August 18, 2020
U.S. Attorney John Durham filed the first charge of his criminal inquiry on Aug. 14 against the primary FBI attorney assigned to provide legal support to the special counsel team led by Robert Mueller, casting a shadow over the 22-month probe that roiled the nation before finding no evidence of collusion between the 2016 Trump presidential campaign and Russia.
As part of a potential plea deal with Durham, former FBI assistant general counsel Kevin Clinesmith is expected to plead guilty on Aug. 19 to altering an email as part of a process to obtain a secret court warrant used to spy on former Trump campaign adviser Carter Page. Clinesmith altered the email on June 19, 2017, while working as the primary FBI attorney assigned to the Crossfire Hurricane investigation, which Mueller inherited a month earlier.
According to the court documents, Clinesmith inserted the words “and not a source” into an email from a CIA liaison that described Page’s relationship with the agency. As the primary FBI attorney on the case, Clinesmith was asked to find out if Page was a source for the CIA before the FBI applied for the fourth and final warrant to continue surveilling the former Trump campaign associate.
The liaison replied with a memo showing that Page was an approved “operational contact” for the agency, a crucial fact that never made it into the spy warrant application the FBI sent to the secret Foreign Intelligence Surveillance Court. According to the CIA memo, Page reported to the agency about his contacts with Russian intelligence officers, a fact which would have been indispensable to a judge considering the FBI’s attestation that Page is a Russian agent.
The Department of Justice inspector general flagged Clinesmith’s forgery as one of the most egregious faults among the 17 serious errors and omissions contained in the applications the FBI used to surveil Page. While the inspector general’s reports and other evidence in the public realm have already substantially clouded the credibility of the Mueller probe, Durham’s first case and the expected guilty plea taint the battery of blunders with the first indisputable link to criminality.
The charge also raises serious questions about the culture within the broader special counsel operation, during which Clinesmith played a key role for roughly a year before being removed upon the discovery of his blatantly anti-Trump text messages.
“I am so stressed about what I could have done differently,” Clinesmith wrote to his FBI colleague Sally Moyer on the day after Trump’s victory in November 2016. “I’m just devastated.”
“Plus, my [expletive] name is all over the legal documents investigating his staff,” he wrote a few messages later.
Clinesmith wasn’t the only FBI official to have been removed from Mueller’s team over biased text messages. FBI officials Peter Strzok and Lisa Page ridiculed Trump, spoke of stopping him from winning the election, and mentioned an “insurance policy” in the “unlikely” event he won. The pair, who at the time were involved an extramarital affair, broached the subject of impeachment around the time Mueller was assigned to lead the inquiry. Mueller removed Strzok upon learning of the messages. Page had left on her own prior to the discovery.
The inspector general didn’t find evidence that bias motivated any of the investigative actions. He also told Congress that he was baffled by the sheer number of serious errors committed by three handpicked teams working on the FBI’s most sensitive case.
While it is unclear what Durham will make public next and when, the court papers in Clinesmith’s case provide a hint. The charge against the former FBI attorney was filed as information rather than an indictment, indicating that Clinesmith agreed to waive his right to have a grand jury decide whether the government has probable cause to charge a crime. The waiver of indictment is often used with a defendant who agreed to plead guilty under a cooperation agreement. The terms of the plea may reveal whether Clinesmith is cooperating with the investigation.
The charging document also states that the CIA provided the memo about Page to “certain members of the Crossfire Hurricane team” on Aug. 17, 2016, months before Clinesmith was assigned as the primary FBI attorney on the case. The “certain members” received the memo days after opening individual cases on four Trump campaign associates, including Page. All four of the Foreign Intelligence Surveillance Act (FISA) applications failed to disclose Page’s status and history with the CIA.
When the DOJ inspector general asked Clinesmith why he subsequently described Page as “not a source” for the CIA, Clinesmith said that he recalled the liaison “saying that [Page] was not a source of theirs,” but rather “incidentally reporting information via a source of theirs.” When the inspector general asked the CIA liaison about it, the liaison said “her email stated just the opposite.”
Justin Shur, a lawyer for Clinesmith, said in a statement to Reuters that his client “deeply regrets having altered the email.”
“It was never his intent to mislead the court or his colleagues as he believed the information he relayed was accurate. But Kevin understands what he did was wrong and accepts responsibility,” Shur said.
House Intelligence Committee ranking member Devin Nunes told Fox Business in June that the Republicans on the committee have sent 14 criminal referrals related to Crossfire Hurricane.
President Donald Trump, who has long asserted that the Obama administration spied on his campaign, told reporters at the White House on Aug. 14 the charge against Clinesmith is “just the beginning, I would imagine, because what happened should never happen again.”
“The fact is, they spied on my campaign and they got caught, and you’ll be hearing more,” Trump said.
The plethora of errors in the Page FISA applications appear to be an anomaly. Horowitz’s subsequent review of a sample of 29 other FISA applications found less than a handful of errors, none of which were significant enough to invalidate any of the applications. By contrast, the FBI conceded that the errors in the Page FISAs invalidated the last two warrants.
Clinesmith’s tenure at the FBI ended on Sept. 21, 2019, according to the criminal information. The bureau told The Epoch Times that Clinesmith left before “an internal disciplinary process was completed.”
In addition to working as the attorney on the Crossfire Hurricane investigation, Clinesmith worked on the probe of Hillary Clinton’s unauthorized use of a private email server to conduct government business during her tenure as secretary of state. His work on that investigation earned him an entire section in a separate inspector general report, which found that he sent numerous politically charged messages ridiculing then-candidate Trump.
External reviews of the conduct of the Mueller investigation aren’t the only sources casting shadows on the legacy of the probe.
Attorney General William Barr appointed Durham in May 2019 to examine the conduct of the Crossfire Hurricane investigation and related issues. Durham is looking to determine whether intelligence collection on Trump’s presidential campaign by top Obama administration officials was “lawful and appropriate.” The investigation was designated a formal criminal investigation in October 2019.
The Department of Justice (DOJ) in March dropped the charges brought by Mueller against two Russian companies accused of using social media to sow discord during the 2016 election. The charges were once heralded as one part of Russia’s two-prong operation to influence the election.
The second prong of the purported campaign consists of charges against a dozen Russian intelligence officers that remain alleged. In May, the DOJ moved to drop charges brought by Mueller against former national security adviser Michael Flynn.