On September 2, the District of Columbia Bar quietly converted the indefinite suspension of Kevin Clinesmith’s law license to a one-year suspension (retroactively). This will restore Clinesmith’s ability to practice law before the D.C. bar. To understand how shocking this development is, it’s important to review Clinesmith’s pivotal role in the Russian collusion hoax.
In 2016, the Department of Justice applied for a warrant through the Foreign Intelligence Surveillance Court (FISC) to search and monitor the communications of former Trump campaign advisor Carter Page. In order to justify this intrusive search, the Department of Justice needed to certify to the court that no other less intrusive technique would work to gather the evidence that Page might be a spy. The Justice Department could not make this certification truthfully. Page saw his name in leaked reports falsely accusing Trump of conspiring with the Russians. So he wrote an open letter to FBI Director James Comey offering to sit for an interview with the FBI.
The Washington Post published the letter, erasing any doubt that Comey would receive the offer. Then the FBI received word that Page actually was a spy . . . for the CIA. Page was so trusted by the CIA, it approved him for “operational contact,” meaning agents could share sensitive information to help Page know what to listen for on his trips to Russia. He would have gladly and voluntarily told the FBI anything they wanted to know if they had just asked.
The Justice Department made the “no less intrusive means available” certification to the court anyway. It was a bald-faced lie because the FBI passed on the opportunity to interview Page. Later, the FBI directly interviewed the source of the Russia Collusion hoax and learned that, at its heart, the Trump/Russia collusion accusation was a combination of rumors, jokes, and wishful thinking.
The Justice Department disregarded this information and kept the spying going for another renewal. Finally, in the summer of 2017, Page gave an interview in which he publicly acknowledged his cooperation with the CIA. The interview set off alarm bells in the Justice Department resulting in an attorney—none other than Kevin Clinesmith—being assigned to confer again with the CIA. The CIA sent an email confirming what the FBI had known since before the warrant was issued in October 2016, i.e. that Page was a source. This was devastating to the Justice Department’s house of cards on which it built the entire justification for months of intrusive spying on Page. So Clinesmith changed the email that he knew would be relayed to the court, to make it appear that Page was never a source for the CIA.
In 2020, Special Counsel John Durham charged Clinesmith with one count of making a false statement. Clinesmith pleaded guilty but argued at sentencing that he informed his superiors that he doctored the email. He didn’t lie to anyone, he argued. He prepared the doctored document but left it to others to perpetrate the deception on the court.
Clinesmith, like all government attorneys, took an oath to uphold the Constitution. While we often hear bureaucrats piously preach this fact, in D.C. culture that phrase has come to mean, “I don’t have to take orders from a Republican president.” The Constitution’s Fourth Amendment 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.” The District of Columbia Rule of Professional Conduct 3.3 provides that a lawyer, “shall not knowingly . . . make a false statement of fact . . . to a tribunal or fail to correct a false statement of material fact . . . previously made,” and shall not, “Counsel or assist a client to engage in conduct that the lawyer knows is . . . fraudulent,” and shall not, “Offer evidence that the lawyer knows to be false.” Further, “A lawyer who receives information clearly establishing that a fraud has been perpetrated upon the tribunal shall take reasonable remedial measures, including disclosure to the tribunal . . . ”
Clinesmith altered the email to assist in the perpetration of a fraud upon the FISA court. He pleaded guilty to a felony for doing that. He’s the only person in the Justice Department to have been convicted of anything regarding the most notorious abuse of the FISA process for political ends.
Everyone knows that the spying on Page, who was a figure in the Trump campaign for president, was not about spying on Carter Page. The FBI had no interest in Page or it would have accepted the offer to interview him. The Justice Department executed a plan hatched by the Clinton Campaign to tie Trump to Russia. When the plan failed to stop Trump from getting elected, the same lawyers and FBI agents who started the process maneuvered to use a special counsel appointment to harass and undermine the president.
Under any other circumstance, a government lawyer would be disbarred for helping perpetrate such a serious fraud on a court—particularly when the purpose was to violate the Fourth Amendment. Indeed, short of murdering a judge or burning down a courthouse, it’s difficult to imagine any more profound assault on the Constitution. If lawyers can lie in warrant applications to obtain search warrants without fear of consequence, then these American constitutional protections will have the same effect as similar protections found in Chapter II, Articles 39 and 40 of the Chinese constitution. The Romans used to say, “Ubi Jus Ibi Remedium,” roughly translated, it means without a remedy, then there is no right. In effect, the slap on Clinesmith’s wrist repeals the Fourth Amendment.
But this was a political action during a period when the only rule of law was to “get Trump.” Anything that helped get Trump was presumptively legal. The D.C. bar has sent a powerful message to attorneys considering abusing their power for partisan political reasons: they have your back if you play for the right team.