Barbara McQuade and Chuck Rosenberg write:

Materiality appears to mean different things to the leadership of the Justice Department these days, depending on the defendant.

An FBI lawyer named Kevin Clinesmith will reportedly soon plead guilty to a felony in federal district court. According to the charges filed against Clinesmith, he made a false statement to a colleague that was relayed to the Foreign Intelligence Surveillance Court, in connection with an FBI application to surveil Trump campaign foreign policy adviser Carter Page. One element of the statute to which Clinesmith will plead guilty requires that his false statement be “material.” As the Justice Department has long argued—and as federal courts have long held—that means that his false statement had a “natural tendency” to influence a pending matter (here, the surveillance application to the court) or was “capable” of influencing that matter. This is typically an easy element to meet.

Notably, the statute to which Clinesmith will plead guilty is the same statute to which Trump’s former National Security Adviser Michael Flynn twice pleaded guilty in federal court. Yet while many of Flynn’s supporters—the president among them—have defended Flynn by arguing that his lies were not material, this chorus has not lifted its collective voice on behalf of Clinesmith. [Continue reading…]