Updated at 8:56 a.m. ET on December 10, 2020.
Next month—as we wait to see who else will receive a pardon from President Donald Trump on his way out of office—a criminal prosecution that has proceeded with relatively little public attention will reach its conclusion.* U.S. District Judge James Boasberg will preside at a sentencing hearing to determine whether Kevin Clinesmith, a former FBI lawyer, will go to prison following his guilty plea earlier this year to one count of making false statements. Clinesmith might have deliberately misled a colleague, but he has already incurred consequences that are proportionate to his offense, and prison time would be more than he deserves.
Clinesmith’s lawyers have asked that he receive probation—his career has already been ruined, and he might never work as a lawyer again—while the government has asked that he be sentenced to somewhere between three and six months. Ordinarily, Clinesmith’s odds of receiving probation would be pretty good, but his case is politically fraught, which complicates matters considerably. The case is the first (and possibly last) criminal case to emerge from the investigation of the Trump-Russia probe that Attorney General Bill Barr tasked to U.S. Attorney John Durham. It is a case that almost certainly would not have been brought in a different administration.
Seen correctly, however, that political context is precisely why the government’s position is so misguided. In a way, the Clinesmith case is a tidy companion, both factually and conceptually, to Michael Flynn’s prosecution. Both men were accused of making false statements to the government, and the key argument that Flynn’s supporters have advanced—one the Justice Department itself advanced when it sought to dismiss the Flynn case—applies far more persuasively to Clinesmith: The law requires that misstatements to the government be “material” to constitute a crime. The decidedly generous view on that issue adopted by the Justice Department in the Flynn case would excuse Clinesmith just as easily as the department hoped it would excuse Flynn.
The government’s position in the Flynn case appears to have been reverse engineered to get Flynn off the hook, but the law requires some consistency. Indeed, the statutory sentencing guidelines instruct the court to account for “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” yet the government’s sentencing submission in Clinesmith’s case entirely ignores this. Indeed, it makes no mention of the Flynn case at all—much less the fact that the government undertook an unprecedented effort to excuse Flynn’s conduct, or that he has now been pardoned by Trump.
Until earlier this year, I was a prosecutor at the Justice Department who specialized in financial fraud, so I know firsthand that the government does not criminally charge every false statement it identifies. The context of a misstatement matters. I also had my own troubling and far more modest experience with the Justice Department’s inspector general’s office—which first identified Clinesmith’s misconduct—when it investigated an allegation that I had improperly disclosed “sensitive” information to the media while working at the department. (I’ve previously written about the whole sordid affair.)
The relevant facts in the Clinesmith case concern his work as one of the people who prepared the applications to the Foreign Intelligence Surveillance Court to surveil Carter Page in 2016 and 2017, but if you cut through all the clutter, they are not terribly complicated. At the time, the FBI believed that Page may have worked with the Russian government to interfere in the 2016 election on Trump’s behalf. By the spring of 2017, Page was claiming in media appearances that he had, in fact, previously worked with the FBI and CIA. As a result, for the fourth (and final) application to the FISC, the FBI case agent serving as the affiant—the person who would submit an affidavit attesting to the accuracy of the relevant facts in the government’s application to the court for the warrant—requested that Clinesmith ask the CIA whether Page had in fact been a “source” for the agency.
After corresponding with someone at the CIA on the question, Clinesmith told the FBI agent that Page had been a “subsource” (not a source). In the language of the FBI, a source has a direct relationship with a government agency and can be directly tasked with gathering information, while a subsource has a relationship with a source (not the agency itself) and cannot be tasked by the agency. The FBI agent asked Clinesmith whether he had received that information in writing from the CIA, and Clinesmith told him that he had.
According to Clinesmith’s lawyers, Clinesmith “thought” that this was the case, but when he went back and reviewed the email, he “realized that it did not specifically address the issue of whether [Page] had been a source.” When Clinesmith forwarded the email to the FBI agent, he modified it to conform to his understanding, making it read, in relevant part, that Page was “not a ‘source’ but the [documents] will explain the details.” Clinesmith inserted the phrase “not a ‘source’” before forwarding the email. His involvement thereafter was limited, but ultimately, the final FISA application did not mention Page’s prior relationship with the CIA.
We would not know any of this had the Justice Department’s inspector general not completed a lengthy 2019 investigation—part of a report that ran more than 400 pages—into the Page surveillance after it had become part of Trump and his conservative supporters’ broader narrative that the FBI had pursued a political vendetta against the president. The inspector general’s office broadly rejected this idea—explaining that it “did not find documentary or testimonial evidence that political bias or improper motivation influenced” the FBI’s decisions—but it did find Clinesmith’s misrepresentation and referred that finding to the Justice Department for potential prosecution.
One might reasonably wonder why the Justice Department’s inspector general has spent all of this effort on the matter, but it is part of a larger and under-recognized pattern in which the office’s investigative choices—its decisions on which matters it aggressively pursues and which it does not—appear to closely track the interests of Barr and Trump. Somehow the office managed to produce hundreds of pages on the (ultimately lawful) surveillance of Page, while, nearly two and a half years since the putative end of the family-separation policy, it has not managed to finish a report on that subject.
When Clinesmith pleaded guilty this summer, some legal analysts questioned whether he had actually committed a crime, because he modified the email in question to conform to his actual understanding (an apparent misunderstanding) of the facts. (In their sentencing submission to the court, Clinesmith’s lawyers called his impression that Page was a subsource “an honest but mistaken understanding.”) Under the false-statements statute, however, Clinesmith’s false attribution of his view in writing to someone else—the CIA contact whose opinion actually mattered—was likely a crime. Still, at a time when many commentators have seen fit to treat Flynn’s guilty pleas as dispositive proof of his guilt, Clinesmith’s plea was a useful reminder that these pleas should not fully determine whether and to what extent courts decide that someone is actually guilty of serious misconduct.
In light of this potential defense (that Clinesmith had altered the email, but in a way that he believed was accurate), it would have been entirely reasonable—at least as a strategic matter—for Clinesmith to fight the case. In fact, it would not have surprised me at all if the government had taken the case to trial and lost, particularly if that case had been tried in the District of Columbia, a distinctly Trump-hostile district in which a grand jury did not indict former FBI Deputy Director Andrew McCabe for supposedly misleading investigators in the inspector general’s office.
Clinesmith opted not to contest the case, so a major question the sentencing judge will need to consider is how serious Clinesmith’s misconduct was—an assessment that ultimately turns in significant part on why he altered the email. Clinesmith’s lawyers claimed that it was a “misguided attempt to save himself time and the embarrassment of having to backtrack on his assurance” to the FBI affiant that he had confirmation of his belief about Page’s relationship to the CIA “in writing.” This strikes me as an eminently plausible explanation for a serious one-time error in judgment.
For its part, the government contended in its sentencing submission that the “public record … reflects that political or personal bias may have” been the cause. The entirety of this claim is based on Clinesmith’s having been previously disciplined for sending anti-Trump messages to colleagues while on the job (another area in which the inspector general’s interest is noticeably one-sided). Why Clinesmith did what he did is a crucial point, so if the government had managed to turn up any proof that his evident disdain for Trump (not itself a crime!) caused him to alter the email, we would have seen it by now.
Amid everything else going on in this moment, Clinesmith’s case is easy to ignore. A brief period of incarceration would be far from the most egregious injustice in our judicial system. But the stakes are more than that; they include our commitment to the rule of law—to ensuring that the criminal-justice system is not corrupted by treating presidential allies one way and presidential antagonists another. Hopefully, Judge Boasberg will recognize as much.
*This article previously misstated the date of Kevin Clinesmith's sentencing hearing as December 10, 2020. In fact, the hearing will take place in January 2021.