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January 29, 2021

In high-profile sentencing, victim input and collateral consequences push judge away from prison term for misconduct by former FBI attorney

This lengthy Politico piece, headlined "Ex-FBI lawyer spared prison for altering Trump-Russia probe email," reports on an interesting high-profile federal sentencing today in DC.  Here are excerpts, with a bit of commentary to follow:

The only person charged in the Justice Department's investigation into the origins of the probe of former President Donald Trump's 2016 campaign and its ties to Russia was spared prison time for altering an email used to support a surveillance application.  Former FBI attorney Kevin Clinesmith, 38, received the sentence of 12 months probation and 400 hours community service from U.S. District Court Judge James Boasberg Friday during a video hearing.

Clinesmith admitted that in June 2017 he sent an altered email to an FBI agent that indicated a target of court-ordered FBI surveillance, former Trump campaign adviser Carter Page, was "not a source" for the Central Intelligence Agency. The statement, passed along as the FBI was applying for a third extension of surveillance of Page, made Page's actions seem more suspicious by downplaying his past cooperation with the CIA.

Clinesmith insisted that he thought the statement was true at the time and only altered the message to save himself the hassle of procuring another email from the CIA. Prosecutors contested that claim, arguing that the FBI lawyer intended to mislead his colleague, but Boasberg sided with the defense on that point.  "My view of the evidence is that Mr. Clinesmith likely believed that what he said about Mr. Page was true," Boasberg said. "By altering the email, he was saving himself some work and taking an inappropriate shortcut."

While Trump and his GOP allies have suggested that Clinesmith was engaged in a political vendetta against Trump, Boasberg noted that a Justice Department inspector general investigation failed to establish that political considerations played a role in Clinesmith's actions or numerous other errors and omissions that impacted filings with the Foreign Intelligence Surveillance Court....

Clinesmith pleaded guilty last August to a felony false statement charge in a plea deal with John Durham, the prosecutor then-Attorney General William Barr tapped in 2019 to investigate the origins of the Trump-Russia probe. Barr formally designated Durham as a special counsel last fall, in an apparent bid to complicate any attempt by a new administration to shut down Durham's inquiry.

Prosecutors argued that Clinesmith's misconduct was so serious that he deserved between about three and six months in prison. Clinesmith's lawyers asked that he not receive any prison time.  The maximum sentence on the false statement charge is five years in prison, although judges usually sentence in accord with federal guidelines that called for Clinesmith to serve between zero and six months in prison. "The defendant's criminal conduct tarnished and undermined the integrity of the [Foreign Intelligence Surveillance Act] program," Assistant U.S. Attorney Anthony Scarpelli told the court.  "It has lasting effects on DOJ, the FBI, the FISC, the FISA process and trust and confidence United States citizens have in their government...The resulting harm is immeasurable."

Clinesmith's lawyer Justin Shur called his client's actions "inexcusable," but said they were "aberrations" in a life of dedicated public service.  He also said they played a relatively small part in the overall surveillance process and the broader probe. "There were many people involved in these applications and many mistakes that were made," Shur said....

Clinesmith also addressed the court, expressing contrition and describing his career as essentially destroyed by his misconduct and the ensuing prosecution. "I am fully aware of the significance of my actions and the crucial error in judgment I made," the lawyer said. "I let the FBI, the Department of Justice, my colleagues, the public and my family down. I also let myself down.  I will live with the consequences and deeply-held feeling of regret, shame and loss caused by it for the rest of my life."

While prosecutors urged the judge to send Clinesmith to prison to send a message to others in government not to try something similar, Boasberg said he believed that message had already been sent. He noted that Clinesmith has lost his job, may be disbarred and may never be able to work in the national-security field again. "He went from being an obscure government lawyer to standing in the eye of a media hurricane," the judge said. "He's not someone who ever sought the limelight or invited controversy other than by his criminal action here....Anybody who's watched what Mr. Clinesmith has suffered is not someone who would readily act in that fashion."

The 90-minute sentencing hearing also featured an impassioned speech from Page, in which the energy industry analyst complained that his life was also turned upside down by the media firestorm that followed public disclosure that he was a focus of the FBI probe into potential Russian influence on the Trump campaign. "My own personal life has been severely impacted," Page said. "I was frequently harassed on the street and even under the street such as in the Washington metro beneath the courthouse....It was deadly serious. At the time I received many death threats as a 'traitor.'"

However, Page did not ask for imprisonment for Clinesmith. "I hope the defendant can get back to his family as soon as you deem appropriate," the former Trump campaign adviser told the judge. That seem to strike a chord with Boasberg, who mentioned twice during the hearing that Page wasn't seeking prison for the ex-FBI lawyer.

The politics surrounding this case account for why this matter will be covered in many newspapers, but I am drawn to this tale as a notable sentencing story.  Tellingly, while federal prosecutors argued that some prison time was needed, the person victimized by the offense (Carter Page) had the magnanimous and impactful view that the defendant need not serve any prison time.  In addition, the federal district judge here recognized, as should every sentencing judge in every case, that the defendant was already subject to a wide array of significant and persistent collateral consequences which function to punish and deter in ways that transcend a short period in prison.

January 29, 2021 at 05:03 PM | Permalink


Of course no jail time was warranted. Let's see here. Michael Flynn, then a gov't official with significant power and responsibility, deliberately told the FBI point blank what he absolutely knew to be false--despite multiple opportunities to come clean--and it concerned a matter of great national importance. He ultimately got off scot free.

In contrast, Clinesmith was a nobody, a bit player, who, although it was unquestionably wrong and a blunder of epic proportions, added a handful of words to a single email to conform it to what he thought was accurate in the first place, no doubt under immense pressure in the course of his job and understandably to avoid a morass of bureaucratic red tape. And magically, a guy like him at the bottom of the totem pole is the only one who ends up being charged. So while I'm sure the AUSA meant his conduct was "immeasurable" in the sense of being too big to measured, that description is only accurate because his conduct was so insignificant.

And spare me the dramatics from Page. The reactionaries only get upset about supposed death threats--if he's even telling the truth--when it affects them personally. I wonder if he had any thoughts of concern for Judge Amy Berman Jackson when Roger Stone was making gossamer-thinly veiled threats against her. And I dispute whether he even qualifies as a "victim" in this case. Or if he is, then imagine who Flynn's victims might be?

Last, while informal (e.g., losing your job) collateral consequences are tough, for sure, I have more sympathy when that happens to "blue collar" defendants. Almost by definition, big-time white collar defendants are going to start out with very posh jobs and home lives. So if the sentence has to be reduced because that stuff has been lost, then folks with affluent lifestyles get an unfair built-in advantage not available to those of few means. I don't think that state of affairs is going to sit well with most people.

Posted by: hardreaders | Jan 30, 2021 1:48:28 PM

And this guy was subsequently allowed to have his law license back---for someone who claims to care about people in the criminal justice system getting scrutiny, it's odd that you'd allow that to pass uncommented upon, Professor Berman.

Posted by: federalist | Dec 27, 2022 3:31:53 PM

What commentary are you seeking, federalist, in yet another political case that is now drawing your attention two years later?? I generally support encouraging and recognizing mistakes/rehabilitation, including by bar authorities.

Posted by: Doug B. | Dec 27, 2022 4:18:49 PM

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