FBI warrant for Trump search relied on Media reports like bungled Russia FISA warrants

FBI warrant for Trump search relied on Media reports like bungled Russia FISA warrants


FBI warrant for Trump search relied on Media reports like bungled Russia FISA warrants

FBI’s use of news stories in seeking the Russia FISA warrants against Trump adviser Carter Page was sharply criticized by the internal watchdog of the Justice Department.

By John Solomon

Like the Russia collusion FISA warrants before it, the FBI search warrant for Donald Trump’s Florida estate relied on multiple news media reports from outlets such as Breitbart and CBS to justify its unprecedented request to raid a former president’s home.

For instance, the bureau relied on a local CBS report to establish that Trump had moved boxes suspected to contain documents from the White House to Mar-a-Lago in mid-January 2021, just before he left office, according to the partially redacted FBI affidavit made public by a court Friday.

“According to a CBS Miami article titled ‘Moving Tucks Spotted At Mar-a-Lago,’ published Monday, January 18, 2021, at least two moving trucks were observed at the PREMISES on January 18, 2021,” the memo related.

Another citation referred to a Breitbart article from May in which former Trump adviser Kash Patel was quoted as saying he did not believe documents found at Mar-a-Lago and returned to the National Archives and Records Administration were classified. The citation refers to Trump as “FPOTUS,” meaning former president.

“I am aware of an article published in Breitbart on May 5, 2022, available at https://www.breitbart.comvoliticsi2022i05/05/documents-mar-a-lago-marked-classified-wereah-eadv-declassifi.ed-kash-patel-savs/, which states that Kash Patel, who is described as a former top FPOTUS administration official, characterized as ‘misleading’ reports in other news organizations that NARA had followed classified materials among records that FPOTUS provided to NARA from Mar-a-Lago. Patel alleged that such reports were misleading because FPOTUS had declassified the materials at issue,” an FBI agent wrote in the affidavit supporting the search.

The next few paragraphs are redacted so it is not readily apparent why that reference is relevant.

The affidavit states that a total of 184 documents with classification markings had been found when Trump returned documents to the Archives in 15 boxes early in 2022, and that was among the reasons the FBI believed it had “probable cause” to search Trump’s home on Aug. 8.

Patel played a major role as chief investigative counsel for House Intelligence Committee Chairman Devin Nunes in discredited the bungled Russia collusion probe, including abuses in seeking the FISA warrant.

The former federal prosecutor also was considered for a time by Trump to be named deputy director of the FBI, a move that was blocked by other aides.

The use of news articles to support a search warrant is allowed in some circumstances, but the FBI’s use of news stories in seeking the Russia FISA, or Foreign Intelligence Surveillance Act, warrants against Trump adviser Carter Page was sharply criticized by the Justice Department’s internal watchdog.

For example, the DOJ inspector general noted the FBI used a Yahoo News article to support claims in the Christopher Steele dossier even though Steele was a source for the article and failed to reveal the circular reporting to the intelligence court that had approved the warrant and three renewals.

The FBI “failed to correct the assertion in the first FISA application that the FBI did not believe that Steele directly provided information to the reporter who wrote the September 23 Yahoo News article, even though there was no information in the Woods File to support this claim and even after certain Crossfire Hurricane officials learned in 2017, before the third renewal application, of an admission that Steele made in a court filing about his interactions with the news media in the late summer and early fall of 2016,” Inspector General Michael Horowitz wrote in a scathing 2019 report that highlighted widespread failures and abuses in the Russia probe.

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‘Come on!’ Biden jumps into fray over Mar-a-Lago raid, impugns Trump declassification claim

Kash Patel denounces DOJ for keeping his name in redacted affidavit made public Friday

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(TLB) published this article  with permission of John Solomon at Just the News.  Click Here to read about the staff at Just the News

Header featured image (edited) credit: Trump’s Mar-a-Lago estateRaid / Picture: Alamy/Getty

Emphasis added by (TLB) editors

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Search Warrant Or Not, Americans Have No Reason To Believe The FBI Raid On Trump’s Florida Home Was Justified

Search Warrant Or Not, Americans Have No Reason To Believe The FBI Raid On Trump’s Florida Home Was Justified

After news broke Monday evening that the FBI had raided former President Donald Trump’s Palm Beach Florida home at Mar-a-Lago, the right immediately expressed outrage and warned that by targeting a former president and political opponent, the Biden Administration had crossed the Rubicon.

The left, for its contribution, highlighted the federal statute that provides that a person who “unlawfully conceals” government records shall “be disqualified from holding any office under the United States,” suggesting that the raid’s apparent focus on supposed missing classified documents may render Trump ineligible to run in 2024.

Beyond the constitutional problem with that theory — the U.S. constitution establishes the minimal qualifications to serve as president and Congress cannot expand on those — that theory of the raid merely confirms conservatives’ outrage over the DOJ’s continued interference in American’s electoral preferences.

Another theme soon emerged, bandied by those feigning a more balanced tone, that the raid was clearly justified because “a judge had to sign a warrant.” In a similar vein, another segment of politicians and pundits played the news as disconcerting but withheld judgment pending further details from Attorney General Merrick Garland and FBI Director Christopher Wray, calling on both to promptly provide the American public an explanation of the circumstances that could justify the raid of a former president’s home.

As of publication, no explanation has been offered. But it doesn’t matter. No matter what Garland or Wray say, no matter what the FBI attested to in a search warrant application, no matter what cause a federal judge found, Americans won’t trust them and they shouldn’t.

Four fake FISA applications and the ensuing surveillance orders authorized by the secret Foreign Intelligence Surveillance Act court are the first reason why.

When the public learned that the Department of Justice had obtained a warrant to surveil former Trump campaign advisor Carter Page, the government and the media cartel assured Americans that the FISA court would only authorize such wiretapping if probable cause supported the surveillance. They also assured us that since Page was no longer a member of Trump’s campaign, the FISA orders did not target Trump. And the FISA application process, we were told, was robust, with multiple layers of review. Worry not, the government soothed, all was on the up and up.

But none of it was true. The FISA application process, far from being robust, consisted of rubber-stamping by FBI and DOJ officials who were, at best, willfully blind to the defects in the applications. And the agents who wrote the applications or supposedly reviewed and checked the information provided, either lied, withheld material information, included information disputed by the purported sources, or some combination of the three. In total, the Office of Inspector general found 17 significant inaccuracies or omissions and missed another one.

Later the public learned that in the process of renewing the Page FISA application, attorney Kevin Clinesmith lied and altered an email to hide Page’s work with the CIA and to allow the surveillance to continue. Eventually, the DOJ admitted there was no probable cause to surveil Page.

Americans would also learn later that notwithstanding the claims that the wiretapping of Page did not reach Trump’s team, that the surveillance did indeed sweep up campaign communications and later conversations between Page and Trump advisors.

Equally damned was the FISA Court which approved the four warrants based on double and triple hearsay of unknown and unverified sources and based on media reporting: Even if every word in the applications were true, the lack of verifiable sources rendered the applications insufficient, as a matter of law, to establish probable cause. Yet, the FISA Court issued not one, but four surveillance orders, none of which were legally justified.

The DOJ, FBI, and the courts likewise proved themselves untrustworthy in the case against Michael Flynn, a Lieutenant General who served this country with bravery and honor for decades. The FBI opened an investigation into Flynn shortly after receiving false information from Stefan Halper that implausibly claimed Flynn left Cambridge with a young woman with Russian roots. Then, after FBI agents decided to close the investigation against Flynn as unfounded, the 7th Floor intervened, and a kill shot was taken against Trump’s incoming National Security Advisor.

Special Counsel Robert Mueller’s later extracted a plea from Flynn for purportedly lying about a conversation he had during the transition period, by threatening his son. Then, after an independent investigation of the Flynn case revealed there was no basis to charge Flynn, a federal court refused to dismiss the charges — again proving that the courts provide no check on a corrupted FBI.

This synopsis barely scratches the surface of the duplicity and lies advanced by the FBI and the DOJ to destroy a Lieutenant General and a CIA source, all to “get Trump.” And the courts tolerated the abuse.

So, no, Americans do not need to wait for Garland or Wray to explain the basis for the raid; and we do not need to defer to the court that issued the warrant. The same deep state willing to lie and connive to destroy a presidential campaign and the president will be willing to do so again to destroy a former president and potential future presidential candidate.

The lesson has been learned. The question now is what to do, besides dismantling FBI Headquarters.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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5 Takeaways From The Latest Filings In The Carter Page Spygate Lawsuit

5 Takeaways From The Latest Filings In The Carter Page Spygate Lawsuit

Over last weekend, attorneys for Carter Page filed responses to motions to dismiss filed by the FBI and eight agents involved in the Crossfire Hurricane investigation that led to the government illegally obtaining four surveillance warrants to spy on Page.

In November 2020, Page, who had briefly served as a volunteer advisor to the Trump campaign, sued the defendants in a D.C. federal court alleging violations of the Fourth Amendment, the Patriot Act, and the Privacy Act. In response, the government and the individual defendants argued Page’s claims were time-barred or that Page had no legal grounds on which to sue. Page’s responses counter those arguments while providing five key take-aways.

1. The Swamp Is So Swampy

With Spygate developments few and far between, it is easy to forget the breadth and depth of the scandal. The briefs docketed on Saturday in Page’s lawsuit against the FBI and the agents involved in obtaining the four Foreign Intelligence Surveillance Act (FISA) surveillance warrants serve as an important refresher of what our government did to an innocent man in the hopes of “getting Trump.” As Page’s brief against the individual defendants noted in its opening, this case is extraordinary because they “were not mere field agents bending the rules to pursue criminals, but rather the highest level FBI executives.”

Even the case name, Page v. Comey, confirms the truth of that assertion, with former FBI Director James Comey named as one of the eight defendants. Page’s brief details Comey’s alleged involvement in the Department of Justice obtaining four FISA surveillance orders against the Naval Academy graduate, stressing that Comey was not merely a “supervisory” who signed the FISA applications, but was personally involved.

Establishing Comey and the other agents’ personal involvement proved a key feature of the briefs, because, to avoid dismissal of the complaint, Page needed to show the allegations of the complaint could reasonably be supported by a finding that the individual defendants did more than merely supervise employees who violated Page’s Fourth Amendment rights and rights under FISA.

The 70-page omnibus brief addressing the claims against the individual defendants detailed the personal involvement of each. For instance, for the former FBI director, the brief stressed that “on or about August 17, 2016, Comey received information from the CIA establishing that Dr. Page was an ‘operation contact’ for the CIA during the period of 2008-2013.”

Comey also knew from a September 7, 2016, Central Intelligence Agency (CIA) communique that Hillary Clinton had approved “a plan concerning U.S. Presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server,” according to the court filing. Comey nonetheless approved the use of the fabricated Christopher Steele dossier to obtain the FISA surveillance orders, and eventually signed three of the four FISA surveillance applications.

Next named in Page’s lawsuit was Andrew McCabe, a former deputy director of the FBI. McCabe was also personally involved in obtaining the illegal FISA surveillance order, according to Page’s most recent court filing.

Among other things, McCabe signed the affidavit the FBI submitted in support of the final FISA application. McCabe’s involvement went further, Page’s attorneys argued, pointing out that he hosted an August 15, 2016 meeting with co-defendants Peter Strzok and Lisa Page discussing “an insurance policy” to prevent a Donald Trump election, and he had approved the FISA applications even though he knew they omitted Carter Page’s past assistance to the CIA.

The brief next discussed Kevin Clinesmith’s involvement in the FISA abuse. Clinesmith, who served as an assistant general counsel in the FBI’s Office of General Counsel, falsely told the FBI that Page was never a source. Then, when asked for written confirmation of that representation, Clinesmith altered the text of the email he had received from the CIA liaison, making the email read that Page was “not a ‘source.’”

Clinesmith then forwarded the altered email to the FBI. Clinesmith later pleaded guilty to making a false statement related to this conduct.

Strzok and Lisa Page’s involvement in the FISA surveillance scheme received attention next. Strzok, who served at the time as the FBI deputy assistant director for counterintelligence, also knew of the CIA’s warning that Clinton had approved a plan to claim Trump had colluded with Russia to “distract the public” from her misuse of a private server. Strzok also stated an intention to “stop” Trump from becoming president and discussed “an insurance policy” to prevent a Trump election.

Lisa Page’s personal involvement mirrored that of Strzok’s, but in addition she attended a briefing with McCabe, at which “Bruce Ohr advised them that Steele’s work product was not for the U.S. Government but, rather, was political opposition research for a private political party.”

The briefs repeated this process for the remaining individual defendants: Joe Pientka, who served as a supervisory agent on the Crossfire Hurricane team; Stephen Somma, an FBI agent who represented himself as “Steve Holt” to Page; and Brian Auten, an FBI supervisory intelligence analyst.

Pientka, Carter Page stressed, had falsely certified that the information in the first FISA warrant was verified for accuracy and later failed to correct the application, even after learning in November 2016 from Ohr that Steele was not a reliable source and had been paid to conduct the opposition research against Trump.

The response filed on Saturday also detailed Somma’s involvement, noting that he had pushed initially for the FISA warrant. Further, according to Page, “Defendant Somma personally provided incomplete, inaccurate, and conflicting information to the DOJ Office Attorney who asked whether Dr. Page had been a source for the CIA.”

In fact, according to Page, Somma actually knew he had served as an “operational contact” for the CIA from 2008-2013, but failed to accurately describe that relationship to others. Somma also did not inform the FISA court that Igor Danchenko, Steele’s primary sub-source for his fabricated dossier, contradicted Steele’s supposed intel.

The final defendant, Auten, also held personal responsibility for violating Page’s Fourth Amendment rights and violations of the Patriot Act, according to Page’s lawyer. Auten “played an instrumental role along with the agents preparing the FISA applications—including reviewing the probable cause section of the applications.”

In preparing the applications, Auten “falsely enhanced the credibility of information obtained from Steele,” according to Page, writing “that information from Steele had been ‘corroborated and used in criminal proceedings,’ although none of Steele’s past reporting as an informant had been corroborated and had never been used in any criminal proceedings.”

Auten also “intentionally failed to disclose the negative feedback that he had received from British Intelligence Service colleagues regarding Steele,” according to the court filing, including a caution from “Steele’s former colleagues that Steele exercised ‘poor judgment’ and pursued as sources ‘people with political risk but no intel value.’”

2. So Much Still Unknown

Even with the details noted above and additional ones included in the 100-plus pages of combined briefs filed by Page’s legal team this weekend, so much remains unknown because the government holds sole possession of the information. That lack of knowledge, Page argued in his briefs, makes dismissal of his lawsuit at this stage premature.

“It is also abundantly clear that there is a trove of currently non-public documents and facts that relate to Dr. Page’s claims, which are presently in the exclusive possession of the Individual Defendants and the United States and its agencies, but which will undoubtedly further support and vindicate Dr. Page’s claims,” Page’s attorney wrote.

Then, as a perfect illustration of the point, Page’s legal team pointed to the fact that after they initially filed suit in November 2020, “additional facts concerning Defendant Clinesmith’s role with respect to the alteration of the email were disclosed when the Department of Justice filed its sentencing memorandum in Defendant Clinesmith’s criminal prosecution, including internal FBI emails not referenced in the Horowitz Report.”

Also unknown at this time is which defendants, if any, leaked information to the press. The brief suggests Lisa Page and Strzok hold responsibility for the leaks, noting that “on Monday, April 10, 2017, Defendant Strzok sent [Lisa Page] another text message stating, ‘I had literally just gone to find this phone to tell you I want to talk to you about media leak strategy with DOJ before you go.’”

“Two days later,” the brief continued, Strzok “sent Defendant Lisa Page a text message to alert her that two media articles were coming out about her ‘namesake’ [Dr. Page] and that one was worse than the other.” Then, later the same week, “the Washington Post and the New York Times published articles about Dr. Page and the government’s investigation of him, including that FISA warrants were used,” with Strzok that weekend texting Lisa Page: “article is out!” and “Well done, Page.”

The briefs filed this weekend also stressed that after the FISA warrant was issued, “a stream of information about Dr. Page . . . and his supposed status as a Russian agent working to undermine the nation, began to flood the airwaves and the newsstands.” “The source of that information can only have been the Crossfire Hurricane team,” the brief argued.

In addition to Strzok and Lisa Page, in the separate brief Carter Page’s legal team filed this weekend in response to the government’s motion to dismiss, lawyers claimed that defendants Comey and McCabe also “leaked information and records concerning Dr. Page to media outlets, including but not limited to the existence of the FISA warrants, the contents of the warrant applications, and the results of the warrants, that were protected from disclosure under FISA and the Privacy Act.”

Without discovery, however, Page lacks the ability to establish the party or parties responsible for the leaks with certainty, which supports his argument that dismissing his claims at this point is premature.

3. It’s David and Goliath All Over Again

Reading Page’s briefs also reminds of the lopsided battle he faced in trying to clear his name when he went up against the Crossfire Hurricane team. He literally wrote Comey. He reminded the FBI that he had worked with the CIA. He voluntarily submitted to multiple interviews with FBI agents. His lawyer spoke with Clinesmith.

Yet they persisted. It was one individual against the mammoth monstrosity that calls itself the intelligence community.

Now Page is taking on the same monster that is proving itself as regenerative as the mythical hydra. Not only does Page face the federal government, represented by Department of Justice attorneys, but each defendant has his or her own group of powerhouse D.C. lawyers combatting Page’s push for justice, leaving Page’s small legal team fighting against nine separate teams of defense attorneys.

One wonders who is paying for all those private law firms, and whether it is taxpayers?

4. Zingers Galore

While Page’s legal team may be outgunned, their briefing proves top-notch, both in its legal advocacy and its ability to point out the absurdity of many of the defendants’ arguments with a flair that cuts through legal niceties.

Early on, Page’s attorneys honed in on the key strategy the defendants seem to have settled on—point the finger at someone else. Each defendant sought to “outdo each other in minimizing their respective roles in the fiasco,” the brief noted, “each claiming their culpability in deceiving the FISC, unlawfully disclosing information, and violating Dr. Page’s rights was too minor to impose civil liability on them.” “If the individual defendants are to be believed,” the brief quipped, “these unlawful and false warrants wrote themselves.”

As quoted from Ian Fleming in “Goldfinger,” “Once is happenstance. Twice is coincidence. The third time it’s enemy action,” crystalized another point by Page’s legal team: that the defendants’ conduct cannot be put down to mistakes or even sloppiness but creates the reasonable inference that they intentionally caused the violation of Page’s rights.

Then, in summing up their argument on behalf of Page, the brief closed by reminding the judge that “the FBI unlawfully used the power of the federal government, in the form of secret, anti-terrorism surveillance tools, to violate the rights of an innocent American.” “It is long past time for the United States to step up to the plate and do right by Dr. Page,” the brief closed.

5. Tough Legal Question

Whether Carter Page will succeed in fending off dismissal of his case against the DOJ, FBI, and litany of Crossfire Hurricane agents will not be known for some time. The defendants will all have a chance to reply to Page’s briefing, meaning another nine briefs to counter Page’s two court filings.

The district court will then face many tough legal questions, beginning with whether Page waited too long to sue. Next, the court will need to determine whether Page adequately alleged sufficient facts under his various theories of liability and specifically whether each individual defendant holds responsibility for the illegal FISA warrant under an “aiding and abetting” theory.

Carter Page also presents a unique claim against the federal government under The Privacy Act, arguing that his rights were violated by the inspector general when the IG refused to allow Page to review and respond to the report discussing the four FISA warrants obtained against Page.

Check back later this week for a legal analysis of these and the other issues presented in Page v. Comey. In the meantime, consider what it means to our country that this case even exists.


Margot Cleveland is a senior contributor to The Federalist. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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DC Bar Restores Convicted FBI Russiagate Forger While He’s Still Serving Probation

DC Bar Restores Convicted FBI Russiagate Forger While He’s Still Serving Probation

A former senior FBI lawyer who falsified a surveillance document in the Trump-Russia investigation has been restored as a member in “good standing” by the District of Columbia Bar Association even though he has yet to finish serving out his probation as a convicted felon, according to disciplinary records obtained by RealClearInvestigations.

The move is the latest in a series of exceptions the bar has made for Kevin Clinesmith, who pleaded guilty in August 2020 to doctoring an email used to justify a surveillance warrant targeting former Trump campaign adviser Carter Page.

Clinesmith was sentenced to 12 months probation last January. But the D.C. Bar did not seek his disbarment, as is customary after lawyers are convicted of serious crimes involving the administration of justice. In this case, it did not even initiate disciplinary proceedings against him until February of this year — five months after he pleaded guilty and four days after RealClearInvestigations first reported he had not been disciplined.

After the negative publicity, the bar temporarily suspended Clinesmith pending a review and hearing. Then in September, the court that oversees the bar and imposes sanctions agreed with its recommendation to let Clinesmith off suspension with time served; the bar, in turn, restored his status to “active member” in “good standing.”

Before quietly making that decision, however, records indicate the bar did not check with his probation officer to see if he had violated the terms of his sentence or if he had completed the community service requirement of volunteering 400 hours.

To fulfill the terms of his probation, Clinesmith volunteered at Street Sense Media in Washington but stopped working at the nonprofit group last summer, which has not been previously reported. “I can confirm he was a volunteer here,” Street Sense editorial director Eric Falquero told RCI, without elaborating about how many hours he worked. Clinesmith had helped edit and research articles for the weekly newspaper, which coaches the homeless on how to “sleep on the streets” and calls for a “universal living wage” and prison reform.

Special Counsel Could Still Be Investigating Clinesmith

From the records, it also appears bar officials did not consult with the FBI’s Inspection Division, which has been debriefing Clinesmith to determine if he was involved in any other surveillance abuses tied to Foreign Intelligence Surveillance Act warrants, in addition to the one used against Page. Clinesmith’s cooperation was one of the conditions of the plea deal he struck with Special Counsel John Durham. If he fails to fully cooperate, including turning over any relevant materials or records in his possession, he could be subject to perjury or obstruction charges.

Clinesmith — who was assigned to some of the FBI’s most sensitive and high-profile investigations — may still be in Durham’s sights regarding other areas of his wide-ranging probe.

The scope of his mandate as special counsel is broader than commonly understood: In addition to examining the legal justification for the FBI’s “Russiagate” probe, it also includes examining the bureau’s handling of the inquiry into Hillary Clinton’s use of an unsecured email server, which she set up in her basement to send and receive classified information, and her destruction of more than 30,000 subpoenaed emails she generated while running the State Department. As assistant FBI general counsel in the bureau’s national security branch, Clinesmith played an instrumental role in that investigation, which was widely criticized by FBI and Justice Department veterans, along with ethics watchdogs, as fraught with suspicious irregularities.

Clinesmith also worked on former Special Counsel Robert Mueller’s probe into the 2016 Trump campaign as the key attorney linking his office to the FBI. He was the only headquarters lawyer assigned to Mueller. Durham’s investigators are said to be looking into the Mueller team’s actions as well.

The D.C. Bar’s treatment of Clinesmith, a registered Democrat who sent anti-Trump rants to FBI colleagues after the Republican was elected, has raised questions from the start. Normally the bar automatically suspends the license of members who plead guilty to a felony. But in Clinesmith’s case, it delayed suspending him on even an interim basis for several months and only acted after RCI revealed the break Clinesmith was given, records confirm.

Repeated Irregularities in Clinesmith’s Case

It then allowed him to negotiate his fate, which is rarely done in any misconduct investigation, let alone one involving a serious crime, according to a review of past cases. It also overlooked violations of its own rules: Clinesmith apparently broke the bar’s rule requiring reporting his guilty plea “promptly” to the court — within 10 days of entering it — and failed to do so for five months, reveal transcripts of a July disciplinary hearing obtained by RCI.

“I did not see evidence that you informed the court,” Rebecca Smith, the chairwoman of the D.C. Bar panel conducting the hearing, admonished Clinesmith.

“[T]hat was frankly just an error,” Clinesmith’s lawyer stepped in to explain.

Smith also scolded the bar’s Office of Disciplinary Counsel for the “delay” in reporting the offense, since it negotiated the deal with Clinesmith, pointing out: “Disciplinary counsel did not report the plea to the court and initiate a disciplinary proceeding.” Bill Ross, the assistant disciplinary counsel who represented the office at the hearing, argued Clinesmith shouldn’t be held responsible and blamed the oversight on the COVID pandemic.

The Democrat-controlled panel, known as the Board on Professional Responsibility, nonetheless gave Clinesmith a pass, rubberstamping the light sentence he negotiated with the bar’s chief prosecutor, Disciplinary Counsel Hamilton “Phil” Fox, while admitting it was “unusual.” Federal Election Commission records show Fox, a former Watergate prosecutor, is a major donor to Democrats, including former President Obama. All three members of the board also are Democratic donors, FEC data reveal.

Contrasting Action Taken by Michigan Bar

While the D.C. Bar delayed taking any action against Clinesmith, the Michigan Bar, where he is also licensed, automatically suspended him the day he pleaded guilty. And on Sept. 30, records show, the Michigan Bar’s attorney discipline board suspended Clinesmith for two years, from the date of his guilty plea through Aug. 19, 2022, and fined him $1,037.

“[T]he panel found that respondent engaged in conduct that was prejudicial to the proper administration of justice [and] exposed the legal profession or the courts to obloquy, contempt, censure or reproach,” the board ruled against Clinesmith, adding that his misconduct “was contrary to justice, ethics, honesty or good morals; violated the standards or rules of professional conduct adopted by the Supreme Court; and violated a criminal law of the United States.”

Normally, bars arrange what’s called “reciprocal discipline” for unethical attorneys licensed in their jurisdictions. But this was not done in the case of Clinesmith. The D.C. Bar decided to go much easier on the former FBI attorney, further raising suspicions the anti-Trump felon was given favorable treatment.

In making the bar’s case not to strip Clinesmith of his license or effectively punish him going forward, Fox disregarded key findings by Durham about Clinesmith’s intent to deceive the FISA court as a government attorney who held a position of trust.

Clinesmith Pled Guilty to Falsifying Records

Clinesmith confessed to creating a false document by changing the wording in a June 2017 CIA email to state Page was “not a source” for the CIA when in fact the agency had told Clinesmith and the FBI on multiple occasions Page had been providing information about Russia to it for years — a revelation that, if disclosed to the Foreign Intelligence Surveillance Court, would have undercut the FBI’s case for electronically monitoring Page as a supposed Russian agent and something that Durham noted Clinesmith understood all too well.

Bar records show Fox simply took Clinesmith’s word that he believed the change in wording was accurate and that in making it, he mistakenly took a “shortcut” to save time and had no intent to deceive the court or the case agents preparing the application for the warrant.

Durham demonstrated that Clinesmith certainly did intend to mislead the FISA court. “By his own words, it appears that the defendant falsified the email in order to conceal [Page’s] former status as a source and to avoid making an embarrassing disclosure to the FISC,” the special prosecutor asserted in his 20-page memo to the sentencing judge, in which he urged a prison term of up to six months for Clinesmith. “Such a disclosure would have drawn a strong and hostile response from the FISC for not disclosing it sooner [in earlier warrant applications].”

As proof of Clinesmith’s intent to deceive, Durham cited an internal message Clinesmith sent the FBI agent preparing the application, who relied on Clinesmith to tell him what the CIA said about Page. “At least we don’t have to have a terrible footnote” explaining that Page was a source for the CIA in the application, Clinesmith wrote.

The FBI lawyer also removed the initial email he sent to the CIA inquiring about Page’s status as a source before forwarding the CIA email to another FBI agent, blinding him to the context of the exchange about Page.

Durham also noted that Clinesmith repeatedly changed his story after the Justice Department’s watchdog first confronted him with the altered email during an internal 2019 investigation. What’s more, he falsely claimed his CIA contact told him in phone calls that Page was not a source, conversations the contact swore never happened.

Clinesmith Was Politically Biased at the FBI

Fox also maintained that Clinesmith had no personal motive in forging the document. But Durham cited virulently anti-Trump political messages Clinesmith sent to other FBI employees after Trump won in 2016 – including a battle cry to “fight” Trump and his policies – and argued that his clear political bias may have led to his criminal misconduct.

“It is plausible that his strong political views and/or personal dislike of [Trump] made him more willing to engage in the fraudulent and unethical conduct to which he has pled guilty,” Durham told U.S. District Judge Jeb Boasberg.

Boasberg, a Democrat appointed by President Obama, spared Clinesmith jail time and let him serve out his probation from home. Fox and the D.C. Bar sided with Boasberg, who accepted Clinesmith’s claim he did not intentionally deceive the FISA court, which Boasberg happens to preside over, and even offered an excuse for his criminal conduct.

“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.”

Fox echoed the judge’s reasoning in essentially letting Clinesmith off the hook. (The deal they struck, which the U.S. District Court of Appeals that oversees the bar approved in September, called for a one-year suspension, but the suspension began retroactively in August 2020, which made it meaningless.) Boasberg opined that Clinesmith had “already suffered” punishment by losing his FBI job and $150,000 salary.

But, Boasberg assumed, wrongly as it turned out, that Clinesmith also faced possible disbarment. ”And who knows where his earnings go now,” the judge sympathized. “He may be disbarred or suspended from the practice of law.”

Anticipating such a punishment, Boasberg waived a recommended fine of up to $10,000, arguing that Clinesmith couldn’t afford it. He also waived the regular drug testing usually required during probation, while returning Clinesmith’s passport. And he gave his blessing to Clinesmith’s request to serve out his probation as a volunteer journalist, before wishing him well: “Mr. Clinesmith, best of luck to you.”

FBI Should Have Much Higher Standards

Fox did not respond to requests for comment. But he argued in a petition to the board that his deal with Clinesmith was “not unduly lenient,” because it was comparable to sanctions imposed in similar cases. However, none of the cases he cited involved the FBI, Justice Department or FISA court. One case involved a lawyer who made false statements to obtain construction permits, while another made false statements to help a client become a naturalized citizen – a far cry from falsifying evidence to spy on an American citizen.

Durham noted that in providing the legal support for a warrant application to the secret FISA court, Clinesmith had “a heightened duty of candor,” since FISA targets do not have legal representation before the court. He argued Clinesmith’s offense was “a very serious crime with significant repercussions” and suggested it made him unfit to practice law.

“An attorney – particularly an attorney in the FBI’s Office of General Counsel – is the last person that FBI agents or this court should expect to create a false document,” Durham said.

The warrant Clinesmith helped obtain has since been deemed invalid and the surveillance of Page illegal. Never charged with a crime, Page is now suing the FBI and Justice Department for $75 million for violating his constitutional rights against improper searches and seizures.

Explaining the D.C. Bar’s disciplinary process in a 2019 interview with Washington Lawyer magazine, Fox said that “the lawyer has the burden of proving they are fit to practice again. Have they accepted responsibility for their conduct?” His office’s website said a core function is to “deter attorneys from engaging in misconduct.”

In the same interview, Fox maintained that he tries to insulate his investigative decisions from political bias. “I try to make sure our office is not used as a political tool,” he said. “We don’t want to be a political tool for the Democrats or Republicans.”

Bar records from the Clinesmith case show Fox suggested the now-discredited Trump-Russia “collusion” investigation was “a legitimate and highly important investigation.”

Protecting People Who Hurt Trump

One longstanding member of the D.C. Bar with direct knowledge of Clinesmith’s case before the bar suspects its predominantly Democratic board went soft on him due to partisan politics. “The District of Columbia is a very liberal bar,” he said. “Basically, they went light on him because he’s also a Democrat who hated Trump.”

Meanwhile, the D.C. Bar has not initiated disciplinary proceedings against Michael Sussmann, another Washington attorney charged by Durham. Records show Sussmann remains an “active member” of the bar in “good standing,” which also has not been previously reported. The former Hillary Clinton campaign lawyer, who recently resigned from Washington-based Perkins Coie LLP, is accused of lying to federal investigators about his client while passing off a report falsely linking Trump to the Kremlin.

While Sussmann has pleaded not guilty and has yet to face trial, criminal grand jury indictments usually prompt disciplinary proceedings and interim suspensions.

Paul Kamenar of the National Legal and Policy Center, a government ethics watchdog, has called for the disbarment of both Clinesmith and Sussmann. He noted that the D.C. Court of Appeals must automatically disbar an attorney who commits a crime of moral turpitude, which includes crimes involving the “administration of justice.”

“Clinesmith pled guilty to a felony. The only appropriate sanction for committing a serious felony that also interfered with the proper administration of justice and constituted misrepresentation, fraud and moral turpitude, is disbarment,” he said. “Anything less would minimize the seriousness of the misconduct” and fail to deter other offenders.

Disciplinary Counsel Fox appears to go tougher on Republican bar members. For example, he recently opened a formal investigation of former Trump attorney Rudy Giuliani, whom records show Fox put under “temporary disciplinary suspension” pending the outcome of the ethics probe, which is separate from the one being conducted by the New York bar. In July, the New York Bar also suspended the former GOP mayor on an interim basis.

Giuliani has not been convicted of a crime or even charged with one.

This article is republished from RealClearInvestigations, with permission.

Source

Kevin Clinesmith, Corrupt FBI Attorney Who Falsified Carter Page FISA Warrant, Expected To Plead Guilty

A top FBI lawyer who fabricated evidence in a federal spy warrant against Trump campaign affiliate Carter Page is expected to plead guilty to federal charges brought by U.S. Attorney John Durham. Kevin Clinesmith, who is expected to admit to deliberately fabricating evidence in a Foreign Intelligence Surveillance Act warrant application, used to spy on a former campaign affiliate of President Donald Trump, was a top attorney in the Federal Bureau of Investigation’s Office of General Counsel (OGC) and a key agency attorney under fired former FBI Director James Comey.

Clinesmith is the first individual to be charged as part of U.S. Attorney John Durham’s investigation into the efforts in 2016 and 2017 to spy on the Trump campaign and Trump administration. Both Durham and Attorney General William Barr stated at the conclusion of the OIG investigation of the Page FISA warrants that they had reason to believe the entire investigation of Trump, which allegedly began in late July of 2016, was not legally predicated. Durham was tapped by Barr in May of 2019 to investigate the Russian collusion hoax and determine whether any criminal charges against those who perpetrated it were warranted.

Clinesmith’s deliberate falsification of a federal spy warrant was first revealed last December following a lengthy investigation by the Department of Justice (DOJ) Office of the Inspector General (OIG), headed by Michael Horowitz. Horowitz and his team wrote in a 434-page report that Clinesmith — identified in the report as “OGC Attorney” — altered an email from a separate U.S. federal agency, believed to be the Central Intelligence Agency (CIA), to falsely state that Page had never worked with the CIA to investigate suspected Russia agents operating within the U.S. In fact, as Clinesmith was told by the operative, Page had worked with the CIA previously, as well as with the FBI.

According to the OIG report, Clinesmith “[o]mitted Page’s prior relationship with another U.S. government agency, despite being reminded by the other agency in June 2017, prior to the filing of the final [FISA warrant] renewal application, about Page’s past status with that other agency.”

“Instead of including this information in the final renewal application,” the OIG report stated, Clinesmith “altered an email from the other agency so that the email stated that Page was ‘not a source’ for the other agency, which the FBI affiant relied upon in signing the final renewal application.”

Following the completion of the OIG investigation into the abuse of the FISA process by Comey and his lieutenants, the federal court that reviews FISA warrants ruled that at least two of the four applications against Page were illegal, including the application that included Clinesmith’s fabricated claim that Page never previously assisted the CIA. Page’s previous work for the federal government was a key issue given that each of the FISA warrants used to spy on him falsely claimed that he was an illegal Russian agent working on behalf of the Kremlin. Page was never formally charged with any wrongdoing.

Clinesmith’s name first made national news after his anti-Trump text messages to another FBI attorney, Sally Moyer, surfaced following a separate OIG investigation of anti-Trump bias from top FBI attorneys and investigators.

“I’m just devastated,” Clinesmith texted to Moyer shortly after Trump won the presidential election in November of 2016. “Plus, my god damned name is all over the legal documents investigating his staff,” Clinesmith wrote.

“Is it making you rethink your commitment to the Trump administration?” Moyer later asked Clinesmith, ostensibly referring to Clinesmith’s plan to remain at the FBI after Trump’s inauguration.

“Hell no,” Clinesmith responded. “Viva le resistance.”

The full federal charging document detailing Clinesmith’s crimes can be found here.

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