I recently wrote a column discussing how Democratic leaders, including Vice President Joe Biden, argued against US attorney John Durham's continuation of the investigation despite the growing evidence of wrongdoing by Justice Department officials, and now ex-FBI attorney Kevin Clinesmith has first pleaded guilty. Now Andrew Weissmann, one of the top prosecutors at Special Counsel Robert Mueller, has mocked Clinesmith's request and called on Justice Department attorneys to refuse to assist with an ongoing investigation into aspects of his own past work.
I was among those who raised concerns when Muller selected Weissmann based on his history of controversial law enforcement decisions, including a pattern of prosecutor's overreach in the Enron litigation.
Weissmann's recent statements (made prior to the publication of his new book on the Russian investigation) only reinforced these concerns.
Recently, Weissmann wrote an extraordinary and disturbing statement for the New York Times (with former Defense Department special adviser Ryan Goodman). In the column, he appeared to urge Attorneys at the Department of Justice to undermine the Durham investigation and US attorney John Bash's investigation into "debunking" motions by Obama administration officials. They wrote, "Justice Department personnel should be well advised not to engage in such efforts in fulfilling their ethical and legal obligations."
Look at this line for a moment. Weissmann openly urges lawyers to refuse to help with investigations that may raise questions about his own decisions. Durham is investigating pattern flaws, false statements, bias and now criminal behavior in the Russian investigation. There is obviously an overlap with the Mueller inquiry, which discussed many of the same underlying documents and resorted to the work of some of the same people. Failure to address misconduct, bias, or criminal behavior of such individuals would be embarrassing for both Weissmann and Müller. Despite this apparent conflict of interest, Weissmann calls on the lawyers to resign.
It's the same troubling position Sally Yates once took, telling an entire federal agency not to support the president in banning his travel.
After Weissmann urged Justice Department attorneys not to support the Justice Department's investigation, Durham announced that Clinesmith would make the first plea of guilt. This would usually embarrass someone who asked the DOJ's lawyers to effectively obstruct the investigation. Not Weissmann. He has now attacked the criminal case.
Weissmann mocked Attorney General Bill Barr to explain the difference between the Flynn plea and the Clinesmith plea.
"Question to Barr: How are Flynn's confessed lies to the FBI (repeatedly to the Vice President) not a crime, but Clinesmith changes an email (the full version of which he also sent to the DOJ)?
Clinesmith is accused of adding the words "no source" to an email through Carter Page, but no, where it says the charge is false i.e. H. This page was a source for the CIA. How is the addition wrong without the "material"? "
Here's the Durham Theory: Although Clinesmith provided the DOJ with the full and accurate email for use in Page FISA, when asked by an FBI agent, Clinesmith said that the CIA did not provide a source in writing this page, yes, as the CIA had not specifically stated this in writing. No, where is it alleged that Page was actually a CIA source or that Clinesmith knew that, if so? How is any of this wrong or material to Page FISA in using Barr's new Flynn materiality standard? It is not. Two systems of justice at play. "
"Durham's indictment suggests that the FBI supervisor wanted to know if the CIA" confirmed "in writing that Page was not a source because of the suspicion of the CIA – but whether in writing or not, no allegation that Clinesmith of the fact lied that Page had no source. Is that a federal crime? "
The tweets reveal more about Weissmann than Clinesmith or that admission of guilt.
First, Weissmann completely skews both the law and the facts in order to ignore the importance of this admission of guilt. The fact that Page was a source for the CIA is beyond dispute. The Horowitz inquiry and various Congressional inquiries have confirmed that the CIA made it clear to Clinesmith that Page works for United States intelligence, a fact that critically undermined the basis for the original secret surveillance request. To say that "No, where does the prosecution say this is wrong, i.e. that Page was a source for the CIA" is bizarre. The indictment is that Clinesmith made this false statement in court and there is abundance of evidence to support this charge. It was clear enough to get Clinesmith to plead and sign what appeared to be a cooperative arrangement with prosecutors.
Second, claiming that "Clinesmith gave the DOJ the full and accurate email" would not negate the charges. It was the wrong information he was giving the court that mattered. Misconduct by the public prosecutor's office is often about telling the courts something other than what the public prosecutors know or discuss. In addition, the effects of such a contrast increase the need for examination, which Weissmann tried to prevent. If other DOJ lawyers and investigators knew that the court received false material information, it will add to the concerns of the Durham investigation, not reduce it. Indeed, this means that this investigation dragged on for many months, even though other lawyers knew that the original claims that Page was a Russian property had been directly contradicted by American intelligence and never disclosed to the court.
What is amazing is that the FISA court itself, as well as Horowitz, flagged this as a grave matter of false or misleading information. However, Weissmann is actively trying to convince the Justice Department attorneys to refuse to help with the investigation.
Weissmann also misrepresents the law and the Justice Department's position in Flynn. I was one of the vocal critics of the plea. It is true that Flynn gave the investigators the wrong answers. However, he fought the allegations until the Müller team robbed him of his savings and threatened to prosecute his son.
Remember, Flynn was the new national security advisor and had lawful talks with Russian diplomats. Even James Comey told President Obama that the discussions were "legitimate". In addition, in December 2016, investigators had found no evidence of a Flynn crime. They wanted to stop the investigation; They have been overridden by superiors such as FBI special agent Peter Strzok, assistant director Andrew McCabe, and director James Comey. Strzok called on investigators to keep the case alive and McCabe is described as the "cutting off" of another senior official who questioned the basis for further investigation into Flynn. All three officers were later fired, and all three were later found involved in serious misconduct by career officers as part of the Russia investigation. Recently released material suggests that Obama, Biden, and others were discussing the use of Logan's law as a pretext for filing a criminal complaint. The Logan Act criminalizes private negotiations with foreign governments. The Logan Act is widely considered unconstitutional and has never been used successfully against US citizens since the earliest days of the Republic.
Then, in February 2017, Comey bypassed long-standing protocols and ordered an interview with Flynn. Comey later boasted that he "probably couldn't … get away with it" in other administrations, but he "sent a few people over" to interview Flynn, who was settling in his new office as a national security advisor. Indeed, Yates recently agreed that Comey became a "villain" on the Flynn affair.
That story was presented to the court in Flynn's motion to dismiss the charges. The materiality point reflected the applicable law that charges require more than mere "relevance" or kinship, but rather a statement that "the tribunal must have a sufficient degree of probability of influencing its decision". United States v Weinstock, 231 F.2d 699, 701 (D. C. Cir. 1956) (emphasis added). The difference to Clinesmith is obvious. Clinesmith lied to the court in an investigation to influence a "court decision."
Imagine if this wasn't the norm. This would mean that any prosecutor could deliberately lie to a court in order to obtain arrest warrants or other actions without the risk of criminal charges. Weissmann, however, mocks the very notion that Clinesmith could be charged while insisting that his office properly prosecute Flynn despite the lack of an ongoing federal trial and the fact that the agents themselves did not believe Flynn was deliberately lying. There is no question that the Clinesmith lied and that the lie was vital to the court's examination of the FISA application.
Weissmann's public efforts to derail the Durham Inquiry and his distortion of the Clinesmith Guilty Admission only confirm the view of many of us that the Durham Inquiry must be closed and made public. Although I said I did not believe Mueller would find any collusion or conspiracy crimes with the Russians, I supported the Special Counsel's investigation. I also supported the Horowitz Inquiry and the Durham Inquiry. The reason is the same. I believe that the public needs to have a full and transparent report of what happened on both sides in the Russian investigation. Like many others, Weissmann wants one-page transparency and the suspension of the Durham investigation, despite Horowitz filing matters for criminal investigation and finding a multitude of false statements, errors and professional misconduct. Even adding a reason for punishment did not prevent Weissmann from denouncing this investigation.
For years I have criticized Weissmann's record of dubious law enforcement, bias, and overreach. This case against Weissmann, however, is nowhere near as powerful as the case that he brings against himself.