The Department of Justice investigation into what is variously known as “Russiagate” and “spygate” has lined up its first criminal charge. Kevin Clinesmith, a former FBI lawyer, will plead guilty to making a false statement, according to his attorney, Justin Shur. Though Clinesmith was, in fact, no low-level minion, his was not exactly a household name. Will more prosecutions follow and, if so, will bigger fish be fried by John Durham’s investigation, or will it only ever be the behind-the-scenes people like Clinesmith who take the fall for higher-profile figures who, by virtue of their more senior status, must have set the wheels in motion?
In 2017, the FBI applied for its third renewal of the Foreign Intelligence Surveillance Act (FISA) warrant to continue its monitoring of former Trump campaign associate Carter Page. Documentation submitted to the court included an email noting that Page had been a CIA source. This fact, of course, may have led the court to question the need to surveil a U.S. citizen known to be an intelligence community source. Clinesmith allegedly altered the email to say that Page was “not a source” for the CIA.
The Question of Political Bias
Once again, the question of political bias comes into play: why would a senior FBI lawyer alter a document to mislead a secret court? What possible motivation did Clinesmith have to, in effect, tamper with FBI evidence? Did he make this decision, or was he ordered or encouraged to do so? Perhaps Durham knows the answers to these questions, or maybe the defendant will provide an explanation when he appears before a Washington, D.C. court.
During an interview with Fox News’ Sean Hannity on August 13, Attorney General Bill Barr dropped a hint that a “development” in the Durham investigation would come to light the following day. While he suggested that the impending revelation would not be “earth-shattering,” Barr remarked that it would serve as “an indication that things are moving along at the proper pace as dictated by the facts in this investigation.”
A Significant First Prosecution
The Clinesmith case is significant for two reasons. It is the first prosecution to arise from the DOJ inspector general’s office review of potential FBI misconduct relating to spying on the 2016 Trump campaign – a review which preceded the appointment of Connecticut prosecutor John Durham to examine the genesis of the now-discredited Trump-Russia collusion investigation. Additionally, the charge Clinesmith faces reflects the central concern repeatedly voice by President Trump himself, his Republican allies, and his supporters.
The concern is that FBI and DOJ officials themselves colluded to deceive both the American people and the Foreign Intelligence Surveillance Court (FISC) into thinking the president and his campaign team worked with the Russians to influence the 2016 election. That suspicion has been denied by those who were involved in Crossfire Hurricane and scoffed at by Democrats. Yet, Clinesmith is alleged to have done exactly what Republicans have been claiming: his impending guilty plea will serve as an admission that the FBI did indeed knowingly mislead the FISC in order to spy on an American citizen. It is worth remembering that, to this day, Carter Page has not been charged with any crime.
The prosecution – or perhaps the persecution – of Michael Flynn dragged on almost interminably. To President Trump’s detractors, Flynn was public enemy number one; his crime so egregious that the very idea that he might avoid prison time should be seen as a national disgrace. By contrast, though, Clinesmith’s alleged crime is far worse: the man deliberately altered an official document for the express purpose of misleading a FISA court. If equal justice under the law is indeed something in which Democrats believe, we should expect to hear their outrage, should the former FBI official not go to jail. Holding one’s breath, though, is not advised.
Read more from Graham J. Noble.