After the Department of Justice levied a criminal charge against Kevin Clinesmith for doctoring a June 2017 email from the CIA to obtain a warrant to spy on Trump campaign figure Carter Page, Clinesmith’s attorney suggested his client could implicate co-conspirators who knew of the deception. The charging document also revealed that the CIA gave the FBI an August 2016 memo indicating that Page wasn’t a spy for the Russians against the United States, he was a source for the CIA against the Russians.
Had the court known this, it would have undercut the two constitutional requirements of the FISA warrant: that the Justice Department had probable cause that Page was illegally spying and that there was no less intrusive way to investigate other than invading Page’s privacy.
Was Andrew Weissmann involved in deceiving the FISA court? While many suspected he was, the former Justice Department attorney would have been well-advised not to confirm those suspicions. He had a right to remain silent. But fortunately for those interested in the rule of law, he’s decided instead to incriminate himself in full public view.
On Friday, Weissmann put out a series of tweets that must have delighted the prosecutors investigating the conspiracy to defraud the court. Instead of expressing shock and outrage that an FBI attorney falsified evidence, incredibly, Weissmann argued that the fraud was not “material.” These tweets seem to confirm that Weissmann not only is defending Clinesmith’s actions, but also his own.
“Question for Barr,” Andrew Weissmann, the former lead attorney in the Mueller special counsel probe tweeted: “[H]ow are Flynn’s confessed lies to the FBI (repeated to the VP) not a crime, but Clinesmith changing an email (the full version of which he also sent to the DoJ) is?”
He adds, “Questions judge should ask before accepting Clinesmith’s guilty plea: What precisely is the falsity of the statement that Clinesmith made? What investigation was it material to? He gave DOJ accurate information for the Page FISA? How does Barr materiality [standard] for Flynn apply?” He then tweeted that whether Page was a source for the CIA was not, “material to the Page FISA.”
These tweets present strong circumstantial evidence that Clinesmith showed Weissmann both versions of the June 2017 email, the original one sent by the CIA and the one that Clinesmith doctored to fool the FISA court into extending the Page warrant.
Further, the tweets suggest that Weissmann may have known since August 2016—before the first Carter Page warrant was issued—that the entire FISA spying operation on Page was unnecessary and therefore illegal.
Page knew that insiders within the intelligence community and the FBI were smearing him with rumors that he was working as a Russian spy. So before the first FISA warrant was issued in October 2016, he wrote a letter to FBI Director James Comey offering to sit for an interview to clear up any questions about his activities. The FBI ignored his offer and Comey nevertheless certified to the FISA court that intrusive spying was the only way to obtain the information needed.
It was a flat-out lie.
Before we turn to Weissmann’s tweets, it’s important to review his role in the early stages of the Russia collusion hoax. In January 2015, the Justice Department appointed Weissmann to head the criminal division’s fraud section. As attorney Sidney Powell noted at the time, Weissmann had a troubling history of allegations of suppressing evidence and seeking convictions for non-crimes.
In August 2016, Justice Department attorney Bruce Ohr briefed Weissmann, Bruce Swartz, and Zainab Ahmad on the Steele dossier. Weissmann, Swartz, and Zainab would not be assigned to support Mueller until the following year raising the question as to why they would be involved in the case at this stage.
As Fox News reported, “During his testimony, Ohr said he stressed during the 2016 meetings—many of which took place before the Page surveillance warrant was obtained—the potential bias and conflicts associated with Steele and the dossier, which was commissioned by the Democratic National Committee and Clinton campaign and handled by opposition-research firm Fusion GPS.”
Why would Weissmann, the head of an unrelated fraud section, be interested in biased research against candidate Donald Trump? One clue might be his support for Trump’s opponent. Just a few short months later, Weissmann attended the Clinton election night party (intended to be a victory celebration).
Which brings us back to Weissmann’s tweets. Clinesmith is charged with deceiving the FBI official who filed a sworn statement with the court. Incredibly, Weissmann is arguing that Clinesmith shouldn’t be found guilty of a crime because he told some members of the Justice Department. That’s ridiculous. The whole purpose of doctoring the email was to deceive the FISA court. It’s a very serious deception because it undermines the constitutional function of the court. That’s exactly what the court said here and here about Clinesmith’s doctored email (among the other deceptions).
The court went so far as to order a review of all search warrants in which Clinesmith played a role. So whether Clinesmith intended to deceive the Justice Department, or not, the objective of doctoring the email was to facilitate deceiving the court.
Weissmann also argues that the false statement was not, “material to an investigation.” That’s a red herring. The false statement, as found by the court, was clearly material to the question of whether or not to grant a warrant.
“In addition, while the fourth electronic surveillance application for Mr. Page was being prepared, [Kevin Clinesmith] engaged in conduct that apparently was intended to mislead the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency,” the court ruled. “Because the conduct of [Clinesmith] gave rise to serious concerns about the accuracy and completeness of the information provided to the [FISA court] in any matter in which [Clinesmith] was involved, the Court ordered the government on December 5, 2019, to, among other things, provide certain information addressing those concerns.”
To erase any doubt that Clinesmith’s deceptions were material, the court further ruled that the deceptions interfered with the court’s duty to “properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.”
Thus, Weissmann’s tweets completely ignore the FISA court’s opinions, finding first that Clinesmith doctored the document to deceive the court, and, second, that the deception was so serious so as to require a review of everything Clinesmith touched.
The Fourth Amendment of the Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Thus, the warrant authorized the government to invade Carter Page’s “person, house, papers, and effects,” with an unreasonable search. The warrant was not issued on probable cause because Page was known to be a loyal American spying on the Russians for the CIA, not the reverse.
These constitutional limitations are captured within an official document of the Justice Department: “The Attorney General’s Guidelines for Domestic FBI Operations.” Under these guidelines, the FBI is not supposed to spy on a target when a “less intrusive” method will work. When Page offered to sit for an interview, the FBI was constitutionally required to explore that option before invading his privacy. Weissmann either doesn’t understand these constitutional limitations or doesn’t think they apply under the universal unwritten principle that nothing is unconstitutional if it helps to get Trump.
Weissmann previously fended off ethics complaints filed with the New York disciplinary committee. His actions call to mind New York’s special rules regarding prosecutors. One comment states, “In criminal matters, therefore, Rule 3.3(a)(3) requires a prosecutor to refrain from offering or using false evidence, and to take reasonable remedial measures to correct any false evidence that the government has already offered. For example, when a prosecutor comes to know that a prosecution witness has testified falsely, the prosecutor should either recall the witness to give truthful testimony or should inform the tribunal about the false evidence.”
Thus, it should concern observers that Weissmann would have sponsored an application for a search warrant based upon false, misleading, or incomplete information. Under Weissmann’s supervision, it’s worth noting the Mueller team received 500 search warrants—every one of which should now be reviewed based on what is known about the Page warrant.
Weissmann now serves as a professor at New York University School of Law. He teaches criminal procedure, focusing on the Fourth and Fifth Amendments. He also teaches national security law which includes a section on the procedures in FISA court. Yes, in spite of the fact that he publicly defends a confirmed fraud on the court, Weissmann is teaching his methods to future Weissmanns who can carry on his legacy. This is the era in which we live.