WASHINGTON – A former FBI lawyer who pleaded guilty to altering an email during the Russia investigation “made a grievous mistake” but should be spared prison time and given probation instead, his attorneys said in a sentencing memorandum Thursday.
Kevin Clinesmith admitted in August to having altered an email that was being used in support of an FBI application to monitor the communications of a former Trump campaign aide, Carter Page. Clinesmith's lawyers said that although he believed the information he wrote was accurate, he knowingly doctored the email by stating that Page was “not a source” for the CIA.
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“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,” his lawyers wrote. “And he committed a crime.”
They said it was “an aberration in a life otherwise characterized by hard work, determination, and dedication to the service of others.”
Clinesmith was charged as part of U.S. Attorney John Durham's investigation into the 2016 probe of Russian election interference and possible ties to Donald Trump's presidential campaign. The Justice Department disclosed this week that Attorney General William Barr had appointed Durham as special counsel, a maneuver designed to ensure that he is not fired by the incoming Biden administration before he completes his work.
The prosecution is the only one brought by Durham despite Trump's claims of sweeping misconduct inside the FBI and intelligence community, and the allegations against him do not implicate anyone else at the bureau.
The sentencing range for Clinesminth is zero to 6 months in prison. In their own sentencing memorandum, Durham and his prosecutors requested a sentence between the middle and high end of those guidelines.
“As a licensed attorney and an officer of the Court, the defendant took an oath, was bound by professional and ethical obligations, and should have been well-aware of this duty of candor,” Durham's team wrote.
They also said it was “plausible” that Clinesmith's political views affected his behavior, noting that he had written the phrase “Viva le resistance” to an FBI colleague the day after the 2016 election.
The case involving Clinesmith concerns applications that the FBI submitted to the secretive Foreign Intelligence Surveillance Court to eavesdrop on Page, a former national security adviser to Trump's 2016 presidential campaign, on suspicion that Page was a Russian agent. At the time, the FBI was investigating whether the campaign had coordinated with Russia to tip the election, and Page's past contacts with Russians was a concern for the FBI.
The handling of those applications has been the subject of scrutiny. A Justice Department inspector general's report last year that detailed Clinesmith's conduct also noted significant errors and omissions in each of the four applications. Page last week sued multiple FBI officials, including Clinesmith, over the warrant applications.
In 2017, as the FBI was seeking to renew its surveillance of Page, an agent working on the case instructed Clinesmith to ask the CIA whether Page had ever been a source for the intelligence agency. Page had been saying in media interviews that he had previously assisted U.S. intelligence agencies, and the FBI was trying to determine if those statements were true.
Any relationship Page had had with the CIA could have been important to disclose to the surveillance court to the extent that it could have helped explain contacts Page had with Russians, including whether they were done at the behest of the U.S government.
“While Kevin cannot remember precisely how he arrived at his incorrect understanding,” the lawyers wrote, Clinesmith was under the impression that Page was a subsource, rather than a direct source, for the CIA.
He altered an email he had received from the CIA, inserting the words “and not a source” to reflect his understanding of Page's relationship with the agency, and forwarded it to the FBI colleague involved in the case, his lawyers said.
In fact, Page had been an “operational contact” for the CIA between 2008 and 2013, meaning someone who provides information to the agency acquired as part of ordinary activities but is not tasked with doing so.
Clinesmith's lawyers say he never intended to deceive anyone, noting that he had also sent the original CIA email, unaltered and in its entirety, to an FBI case agent involved in preparing the warrant application.
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