WASHINGTON (CN) — The former FBI lawyer who altered an email so that the bureau could renew a surveillance warrant against former Trump campaign adviser Carter Page urged a federal judge Thursday to keep him out of jail.
A defense sentencing memo says Kevin Clinesmith made a “grievous mistake” and “cut a corner,” but that he did not intend to mislead federal investigators or the Foreign Intelligence Surveillance Court.
The single false statement charge to which Clinesmith pleaded guilty in August carries zero to six months of prison time under federal sentencing guidelines. Though Clinesmith is seeking probation, the Justice Department asked for incarceration “between the middle and upper end” of the sentencing range.
Prosecutors argue that political bias may have motivated Clinesmith to doctor the email about Page, allowing the FBI to surveil a U.S. citizen under a FISA application that the Justice Department later said lacked probable cause.
“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: the government’s duty of candor,” the government’s memo states.
Clinesmith is so far the only person to face prosecution since Attorney General William Barr tapped federal prosecutor John Durham last year to study the origins of the FBI investigation into Russian interference in the 2016 election.
Recently appointed by Barr to serve as a special counsel investigating Crossfire Hurricane, the codename for the Russia probe, Durham signed off on the 20-page sentencing memo the government submitted Thursday night.
When Clinesmith pleaded guilty this past August, he admitted in Washington that he had altered a 2017 agency email that the FBI relied on to renew the Page warrant, changing it to say that the Trump adviser, who was previously a CIA source, was “not a source.”
Repeating a claim the former government lawyer made at his plea hearing, the 48-page sentencing memo from Momolamken defense attorneys stresses that Clinesmith believed he was providing accurate information.
“By altering a colleague’s email, he cut a corner in a job that required far better of him," the Thursday memo states. "He failed to live up to the FBI’s and his own high standards of conduct. And he committed a crime."
But the Justice Department argued there is no evidence to support the claim that Clinesmith did not know that Page was a CIA source, citing an email the defendant received that “made clear that Individual #1 was an individual who ‘provide[s] reporting to us,’” the government wrote, referring to Page.
Clinesmith’s attorneys claim he recognizes his “lapse in judgment” and how it may have influenced the FISA warrant renewal, explaining the defendant should have told the FBI case agent who he forwarded the altered email to that, while he understood Page was not a source, “the email from the other agency [CIA] did not say so specifically.”
With his reputation “ruined” and career “in shambles,” they said probation is “just punishment for Kevin’s critical lapse in judgment.”
But the government said that outcome is par for the course for white-collar defendants and does not merit special treatment.
“Society expects and requires better from attorneys and officers of the Court, who take the oath to uphold the law and comply with their professional and ethical obligations,” federal prosecutors wrote. “These consequences do not negate the need for a sentence of imprisonment to reflect the seriousness of his offense.”
Clinesmith’s attorneys argue meanwhile that a sentence of incarceration would be “unnecessarily harsh” in light of the raging pandemic, noting that his wife is pregnant with their first child. Covid-19 has run rampant through crowded federal prisons, leading to release to home confinement for thousands of inmates convicted of nonviolent crimes.
Their sentencing memo also says Clinesmith has been “lambasted on the national stage,” becoming the poster boy for President Donald Trump’s claim that the Russia probe was a “deep-state” conspiracy to bring down his administration.
Before Clinesmith’s plea agreement was filed, the president held a White House press conference where he called the defendant “a corrupt FBI attorney who falsified FISA warrants in James Comey’s very corrupt FBI,” defense attorneys wrote.
Clinesmith ultimately received death threats and his family was harassed, according to the memo, which includes half a page of redacted material following posts on social media that call for Clinesmith to be hanged on gallows on Capitol Hill and shot by a military firing squad.
Durham’s team on the other hand is focused on Clinesmith's motivation, telling the federal court the defendant had been suspended in the past for improper political messages sent to FBI colleagues.
“For example, on the day after the 2016 presidential election, the defendant wrote, ‘I am so stressed about what I could have done differently.’ When another FBI colleague asked the defendant ‘[i]s it making you rethink your commitment to the Trump administration[,]’ the defendant replied, ‘Hell no,’ and then added ‘Viva le resistance,’” the Justice Department’s memo states.
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