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Silver lining of COVID - live remote court hearings. Ex-FBI lawyer Clinesmith to plead guilty to altering email for Page FISA app today at 1 p.m. before Judge Boasberg in DC. I'll be listening for facts to support materiality, after DOJ has taken tortured position in Flynn case.
Judge Boasberg drew this case randomly, and also happens to sit on the FISA Court, which received the application with the altered email. He apparently did not see the need to recuse himself as a potential victim of the false statement.
Clinesmith is charged with adding the words "not a source" to an email from the CIA and giving it to a supervisory agent. Tricky fact for false statements case - the content is true. The falsity is in adding the words to make it appear that they were in the original CIA email.
In fact, Carter Page was an "operational contact," which is someone who has contact with a source. That fact was included in the email that Clinesmith gave to the supervisory agent. Page was not a source, as the email stated.
And so, is it material that Clinesmith misled his supervisor about who wrote the words if the words themselves are true? Materiality means capable of influencing the matter under consideration. If the words were true, how could it influence the matter? Awful but lawful, perhaps?
And the real problem is DOJ's double standard. They are charging Clinesmith while seeking to dismiss charges against Flynn for failure to meet the materiality requirement. Clinesmith is a hard case on materiality. Flynn case is not. https://www.lawfareblog.com/recent-prosecution-shows-hypocrisy-flynns-defenders
Judge Boasberg starts hearing by raising the recusal issue because of his role with the FISC, an indirect victim of the crime. He has already asked parties to submit any objection to his presiding, and they do not.
When asked, Kevin Clinesmith states his full name, including middle name, Eugene. This moment always hits me hard. As parents, we carefully choose the names of our children with great hopes. Parents never imagine their child saying their name as a defendant in criminal court.
Clinesmith admits altering email, but not that the statement itself was false.
Have not yet heard any evidence of materiality.
Clinesmith pleads guilty and judge accepts it. He found a factual basis to support the plea. Did not delve into the nuance of the fact that the statement itself was true.
Sentencing set for Dec 10 at 11 a.m. Nothing in the record to indicate that Clinesmith is cooperating in the investigation of others.
