Author’s Note: This is the first of a three-part series.To answer the question posed in last Tuesday’s column, Yes, Kevin Clinesmith did plead guilty Wednesday. Sort of.Well, maybe it was a smidge better than “sort of.” After all, it did happen in a federal-district-court proceeding (via videoconference) on Wednesday. And Judge James Boasberg did accept the plea after eliciting it in accordance with settled criminal-law rules. Sentencing is scheduled for December 10. So it’s official.But I’m sticking with “sort of.” If Clinesmith’s guilty plea is legally adequate, it is barely so. And neither a judge nor a prosecutor is required to accept an allocution sliced so fine. In “admitting” guilt, Clinesmith ended up taking the position that I hoped the judge, and especially the Justice Department, would not abide, in essence: Okay, maybe I committed the crime of making a false statement, but to be clear, I thought the statement was true when I made it, and I certainly never intended to deceive anyone.Huh?I don’t mean to make you dizzy, but in my view, Clinesmith is lying about lying. His strategy is worth close study because it encapsulates the mendaciousness and malevolence of both “Crossfire Hurricane” (the FBI’s Trump-Russia investigation) and the “collusion” never-enders who continue to defend it. A defendant’s lying about lying does not necessarily make a false-statement guilty plea infirm as a matter of law. The bar is not high. Still, his story is ridiculous, in a way that is easy to grasp once it’s placed in context.So let’s place it in context.‘Page Is a Russian Spy’ — the FBI Plants Its Feet on a Fantasy Our point of reference is spring 2017.While indignantly denying news stories portraying him as a clandestine agent of Russian, Carter Page asserts that, actually, he’s been an informant for a U.S. intelligence agency. FBI officials should know that Page is telling the truth. They have already heard the same thing from the CIA and from Page himself.The CIA told the bureau ten months earlier, in a memo dated August 17, 2016 (i.e., two months before the FBI sought the first FISA warrant against Page). Page had been a CIA source who provided information about Russians. Page told the bureau about at least some of this work during voluntary interviews in 2009 and 2013, during the period when the CIA had authorized Page for “operational contact” with Russians. The FBI, meanwhile, actually used information from Page in a prosecution of Russian spies. (See my 2018 column, discussing of United States v. Buryakov.)And it’s not as if the CIA’s acknowledgment of Page’s informant status was the only exculpatory fact the FBI knew. Not by a long shot. Page was pleading with the FBI director to sit down with the bureau and explain himself, as he had done on other occasions over the years. More to the point, in August 2016 (again, two months before the first FISA warrant to permit spying on Page), Page had credibly insisted to a covert FBI informant, Stefan Halper, that key allegations about Page (derived from the bogus Steele dosser) were false: Page did not even know Trump campaign chairman Paul Manafort, let alone act as Manafort’s intermediary in a Trump–Russia espionage conspiracy; and Page had not recently met in Moscow with Putin-regime heavyweights Igor Sechin and Igor Divyekin.Thus, (a) Page had not done the very things that led the FBI to accuse him of being an active anti-American spy, and (b) Page’s prior contacts with Russians, on which the bureau further rationalized its overwrought suspicions, overlapped with Page’s years as a CIA operative. Weeks before the FBI and the Obama Justice Department first applied for a FISA warrant on the theory that Page was a spy for the Kremlin, the FBI team conducting the investigation had information showing the theory was untenable.Yet the bureau chose to plant its feet on the daft theory anyway. Apologists for the bureau and the Obama administration would now have you believe that this is because a single one of the FBI’s crack counterintelligence agents, Stephen Somma, dropped the ball -- that he alone knew Page was a CIA informant, but held out on his chain-of-command. Really? If they dropped as many balls in Times Square as Somma did -- purportedly without anyone noticing, in one the most significant investigations in the FBI’s history -- we’d have New Year’s once a week.The fact is, top officials were drinking the “Donald Trump must be colluding with Russia” Kool-Aid, so the story was too good to check. And once the farcical Steele dossier grabbed the investigators’ attention in late summer 2016, the bureau was off to the races, framing Page as a key cog in the Trump campaign’s “conspiracy of cooperation” with the Kremlin.But that was autumn 2016. Now, remember, we’re in late spring of 2017. At this point, the FBI has been monitoring Page for over eight months. The Page-is-a-Russian-spy theory is in tatters. The surveillance turns up nothing. Halper has nothing. Steele’s dossier, a shoddy product on its face, is now a hot, steaming mess. Not only is it uncorroborated and unverifiable; Steele himself is dismissing it as “raw” information that needed to be investigated, and his “primary subsource,” Igor Danchenko, has discredited it as fiction and rumormongering.But alas, the FBI is dug in. This was not just office banter. The bureau had taken the claim that Page was a spy to court. It was the linchpin of the hypothesis that the Trump campaign was a Kremlin influence operation. This theory, bereft of supporting evidence and resistant to exculpatory evidence, had the imprimatur of FBI headquarters. By June 2017, in conjunction with the Justice Department, the FBI had made this claim under oath to the Foreign Intelligence Surveillance Court (FISC), three times: a first application in October 2016, and renewal applications in January and April 2017. Each time, based on the FBI’s representations, the FISC issued a 90-day surveillance warrant against Page.Disclosure Would Mean Epic Humiliation The warrant issued by the FISC on April 7 was due to expire in early July. By mid June, then, the bureau was well into its preparations to submit yet another renewal application.This is the salient time frame for Clinesmith’s case. His defense counsel and apologists would have you look at it as a snapshot. But it wasn’t just a moment in time. It was a moment shaped by the preceding ten months, since the “Crossfire Hurricane” investigation (i.e., the Trump-Russia probe) was formally opened on July 31, 2016.By June 2017, it would have occasioned epic humiliation for the FBI to admit that it had on three occasions made false assertions under oath in order to persuade federal judges to issue classified surveillance warrants against an American citizen. Not just humiliation. FBI leadership had publicized the existence of the Trump–Russia probe, consciously promoting the media-Democratic political narrative that the president was beholden to the Kremlin. An admission that court warrants had been sought on false premises would have led to certain administrative discipline and potential criminal inquiries.This was not at the back of the bureau’s mind. It was front and center. Just read the FISA warrants. Read the in-the-interest-of-full-disclosure footnotes massaged into gibberish as the case was collapsing. And bear in mind: These laborious rationalizations did not come close to revealing the mounds of exculpatory information that the FBI was withholding.To hear FBI and Justice Department officials tell it, the FISA process is so well designed and diligently executed that, at all times, they are profoundly aware of their heightened duty of candor, of their obligations to submit only verified warrant applications. Of their duty to alert the FISC promptly if they discover that something they’ve represented to the court is inaccurate. They know, they tell us, about the imperative to be transparent regarding exculpatory information. And even if officials were ever to lose sight of these weighty responsibilities, even for a moment, we’re to take comfort that their recollection would quickly be refreshed by the multiple, high-level FBI and DOJ approvals the FISA statute mandates. These have spawned an infrastructure of lawyers, analysts, and verification procedures to ensure that the bosses don’t embarrass themselves by signing off on FISA warrant applications that are fraudulent, or at least recklessly irresponsible.That’s how it’s supposed to work . . . on the drawing board.Down here on Planet Earth, though, in all of government’s sprawl, there is no institution more self-conscious about its image, more energetic in promoting its pristine reputation, than the Federal Bureau of Investigation. And thus there is none more resistant to damaging disclosures.At the bureau, officials are keenly aware that, when a misrepresentation is discovered, it is often just the visible part of what, on inspection, turns out to be a train of errors, oversights, poor judgments, and, occasionally, misconduct. The disclosure of a single glaring inaccuracy elucidates that investigators, analysts, or lawyers -- or all of them -- were aware of information that should have set off alarm bells, yet they all turned a deaf ear. Alarm bells, after all, signal underlying misfeasance . . . and sometimes malfeasance. If a judge gets spun up by one embarrassing disclosure, it can soon become two . . . then four . . . And then, next thing you know, a case is unraveling as a scandal unfolds.Clinesmith’s Motives Mirror His Superiors’ MotivesIn June 2017, on the thin line between business as usual and epic embarrassment, stood Kevin Clinesmith.He was then a 30-something assistant general counsel in the bureau’s National Security and Cyber Law Branch. It is part of the FBI’s Office of General Counsel (OGC), then led by James Baker.Among the branch’s responsibilities, it reviews FISA warrant applications. The Carter Page applications, however, were handled in an unusual way. Details of the applications were scrutinized at the highest levels of the FBI and the Justice Department, to the point that the National Security branch’s once-over became superfluous.For example, Trisha Anderson, the OGC’s former deputy general counsel, told the House Intelligence Committee in 2018 testimony that, though she normally reviewed FISA warrant applications before they went to the upper ranks for statutorily required sign-offs, she did not do that with the October 2016 Page application. By the time it landed on her desk, it had already been reviewed “line by line” by such superiors as the FBI’s then–deputy director Andrew McCabe, as well as by then–deputy attorney general Sally Yates at Main Justice. It had even been perused by Anderson’s OGC superior, General Counsel Baker. Baker conceded to the committee that it was unusual for him to review a FISA warrant application, particularly at an early stage, as he did with the Page application.In the chain of command, Clinesmith ranked a few notches lower than Anderson: He reported to the National Security branch chief, who reported to Anderson, after which the chain ascended to Baker, McCabe, and ultimately Director James Comey. That is, Clinesmith was a junior officer -- support personnel. The decision to represent to the FISC that Page was a Russian spy had been made way above his pay grade. The bosses were so invested in it, they were relying on it to investigate the sitting president of the United States. And just a few weeks earlier, when the president fired Comey in May 2017, a special counsel had been appointed to take over the investigation. The Mueller team’s mandate from the deputy attorney general was to get to the bottom of links between the Russian regime and former Trump-campaign advisers, such as Page.This was not a train Clinesmith could have started or stopped on his own. Nevertheless, he was all in.We learn from the Inspector General’s report on the FBI’s FISA abuse that, from the very beginning, Clinesmith was in on OGC deliberations about seeking FISA surveillance of Page. Even before September 2016, when he first learned about Steele’s reporting, he told the IG he believed that there was a “50/50” chance of establishing probable cause that Page was a clandestine agent for Russia. For that assessment, he relied on “Page’s historical contacts with Russian intelligence officers.” At that point, he says he did not know that the CIA had told the FBI that Page was a CIA informant when these contacts took place. So, when the first FISA warrant was sought in October 2016 (and the second in January, and the third in April), he agreed that the probable-cause standard was easily satisfied by these contacts, weighed in combination with Steele’s (uncorroborated) claims about Page, as well as Page’s statements to Halper (as bowdlerized by the bureau).Echoing his bosses, then, Clinesmith adopted the “Page is a Russian spy” fantasy from the get-go. If subsequent developments ever called for scrutinizing the kamikaze portrayal of Page as a spy, Clinesmith was sure to be on the hook. And while the higher-ups would take most of the heat if the bureau proved to be embarrassingly wrong, it is always the underlings like Clinesmith who get hung out to dry for misinforming their superiors. That is how Washington works. Clinesmith, a Washington creature, realized this only too well.‘The Predication of Our Entire Investigation’ Is at RiskOf course, Clinesmith was not putting himself personally on the line with the FISC. That was to be the responsibility of the affiant, the FBI agent assigned to swear to the truth of the warrant application. This difference in the duties of that agent and Clinesmith, along with an obvious integrity disparity, explains the very different way they approached the matter.This affiant-agent is identified only as “SSA” in the criminal information filed against Clinesmith. (This affiant-agent is “SSA 2” in the IG report, one of several unidentified “supervisory special agents” who appear therein). Though nominally a supervising agent, the SSA operated at some remove from the rubber-meets-the-road investigating. In the bureau, the agent who signs a FISA warrant is not the supervisor of agents investigating the case; he is a headquarters “program manager.” Furthermore, the SSA was not assigned to Crossfire Hurricane until late December 2016. That is, he was not involved in the initial deliberations over whether Page was a Russian spy and whether to seek FISA surveillance on that theory.Having inherited sign-off responsibility in an ongoing surveillance that his superiors had already green-lighted, the SSA went with the flow, at least at the beginning. The IG report indicates that, in signing the first and second renewal applications (in January and April 2017), the SSA performed only a cursory review of the file. He assumed that other agents had done their work properly.It was only in June 2017, as the third renewal application was being prepared, that he became concerned. It was around that time that the SSA heard about Page’s vehement public denials that he was a Russian spy and claims that he had engaged Russians on behalf of an American intelligence service. It dawned on the SSA that he would be expected to swear, under penalty of perjury, that he believed there was probable cause to conclude that Page was a clandestine agent of Russia, working against the United States. Page’s public protestations gave him pause. They also created a potentially catastrophic problem for the bureau, which the SSA later summarized for the IG (I’d italicize -- but I’d have to italicize every word):> [If Page] was being tasked by another agency, especially if he was being tasked to engage Russians, then it would absolutely be relevant for the Court to know . . . [and] could also seriously impact the predication of our entire investigation, which focused on [Page’s] close and continuous contact with Russian/Russia-linked individuals.If Page had been a CIA operative during meetings with Russians — meetings that the FBI had sworn to the court showed Page was a traitorous spy — then the FBI would have some serious explaining to do. And if it turned out that, before applying under oath for the warrants, the FBI had been informed by the CIA that Page was a CIA operative, then the FBI would be humiliated.Bear in mind: The incumbent Democratic administration had opened an election-year investigation of its Republican opposition, and the FBI had heavily relied on bogus evidence generated by the Democratic campaign to claim that Page was a spy for Russia. With that as background, there would be only two possible explanations for the FBI’s failure to inform the court that Page was working for the CIA when the bureau had claimed he was working for the Kremlin: willful abuse of power or monstrous incompetence.End of Part 1.
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