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The new guilty plea in John Durham’s investigation, explained

Former FBI lawyer Kevin Clinesmith admitted to altering the text of an email. Why’d he do it?

Attorney General Bill Barr.
Attorney General Bill Barr.
Mark Wilson/Getty Images
Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.

US Attorney John Durham, appointed by Attorney General Bill Barr to review US officials’ handling of the investigation into the Trump campaign’s ties to Russia, landed a guilty plea on Wednesday for the only charge stemming from his probe so far.

Former FBI attorney Kevin Clinesmith, part of the team that prepared applications to surveil Trump campaign aide Carter Page, pleaded guilty to one count of making a false statement. Specifically, Clinesmith admitted altering the content of an email from another official used in internal decision-making.

Clinesmith’s misconduct was initially revealed by inspector general Michael Horowitz in a report last year, and it stood out as the most egregious instance of widespread problems with how the FBI handled Page’s surveillance.

Yet despite the hopes of some conservatives, including Donald Trump, there’s no indication that Clinesmith’s actions were part of any larger political plot against the president.

Clinesmith’s conduct was clearly inappropriate — and he now admits it was criminal. But he was never a leading figure in the FBI’s Russia investigation, and as far as we know, his misconduct was limited to a relatively minor part of the overall probe (the fourth surveillance application for one person, Page, who didn’t end up being charged with anything).

We don’t know yet whether Durham will find more evidence of criminal wrongdoing, or whether this charge has broader implications for his investigation. The former FBI attorney’s plea agreement did not include a broad requirement that Clinesmith cooperate with the government or testify in future court proceedings — though he agreed to “be personally debriefed” by the FBI regarding its review of FISA matters. And Clinesmith and his lawyers have made comments implying his offense was more about bureaucratic corner-cutting than a nefarious attempt to advance a political agenda.

Overall, though Trump has frequently suggested that the Russia investigators committed crimes while investigating him, so far the Clinesmith example stands out as an exception, rather than being characteristic of the larger investigation.

The charge relates to the troubled effort to surveil Carter Page

Soon after the FBI opened its investigation into the Trump campaign’s Russia ties back in 2016, the bureau singled out several campaign officials for particular scrutiny — one of them was Carter Page.

Page had been plucked seemingly from nowhere to become a foreign policy adviser to the Trump campaign. Media coverage soon focused on his pro-Russian and pro-Putin views, particularly after Page traveled to Moscow that July. And behind the scenes, Christopher Steele’s infamous dossier contained various claims that Page was central to a Trump-Russia conspiracy.

After Page was ousted from the Trump campaign, the Justice Department applied for a Foreign Intelligence Surveillance Act (FISA) warrant to surveil Page’s communications. It renewed that request three times, stretching its surveillance into mid-2017. However, Page was never charged with any crimes — by Mueller’s team or anyone else — and Steele’s allegations about Page seem to have been inaccurate.

Later, Justice Department Inspector General Michael Horowitz harshly criticized the FBI for its handling of Page’s surveillance. In a report released last December, Horowitz argued that the applications to the Foreign Intelligence Surveillance Court were rife with factual errors and omissions.

Many of them seemed to be simple sloppiness, but his most egregious finding was that one FBI lawyer — Clinesmith — altered an email from a CIA official about Page before forwarding it to an FBI official.

What Clinesmith did

The issue arose in June 2017, when the FBI was preparing its application for a fourth round of FISA surveillance on Page. Because of Page’s public comments, an FBI agent in charge of the application wanted to review whether he had, in fact, been a “source” for the CIA — something that had not previously been mentioned in any of the applications submitted to the FISA court.

Clinesmith was tasked with getting an answer on this. And a CIA official responded to his questions by email with a good deal of agency jargon. Here’s Horowitz’s presentation of the email, which is difficult to parse because it obscures the exact terminology the CIA used:

[The U.S. government agency uses] the [digraph] to show that the encrypted individual ... is a [U.S. person]. We encrypt the [U.S. persons] when they provide reporting to us. My recollection is that Page was or is ... [digraph] but the [documents] will explain the details. If you need a formal definition for the FISA, please let me know and we’ll work up some language and get it cleared for use.

Basically, the CIA official listed a two-letter combination term (a “digraph”) to clarify how the agency categorized Page. She also presented documents for further clarification. But the official did not say clearly whether Page was or was not a “source“ — because, as she later told Horowitz’s office, that just isn’t terminology the CIA uses.

Then, a few days later, Clinesmith reported back to the FBI agent that Page was “never a source,” suggesting the FISA application renewal should be good to go without that information. Clinesmith was asked if he had that in writing, and he said he did, and also that he’d forward it. But before forwarding the CIA official’s email, he personally added four words to it, which I’ve bolded below for emphasis:

My recollection is that Page was or is ... [digraph] and not a “source” but the [documents] will explain the details.

That satisfied the FBI agent, who soon signed off on the fourth round of surveillance for Page.

But this is what Clinesmith was charged for — false statements, and specifically for making and using “a false writing and document” in a governmental matter.

Why did Clinesmith do this?

Altering an email is obviously quite bad — it’s serious misconduct that even skeptics of this prosecution agree Clinesmith deserved to lose his job over. So why do it?

Clinesmith’s version of events is essentially that this was a shortcut. While under oath, he insisted to a judge Wednesday that he believed the claim he added — that Page was not a CIA source — was actually the truth. The implication is that he failed to get this in writing as the FBI wanted, so he cut some corners by adding it in himself.

Yet the CIA official involved would tell Horowitz’s investigators that Clinesmith’s addition was, in fact, misleading. She said that Page had indeed provided information to the CIA. So even though the agency doesn’t officially call him “a source” (because it doesn’t use that term), it would be inaccurate to declare he was “not a source,” she said. (Page had been approved as an operational contact for the CIA from 2008 to 2013.)

Additionally, while reporting back to the FBI, Clinesmith made a comment that may have shed light on his motivations. The result meant, he said, that “we don’t have to have a terrible footnote” in the new application to the FISA court.

Basically, Clinesmith was worried that if the FBI had to belatedly admit that Page was a CIA source, a FISA court judge might wonder why in the world it took so long to disclose that information, since Page had already been under surveillance for months. So his alteration of the email could be construed as an attempt to avoid this ugly disclosure.

Some conservatives, though, have questioned whether Clinesmith may have had political motivations for this — in part because back in 2018, Clinesmith was criticized in an earlier inspector general’s report for sending some instant messages on the FBI’s chat app that “raised concerns of potential bias.”

The messages were brief, and some were tongue in cheek. The day after Trump won the election, Clinesmith messaged another employee that he was “numb,” “devastated,” and “sad,” and that he worried the FBI “broke” Clinton’s “momentum.” He also worried that “my god damned name is all over the legal documents investigating his staff” and opined that “Pence is stupid.”

His most infamous message, sent to another FBI attorney, read “Vive la resistance.” In context, it doesn’t seem to be about any actual effort to resist the Trump administration (the discussion is spitballing about how Trump might cut FBI pensions to pay exorbitant salaries to his campaign aides).

Clinesmith told Horowitz’s investigators that the messages reflected his personal views and didn’t impact his approach to his work. In other words, no, he’s not saying he was part of a literal internal resistance to the Trump presidency, and the “vive la resistance” comment was just a joke. And overall, Durham hasn’t revealed any information suggesting otherwise.

What does this mean for the Durham investigation?

It may not mean much. Even Barr somewhat downplayed the significance of the Clinesmith charge last week, characterizing it to Fox’s Sean Hannity as “a development” but “not an earth-shattering development.”

Some conservatives have hoped that Clinesmith would “flip” and spill the beans on other malefactors, but his plea agreement contains no mention of a cooperation requirement, which would be expected if the government wanted his testimony in future court proceedings.

There was, however, a requirement that Clinesmith be “debriefed” by the FBI regarding its review of FISA matters. What Clinesmith will say in this broader debriefing isn’t clear. When it comes to the alteration of the email, though, Clinesmith’s sworn public comments suggest this was a case of very bad judgment by an FBI lawyer, not a broader conspiracy.

Durham has been at work investigating the Russia investigation for nearly a year and a half, and this is the only fruit of his labor so far.

But Trump, Barr, and other conservatives have repeatedly hyped the idea that there is much more to come. And the hope among some on the right is that some big-name officials in the Obama administration or at the FBI will be indicted for yet-to-be-revealed crimes against the president.

Recently, though, Trump made comments that may imply some concern that Barr and Durham won’t deliver what he wanted. “Bill Barr can go down as the greatest attorney general in the history of our country, or he can go down as an average guy,” Trump said during a recent interview with Maria Bartiromo of Fox Business. “Bill Barr and Durham have a chance to be — Bill Barr is great most of the time, but if he wants to be politically correct, he’ll be just another guy,” he added.

Barr responded by telling Hannity: “If I was worried about being politically correct, I wouldn’t have joined this administration. We need to get the story of what happened in 2016 and ’17 now out. That will be done.”

This article was updated with further information about Clinesmith’s plea agreement.

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