The former FBI lawyer who pleaded guilty to altering an email to help obtain Foreign Intelligence Surveillance Act wiretap authorization against former Trump campaign associate Carter Page was sentenced to one year of probation and no prison time on Friday.
Judge James Boasberg of the U.S. District Court for the District of Columbia denied the Justice Department's efforts seeking up to six months behind bars, instead giving Kevin Clinesmith probation, 400 hours of community service within a year, and a special assessment of $100 to the court but no fine.
Clinesmith, who worked on the investigation into former Secretary of State Hillary Clinton’s private email server and on the FBI’s Trump-Russia inquiry, as well as special counsel Robert Mueller’s team, admitted in August that he falsified a document during the bureau’s efforts to renew FISA surveillance authority against Page, who had been a foreign policy adviser to former President Donald Trump's 2016 campaign. Clinesmith edited a CIA email in 2017 to state that Page was “not a source” for the CIA when it had told the bureau on multiple occasions that Page had been an “operational contact” for the agency.
"Mr. Clinesmith likely believed that what he said was true," Boasberg concluded on Friday, saying, "I do not believe he was attempting to achieve an end he knew was wrong." The judge added that "it is not clear to me that the fourth FISA warrant would not have been signed but for this error. … Even if Mr. Clinesmith had been accurate about Mr. Page’s relationship with the other government agency, the warrant may well have been signed and the surveillance authorized."
U.S. Attorney John Durham, who was elevated to special counsel in October, and Clinesmith had dueled in court over how long the lawyer should spend behind bars.
“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. ... His deceptive conduct ... was antithetical to the duty of candor and eroded the FISC’s confidence in the accuracy of all previous FISA applications worked on by the defendant,” Durham wrote in December. “The defendant’s conduct also undermined the integrity of the FISA process and struck at the very core of what the FISC fundamentally relies on in reviewing FISA applications.”
Durham said Clinesmith's deception "fueled public distrust of the FBI and of the entire FISA program itself.”
Boasberg claimed Friday that Clinesmith has been “abused” and “vilified” on a “national scale” in handing down his sentence, though he did acknowledge that the FISA court’s reputation “has suffered” from the ex-FBI lawyer’s actions. The judge said the federal courts rely upon honesty from the federal government, especially in “ex-parte” proceedings, in which defendants have no opportunity to defend themselves.
“The court’s expectations of the government are high there, both because the government is acting there with no check, and because the stakes are so high,” Boasberg said. “That is why we FISC judges require the highest degree of honesty and transparency.”
Boasberg, who is also the current presiding judge on the FISA court, ruled in January that he would not award Page restitution under the Crime Victims’ Rights Act but allowed him 10 minutes to speak about the harm caused by the June 2017 FISA renewal against him.
Page said Friday that “you have noted the personal life of the defendant — my own personal life has been severely impacted too” as he described being “frequently harassed on the streets, and even under the streets,” saying he had been accosted on the metro underneath a federal courthouse. The former Trump campaign associate said the “manufactured scandal and associated lies forced me to adopt the lifestyle of an international fugitive for years” and that Clinesmith’s deception denied Page’s “years of service” and ignored the help he gave the CIA. Page lamented that Clinesmith had forged the CIA email “rather than helping to set the record straight.”
But Page did not push for a prison sentence for Clinesmith, instead pitching himself to Boasberg as an amicus, or “friend of the court,” adviser, saying his experiences would be helpful for FISA reform. The judge told Page, “Thank you for explaining what happened to you and the harms you suffered.”
A supervisory agent dubbed "SSA 2" in DOJ Inspector General Michael Horowitz's report about the FBI's Russia investigation, believed to be Joseph Pientka, told investigators that on the third FISA renewal, he wanted "a definitive answer to whether Page had ever been a source for another U.S. government agency." While in contact with the CIA's liaison, Clinesmith was reminded that in August 2016, predating the first Page warrant application in October 2016, the agency informed the FBI that Page "did, in fact, have a prior relationship with that other agency."
An email from the CIA's liaison was sent to Clinesmith, who "altered the liaison's email by inserting the words 'not a source' into it, thus making it appear that the liaison had said that Page was 'not a source' for the other agency," Horowitz found. "Relying upon this altered email, SSA 2 signed the third renewal application that again failed to disclose Page's past relationship with the other agency."
Anthony Scarpelli, a top prosecutor on the special counsel team, contended that “the defendant’s criminal conduct tarnished the integrity of the FISA program” and that “the resulting harm is immeasurable” as he described Clinesmith’s editing of the CIA email as “akin to identity theft.” The prosecutor said that “the altered email misled the FISC regarding salient and material facts regarding probable cause” and that “the public deserves better from attorneys working for the government.”
Clinesmith admitted Friday that “I harmed the very institutions I admire” and that “I am deeply remorseful for any effect my actions may have had” on the FISA process and the FISA court. He claimed that “I never intended to mislead my colleagues about the status of Dr. Page” and called the fraudulent email “an unnecessary shortcut.” He urged those listening not to “let my error reflect on those who continue to serve our country.”
“I have a duty to take responsibility for my actions and mistakes. I believe this is especially true because I was a civil servant. Civil servants are the backbone of our government,” Clinesmith said, adding, “The responsibility in holding such a position and my personal values requires me to hold myself to the highest standards. … I take full responsibility for it. … I will live with my consequences of my actions … for the rest of my life.”
Clinesmith’s lawyer, Justin Shur, referenced at length the more than 55 letters of support from Clinesmith’s family, friends, and colleagues as he argued for leniency. The attorney said “the email incident is clearly an aberration in an otherwise honorable life” and that the “evidence shows” that Clinesmith believed Page was a “subsource” and “not a source.” Shur said “many of the harms” outlined by Page were not Clinesmith’s fault and denied that there was any “nefarious and malicious plot.”
Scarpelli said that Clinesmith’s “own words potentially explain why he altered the email” and pointed out that Clinesmith had told SSA 2 that “at least we don’t have to have a terrible footnote” after he falsely claimed Page was “not a source” for the CIA. Scarpelli said he believed Clinesmith edited the email because, otherwise, the FBI “would have to disclose to the FISC that they had this information all along, but omitted it in three prior FISA applications against Dr. Page.”
Horowitz’s report criticized the Justice Department and the FBI for at least 17 “significant errors and omissions” related to the FISA warrants against Page and for the bureau's reliance on the Democrat-funded, discredited dossier by British ex-spy Christopher Steele. The Justice Department told the FISA court it believed the final two of four Page FISA warrants were “not valid." FBI Director Christopher Wray agreed there had been at least some illegal surveillance and said he was working to “claw back” that FISA information.
“The public record also reflects that political or personal bias may have motivated or contributed to his offense conduct,” Durham told the court last month.
In a separate July 2018 inspector general report on the FBI's Clinton emails investigation, Clinesmith was mentioned numerous times as one of the FBI officials who conveyed a possible bias against Trump.
In a lengthy instant message exchange between Clinesmith and another FBI employee on Nov. 9, 2016, the day after Trump’s presidential victory, he lamented: “My god damned name is all over the legal documents investigating his staff. So, who knows if that breaks to him what he is going to do?”
Other messages show Clinesmith expressed favor toward Clinton in the weeks after Trump's win, saying, “Viva le resistance."