Below is my column in the Hill on the announced criminal plea by former FBI lawyer Kevin Clinesmith and the continued calls by Democratic leaders to end the John Durham investigation. This week I discussed the call of Andrew Weissmann, one of the top prosecutors with Special Counsel Robert Mueller, for DOJ lawyers to refuse to help in the investigation despite his own conflict of interest. When the Clinesmith plea was announced, Weissmann proceeded to deride the charge and make spurious legal and factual claims about its basis. The Weissmann call for DOJ lawyers to hinder this investigation is unprofessional and unwarranted but hardly uncommon in this rage-filled environment.
Here is the column:
Gosh almighty.” Those words from former Vice President Joe Biden sum up plenty about the announced criminal plea by former FBI lawyer Kevin Clinesmith. Of course, Biden was not referring to the implications of the FBI lawyer who lied to the Foreign Intelligence Surveillance Act court for the efforts to continue the surveillance of an adviser to the campaign of Donald Trump. Nor was he referring to growing evidence that the Russia investigation was launched based on false and flawed evidence.
Biden was referring to the federal investigation by United States Attorney John Durham that led to the criminal plea by Clinesmith. Like most other Democrats, Biden previously denounced the investigation and the effort to look into criminality. Now that criminality has been found, Democrats and commentators still insist there are no reasons to continue it.
From the start, Democrats overwhelmingly condemned the investigation despite admitting Durham is a respected prosecutor. Leaders like House Intelligence Committee Chairman Adam Schiff deemed the investigation “tainted” and “political.” Biden mocked the very idea of an “investigation of the investigators” and added, “Give me a break. Gosh almighty.”
These are the same figures who repeatedly cited plea agreements in the special counsel investigation by Robert Mueller as proof that real crimes were waiting to be found. When the plea by former White House national security adviser Michael Flynn was announced, it was seen as the critical development even though FBI agents said they did not believe Flynn had intentionally lied about his conversations with Russian diplomats.
Many in the media cited the plea by Flynn to disprove the insistence by Trump that the Mueller investigation was a hoax. But they are not citing the plea by Clinesmith to disprove the statement by Biden. Indeed, they have barely covered it. It does not appear to matter that Clinesmith said “viva la resistance” after the 2016 election or that, after claiming he was devastated by the victory of Trump, he lamented that “my god damned name was all over those legal documents investigating his staff.”
But several Democrats and commentators maintained there was never a targeting of the campaign before the special counsel appointment. That was untrue. Declassified documents show that an agent was used with a national security briefing of Trump and his aides during the campaign to gather information for the Russia investigation. Who did the agent report to? Clinesmith and Peter Strzok at the FBI, who infamously referred to his own “insurance” with the chance that Trump might be elected.
This is a plea agreement so it is not known what information Clinesmith may have shared. Moreover, this is just the first public move by Durham, just as Flynn was the early salvo for Mueller. But the date of this criminal false statement is key. In September 2016, administration officials leaked the existence of the classified investigation in the midst of the campaign and suggested Trump adviser Carter Page was a Russian agent.
This secret surveillance started the next month, based on that allegation against Page, when he was in fact an American asset. The FISA court was never told that information in the surveillance application was derived in part from the dossier, or that it was paid for by the opposition campaign. Nor was it told that at the time, FBI agents challenged both the bias and credibility for the dossier author and past British spy Christopher Steele, who was known to have given interviews for the media and claimed that he was trying to defeat Trump and assist the Clinton campaign.
In January 2017, Trump was inaugurated and FBI agents had sought to end their investigation of Flynn, citing no evidence of a crime. However, Strzok evidently wanted the collusion investigation to remain open and, later that month, Clinesmith also sought to renew that surveillance order over Page. His FISA application expressly cited the Steele dossier and described it as credible, despite knowing the different findings by FBI agents.
In February 2017, there were more leaks about alleged collusion by Trump officials with the Russians, a claim that even Strzok said was unsupported. The FBI was finding no evidence of collusion, while there was pressure to end the investigation. In June 2017, Clinesmith falsified an email in a third FISA application. What he was able to hide from the court was incredible. The court was told that Page might be a Russian asset for a conspiracy to influence the election as Clinesmith was told that Page was an American asset who was working by meeting with Russians. Clinesmith altered one critical email to state otherwise and extend the investigation.
When Clinesmith took this criminal action, the Russia collusion theory had already fallen apart. Both former Deputy Attorney General Rod Rosenstein and former Acting Attorney General Sally Yates declared they would never have signed off on all the surveillance applications if they knew then what they know today. Rosenstein called for the Durham investigation to finish, while Yates called for accountability for all of the misconduct.
With news of the criminal plea by Clinesmith, one might expect the media and our members of Congress to demand the same vigorous investigation from Durham as they did from Mueller. The collusion allegations that were noted to launch the Russia investigation were after all ultimately rejected. Durham is by contrast investigating the bias and misconduct.
So we have a collusion investigation that was shown to be based on false or unreliable information. It was launched and maintained by officials who were accused by an inspector general of misconduct, false statements, or procedural errors. Today we have the actual criminal guilty plea. However, many voices in Washington continue to insist that there are no reasons for Durham to continue digging. As Biden says, “Gosh almighty.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.