Hot and Cold Running John Durham Conspiracy Conspiracies

I’d like to congratulate Assistant [Durham] Special Counsel Michael Keilty. In what is close to a first from Durham’s team, he submitted a filing without obvious glaring errors (like the Criminal Information for Kevin Clinesmith that revealed the Durham team didn’t even know for what crime Carter Page had been investigated or their persistent cut-and-paste errors).

The filing is a motion for miscellaneous relief, asking Judge Anthony Trenga to require Igor Danchenko to waive any conflict he might have because his new defense attorneys, Danny Onorato and Stuart Sears, are at the same firm as (according to Josh Gerstein) Robert Trout, who is representing, “the 2016 “Hillary for America” presidential campaign (the “Clinton Campaign”), as well as multiple former employees of that campaign, in matters before the Special Counsel.”

The filing is entirely reasonable.

It simply asks that Judge Trenga inquire into the conflict presented by partners from the same firm representing multiple investigative Durham subjects and ensure that if Danchenko chooses to continue with Onorato and Sears as his attorneys, he does so waiving any potential conflict down the road.

Notwithstanding the potential conflicts involved, the government believes that this potential conflict is waivable, should the defendant so choose, assuming a knowing, intelligent and voluntary waiver is executed.

Based on the foregoing, the government respectfully requests that Court inquire into the conflict issues set forth herein.

It’s how Keilty gets there — as well as the Durham’s team uneven treatment of the connectivity of their investigation — that I find interesting. Remember: The Clinton campaign is referenced in Michael Sussmann’s indictment, though Durham already had to confess that the indictment overstated Sussmann’s contacts with members of the campaign.

But Durham’s effort to implicate the Hillary campaign in Danchenko’s actions is more of a stretch, going through Charles Dolan and entailing treating Hillary as a more dangerous adversary than Russian intelligence.

Again, the Paul Manafort report may be the most provably correct report in the entire dossier. Claiming (correctly) that Manafort was ousted not just because of his corrupt ties in Ukraine — a claim that Republicans have spent five years claiming was just a propaganda campaign launched by Democrats — but also because others wanted him out actually undercuts the story that has always claimed to be the most useful to Democrats. The report on Embassy staff changes was, Durham suggests, based directly off quotes Dolan got from the staffer in question; indeed, Durham points to the accuracy of those quotations to prove the report came from Dolan. There was a flourish added — that the person in question was untainted by involvement with the Russian election operation — which Danchenko disclaims, but there’s no evidence the flourish comes from Dolan (or even Danchenko — it’s the kind of thing Steele seems to have added). In other words, assuming Dolan was the source for the things Durham claims he was, Dolan seems to have been the most accurate source for the dossier.

There was an unbelievable amount of shit in the dossier and it would be useful if there were an accounting of how that happened (which Durham is not doing here). The Danchenko-to-Steele reporting process (which, contrary to Durham’s claims, Danchenko candidly laid out in his first interviews with the FBI) was one source of the problems with the dossier. But at least as much of the shit seems to come from Danchenko’s sources, several of whom had ties to Russian intelligence and who may have been deliberately injecting disinformation into the process. Instead of focusing on that — on Russians who may have been deliberately feeding lies into the process — Durham instead focuses on Dolan, not because Durham claims he wittingly shared bad information to harm Trump (his one lie served to boost an accurate story that went against the grain of the Democrats’ preferred narrative), but because as a Democrat he — not Russian spies — is being treated by Durham as an adversary.

Plus, at least as alleged in the Danchenko indictment, there’s no firsthand Hillary witness necessary to Danchenko’s conviction. The witnesses to Danchenko’s five alleged lies are all FBI personnel. The evidence against Danchenko regarding the four claimed lies about Sergei Millian involve Danchenko’s own emails and — !!! — the hearsay Twitter account of someone once and possibly still suspected of being a Russian agent. Dolan’s testimony about what he and Danchenko discussed six years ago at the Moscow Ritz will undoubtedly be of interest to the jury and still more interest to the frothy right, but not only is that not necessary to prove the single count claiming Danchenko lied about Dolan’s role in all this, it falls short of proof that Danchenko didn’t go from that lunch to speak to personnel at the Ritz himself.

Even though no one with a paid gig on the Hillary campaign is needed (or even, at least as charged, conceivably useful) as a witness against Danchenko, here’s how Keilty lays out the potential conflict.

As discussed above, the Clinton Campaign, through Law Firm-1 and U.S. Investigative Firm-1, commissioned and financed the Company Reports in an attempt to gather and disseminate derogatory information about Donald Trump. To that end, U.K. Person-1 relied primarily on the defendant to collect the information that ultimately formed the core of the allegations contained in the Company Reports. The Indictment alleges that certain statements that the defendant made to the FBI about information contained in the Company Reports, were knowingly and intentionally false. Thus, the interests of the Clinton Campaign and the defendant could potentially diverge in connection with any plea discussions, pre-trial proceedings, hearings, trial, and sentencing proceedings. Areas of inquiry that may become relevant to defense counsel’s representation of the defendant, and which also may become issues at trial or sentencing, include topics such as (1) the Clinton Campaign’s knowledge or lack of knowledge concerning the veracity of information in the Company Reports sourced by the defendant, (2) the Clinton Campaign’s awareness or lack of awareness of the defendant’s collection methods and sub-sources, (3) meetings or communications between and among the Clinton Campaign, U.S. Investigative Firm-1, and/or U.K. Person-1 regarding or involving the defendant, (4) the defendant’s knowledge or lack of knowledge regarding the Clinton Campaign’s role in and activities surrounding the Company Reports, and (5) the extent to which the Clinton Campaign and/or its representatives directed, solicited, or controlled the defendant’s activities. On each of these issues, the interests of the Clinton Campaign and the defendant might diverge. For example, the Clinton Campaign and the defendant each might have an incentive to shift blame and/or responsibility to the other party for any allegedly false information that was contained within the Company Reports and/or provided to the FBI. Moreover, it is possible that one of these parties might also seek to advance claims that they were harmed or defrauded by the other’s actions, statements, or representations. In addition, in the event that one or more former representatives of the Clinton Campaign (who are represented by defense counsel’s firm) are called to testify at any trial or other court proceeding, the defendant and any such witness would be represented by the same law firm, resulting in a potential conflict. Finally, it is also likely that defense counsel’s firm already has obtained privileged information from the Clinton Campaign regarding matters involving or relating to the defendant, the Company Reports, and the conduct alleged in the Indictment.

Some of this is the kind of fevered conspiracy theorizing that has fueled Durham for 950 days so far and sustains the Durham presumption that Hillary Clinton is a greater adversary to the United States than Russian intelligence operatives. None of it is contained within the existing indictment. It doesn’t envision as a possibility that this was all a clusterfuck better suited to a child’s game of telephone than the conspiracy Durham needs it to be. It also seems to forget that even if Danchenko lied to Christopher Steele, that would not amount to fraud on the Hillary campaign.

But it is a road map to what Durham is planning: an attempt to sic various participants in the 2016 efforts against each other such that they start entering cooperation agreements in which they spin up the grand conspiracy Durham is certain exists. It’s certainly sound prosecutorial strategy for Keilty to alert Judge Trenga that down the road they seek to pit all the subjects of their investigation against each other such that down the road, people who have never been alleged to have interacted with Danchenko personally might one day testify against him, all to support the claim that the Hillary campaign engaged in a conspiracy to defraud the FBI, DOJ, and DARPA funders.

But it raises questions about something that happened in the other active prosecution of the Durham investigation, Michael Sussmann’s. Based on court filings and what was said at a December 8 hearing in the Sussmann case, Durham has the following evidence about what Sussmann did or did not say:

  • A report written by Durham investigators, probably in conjunction with a 2017 leak investigation, in which “Durham or someone on his team questioned James Baker’s credibility.”
  • An October 3, 2018 Baker interview that conflicts with the indictment.
  • An October 18, 2018 Baker interview that conflicts with the indictment.
  • A July 15, 2019 Baker interview that conflicts with the indictment.
  • The first Durham interview with Baker on this subject, in June 2020, that conflicts with the indictment.
  • Three more Durham interviews with Baker on this subject that align with the indictment.
  • Grand jury testimony that must align with the indictment, but which had not been released to Sussmann’s cleared lawyers before the December 8 hearing.
  • Hearsay testimony from Bill Priestap that generally aligns with the indictment.
  • Hearsay testimony from another FBI witness that differs in some respects from Priestap’s and may or may not align with the indictment.
  • Testimony from two CIA witnesses at a different meeting that may or may not align with the indictment.
  • A report based on notes that have been destroyed, the final version of which differs somewhat from the indictment and may or may not align with it.
  • A draft (there seems to be some disagreement whether it is a memorandum to the file or emails) of that CIA report that reflects Sussmann mentioning a client — which therefore dramatically undermines the indictment.
  • At least one 302 reflecting an interview with Baker about another aspect of the Durham investigation.

Had Mueller believed it ethical to charge someone with evidence this contradictory — and I’m really not exaggerating when I say this — he had the goods to charge Trump with agreeing to give Russia sanctions relief in exchange for an impossibly lucrative real estate deal in Moscow. He could have charged Paul Manafort with trading $19 million in debt relief for the campaign strategy and help carving up Ukraine. He could have charged Roger Stone — and through him, Donald Trump — with entering into cooperation with the Russian hacking team before they spent September hacking Hillary’s analytics, for a still unexplained purpose.

This list of conflicting evidence that Durham has is a testament to the recklessness with which he has decided to pursue his own feverish conspiracy theories. It doesn’t mean he won’t get there. He might! It means he’s engaging in extraordinary conduct to get there.

It’s the last bullet I find particularly interesting. In the December 8 hearing, AUSA Andrew DeFilippis explained, “We did a meeting w/Mr. Baker in which we did not touch on charged conduct. We did not produce to defense.” That is, they’re withholding at least one 302 of a Durham interview in this investigation with Baker. Judge Christopher Cooper responded that he, “won’t disturb USG’s view that this is not discoverable.”

So on the one hand, Durham’s prosecutors are arguing that a conspiracy not yet charged creates conflicts for an Igor Danchenko indictment that doesn’t implicate any paid members of the Hillary campaign. But on the other hand, they’re arguing that the same investigation is sufficiently bracketed that they’re not required to provide Sussmann the records of what exposure Baker himself may have that might persuade him to change his story.

Sussmann’s attorney Sean Berkowitz observed that Baker had obviously changed his story. Durham’s team explains that’s because Baker refreshed his memory (though what we’ve seen of the contemporary records suggest there are two possible readings of them). But Sussmann could well argue that, because of criminal exposure himself, Baker changed his story to reflect what Durham wanted it to be.

As I have said, repeatedly, Durham needs Sussmann to have lied to have any hope of building this conspiracy case, and if he fails, each of the parts are far weaker.

And while claiming the conspiracy case he has not yet charged creates already existing conflicts, he’s still going to withhold the evidence of the conspiracy he’s trying to create.

31 replies
  1. Peterr says:

    Molly Ivins to John Durham: When you are in a hole, quit digging.

    Sadly, Mr. Durham seems not to understand what this means.

    • Commander Ogg says:

      To paraphrase former President Clinton, when your a Government Official and you are digging yourself into a hole, and the hole is getting bigger and bigger you have a decision to make: Policy or Politics.

      1. If you choose policy then you STOP DIGGING!
      2. If you choose politics you get a bigger shovel.

  2. WilliamOckham says:

    If Durham thinks that the act of submitting the dossier to the FBI was a crime, why doesn’t he just charge that crime? (Not an actual question).

    • emptywheel says:

      And that may be the most obvious crime of the lot. Ultimately he might have to resort to charging Steele as a UCC, bc I highly doubt the UK would ever extradite him and I’m not even sure DOJ would sign off on that charge but they need him for any conspiracy.

      • Peterr says:

        State might also have a few things to say about that. Among other things, Blinken might point out to the DOJ and WH that there’s no way the UK would sent Steele to the US as long as the US refuses to send Anne Sacoolas to stand trial for the death of Harry Dunn.

    • bmaz says:

      Material fact witness McCain is, as they say, no longer available. If they try to charge Steele, it will be an inane move.

        • bmaz says:

          So say you. A defense lawyer is going to make it a problem. Trying to charge Steele would be asinine.

          And “the dossier” remains, still, the most singular dumb, overwrought and irrelevant red herring in the history of human kind.

          • emptywheel says:

            Right. The guy who actually spoke to the FBI. Repeatedly. Directly. That’s the one you say they’ll have problems claiming lied to the FBI.

            I get that you’ve ignored the actual facts about the dossier to sustain your belief it’s a “red herring.” But that doesn’t mean waving your hand and saying “defense attorney” — who would not file an appearance if Steele were never charged — to make Steele’s role go away.

              • Peterr says:

                I hope that none of this spat between you two is Marcy gloating and/or bmaz grieving over what Teh Kittehs did to the Cardinals yesterday.

                • emptywheel says:

                  Nah. It’s about bmaz weighing in w/o knowing some really basic details. Again. But he’s SURE I’m wrong.

                  • bmaz says:

                    No, I am not sure you are wrong. Nor did I ever say that. But I am not sure you are right, despite your extensive experience in criminal trial law.

                    You know, honest people can have honestly different opinions on things. You seem to think the “dossier” is the Dan Brown’s Da Vinci Code, I think it is irrelevant. So what?

                    • emptywheel says:

                      Hey bmaz!?!?!?!

                      If you think I THINK the dossier is “the Dan Brown’s Da Vinci Code,” you can eat shit. That is the most offensive thing I’ve heard in some time.

                      But I guess that makes it easier for you!

                    • Village idiot says:

                      Prepared statements at 10 paces?

                      Maybe this is silly, but I’d certainly read a piece here that just has a page from EW and a page from BMaz showing different perspectives on the same issue.

                      It may not clear the air, but, as a non-lawyer, I expect the different perspectives would give me an insight into the legal mind – and it’s rare chance to look at two considered perspectives from good people on an issue.

  3. Michael says:

    Quick legal question- how much of a bar would the Statute of Limitations be to a conspiracy indictment at this point? It’s five years. I know that Durham’s argument is that Sussman and Danchenko told some lies after December 20th but wouldn’t Durham need to prove that the Hillary Campaign or whomever ordered them to lie after December 20th? As opposed to them merely lying to cover their asses?

    • emptywheel says:

      Quite real, and I find that acutely interested.

      By my math the most that Durham can delay this is some 2018 testimony Podesta made–arguing that that was part of the cover-up. But it gets pretty ridiculous.

      The short version is that I think he’d need to charge Sussmann with superseding by February.

    • Peterr says:

      In a criminal conspiracy, the SoL gets reset each time a conspirator takes some action in furtherance of the conspiracy. When orders might have been given does not matter.

  4. joel fisher says:

    Is Sussman still waiting to hear the exact lie he was supposed to have told.
    And, is it possible that Dunham is going so slowly because he is actually hoping to be shut down so he can complain about Merrick Garland participating in a “cover up”. OK; that might be stupid, but at some point doesn’t it start to be a legitimate concern?

    • emptywheel says:

      No. He has seen the 3-302s that are consistent.

      Perhaps Durham is hoping to be shut down. Or perhaps he’s so far in a bubble he doesn’t know he should be.

      • joel fisher says:

        Thanks for the clarification. As far as John of a 1000 days and 3 indictments Durham is concerned, actual prosecutors must be laughing their asses off at this microscopic productivity. At some point–and it better be soon, the 2022 electoral apocalypse is less than a year away–I hope a Congressional committee wants to see the time sheets of the lawyers who are toiling away under his command.

  5. rattlemullet says:

    “This list of conflicting evidence that Durham has is a testament to the recklessness with which he has decided to pursue his own feverish conspiracy theories.”

    This sentence encapsulates the bedrock foundation of conservatism and republicans in entirety. I have followed this blog for a long time, commented very few times, I mainly follow to learn. The sentence also describes the legal briefs filed by the attorneys that sought to over turn the election, very little fact woven with lots of theories, conflicts, innuendo and grammatical errors. The courts need to become a little more intolerant of this behavior. With election fraud filings that were clear jiberish, how did the courts allow it to proceed and not be summerly rejected. Concerning Durhams filings, he should be sanctioned somehow for inserting conspiracy theories in court filings. Why do the courts coddle this behavior by attorneys?

    I see some hope as some of the courts have imposed financial penalties on some attorneys that made false filings. Over all it seems extremely easy to file a suit of baseless content into the judicial system and have impact and alter the election process.

    One thing I that I learned is that there must be no enforceable statute, civil or criminal, for egregious violations of the oath of office, “Protect and Defend,” given to elected officials. I saw on television a mob assemble, attack and ransack the Capital for hours during official proceeding with the clear intent to cause harm to other and the constitutional process. The sole person responsible to act, the POS, failed to do so. Clearly action or inaction is codified in writing as quoted by Liz Cheney. What more evidence is required to bring charges for failing to defend the constitution? Have the words been written to be so murky and vague that they are easily twisted to mean something else?

    Congresspeople and Senators are now know to openly support in writing the over turning the elected President. No repercussion? Please don’t tell me the ballot box, gerrymandering has eliminated democracy in may states.

    Becoming very disillusioned with the judicial process to hold politicians accountable.

  6. Leoghann says:

    For all his claims of conspiracy, it seems that Durham is the true conspiracist in this whole situation, in that he has been conspiring, under the cover of a governmental post, to punish people who worked for, or around, the Clinton campaign. Michael Sussman is being prosecuted for (potentially) blowing the whistle on some of the MAGA campaign’s direct dealings with Russia. And Danchenko is being prosecuted for participating in the creation of the Steele dossier, and, thus, (*gasp*OMG*gasp) maybe even the Story of the Pee Tape, which is really Trump’s biggest beef about the dossier.

    As the filings get thicker, John Durham’s activity of carrying water for the orange beast becomes clearer. And we can chortle all we want about the Durham team’s lack of professionality, but his bullshit behavior is having real life consequences to those who are being persecuted with this bullshit prosecution.

    Now, a question. James Baker is 90 or so. If he were to testify in a trial, how much weight would the possibility carry that he’s just old, forgetful, and actually doesn’t remember clearly what Sussman said?

      • Leoghann says:

        Okay, so James Andrew Baker, instead of James Addison Baker III or IV. Thanks.

        The only explanation I can see for his memory issues is that he didn’t see the problem in Sussman’s interviews, and so didn’t pay much attention to what kind of conspiracy theories wingnuts could come up about them. But that’s how conspiracies work, isn’t it? They’re of little value unless they’re used to blindside people.

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