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Kevin Clinesmith did wrong, but why is he the FBI's fall guy?

Kevin Clinesmith did wrong, but why is he the FBI's fall guy?
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Of the many reports of potential misconduct within the Obama administration’s FBI and Department of Justice (DOJ), the most egregious and indisputable appears to be the extensive abuse of the Foreign Intelligence Surveillance Act (FISA) process, particularly the fiasco involving surveillance of former Trump campaign adviser Carter Page. An initial FISA application, followed by three renewals, relied primarily on the widely discredited Steele dossier, but so far, only one individual has been charged with a crime for misleading the FISA Court.

Former FBI attorney Kevin Clinesmith — who pleaded guilty in August to intentionally altering an email used in support of a FISA renewal request targeting Page — is scheduled to be sentenced in January 2021 by U.S. District Judge James Boasberg. The discovery of Clinesmith’s apparent false statement was made by DOJ Inspector General Michael Horowitz and was included in his report detailing a litany of errors and omissions committed by the FBI’s team working on “Crossfire Hurricane,” the code name given to the agency’s investigation into alleged Trump-Russia collusion.

Obtaining a FISA warrant to monitor an individual’s communications is among the most sensitive and intrusive investigative techniques available to the FBI. Four FISA applications targeted Page as a “suspected” Russian operative. The IG’s report identified 17 significant errors or omissions in the applications, describing in detail an institutional failure of colossal magnitude that implicated case agents including the FBI’s executive leadership. When interviewed by the IG, FBI personnel — with baffling consistency — had no “satisfactory explanations” for their failures.  

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The altered email was from the CIA, reconfirming Page’s previous cooperation and assistance to the CIA regarding his interactions with Russian officials from 2008 to 2013. Clinesmith changed the email to falsely state that the CIA confirmed just the opposite. He forwarded the doctored email to a colleague, and the information ultimately made its way into the final FISA application. This is no small detail. Although Page once may have been a target of Russian recruitment efforts, he was cooperating and assisting the U.S. government when meeting with the CIA, suggesting that his loyalties lay with the United States. Exculpatory information such as this undercuts the FBI’s assertion that Page probably was spying for Russia — crucial information that was withheld from the FISA Court. 

But it gets worse. 

Page was known to the FBI, having been the subject of a FISA monitoring around 2013 or 2014  in connection with a recruitment effort by Russian intelligence. Page was interviewed by the FBI and provided congressional testimony about his contacts with Russians. Furthermore, the FBI initially received written confirmation of Page’s cooperation with the CIA in August 2016, two months before the first FISA application, characterizing Page as an “operational contact.” This essential information about Page logically would become part of the FBI’s investigative file, so how did this tidbit get overlooked?

Not to pile on, but some of the information put forward as evidence of Page’s cooperation with Russia included his connection to a Russian intelligence officer, which he previously reported to the CIA. The FBI used Page’s previously disclosed contacts with this Russian as evidence to support the notion that he was a Russian asset. Huh?

According to the IG’s report, “Our review found that FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are ‘scrupulously accurate.’” No disrespect to Horowitz, but this is an understatement. 

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This begs another question: Why did the CIA stop debriefing Page as an “operational contact” after 2013, since he continued his interactions with Russian officials? Maybe his Russian contacts were of no interest. Moreover, if the CIA suspected Page was the target of a Russian recruitment effort, the FBI would have been notified immediately. So, if the CIA dropped its interest in Page after 2013, what did the FBI see in Page’s activity that was so alarming? What got the FBI over the hump to get a FISA warrant was the largely unverified information about Page’s Russian contacts contained in Christopher Steele’s dossier.

Ultimately, says the IG report, the FBI’s FISA application “asserted that the Russian government was attempting to undermine and influence the upcoming U.S. presidential election, and that the FBI believed Carter Page was acting in conjunction with the Russians in those efforts.”  

My first thought after reading about Clinesmith’s predicament was that his email-altering activity could not have happened in a vacuum. Was Clinesmith the only FBI official collaborating with the CIA on Carter Page and Crossfire Hurricane? As I recall, FISA applications are scrupulously reviewed, edited and re-reviewed by FBI and DOJ attorneys and various agency officials up the chain of command. Every factual assertion is to be supported with documentation regarding how it was obtained. Page’s previous CIA relationship was one fact to nail down six ways from Sunday, since Page was a target in arguably the most politically sensitive investigation in the bureau’s history. With such oversight, are we to believe that Clinesmith was the single point of failure on Page’s CIA past?  

So, why is Clinesmith the lone fall-guy in a massively flawed process that required oversight, review and final approval by senior FBI and DOJ officials? Early on, prosecutor John DurhamJohn DurhamSpecial counsel investigating Russia probe to retire as US attorney Biden administration withdraws from Connecticut transgender athlete case Garland seeks to draw sharp contrast with Trump-era DOJ MOREnow special counsel investigating the origins of the Trump-Russia investigation — expressed his doubts on whether Crossfire Hurricane was sufficiently predicated. Maybe that’s why Durham reportedly is zeroing in on “the conduct of Crossfire Hurricane, the small group at the FBI that was most involved in that,” according to Attorney General William BarrBill BarrMajority of Republicans say 2020 election was invalid: poll Biden administration withdraws from Connecticut transgender athlete case Justice Department renews investigation into George Floyd's death: report MORE. Durham has suggested that Clinesmith go to prison.

I’m not advocating for punishment, and I’m not looking for Durham to put people in jail. Much of the conduct under investigation may not fit neatly into actionable criminal violations. It may boil down to unethical conduct and blatant disregard for established FBI and DOJ policies and procedures. However, as a former FBI agent, what I long for — more than anything else — is accountability. 

Trust is hard to earn, but easily lost. The public expects FBI agents to play by the rules. We identify ourselves as “federal agents” when we interview a witness. We sign our names to affidavits before a judge to obtain arrest and search warrants. It’s personal, because each one of us represents the FBI and is responsible for upholding its reputation and its legacy of integrity. Above all, our work must never be hijacked by politics, no matter how divided our country becomes. 

There needs to be a reckoning within the FBI about what happened during and after the 2016 presidential campaign. Maybe it begins with Kevin Clinesmith, but it shouldn’t end there. 

Mark D. Ferbrache was an FBI agent from 1983 to 2011 specializing in white-collar criminal investigations. He later worked in the bureau’s National Security Division and CIA’s Counterterrorism Center, and held diplomatic assignments in Prague, London and Bucharest, as well as field office assignments in Seattle, New York and the FBI Headquarters in Washington. He is currently employed as a contractor in the U.S. intelligence community.