“A Legitimate And Highly Important Investigation”
The District of Columbia Office of Disciplinary Counsel and Kevin Clinesmith have submitted a proposed one year suspension by consent for conduct that had led to a federal false statement conviction
Disciplinary Counsel docketed this matter for investigation in December 2019 based on allegations about Respondent’s conduct in Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation, 247-256, U.S. Department of Justice, Office of the Inspector General (December 2019) (the “December 2019 DOJ IG Report”).
On August 25, 2020, Respondent, by and through counsel, timely notified the Board on Professional Responsibility and Disciplinary Counsel that he had pled guilty in the U.S. District Court for the District of Columbia to one count of making a false statement in violation of 18 U.S.C. § 1001(a)(3) in connection with the conduct alleged in the December 2019 DOJ IG Report.
From the agreed facts
From July 12, 2015 to September 21, 2019, Respondent was employed full-time with the Federal Bureau of Investigation as an Assistant General Counsel in the National Security and Cyber Law Branch of the FBI’s Office of General Counsel. As part of Respondent’s duties and responsibilities, Respondent assisted FBI Special Agents and Supervisory Special Agents in connection with applications prepared by the FBI and the National Security Division (NSD) of the United States Department of Justice to conduct surveillance under the Foreign Intelligence Surveillance Act.
On July 31, 2016, the FBI opened an investigation known as Crossfire Hurricane into whether individual(s) associated with the Donald J. Trump for President Campaign were aware of and/or coordinating activities with the Russian government. By August 16, 2016, the FBI had opened individual cases under the Crossfire Hurricane umbrella on four United States persons, including a case involving Carter Page.
Respondent’s misconduct involved an email
Relying on the altered email, the Supervisory Special Agent signed and submitted the fourth FISA application on June 29, 2017. This application also did not include Page’s history or status with the OGA.
Among the mitigating factors cited
(g) the sentencing judge credited Respondent’s explanation that he had wrongly believed that the information he was inserting into the email was accurate; and (h) the sentencing judge, who is also the presiding judge of the FISC, concluded that “even if [Respondent] had been accurate about Dr. Page’s relationship with the [OGA], the warrant may well have been signed and the surveillance authorized.
Disciplinary Counsel’s promise
In connection with this Petition for Negotiated Discipline, Disciplinary Counsel agrees not to pursue any charges arising out of the conduct described in Section II, supra, other than those set forth above, or any sanction for that misconduct other than that set forth below.
The charges involve violations of Rule 8.4(b)&(c) and conviction of a “serious crime,” which forms an independent basis for discipline under the Court’s Rules.
The “promise” language is interesting in that it suggests that other possible ethical violations are not being pursued.
The petition also notes
Disciplinary Counsel also asserts the following aggravating factor: Respondent’s misconduct has been used to discredit what appeared otherwise to have been a legitimate and highly important investigation. Although Respondent denies this asserted aggravating factor, Respondent acknowledges that Disciplinary Counsel would raise it in a contested disciplinary hearing and a hearing committee might find clear and convincing evidence of it.
A hearing will be held on the Petition with ultimate acceptance or rejection by the Court of Appeals.
For those who are interested:
Limited Hearing: In re Kevin Clinesmith, 21-ND-004
Mon 7/19/2021 10:00 AM – 12:00 PM
https://www.youtube.com/channel/UCU1JZlha9GboHkIl4s6H24w
(Mike Frisch)