Is Submitting a False Statement to the FISA Court a "Victimless" Crime?

In an amicus brief for leading crime victims' rights organizations, I explain why ex-FBI lawyer Clinesmith's crime of altering an email as part of an effort to renew a warrant to surveil Dr. Carter Page made Page a "victim" under the Crime Victims' Rights Act.

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On January 29, former-FBI lawyer Kevin Clinesmith will be sentenced for making a false statement as part of the Government's application to renew a Foreign Intelligence Surveillance Act (FISA) warrant authorizing secret surveillance of Dr. Carter Page's communications.  In connection with that sentencing, an important crime victims' rights issue has arisen. Dr. Page has filed a motion to be recognized as a "victim" under the Crime Victims' Rights Act (CVRA), arguing that he has been "directly and proximately harmed" by Clinesmith's crime. I have filed an amicus brief for crime victims' organizations supporting Dr. Page.

The general issue of who qualifies as a "victim" under the CVRA is a foundational question for protecting "victim's" rights and thus is extremely important to the crime victims' movement. Dr. Page's attorneys contend that:

In this case, Dr. Page was the target of the crime. He was the target of the
FISA warrant surveillance. Clinesmith lied … and provided an altered
document to him to mislead the agent [who drafted the warrant application] into believing that obtaining a FISA warrant against Dr. Page was legitimate, when in fact, it was not. Dr. Page suffered the direct and proximate harms … because the 4th FISA warrant was issued in reliance on Clinesmith's false statement.

If Dr. Page is recognized as a "victim," he will entitled to provide a victim impact statement at Clinesmith's sentencing hearing.

Along with victims' rights attorney James Marsh, I have filed an amicus brief in support of Dr. Page's position that he is a "victim" under the Act. My brief on behalf of the National Crime Victims Law Institute, the National Organization for Victim Assistance, the National Center for Victims of Crime, and other leading crime victims' rights organizations explains why Dr. Page's position that he is a "victim" is correct, but suggests a slightly simpler route to the same conclusion. Rather than relying on the ultimate effects of the FISA warrant being granted based on the false information about Dr. Page, the amicus victims' organizations explain that the submission of a false statement itself is "direct and proximate harm" sufficient to create "victim" status under the CVRA (some citations omitted):

In the Statement of Offense in Support of Guilty Plea, the Defendant admits
that his false statement fell within the jurisdiction of the judiciary because it involved an application to renew a FISA warrant to surveil Dr. Page.  The Defendant also admits that he knowingly provided "materially false" information about the contents of an email from a government agency to his supervisor who prepared the FISA warrant application—materially false information that was important in how the Government crafted its application. And the Defendant knew that the substance of the materially false statement he sent to his supervisor about Dr. Page would be conveyed "to the court"—i.e., to the [Foreign Intelligence Surveillance Court ("FISC")].

Standing alone, these undisputed events establish Dr. Page's "victim" status under
the CVRA. The reason that the FISC exists is to make a fair determination of whether to allow Government surveillance of identifiable individuals based on all pertinent evidence. As the FISC explained when learning about the Defendant's deception, "'Congress intended the pre-surveillance judicial warrant procedure' under FISA, 'and particularly the judge's probable cause findings, to provide an external check on executive branch decisions to conduct surveillance' in order 'to protect the fourth amendment rights of U.S. persons.'" Of course, the judiciary cannot "protect the fourth amendment rights of U.S. persons"—such as Dr. Page—when a Government attorney responsible for preparing a FISA application knowingly falsifies material information used in preparing that application. …,

By committing his crime, the Defendant deprived Dr. Page of the careful FISC review to which he was entitled—i.e., a review of the warrant application based on a full and accurate accounting of the available information. Because the Defendant criminally interfered with a fair review of a FISA warrant application targeting Dr. Page, the Defendant harmed Dr. Page. Nothing more is required to establish Dr. Page's "victim" status.

The Government has now responded in its brief, arguing that, although the defendant's alteration of the email was a "material" falsification, it is unclear whether the outcome of the warrant application would have been any different in the absence of the crime.

Defendant Clinesmith has also filed a brief, arguing that "Page does not—and cannot—establish that his harm was proximately caused by [the] offense rather than sixteen other errors identified by the Inspector General, including the FBI's heavy reliance on reporting from a confidential human source, Christopher Steele, to establish probable cause for all four FISA applications."

On January 12, in his reply brief, Dr. Page takes on the argument that there were multiple misstatements in addition to Defendant Clinesmith's falsification of the email–and thus that Clinesmith is somehow absolved of causing harm to Dr. Page. Dr. Page recounts conventional tort principles, explaining that Clinesmith's position is "akin to arguing that, where multiple assailants stab someone who then dies of exsanguination, none is guilty because it cannot be established which one caused the death. This is nonsensical as the decedent in such a case is the victim of each assailant."

Judge Boasberg has set sentencing for January 29, and a ruling is expected on or before that date. Obviously, I hope that he finds Dr. Page was a "victim" in this case. It would be a dangerous precedent to say that submitting false information to the FISA Court to obtain a warrant is somehow a "victimless" crime. And it would compound that danger to say that, merely because the Government made multiple inaccurate statements in obtaining its permission to surveil Dr. Page, none of the statements can be viewed as having caused harm.

In this case, the simplest conclusion is the correct one: Criminally making a false statement to the FISA court to obtain a warrant to surveil a person "directly and proximately" harms that person. Accordingly, Dr. Page should be recognized as a "victim" of Clinesmith's crime.

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  1. ” The reason that the FISC exists is to make a fair determination of whether to allow Government surveillance of identifiable individuals based on all pertinent evidence.”

    I have to say that my impression is that the RISC exists to transfer ink from a pad to paper. IOW, it’s a rubber stamp. As I understand it, historically the rejection rate for the applications has been virtually zero, with none at all for years at a time.

    1. This’ll help explain the numbers: https://www.lawfareblog.com/dont-read-too-much-jump-rejected-fisa-applications

      And rejection rates SHOULD be low if agents are doing their jobs correctly.

      1. There are basically two possibilities here:

        1) Rejection rates are extremely low because agents are utterly meticulous in their applications, and virtually never ask for a warrant that shouldn’t be granted.

        2) Rejection rates are extremely low because, though agents are routinely careless and even dishonest in the applications, the FISA court is a rubber stamp.

        Now, look at what the IG found out about the applications for the FISA warrants for people around Trump.

        Under option 2, it was sorta, kinda innocent, because they were just doing their usual crappy job.

        Under option 1, it was deliberate political targeting.

        You still sure you like option 1?

        1. Oh, and nothing I said referred to a jump in rejections. In most years the number of rejections has been zero, so obviously something has changed, around 2000, but a reporting change looks perfectly plausible to me.

          1. The best and the brightest at the FBI don’t make mistakes. The FISA courts are nothing more than bureaucratic redundancy, something I think a “libertarian” would be interested in eliminating.

          2. Do you know what the rejection rate is for warrants in general?

            Suddenly you don’t like the Law and Order! Pie you ordered?

          3. Note the response you’re getting: other warrant requirements don’t really protect rights either, why are you complaining about FISA?

            They are all rubber stamps.

            1. Ben: Don’t point out my hypocrisy! Dear Leader must be protected!

  2. It is if it hurts Trump or is anti-Trump or if it has anything to do with being black while rioting or looting or being mostly peaceful but somewhat violent . That’s the new legal standard.

    See didn’t need a real long article.

    1. It is victimless that is if it…

      Or we just justify that the victims are not worthy of legal protection

      1. The “victims” you are speaking of are privileged, white men who used Russian intelligence to knee cap the Clinton campaign and subvert American democracy!

  3. I’m a little surprised by the government’s defense here which is basically “yeah, we lied on the warrant application, but maybe we would’ve gotten it without lying, so is it REALLY causing a victim?”

    This type of dispersal of responsibility is prone to all sorts of abuse. The cops plant drugs on a suspect. “Yeah, we planted the drugs, but we might have arrested and convicted him without doing it, so was there really a victim?”

    1. The case is simple: We had to stop the fascist Trump. Totalitarianism needs to be halted by any means necessary and available to the government! All cops are bastards and all FBI agents are saints!

    2. And yet, appellate courts use the “harmless error” standard all the time in evaluating the fairness of trials.

      1. The mistakes held to be “harmless errors” are not normally intentional criminal acts.

        1. Eh. Only because we’ve decided to make withholding exculpatory evidence on a FISA application to get a warrant a crime, but withholding exculpatory evidence to get an actual criminal conviction just a procedural violation with no potential downside to the prosecutor other than losing the case.

      2. Apart from what y81, here we are not evaluating the fairness of a trial. We are punishing a criminal act.

        If a government witness commits perjury during a criminal trial, and yet there are five other witness that inculpate the accused, the perjury may well be found to be harmless error, and the trial conviction upheld. But the perjurer could still be convicted, and the defendant would be his victim.

      3. And on that standard, Watergate was no big deal. It was harmless error, as Nixon would have won anyway.

        (Which is one of the things that, with hindsight, makes Watergate monumentally stupid. Nixon beat McGovern by a landslide. He needed Watergate like he needed root canal. )

        1. Like Trump did?
          Nixon was worried the Dems would pull the tricks they did this year.

      4. “And yet, appellate courts use the “harmless error” standard all the time in evaluating the fairness of trials.”

        That’s pretty bad, but I can’t say that I’ve ever seen them argue that a particular error was harmless because the trial would still have been unfair due to all the other errors.

    3. The cost of the Mueller investigation should be retrieved from the personal assets of the liars.

      1. Luckily , the cost of the Mueller investigation largely _was_ retrieved from the personal assets of the liars.

        https://www.usatoday.com/story/news/politics/2019/02/12/mueller-russia-investigation-costs/2736507002/

      2. But what if Trump doesn’t have enough assets to cover the cost?

    4. I’m not sure why you’re characterizing the government’s position as a “defense”. The government is the entity that turned this guy into a felon and that is trying to put him in federal prison for making the false statement.

  4. If John Q. Citizen lies to the courts, or for that matter to the FBI, and gets caught, there will be consequences. It seems to me that people who enforce the law should be held to the same standard.

    The larger problem here, though, is the tendency of courts to give special favoritism to government litigants, of which this specific issue is only one small part. A colleague of mine just demonstrated a dozen outright falsehoods in a brief the government submitted to the Court of Appeals. The government won anyway.

    1. >John Q
      Take your Q-Anon conspiracies back to 4chan. We use reliable sources, like CNN and the New York Times, around here.

    2. “If John Q. Citizen lies to the courts, or for that matter to the FBI, and gets caught, there will be consequences. It seems to me that people who enforce the law should be held to the same standard.”

      But there are consequences here. The FBI lawyer who lied has been convicted, and is due to be sentenced at the end of the month. It’s basically the first piece of information in the article.

      Cassell’s argument is not about whether or not the lawyer who lied deserves punishment; it’s about whether the target of the FISA application, Carter Page, is properly understood to be a crime victim under the CVRA. I happen to agree with Cassell, but even if the court disagrees, the lying lawyer will still be sentenced.

      1. The issue here is that this set of applications were subjected to a thousand times the scrutiny such applications normally are. We really don’t know if such lies are just routine practice, or they were especially dishonest in obtaining these warrants.

        I’d also point out that the alteration Clinesmith was convicted of is hardly the only misrepresentation in these FISA warrants. There were some very serious lies by omission; For instance, they interviewed one of Steele’s sources, and reported to the court that he appeared credible, but failed to mention that their credible source was impeaching the dossier, not confirming it.

        1. No, that’s that the issue. It’s an issue, but it really doesn’t have anything to do with the actual issue under discussion in this post.

      2. Right, but that’s not my point. My point is that nobody is going to take seriously any claim by me that there was no victim if I get caught lying to the court or the FBI.

        1. I don’t think that’s accurate at all. Indeed, I’m not sure I’ve ever seen a § 1001 case with an identified victim (though I’m sure if there are any, they’re in the briefs I didn’t bother to read).

    3. “It seems to me that people who enforce the law should be held to the same standard.”

      They should be held to a HIGHER standard.

      One, because they are law enforcement, and are given more of the benefit of the doubt that the ordinary citizen. If they abuse that, the axe should fall more heavily.

      Two, because here we are talking about a warrant, which is obtained ex parte, and for FISA, remains secret. THat makes the odds of catching a lie much longer. So the penalty has to be greater.

      1. I wholeheartedly agree.

  5. I feel like I’m watching Spies Like Us, what with all the Drs.

    1. All one of them?

  6. “Page does not—and cannot—establish that his harm was proximately caused by [the] offense rather than sixteen other errors identified by the Inspector General, including the FBI’s heavy reliance on reporting from a confidential human source, Christopher Steele, to establish probable cause for all four FISA applications.”

    Is the defense begging to charged with conspiracy?

    Hey, I am just the getaway driver, I did not cause that bank to be robbed.

  7. Very interesting to see conservatives suddenly all Michael Moore about FISA. All it took was for it to be allegedly targeting powerful white guys instead of dark skinned Muslims and stuff.

    1. Or all it took was an FBI agent who was found to have deliberately lied to obtain a secret warrant.

      1. Does that mean that conservatives are going to take the same position with no-knock warrants, given the false information provided by the LMPD in connection with obtaining the warrant that led to Breonna Taylor’s death?

        Not trying to offer that as a gotcha, I’m genuinely curious if we can have a general, bipartisan reckoning with over-aggressive law enforcement.

        1. Rand Paul introduced a bill to bar no-knock warrants.

          And, yes, conservatives are and should be concerned about over-aggressive law enforcement.

          1. Remember when Trump criticized over-aggressive law enforcement (well, that didn’t involve him or his associates)?

            Yeah, I don’t either.

            1. Trump is not the totality of the conservative movement. He is not even a conservative. Many conservatives despise him.

              What are you going to do when Trump is forgotten in a few months? GO back to calling conservatives fascists?

              1. Bored,
                As others have already noted; I think there are a ton of liberals, libertarians, and conservatives that are really hoping that there is now, finally, momentum for looking at the whole warrant mess. Liberals have, FOR DECADES, been arguing that law enforcement gets essentially a rubber stamp on warrant applications…that cases where law enforcement’s actions are closely scrutinized are few and far between. Conservatives are now arguing the same, but generally only in regards to Trump and/or the FBI.

                This can be a chance to make meaningful changes. Or people can continue to talk past each other . . . and a year from now the opportunity for change will have been lost.

                I think it’s perfectly fair for one side to say that Trump’s people were subjected to sketchy warrant practices. And it’s equally fair for the other side to say, “Yes, but it’s the same dodgy stuff that we’ve been complaining about forever. Trump and his folks were not targeted at all, in the sense of being singled out for special bad treatment. The problem is that Trump et al were, apparently, given the same crappy treatment that all of us have been subject to.”

                Put shorter: Pull on your big boy pants, stop whining about poor misunderstood and mistreated Trump, and work with the other side to effect real changes in how all warrants are done.

      2. Yeah, and that was never a possibility when you conservatives were cheering on the Patriot Act?

        You adopted this pit bull. You trained him to bite. You starved him. He bit people left and right and you shrugged or laughed.

        Then he bit your friend when he came over and you’re suddenly ‘this dog is EVIL!!!”

        1. It is always a “possibility” that power will be abused. That is human nature. The issue is whether there are enough checks on power to minimize the abuse.

        2. QA,
          The Obama administration was equally expansive in using FISC and strengthening the surveillance state. In that regarded he out-chaneyed Chaney.
          This business has nothing to do with conservatism or libertarianism or progressivism. It is just executive expansionism.

          1. The Court was supposed to act as check on that. It appears to have done a poor job at it.

            1. The Court was purportedly supposed to act as a check on that. That it was actually intended to I very much doubt.

            2. The electorate is also supposed to act as a check on that. We have also done a poor job.

    2. “Very interesting to see conservatives suddenly all Michael Moore about FISA. ”

      These types of criticisms always work both ways. Why are the Dems suddenly so gung-ho about FISA? The Dems will control Congress soon. Hopefully they won’t renew section 215, and even repeal the rest. We’ll see.

      1. I haven’t heard Democrats standing up for FISA, other than the folks like Feinstein who will reliably override individual rights whether it be for National Security or corporate interests. But you don’t see people who were skeptical of FISA and government surveillance in general suddenly turning around and deciding they really like it just because of Carter Page. Can you give any examples of such a change in position?

  8. Telling a FIB to the FBI will land you in jail.
    The FBI telling a FIB to you or the court is harmless.

    Great justice system you got there.

    1. I mean, this guy lost his career, will be a convicted felon for the rest of his life, and is probably headed to the penitentiary. So I wouldn’t exactly say he’s being held harmless.

      1. Sure, and it was a minor triumph getting that far, his wasn’t the only lie, it was the only lie prosecuted. And not because he lied to a peon, because he lied to a judge.

        If he’d lied to some normal human being, in the course of trying to entrap them, it wouldn’t have been thought any big deal.

        And you know the FBI lies all the time in official documents. Why else do you suppose they don’t record the interviews? Recording them would make it hard to lie about what people said!

        1. DOJ policy is to record custodial interviews.

          https://www.justice.gov/jm/jm-9-13000-obtaining-evidence#9-13.001

          Who else lied in connection with this warrant application? What did they lie about?

          1. FBI practice is to not record interviews if a person is not in custody. The usual procedure is two agents arrive with a script and most of the answers – one asks questions and the other takes notes.

  9. It would be a dangerous precedent to say that submitting false information to the FISA Court to obtain a warrant is somehow a “victimless” crime.

    1. Seems tendentious. The government’s position as recited seems to be that there is not evidence that this particular falsehood resulted in the warrant. So the government does not seem to be saying what Cassell is asserting it says.

    2. Can someone tell me? Is this an example of a right-winger frustrated that a right-wing, politically-motivated “investigation,” turned up almost nothing?

    3. The right way to guard against this sort of abuse is to get rid of the FISA court. Damned thing should never have been created in the first place.

    1. “Can someone tell me? Is this an example of a right-winger frustrated that a right-wing, politically-motivated “investigation,” turned up almost nothing?”

      What are you talking about? This was turned up by the IG’s investigation, which turned up all sorts of stuff and nobody has claimed that that was politically motivated.

      Some people claim, without evidence, that the Durham investigation is politically motivated, but that is still ongoing and we have no idea what it might turn up. a

    2. Can someone tell me?

      As you have made abundantly clear via your years of clueless partisan rambling here, the automatically correct answer to that is always a resounding, “No”.

  10. “Viva la resistance!”

    Clinesmith, the day after the election.

  11. Not just Page. It’s the entire Trump campaign and more. They just need to target one person, and then they get to spy on everyone they had contact with, and everyone those people had contact with, and so on. It’s called “2 hop rule” or maybe even “3 hop rule” it appears.

  12. What Clinesmith did was more damaging to public trust in the political process and law enforcement than any riot.

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