Clinesmith case: plea hearing. The plea hearing is happening at 1pm today. I am planning to live tweet it. There are no new substantive filings yet. The filings today are the entries of appearance by various lawyers.
In our court, the plea agreement & statement of facts & waiver of grand jury proceedings are filed with the court during the plea hearing. They are posted to the court docket shortly afterward.
I'm on the line and can hear what is happening. Right now they are having trouble getting all the lawyers and clerks, etc. on the line to be able to hear one another. The judge has just joined but the clerk told him they are having connection trouble, so he is waiting.
The judge is now giving them advice about refreshing the page to see/hear people! 😄
Now they can hear the prosecutors; they couldn't before. It seems like they are waiting now for Clinesmith himself and one of his counsel (one is already on the line); they are having trouble joining the video.
They have tried a couple different devices it seems and can't connect. They are going to dial in by phone it seems and keep working on the video link.
I'm wondering if Judge Boasberg will proceed if he cannot see the defendant?????
So now they've got Clinesmith on the line but not his lawyer; sounds like the video is still not working for them.
Shur is now apologizing for the delay/IT errors. Judge Boasberg is now asking if he's willing to do a plea by audio rather than video. He's asking Clinesmith directly if he's OK doing a virtual hearing because of the pandemic; he could wait for an in person hearing.
KC says he's fine with a virtual hearing. JB says probably should formally call the case. Clerk calls the case formally; prosecutors announce themselves. Defense counsel does too. JB welcoming them.
JB says going to start with arraignment (formal notice of what you're charged with), then address some preliminary issues.
Clerk asks if KC has the information and wants to enter a plea. KC says yes.
JB now addressing preliminary issues; mentions media interest. Puts on record that he's the FISC judge and is doing review of FISA warrants. Explains that he was randomly assigned by the court's wheel to this case.
JB says he "fully believes" his role on FISC doesn't preclude him from presiding fairly in this criminal case. Notes that he didn't sign the FISA warrants, but the FISC could be seen as a victim of the false statements and call into question him presiding.
To address that, he had his chambers reach out to parties to address potential recusal of him due to FISC role; he would do so w/o argument if either side wants to ask to do so. Prosecutors says they have no problem. Defense also says they don't want him to recuse.
JB wants to know if anyone has any questions about his role with the FISC. He had noted the defense particularly might think there is a facial issue of impartiality. No lawyers have questions. JB asks if Govt is ready to go.
Govt is ready to go. Clerk swearing in KC.
JB asking KC to speak up so everyone can hear, including clerk. JB reminding him his statements are under oath and can be prosecuted for lying.
JB now asking him the standard question about his competence to enter the plea - how old is he, how much education does he have, etc. (He has a masters of law he says). No drugs interfering with his ability to understand what is happening. JB finds him competent.
JB now asking him about the 10 page plea agreement. Asks if KC signed it, has a copy of it in front of him, etc. JB says he will hit highlights but not every term. KC understands.
JB confirming KC understands he's pleading guilty to one count of 18 USC 1001. KC says yes.
JB getting KC to confirm he understands the Govt won't prosecute him for anything else that could be charged based on the separate Statement of Facts document. Govt is also agreeing not to try to hold him in jail pending sentencing. KC says yes.
JB covers maximums: 5 years, fine, 3 years Supervised Release, $500 special sentence. KC understands.
JB now covering the Sentencing Guidelines; says his level is either 4 or 6, depending on whether GOvt seeks the 2 level enhancement for "Abuse of a Position of Trust"; his criminal history is Category I (the lowest), so his sentencing range is 0 to 6 months. KC agrees.
JB now telling his he needs to understand that JB could give him any sentence allowed by the law, not just what the Guidelines say and he could give him more but he doesn't know what that is yet. KC agrees.
JB going over the Statement of Facts now. KC agrees he signed it and it is accurate. JB specifically asking about him adding the "and not a source" language to the email and whether that is a false statement. LOOOOOOOONG silence.
Clinesmith saying at the time he thought the information was accurate, but he agrees that he altered the email.
JB just confirms that back to him. Doesn't challenge it. Asks if he's had enough time to talk to his lawyers and whether he's happy with them.
JB has moved on to the rights that he's giving up at trial. This is all standard plea "colloquy" advisements. You're giving up your right to call witnesses, to testify, to not testify, to question the govt witnesses, the right to appeal, etc. KC saying he understands all this.
JB explaining with a plea, there's no trial and no appeal. Could only appeal if JB gave an illegal sentence, if his lawyers were ineffective or he discover new exculpatory evidence. KC agrees. (He left out govt misconduct, but that also a ground for appealing actually.)
KC now plead guilty. JB accepts plea of guilty to one count of false statement.
JB asks if any lawyers have questions. No one does. He does NOT ask if they lawyers know of any reason why KC should not plead guilty. (Sullivan did ask this in Flynn's case; it's pretty standard, but Boasberg did not ask it.)
Now talking about sentencing date: December 10th; 11 am. Pretrial memos a week in advance.
If the Govt wants that two level enhancement they need to seek 3 weeks ahead and defense one week ahead to refute.
JB now asking Govt about release conditions. Gov't doesn't oppose pre-sentencing release but surrender passport and limit travel to MD, DC, VA, OH and WV, but request permission otherwise. Defense does not object.
JB orders restrictions as stated by the govt.
JB asking if KC understands the restrictions. KC says yes.
JB asking if anything else. Defense pointing out the forms that waive grand jury indictment and jury trial were provided to the court so it's on the record. JB now explaining those to KC.
KC confirms he understands. JB says he will sign them and see the parties in December. That's it!
*special assessment* this tweet should say.
