investigative process that Clinesmith may have had valid reasons to have believed (at the time) that ” #1 was not a source”
        If I am not mistaken if you take the “knowingly” part out of the charges, all you have is a guy that thought he was correcting/clarifying the facts as he knew them.
        My question is/was, IF there is any logic to my thinking, and Durham knows he will have a tough time meeting the burden of proof could this document have been filed anyway?
        Perhaps in response to the threats/expectations Trump has been signaling over the last couple of weeks?

        • bmaz says:

          Lol, yeah it appears I have buggered his name, and that isn’t your fault. As to the information, could it be filed? Clearly yes. Should it be filed if there is a known infirmity? No. There are actual written charging standards in this regard. Now maybe there is much more that I haven’t seen yet. We’ll see I guess. But have huge questions so far.

  13. civil says:

    Thank you, this was really helpful in understanding (1) why it could be charged as a false statement rather than as altering evidence, and (2) that it could be material. But I’m still wondering about the “materially false” part of the charge, as there are two things that might be false: (a) “not a ‘source'” and (b) that it was written by the OGA Liaison. If Page *was* a source, then “not a ‘source'” isn’t false and so can’t be materially false. If (a) isn’t materially false, can (b) still be materially false? That is, even if it’s false that it came from the OGA Liaison, is the misrepresentation re: who is came from material, given that “not a ‘source'” is true? I guess it could be material, but it doesn’t seem as straightforward (would the SSA have responded differently if s/he saw “not a ‘source'” written in Clinesmith’s handwriting on the side?). And I don’t know whether the distinction between (a) and (b) isn’t clearer in Count 1 because Durham is a crappy writer, or it’s so obvious to him what he meant that he didn’t realize that it needed to be clearer, or if he actively wanted it to be ambiguous / wanted people would interpret the count as “not a ‘source'” being false. (Or maybe there’s something that I’m still misunderstanding, but don’t even realize that I’ve misunderstood.)

  14. foggycoast says:

    pure speculation:
    1. DoJ promises to go easy on him if Clinesmith pleads guilty.
    2. Barr will use this as part of the pretext for to reveal Durham’s findings that the Russia investigation was not legitimate.
    3. Trump will declare victory and try to own the new cycle at some critical juncture.
    4. The Trump/Barr gambit fail to move the needle.

    • Troutwaxer says:

      Agreed completely. At this point (in terms of deciding how to vote) the Mueller report is a very low priority. The COVID-19 train wreck is another matter, however. I’m expecting 250-300,000 deaths by election day and the economy will not be better by early November – more than enough reason to throw the bum out!

  15. x174 says:

    nunes may have let the cat out of the bag: they ain’t got jack. the way that they’re braying about this minnow of a catch tells volumes: their “investigation into the origins of the mueller investigation” comes to precisely zilch. nunes is now talking about how he’s looking forward to a “report” so that they can get at the “truth” (
    what i’m looking forward to is how they’re gonna drive stakes into the foreheads of all the rubes that they took on this wild goose chase to nowhere and nothing.

  16. Portly says:

    Why was Page never charged with espionage or conspiring with a foreign government? Actually asking for a Frothy friend…

  17. anaphoristand says:

    Is it clear from either the Horowitz report or elsewhere whether the version of the CIA liaison’s email Clinesmith forwarded to the OI Attorney was in fact the same altered version he’d sent the SSA?

    SSA 2 also told us it was important to him that the OGC Attorney had first sent the Liaison’s response email to the 01 [assume this is meant to be OI] Attorney, because if they discussed the issue and they have “decided we don’t have to do a footnote that he’s not a source … we’ve resolved this. We’re good to move forward.” He also said that he “would assume that the [OI Attorney]. .. received exactly what [SSA 2] received since it was a forward.

  18. P J Evans says:

    I like Popehat’s tweet about Lawfare’s post on this:
    Government Agent Charged With Lying In Incorrect Manner

  19. vicks says:

    If anyone is still following this thread, WTF?
    How can a judge accept a guilty plea, when what the guy being charged is saying he is guilty of, doesn’t match the crime he is being charged for?
    Believe it or not, this is from Fox
    “During the plea hearing, Boasberg asked Clinesmith to affirm that he “intentionally altered an email, and added language” that “individual number one” was “not a source…and you knew that statement was in fact not true.”
    Clinesmith replied, “At the time I thought the information I was providing was accurate, but I am agreeing the information I inserted was not originally there, and I inserted the information.”
    Boasberg went on to ask: “You intentionally altered the email to insert information that was not originally in the email?”
    “Yes, your honor,” replied Clinesmith.
    What am I missing? This can’t be how things work.
    The charging document states Clinesmith “did willfully and knowingly make and use a false writing and document, knowing the same to contain a materially false, fictitious, and fraudulent statement and entry in a matter before the jurisdiction of the executive branch and judicial branch of the Government of the United States.”
    They use the a version of the word “knowingly” twice, which makes it seem important to the charges.
    But what do I know?

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