Author’s Note: This is the second of a three-part series (see Part 1).Kevin Clinesmith’s lies and document doctoring, which resulted in his guilty plea to a felony false-statement charge last week, were prompted by what turned out to be the worst-case scenario, for both him and the FBI.To recap, we are focusing on June 2017, when the FBI was preparing to submit an application for a fourth 90-day warrant to surveil former Trump campaign adviser Carter Page. The “SSA,” a supervisory special agent at FBI headquarters whom we met in Part 1, was to be the affiant on that application to the Foreign Intelligence Surveillance Court (FISC). Not assigned to Crossfire Hurricane until December 2016, the SSA had not been involved in the investigation when the bureau opened it five months earlier. He was personally unaware that, months before the first Page FISA warrant was sought in October 2016, the CIA had informed the FBI about Page’s years of work as a CIA informant, authorized by the agency for “operational contact” with Russians. Though the SSA was not on the investigative team, he had been the headquarters official assigned to swear to the truth of the renewal warrant applications in January and April 2017. He thus knew that the bureau heavily relied on Page’s prior years of contact with Russians in portraying Page to the FISC as a clandestine agent of Moscow, at the center of a suspected Trump-Russia espionage conspiracy.The SSA became alarmed when Page, while vehemently denying that he was a spy for Russia, publicly claimed that he’d been a U.S. government intelligence source against Russia. The SSA realized that if Page was telling the truth, it would “seriously impact the predication of our entire investigation.”That was not the half of it. When the SSA asked Kevin Clinesmith, the bureau’s point man for contact with the CIA, to check on Page’s claims, Clinesmith faced the worst-case scenario, not only because Page was telling the truth, but because the FBI had every reason to know -- before it began seeking surveillance warrants from the FISC eight months earlier -- that Page had indeed been a CIA informant. Moreover, Clinesmith, a lawyer in the FBI branch that reviewed FISA applications, had been involved from the start.The Clinesmith case is the story of how, despite being alerted that it had peddled falsehoods under oath to a federal court, the bureau mendaciously doubled down, obtaining a fourth FISA warrant by concealing from the court Page’s status as a CIA informant.The ‘Digraph’In his false-statement charge against Clinesmith, Connecticut U.S. attorney John Durham does not allege that the former bureau lawyer was personally aware, prior to the first FISA warrant application, that Page had been a CIA informant. But Clinesmith certainly was told about it in June 2017, before the FBI applied for the fourth warrant. He was also told that the CIA had informed the FBI about Page’s status back in August 2016. Despite having that information, the bureau’s investigative team had never disclosed it to the FISC in applying for the first three warrants. Disclosing it now -- while mulishly seeking a fourth warrant against Page -- would be humiliating.But that was the dilemma: Either admit that corruption or incompetence explained an inexcusable concealment of information from the FISA court, or try to concoct some rationalization that could harmonize the FBI’s representations with the contradictory CIA information, even if that required obfuscation. Sadly, when one studies the inexcusable conduct of the Trump-Russia probe, it is not surprising that Clinesmith went with the second option. The bureau, abetted by the Justice Department, desperately wanted to convince itself that there was no need to make an embarrassing disclosure. In that mindset, silence (i.e., doing nothing) is orders of magnitude easier to rationalize than a confession of inexplicable error that one knows will be met with condemnation.“But wait a second,” you’re saying to yourself. “I’ve read about the case. As I understand it, the CIA told Clinesmith in an email that Page was a CIA source, and then Clinesmith altered the email to say Page was not a CIA source. There’s no way to rationalize that. It’s a black-and-white lie.”Alas, things are never that straightforward. When intelligence agencies interact, opaque code is standard fare. And where there is coded language, which two different agencies might claim to construe slightly differently, there is opportunity for mischief -- especially if a lawyer is involved. Clinesmith and his superiors exploited that opportunity.And Clinesmith reprised the sleight of hand in last week’s “I did it, but I didn’t do it” guilty plea.Your Rosetta Stone for this legerdemain is the term “digraph.” It refers to a two-letter designation that denotes some kind of status. A good example of a well-known digraph is CI, which means “confidential informant” in law-enforcement parlance.In connection with Clinesmith’s case, we’re talking about a digraph that the CIA uses in its intelligence reports. The digraph remains classified. We are not told what the two letters are in either the criminal information against Clinesmith or the DOJ inspector general’s FISA abuse report (where most of the Clinesmith story is related at pages 247–56, with the SSA referred to as “SSA 2”). We are informed only that the digraph denotes an American who has been approved by the CIA for “operational contact” with a foreign power.When you encounter “[digraph],” then, understand that it is a CIA term, defined as an American who is tasked by the CIA to have contact with certain foreigners and who wittingly reports the resulting intel back to the CIA. To understand the game that Clinesmith is playing, it is vital to remember this definition of digraph. The key to his defense is to feign confusion about the term’s meaning -- conflating it, as we shall see, with nonvoluntary sources who unwittingly give information to the CIA.Was Page a Source ‘in Any Capacity’?In June 2017, the SSA asked Clinesmith to find out whether Page was a CIA “source.” The government’s published allegations do not say whether the SSA and Clinesmith discussed the digraph, at least initially. There is reason to believe that, in the days that followed, the SSA reviewed the classified documents about Page that the CIA had provided to the bureau in August 2016. As we shall see in due course, the SSA and Clinesmith eventually discussed the digraph in an important instant-message exchange.Before emailing the CIA, did Clinesmith consult with his superiors at the FBI General Counsel’s Office, or with the Crossfire Hurricane investigative team, which would have had access to the classified documents about Page previously provided by the CIA? The government’s published allegations do not tell us. But we do know that, by the time he sent his June 15, 2017, email to the CIA official who was his point of contact at the agency (the CIA “liaison”), Clinesmith had at least heard of the digraph. That’s because, in that email, Clinesmith wrote that the bureau needed “some clarification on Carter Page” because there “is an indication that he may be a ‘[digraph]’ source.”After noting that this could be something the FBI would need to explain to the FISC when applying for the next renewal of the Page FISA warrant, Clinesmith went on to pose two questions to the CIA liaison (my italics):> 1) Source Check / Is Page a source in any capacity? …> > 2) If he is, what is a “[digraph]” source (or whatever type of source he is)?Clinesmith’s second question created the opening for him to claim, in the false-statement case brought by Durham, that he, and the FBI generally, were in the dark about the digraph’s meaning. It is based on this sowing of confusion that he now claims not to have intended to deceive anyone.The CIA liaison’s email in response to Clinesmith is not a model of clarity. It is clear enough for us to grasp that Clinesmith is now lying, but not so clear that Clinesmith would think it futile to kick some dust in our eyes. The liaison wrote that the CIA uses> the [digraph] to show that the encrypted individual . . . is a [U.S. person]. We encrypt the [U.S. persons] when they provide reporting to us. My recollection is that Page was or is . . . [digraph] but the [documents previously provided by the CIA] will explain the details. If you need a formal definition for the FISA, please let me know and we'll work up some language and get it cleared for use. [Emphasis added.]The Game: Conflating Digraph with Encryption and Incidental SurveillanceNote that Clinesmith did not ask about encryption; the CIA liaison raised it. We know, however, that the FBI uses encryption in intelligence reporting. That’s because we’ve been through the great unmasking controversy.As I’ve detailed, “masking” involves what’s known as incidental surveillance. That is when an American citizen unwittingly stumbles into an intelligence-collection operation by interacting with either a covert informant who reports intelligence to the FBI, or a suspected foreign agent whom the FBI is monitoring (often under FISA). As a result of such interactions, the FBI acquires information from the American citizen, even though the American citizen is not the target and is not wittingly providing information to U.S. intelligence. To protect the American’s privacy (because the American is not a suspect and there was no court order targeting the American’s communications), the FBI and other intelligence agencies mask -- conceal -- the American’s identity. To do that, instead of using the American’s name, they substitute some designation -- it could be a phrase (such as “U.S. Person 1”) or a symbol (such as a digraph).In that sense, the concealment of the identity of an American who unwittingly passes information to U.S. intelligence agencies could be likened to encryption.Now, can you see what happened here?The last thing Clinesmith wanted was to be told by the liaison that Page was a witting CIA source. He was looking for some reason, any reason, to avoid learning that -- a concept the law refers to as conscious avoidance, or willful blindness. Probably without realizing she was doing it, the liaison gave Clinesmith the out he was looking for by using the word encrypt. Clinesmith proceeded to seize on encryption as a rationale for interpreting the digraph as an analogy to the FBI’s masking situation -- where the bureau, in writing reports, encrypts the identity of an American who is incidentally monitored and does not intentionally provide information to the U.S. government.Manifestly, this is not an honest reading of what the CIA liaison said. And Clinesmith knows it. The liaison was not talking about all circumstances in which the CIA encrypts an American’s identity; she was referring to the very specific situation when the CIA uses the digraph in question -- the digraph that Clinesmith expressly asked about. She said the CIA uses this digraph when those Americans “provide reporting to us.”Let’s be clear on that. The liaison did not say the CIA uses the digraph “when we incidentally get information from an unwitting American who is communicating with a target we’re surveilling.” She said the CIA uses the digraph when these Americans “provide reporting to us.” The commonsense inference is the direct, intentional transmission of information to the agency.But the liaison did not leave it at that. To ensure that she was communicating the concept accurately, she added two other things. First, she told Clinesmith to consult the documents the CIA had already given the FBI months earlier, which laid out that Page was a witting source authorized for operational contact with Russians. And second, the liaison offered to provide Clinesmith a definition of digraph so the term could be conveyed accurately to the FISC.But again, that was the last thing Clinesmith was interested in. In writing back, he basically tells the liaison: Never mind, we’ve got this. He was not going to give the liaison a chance to correct his distortion of the word encrypt, his studied obtuseness. Instead, Clinesmith claimed that the FBI was digging into the CIA documents (though he later conceded to the IG that he did not do so -- he assumed that someone would dig into them). More significantly, he stated, “I think the definition of the [digraph] answers our questions.” He was talking, of course, about the way he chose to construe what the liaison said about “digraph,” not what she actually said.Holes in Clinesmith’s StoryIt is not clear with whom at the FBI, if anyone, Clinesmith consulted to come up with his story. He admitted that he shared the CIA liaison’s email -- without first tampering with it -- with one of the Crossfire Hurricane case agents and a different supervisory agent (not the SSA) assigned to the Mueller special-counsel team. But in doing so, Clinesmith provided no context or comment. The case agent apparently took it as a request to pull the CIA documents (which Clinesmith claims not to recall reviewing).Clinesmith also sent an instant message to his direct supervisor (the chief of the national-security branch of the FBI General Counsel’s Office), claiming he’d been informed by the CIA that Page was a “U.S. subsource of a source” -- i.e., an American who was not a witting informant but who was in incidental contact with (and thus a source of information for) a witting informant.This is the same tale that Clinesmith told the Justice Department’s inspector general. Naturally, given that the email from the CIA liaison neither stated nor conveyed the impression that Page had been an unwitting source of a CIA informant, the IG asked Clinesmith where that explanation came from. Apparently flustered, Clinesmith said he couldn’t be sure, but thought it might have come from phone conversations with the liaison -- conveniently unrecorded, of course.Yet, the liaison did not recall having any phone conversations with Clinesmith. Nor is there any reason to believe there was such a conversation: The email exchange shows that, although the liaison offered to discuss the matter further, Clinesmith demurred -- having calculated that he could sow confusion about the digraph by exploiting the liaison’s use of the word encrypt. Most significantly, according to the IG, the liaison says she never told Clinesmith that Page was an unwitting source; indeed, she maintained that “her email stated just the opposite.”In any event, Clinesmith had come up with his story to conceal Page’s status as a CIA informant. But would he be able to get it past the SSA?End of Part 2.
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