A Hurricane Warning from the FISA Court

U.S. Navy veteran Carter Page once served as an asset for the Central Intelligence Agency. FBI lawyer Kevin Clinesmith altered an email to say that Page was not a CIA asset, which exposed the Trump campaign associate, an American citizen, to surveillance under the Foreign Intelligence Surveillance Act (FISA). Justice Department Inspector General Michael Horowitz exposed Clinesmith’s crime, and Clinesmith was the only person in the FBI to face criminal charges as a result of U.S. Attorney John Durham’s investigation into the Obama Administration’s bogus Trump-Russia probe in 2016.

Clinesmith faced a maximum of five years in prison and a fine of $250,000. But on January 29, D.C. District Judge James Boasberg gave Clinesmith 12 months probation, a $100 fine, and 400 hours of community service. The judge did not tell Clinesmith he had betrayed the FBI, the Justice Department, or the Constitution he had sworn to uphold. No, the criminal falsification of the email, Boasberg said, was the “only stain on the defendant’s character that I have been able to discern,” adding that the case had thrust Clinesmith into “the eye of a media hurricane.” For Boasberg, a 2011 Obama appointee, that was a curious choice of words.

As some Americans may recall, “Crossfire Hurricane” was the name of the FBI-Justice Department covert operation conducted against then-candidate and later President Trump. The Foreign Intelligence Surveillance Court served as a strategic asset in that operation. Chief Justice John Roberts appointed Boasberg to the FISA court in 2014, and since January 2020, Boasberg has served as the FISA court’s presiding judge. 

With the tap on the wrist for Clinesmith, Boasberg certifies that it’s OK to defraud the very court over which he presides. And besides, as Boasberg told the D.C. court, the warrant to surveil Carter Page would have been approved even without Clinesmith’s “misstatement.”

Yale law alum Boasberg, who earned a master’s of studies degree in modern European history from Oxford, served up a few misstatements of his own. 

Clinesmith pleaded guilty to altering the email in August 2020, so in January 2021 he wasn’t exactly a “defendant.” As Joseph Klein explains, Clinesmith served since 2015 as assistant general counsel in the national security and cyber law branch of the FBI’s office of general counsel. For this official to engage in criminal falsification is more than a “stain” on his character, and it was Clinesmith’s falsification that exposed Page to media smears suggesting that he was some kind of Russian agent. After Clinesmith emerged in the 2019 Michael Horowitz report, the establishment media hardly made him a target. 

The sentence of probation for Clinesmith was much less than the three-to-six month prison sentence sought by special counsel John Durham. After his appointment by Attorney General William Barr in May 2019, Durham failed to bring any criminal charges against major “Crossfire Hurricane” players James Comey, Peter Strzok, Lisa Page, and others. With the merest tap on the wrist for Clinesmith, Boasberg sends the message loud and clear. 

And that message is the Justice Department and the FBI may conduct covert operations against a duly elected president of the United States, violating federal law and abusing the FISA process without serious consequence. If any player should happen to get caught, say, falsifying an email, that person will avoid prison and get only the mildest possible punishment. 

As Ryan Lucas of National Public Radio explains, the FISA court is “cloaked in mystery,” and “operates completely out of sight.” Since it operates in secrecy—without oversight or accountability—the FISA court is, in effect, the most powerful court in the land. As presiding judge of the FISA court, James Boasberg functions as an all-powerful chief justice.  

Boasberg found acceptable anything the Justice Department and FBI wanted to deploy against Donald Trump, a duly elected president. For all Americans, especially 74.2 million Trump voters, that is bad news.

The Foreign Intelligence Surveillance Act of 1978 allows surveillance of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power. Trump supporters are now smeared as racists, white supremacists, Nazis, and terrorists. 

If the Justice Department and FBI now seek to portray any American citizen as a terrorist, Boasberg’s actions are evidence that the FISA court is disposed to sign off on it. As Billy Hayes told the Turkish judge in “Midnight Express,” teaching these people about justice is “like asking a bear to shit in a toilet.”  

In 2021 and beyond, expect more Crossfire Hurricane operations to target the innocent, perhaps with new Midyear Exam operations to clear the guilty. To adapt Milan Kundera, the struggle against deep state power is the struggle of memory against forgetting. 

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