Trump-Russia Investigation: Will Kevin Clinesmith Plead Guilty?
August 19, 2020, 2:00 am
https://rifnote.com/2020/08/19/trump-russia-investigation-will-kevin-clinesmith-plead-guilty/
https://www.nationalreview.com/2020/08/trump-russia-investigation-will-kevin-clinesmith-plead-guilty/
{lawfags + anons, an interdast read} {https://www.thefreedictionary.com/Allocute}
{EXCEPT, moar at sauces}:
He has a lot to lose.
It is called the allocution.It is the most important part of a guilty plea in federal court. It comes — if it comes — when the judge personally addresses the accused, who has been placed under oath, and asks him to explain in his own words how and why he is guilty of the crime charged.
Is Kevin Clinesmith willing to allocute? Is he willing to admit without reservation that he deceived his FBI colleagues and a federal court? The lack of clear answers to those questions is almost certainly the sticking point — the reason why, to this moment, there is only a false-statement charge against the former Bureau lawyer, not a false-statement guilty plea.
When it comes time to allocute, the court must ensure that the accused acknowledges committing the acts alleged and, just as significantly, doing so with the level of criminal intent prescribed in the relevant penal statute — the mens rea of the crime. If the accused does not admit guilt, and evince that he is doing so voluntarily and in full awareness of the possible consequences, then the judge should not accept the guilty plea.
After all, such a plea involves a waiver of constitutional and statutory rights — to due process, to putting the prosecution to its burden of proving all elements of the charge beyond a reasonable doubt at trial, to appeal. The plea further subjects the accused to potential imprisonment and significant fines; and the allocution itself could subject the accused to further prosecution for perjury if he lies while under oath.
From the Justice Department’s standpoint, moreover, a deficient allocution can mean that all bets are off. Prosecutors can withdraw the offer to settle the case by plea; they can file an indictment alleging additional crimes.
In addition, if the plea agreement contemplates cooperation in exchange for sentencing leniency, the allocution can be a make-or-break moment. If the accused is not forthright in admitting his misconduct and corrupt intent, that may well render him useless as an accomplice witness. The guilty plea may stand, but the Justice Department is apt to conclude that the accused has failed to live up to the cooperation terms, exposing him to the likelihood of a more severe sentence.
In a big investigation, particularly in the case of the first suspect to plead guilty, there is a lot riding on the allocution. In the case of “Russiagate,” while we are not privy to the negotiations, it sure looks like Connecticut U.S. attorney John Durham is not buying Clinesmith’s mealy-mouthed version of events — the version publicly touted by his lawyer.
Yesterday, Judge James E. Boasberg of the federal district court in Washington, D.C., scheduled what he described as a “plea agreement hearing” in the case. That is to occur, by telephone, tomorrow at 1 p.m. So it sounds like the parties are still negotiating.
At the end of last week, it seemed all systems were “go.” Thursday night, Attorney General Bill Barr publicly acknowledged that, on Friday, there would be a development in Durham’s investigation. He said it would not be “earth shattering.” That could have meant just the filing of charges, rather than a guilty plea. But then Clinesmith’s lawyer, Justin Shur, announced that his client was about to plead guilty. As I noted Friday evening, the false-statement charge was filed by the prosecutor as a criminal information. That had to mean Clinesmith had waived indictment by the grand jury. That often happens when a defendant has agreed to plead guilty, especially if there is a cooperation agreement. (As of now, no plea or cooperation agreement has been filed.)
…
Whatever Kevin Clinesmith is thinking, his allocution would not be sufficient if it mirrors Shur’s portrayal of what happened. If I’m the judge, I wouldn’t accept such a guilty plea. And if I’m the Justice Department, and I’m convinced Clinesmith’s story is a self-serving distortion, I wouldn’t agree to accept the plea, to drop any charges, or to sign Clinesmith up as a cooperating witness.
The stakes are high for John Durham, too. In a high-profile investigation, the first charges and the first guilty plea set the tone. They signal whether the prosecutor has a case, whether he is negotiating from a position of strength or weakness. And everybody is watching.