Doo-Doo Process: John Durham Claims to Know Better than Anthony Trenga and Two Juries

There’s something grotesque and unethical about John Durham’s conduct that has gotten little attention.

After getting his ass handed to him by two juries and one judge, in his report, Durham nevertheless repeated the allegations against Michael Sussmann and Igor Danchenko on which they have been acquitted. While in one discussion of his prosecutorial decisions, Durham described these as “allegations,” in his executive summary and elsewhere, he stated, as fact, that both men had made false or fabricated statements. Worse still, in his efforts to sustain his false statements allegations, Durham himself makes claims that were rebutted or undermined by the trial records.

John Durham lies about press contacts to cover up his failure to investigate exculpatory information

As a reminder, the researchers who found the Alfa Bank anomaly found it organically, and out of a suspicion — later validated by at least three Mueller prosecutions (Paul Manafort, Michael Cohen, and Alex Van der Zwaan) — that Trump and his associates were lying about their ties to Russia, Rodney Joffe shared the Alfa Bank anomaly with Michael Sussmann.

Sussmann definitely packaged up the allegations and asked Fusion GPS what they knew about Alfa Bank. He definitely billed that packaging-up process to Hillary. The campaign definitely approved sharing that information with the NYT.

But then, without the consent of the campaign, Sussmann blew their big story, by sharing the allegations with the FBI.

Sussmann claimed that he did so because, as a former cybersecurity prosecutor, he knew that if DOJ were going to have a chance to investigate these allegations, they would need to do so, covertly, before the allegations went public. He claimed to have done so because he had been in the position where a big allegation broke before law enforcement had an opportunity to investigate. As proof to support this claim, Sussmann noted — and over the course of months, forced Durham to collect the heretofore ignored evidence proving — that he helped the FBI kill the NYT story the campaign had approved, in the process making it clear that he had to ask someone (Joffe’s) consent to do so.

Because the FBI used overt means to investigate these allegations — a violation of DOJ pre-election guidelines that Durham doesn’t mention in his screed about the FBI — a seeming response to NYT’s efforts which was actually a response to the FBI bigfooting helped to fuel the story. The record shows, and Durham’s most aggressive prosecutor conceded at closing arguments, that the FBI fucked up this investigation in other ways, yet more FBI shortcomings that Durham doesn’t mention in his screed.

After the election, at a time when Sussmann no longer worked for Hillary, Joffe asked him to try to get the CIA to look at these anomalies. Before that meeting, Sussmann told one of his CIA interlocutors that he did have a client (something Sussmann also told to Congress), but described that his client wanted anonymity because of concerns about Russian retaliation. In the meeting where he passed off his thumb drives, he said he was not representing a client.

Those are the competing signals on which Durham obtained a criminal indictment and did so before having consulted significant swaths of directly relevant evidence: a question about how Sussmann intended those words, “represent” and “on behalf of,” a problem with the indictment that Sussmann identified immediately.

Here’s how Durham presented the Sussmann charges in the Executive Summary (all bold in this post my own).

The Office also investigated the actions of Perkins Coie attorney Michael Sussmann and others in connection with Sussmann’s provision of data and “white papers” to FBI General Counsel James Baker purporting to show that there existed a covert communications channel between the Trump Organization and a Russia-based bank called Alfa Bank. As set forth in Section IV.E.1.c.iii, in doing so he represented to Baker by text message and in person that he was acting on his own and was not representing any client or company in providing the information to the FBI. Our investigation showed that, in point of fact, these representations to Baker were false in that Sussmann was representing the Clinton campaign (as evidenced by, among other things, his law firm’s billing records and internal communications). 42 In addition, Sussmann was representing a second client, a technology executive named Rodney Joffe (as evidenced by various written communications, Sussmann’s subsequent congressional testimony, and other records).

Cyber experts from the FBI examined the materials given to Baker and concluded that they did not establish what Sussmann claimed they showed. At a later time, Sussmann made a separate presentation regarding the Alfa Bank allegations to another U.S. government agency and it too concluded that the materials did not show what Sussmann claimed. In connection with that second presentation, Sussmann made a similar false statement to that agency, claiming that he was not providing the information on behalf of any client.

[snip]

As explained in Section IV.E. l .c.i, the evidence collected by the Office also demonstrated that, prior to providing the unfounded Alfa bank claims to the FBI, Sussmann and Fusion GPS (the Clinton campaign’s opposition research firm) had provided the same information to various news organizations and were pressing reporters to write articles about the alleged secret communications channel. Moreover, during his September 2016 meeting at the FBI, Sussmann told Baker that an unnamed news outlet was in possession of the information and would soon publish a story about it. The disclosure of the media’s involvement caused the FBI to contact the news outlet whose name was eventually provided by Sussmann in the hope of delaying any public reporting on the subject. In doing so it confirmed for the New York Times that the FBI was looking into the matter. On October 31, 2016, less than two weeks before the election, the New York Times and others published articles on the Alfa Bank matter and the Clinton campaign issued tweets and public statements on the allegations of a secret channel of communications being used by the Trump Organization and a Russian bank – allegations that had been provided to the media and the FBI by Fusion GPS and Sussmann, both of whom were working for the Clinton campaign. [my emphasis; link]

And here’s how Durham presented his prosecutorial decision.

Accordingly, Sussmann’s conduct supports the inference that his representations to both the FBI and the CIA that he was not there on behalf of a client reflect attempts to conceal the role of certain clients, namely the Clinton campaign and Joffe, in Sussmann’s work. Such evidence also further supports the inference that Sussmann’s false statements to two different agencies were not a mistake or misunderstanding but, rather, a deliberate effort to conceal the involvement of specific clients in his delivery of data and documents to the FBI and CIA. [link]

[snip]

First, and as noted above, we identified certain statements that Sussmann made to the FBI and the CIA that the investigation revealed were false. Given the seriousness of the false statement and its effect on the FBI’s investigation, a federal Grand Jury found probable cause to believe that Sussmann had lied to the FBI and charged him with making a false statement to the Bureau, in violation of 18 U.S.C. § 1001. 1675 Ultimately, after a two-week trial, a jury acquitted Sussmann of the false statement charge.

We also considered whether any criminal actions were taken by other persons or entities in furtherance of Sussmann’s false statement to the FBI. The evidence gathered in the investigation did not establish that any such actions were taken. [link]

As noted above, just in these two passages Durham repeats, five times, that Sussmann made false statements, even though he never charged Sussmann with making false statements to the CIA and even though a jury found Sussmann not guilty of making false statements to the FBI (Durham also misrepresents that the billing evidence presented at trial, which didn’t show Sussmann billing Hillary for the meeting with Baker). This is a gross assault on due process, to accuse a man anew of the charges for which he has already been acquitted.

Durham claims, in explaining why he charged this flimsy case, that the [alleged] “false statement” was serious and had what he insinuates was a major effect on the FBI investigation. Remember: When Durham made this prosecutorial decision, he still had never bothered to check two Jim Baker phones in DOJ IG possession (one of which he had learned about years earlier), texts in Baker’s iCloud account that complicated his case, and documents in DOJ IG’s possession showing that the FBI understood — whether true or not — that the Alfa Bank allegation came from the DNC. Indeed, Durham obscures that while those Baker texts did show that Sussmann had conveyed such a claim by text, those belatedly discovered texts undermined Durham’s case at trial that Sussmann had repeated the claim in person (without providing any clarity about how Sussmann meant “on behalf of”). And one possible explanation for the acquittal is that the jury found that Sussmann didn’t repeat his claim that he was representing no client at the face-to-face meeting with Baker. Certainly, the record showed that whatever memory Baker had of that meeting had been selectively reconstructed with Durham’s help to match the story he needed to sustain a certain narrative, one that didn’t line up with the documentary evidence.

And evidence presented at trial completely undermined the claim that this was a material false claim, the reason Durham made the claim about seriousness in the first place. Sussmann’s attorneys showed that only the threat of prosecution altered FBI Agent Ryan Gaynor’s memory — backed by his contemporaneous notes — that, in fact, he always understood that the allegation came from a DNC attorney. Durham’s star FBI witness admitted on cross-examination that he developed his belief that a reference to the DNC in his colleague’s Lync texts was just a typo after prosecutor Andrew DeFilippis coached him on that point. There were other Lync texts recording a belief that the tip had come from the DNC. Several people at the FBI conducted this investigation as if they understood it to be an investigation of a DNC tip, which likely contributed to the errors the FBI made in their investigation. Durham claims the opposite.

Durham seems to hang his claim about seriousness on his own two inferences — one on top of another — that Sussmann had to have been deliberately hiding something, even though evidence presented at trial, most notably that Sussmann offered up information about having a client with both the FBI and CIA, undermined those inferences. As noted, Durham found April Lorenzen’s inferences as a private citizen to be potentially criminal, but he puts the weight of DOJ behind inferences that proved less robust than Lorenzen’s own.

Particularly given the fact that Durham only belatedly, months after indicting Sussmann, discovered evidence corroborating Sussmann’s explanation for reaching out to Baker — that he helped the FBI kill the NYT story the campaign very much wanted published — the Special Counsel’s misrepresentation of the timeline of press contacts is particularly dishonest. In response to an Eric Lichtblau email asking for more details about Russian hacking, Sussmann provided the tip. Durham’s claim that Sussmann “eventually provided” Lichtblau’s name falsely suggests it took more than a few days to make this happen. After that, Sussmann didn’t push the Alfa Bank story until it got published via other channels. For its part, Fusion was pushing this story weeks later, after April Lorenzen’s separately posted data had renewed questions about it. This muddled timeline repeats the outlandish claim Durham prosecutor Brittain Shaw made in opening arguments that an article most Democrats view as profoundly damaging was precisely the October Surprise Hillary wanted. But in this final report, it’s wildly dishonest spin to cover up the fact that Durham didn’t learn a key detail — that Sussmann helped kill the NYT story — until after charging him.

All the more so because telling the truth about Sussmann’s willingness to help the FBI kill the story suggests Sussmann’s version of the story is far more credible than Durham’s.

How Durham avoids admitting he charged a “literally true” statement as false

If you read nothing more than John Durham’s Executive Summary, you would never learn that John Durham falsely led the press to believe that Danchenko attributed the pee tape allegation to someone with distant ties to Hillary rather than the two Russians who admitted they went out drinking with Danchenko during the period in question. More importantly, you would never learn that Durham created that false pee tape panic out of what Judge Anthony Trenga ruled was a literally true statement.

This section of the Executive Summary, which doesn’t mention any prosecutorial decision regarding Dolan, is completely divorced from the prosecutorial decision it pertains to.

During the relevant time period, Danchenko maintained a relationship with Charles Dolan, a Virginia-based public relations professional who had previously held multiple positions and roles in the Democratic National Committee (“DNC”) and the Democratic Party. In his role as a public relations professional, Dolan focused much of his career interacting with Eurasian clients, with a particular focus on Russia. As described in Section IV.D. l.d.ii, Dolan previously conducted business with the Russian Federation and maintained relationships with several key Russian government officials, including Dimitry Peskov, the powerful Press Secretary of the Russian Presidential Administration. A number of these Russian government officials with whom Dolan maintained a relationship – and was in contact with at the time Danchenko was collecting information for Steele – would later appear in the Dossier.

In the summer and fall of 2016, at the time Danchenko was collecting information for Steele, Dolan traveled to Moscow, as did Danchenko, in connection with a business conference. As discussed in Section IV.D. l .d.iii, the business conference was held at the Ritz Carlton Moscow, which, according to the Steele Reports, was allegedly the site of salacious sexual conduct on the part of Trump. Danchenko would later inform the FBI that he learned of these allegations through Ritz Carlton staff members. Our investigation, however, revealed that it was Dolan, not Danchenko, who actually interacted with the hotel staff identified in the Steele Reports, so between the two, Dolan appears the more likely source of the allegations.

As discussed in Section IV.D. l .d.vi, our investigation also uncovered that Dolan was the definitive source for at least one allegation in the Steele Reports. This allegation, contained in Steele Report 2016/105, concerned the circumstances surrounding the resignation of Paul Manafort from the Trump campaign. When interviewed by the Office, Dolan admitted that he fabricated the allegation about Manafort that appeared in the Steele Report. Our investigation also revealed that, in some instances, Dolan independently received other information strikingly similar to allegations that would later appear in the Steele Reports. Nevertheless, when interviewed by the FBI, Danchenko denied that Dolan was a source for any information in the Steele Reports. [link]

When Durham gets around to describing his decision to charge Igor Danchenko in the Executive Summary, he makes no mention that one of those charges pertained to Dolan. Likewise, he makes no mention that Trenga threw out that charge before sending it to a jury.

Perhaps the most damning allegation in the Steele Dossier reports was Company Report 2016/95, which Steele attributed to “Source E,” one of Danchenko’s supposed sub-sources. This report, portions of which were included in each of the four Page FISA applications, contributed to the public narrative of Trump’s conspiring and colluding with Russian officials. As discussed in Section IV.D. l.f, Danchenko’s alleged source for the information (Source E) was an individual by the name of Sergei Millian who was the president of the Russian-American Chamber of Commerce in New York City and a public Trump supporter. The evidence uncovered by the Office showed that Danchenko never spoke with Sergei Millian and simply fabricated the allegations that he attributed to Millian.

When interviewed by Crossfire Hurricane investigators in late January 2017, Danchenko said that Source E in Report 2016/95 sounded as though it was Sergei Millian. As discussed in Section IV.D.1.f.i, Danchenko stated that he never actually met Millian. Instead, he said that in late-July 2016 he received an anonymous call from a person who did not identify himself, but who spoke with a Russian accent. Danchenko further explained that he thought it might have been Millian – someone Danchenko previously had emailed twice and received no response – after watching a YouTube video of Millian speaking. Thus, as detailed in Section IV.D. l .f.i, the total support for the Source E information contained in Steele Report 2016/95 is a purported anonymous call from someone Danchenko had never met or spoken to but who he believed might be Sergei Millian – a Trump supporter – based on his listening to a YouTube video of Millian. Unfortunately, the investigation revealed that, instead of taking even basic steps, such as securing telephone call records for either Danchenko or Millian to investigate Danchenko’ s hard-to-believe story about Millian, the Crossfire Hurricane investigators appear to have chosen to ignore this and other red flags concerning Danchenko’s credibility, as well as Steele’s.41

41 As noted in Section IV.D.2.f, a federal grand jury in the Eastern District of Virginia returned a five-count indictment against Danchenko charging him with making false statements. A trial jury, however, found that the evidence was not sufficient to prove his guilt beyond a reasonable doubt. See United States v. Igor Danchenko, 21-CR-245 (E.D. Va.). [link]

That’s what you’d learn from the Executive Summary.

It’s only in the body of his report where Durham reveals the Dolan-related charge and Judge Trenga’s finding that the statement he charged as a false statement was literally true. I’d like to congratulate Durham for here describing the false statements claims as “allegations” made by a grand jury, as distinct from the re-accusation of false statements made against Sussmann or his claim that Danchenko “fabricated the allegations” attributed to Millian. But even there he misrepresents the charges.

In November 2021, a grand jury sitting in the Eastern District of Virginia returned an indictment (“Indictment”) charging Igor Danchenko with five counts of making false statements to the FBI. The false statements, which were made during Danchenko’s time as an FBI CHS, related to his role as Steele’s primary sub-source for the Reports.

First, the Indictment alleged that Danchenko stated falsely that he had never communicated with Charles Dolan about any allegations contained in the Steele Reports. As discussed above, the documentary evidence clearly showed that Dolan was the source for at least one allegation in the Steele Reports. Specifically, that information concerned Manafort’s resignation as Trump’s campaign manager, an allegation Dolan told Danchenko that he sourced from a “GOP friend” but that he told our investigators was something he made up. 1384 The allegations regarding Dolan formed the basis of Count One of the Indictment.

Second, the Indictment alleged that Danchenko falsely stated that, in or about late July 2016, he received an anonymous phone call from an individual whom Danchenko believed to be Sergei Millian. Danchenko also falsely stated that, during this phone call, (i) the person he believed to be Millian informed him, in part, about information that the Steele Reports later described as demonstrating a well-developed “conspiracy of cooperation” between the Trump campaign and Russian officials, and (ii) Danchenko and Millian agreed to meet in New York. The available evidence was sufficient to prove beyond a reasonable doubt that Danchenko fabricated these facts regarding Millian. The allegations regarding Millian formed the bases for Counts Two through Five of the Indictment.

Following a one-week trial, and before the case went to the jury, the Court dismissed Count One of the Indictment pursuant to Federal Rule of Criminal Procedure 29. The Court held that Danchenko’s statement to the FBI regarding Dolan, i.e., that he [Danchenko] never “talked to [Dolan] about anything that showed up in the dossier” was “literally true” because, in fact, the information about Manafort was exchanged over email rather than in an actual verbal conversation. The Court denied Danchenko’s Rule 29 motion to dismiss related to the remaining counts of the Indictment. Following two days of deliberations, the jury concluded that the case had not been proven beyond a reasonable doubt.

In determining whether to bring criminal charges against Danchenko, the Office expected to be able to introduce additional evidence against Danchenko that supported the charged crimes. Thus, prior to trial, the Office moved in limine to introduce certain evidence as direct evidence of the charged crimes. Alternatively, the Office moved to admit the evidence as “other act” evidence pursuant to Federal Rule of Evidence 404(b) to prove Danchenko’ s motive, intent, plan and absence of mistake or accident. In particular, the Office sought permission to introduce evidence of:

(1) Danchenko’ s uncharged false statements to the FBI regarding his purported receipt of information reflecting Trump’s alleged salacious sexual activity at the Ritz Carlton Hotel in Moscow. In particular, the Office planned to call as a witness the German-national general manager of the Ritz Carlton, identified in the Steele Report 2016/080 as “Source E.” The Office expected the general manager would testify that he (i) had no recollection of speaking with Danchenko in June 2016 or at any time, (ii) had no knowledge of the allegations set forth in the Steele Report before their appearance in the media, and (iii) never discussed such allegations with Danchenko or any staff member at the hotel;

(2) Danchenko’s uncharged false statements to the FBI reflecting the fact that he never informed friends, associates, and/or sources that he worked for Orbis or Steele and that “you [the FBI] are the first people he’s told.” In fact, the evidence revealed that Danchenko on multiple occasions communicated and emailed with, among others, Dolan regarding his work for Steele and Orbis, thus potentially opening the door to the receipt and dissemination of Russian disinformation; and

(3) Danchenko’s email to a former employer in which Danchenko advised the employer, when necessary, to fabricate sources of information. Specifically, on February 24, 2016, just months before Danchenko began collecting information for the Steele Reports, the employer asked Danchenko to review a report that the employer’s company had prepared. Danchenko emailed the employer with certain recommendations to improve the report. One of those recommendations was the following:

Emphasize sources. Make them bold of CAPITALISED [sic]. The more sources the better. If you lack them, use oneself as a source ([Location redacted]-Washington-based businessman” or whatever) to save the situation and make it look a bit better. 1385

Danchenko’s advice that he attach multiple sources to information and obscure one’s own role as a source for information was consistent with Danchenko’s alleged false statements in which he denied or fabricated the roles of sources in the Steele Reports.

The Court ruled, however, that the evidence described above was inadmissible at trial. The prosecution was forced to then proceed without the benefit of what it believed in good faith was powerful, admissible evidence under Rule 404(6) of the Federal Rules of Evidence.

In reality, the question Danchenko answered about Dolan was an attempt to learn whether Dolan could have been a direct source to Steele, not to Danchenko. And Danchenko didn’t entirely deny talking to Dolan about such issues. He said they talked about “related issues perhaps but no, no, no, nothing specific.” One of the FBI Agents who tried to open an investigation into Dolan relied on the statements Danchenko did make, so it’s not like anything Danchenko said impeded that investigation.

Meanwhile, Durham’s description of the acquitted false statements against Millian conflates, as he repeatedly did during the prosecution, what Danchenko told the FBI he told Christopher Steele, and what showed up in the dossier, which Danchenko had no hand in writing. Danchenko said that some of the allegations in the dossier didn’t come from him — including the claim of conspiracy (and lots of FBI Agents have been disciplined because they didn’t pass on this detail to the FISA Court). What Danchenko told the FBI was that the caller had said there was an exchange of information with the Kremlin (which, in fact, Mueller’s investigation proved, there already had been!), but that there was, “nothing bad about it,” all of which (as Danchenko’s team made clear at trial) is utterly consistent with other things Millian was saying at the time. The alleged lie Danchenko told is that he believed at the time (in July 2016) that the caller was Millian. Also, Durham claims that Danchenko said he made plans to meet in New York; he doesn’t note that Danchenko said those were tentative plans. In other words, Durham here misrepresents what Danchenko actually said! Durham is the fabricator here, not Danchenko.

Having grossly overstated what the charge against Danchenko was, Durham claims that, “The available evidence was sufficient to prove beyond a reasonable doubt that Danchenko fabricated these facts regarding Millian.”

That’s why we have juries, buddy! No, there was not. Nuh uh.

For some reason, Durham feels the need to explain why he got his ass handed to him even though, he’s sure, he had enough evidence in hand to charge Danchenko.  He blames Judge Trenga’s exclusion of three pieces of evidence about uncharged conduct (here’s my post on that ruling and here’s Trenga’s order). Among the three pieces of evidence he claims he relied on when making a prosecutorial decision in November 2021 is an interview with the former General Manager of the Ritz that only happened in August 2022 (the indictment relies on Dolan and one of Dolan’s colleagues for that claim, not the Manager himself). At least as described, Durham would have needed a time machine for the GM’s testimony to have factored in his prosecutorial decision.

Plus, the claim that those three pieces of evidence — none of which directly pertain to Millian! — were what Durham relied on to make a prosecutorial decision in November 2021 conflicts with what his team said in a filing last September. Back then, they said certain emails from Millian were the most probative proof against Danchenko.

The July 2020 emails between Millian and Zlodorev also bear circumstantial guarantees of trustworthiness. Again, in July 2020, Millian had no motive to lie to Zlodorev.

Third, whether the statements relate to a material fact. The Government submits that this factor is not in dispute.

Fourth, whether the statements are the most probative evidence on the point. Millian’s emails written contemporaneous to the events at issue are undoubtedly the most probative evidence to support the fact that Millian had never met or spoken with the defendant.

Trenga decided those emails were inadmissible hearsay.

Durham probably points to three other pieces of evidence — one obtained nine months after the indictment and all unrelated to Millian — because to admit that his case relied on inadmissible hearsay would require Durham to admit something still more embarrassing. Those hearsay emails from Millian were only the most probative evidence because Durham insanely charged Danchenko relying on what Millian had said on his Twitter account.

Only three months after indicting Danchenko on November 3, 2021 did Durham get around to interviewing Millian.

1085 OSC Report of Interview of Sergei Millian on Feb. 5, 2022 at 1.

His team did that interview remotely; Durham didn’t even have direct proof that Millian was in Dubai when he did that interview.

The Government has conducted a virtual interview of Millian. Based on representations from counsel, the Government believes that Millian was located in Dubai at the time of the interview.

[snip]

The Government has also been in contact with Millian’s counsel about the possibility of his testimony at trial. Nonetheless, despite its best efforts, the Government’s attempts to secure Millian’s voluntary testimony have been unsuccessful. Moreover, counsel for Millian would not accept service of a trial subpoena and advised that he does not know Millian’s address in order to effect service abroad.

[snip]

In the case of a U.S. national residing in a foreign country, 28 U.S.C. § 1783 allows for the service of a subpoena on a U.S. national residing abroad. Here, the Government has made substantial and repeated efforts to secure Millian’s voluntary testimony. When those efforts failed, the Government attempted to serve a subpoena on Millian’s counsel who advised that he was not authorized to accept service on behalf of Mr. Millian. The Government, not being aware of Millian’s exact location or address, asked counsel to provide Millian’s address so that service of a subpoena could be effectuated pursuant to 28 U.S.C. § 1783. Counsel stated that he does not know Millian’s address. In any event, even if the Government had been able to locate Millian, it appears unlikely that Millian would comply with the subpoena and travel to the United States to testify.

And a week after that interview, Durham accused Millian (though he didn’t name him) of “misrepresent[ing] facts” when he claimed “they” were spying on the White House on the very same Twitter account on which Durham relied to obtain the indictment.

One day later, Millian’s Twitter account revealed that Millian told the Trump White House who was “working against them” long before it was publicly known (Durham made no mention of these Tweets when he tried to claim that emails Millian sent in 2020 could be considered reliable).

In other words, abundant evidence suggests that Durham indicted Danchenko without doing the most basic step first, testing Millian’s reliability. By the time he got to trial, Millian — who like Danchenko, had been the subject of a counterintelligence investigation, and who unlike Danchenko had been frolicking in St. Petersburg during 2016 with Oleg Deripaska, someone who had a key role in Russia’s interference in 2016 — proved more than unreliable.

Durham makes no mention of that truly humiliating prosecutorial misstep, an embarrassment set in motion when he decided to indict a man based on claims made on Twitter, in his entire Report.

And yet not only does Durham refuse to state clearly, in his description of the prosecutorial decision, that Danchenko was acquitted of the charges against him, in his Executive Summary he falsely claims that he has proven Danchenko fabricated the claim. Worse still, Durham complains about investigative steps the Crossfire Hurricane investigators appear to have taken (which are different from the Mueller ones, who obtained abundant records about Millian’s communications), but he himself focused exclusively on disproving a telephony call between the two men, in spite of evidence (including of the contacts setting up a meeting between Millian and George Papadopoulos in precisely the same period) that any such call would have happened over the Internet.

Durham does this while making it clear that one reason he charged the Millian counts is because the allegation attributed to Millian, “contributed to the public narrative of Trump’s conspiring and colluding with Russian officials.” That’s only a crime if someone lied to the FBI about it, and Durham didn’t prove his case that Danchenko did.

It should not be left to me, almost a week after this report got released, to point out something grotesque. Durham is still claiming that these men lied, even though two juries told him he didn’t have the evidence to prove that case. That’s not just a grave abuse of Michael Sussmann and Igor Dancheko’s due process, but it exhibits profound disrespect to the service of the jurors.

After both his acquittals, Durham issued a statement claiming, “we respect the jury’s decision and thank them for their service.” And then he wrote a 300-page report telling them he knew better.

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40 replies
  1. greengiant says:

    Thanks for everything. “two grand juries” is in the lede but “two juries” in the text.

  2. Michael1976 says:

    Another egregious claim by Durham is that Dolan was the source of the pee tape claim despite the fact that (a) Dolan’s testimony contradicted this and Danchenko denied it and (b) the judge refused to allow Durham to argue this at trial because there was no evidence that Dolan was the source of the pee tape claim.

  3. Ginevra diBenci says:

    For what it’s worth, Andrew Weissman singled out this very aspect of Durham’s report–that Durham was “relitigating” the cases he had lost in court–the day it was released, on MSNBC, Nicolle Wallace’s show I believe. It was a brief comment, but not said in passing: Weissman seemed particularly disgusted by this breach of prosecutorial ethics.

    I have been waiting since then for someone to revisit this despicable Durham manuever. As ever, thank you, EW.

    • Shadowalker says:

      Well he blames both verdicts on the DC politically biased juries (obviously in his mind)
      On page 5
      “First, juries can bring strongly held views to the courtroom in criminal trials involving political subject matters, and those views can, in turn, affect the likelihood of obtaining a conviction, separate and apart from the strength of the actual evidence and despite a court’s best efforts to empanel a fair and impartial jury.”

      • BobBobCon says:

        Durham knew when he wrote those words that the same argument would come up with Trump indictments.

        If he has evidence that the jury or judge was crooked, he needs to offer it. But he knows he has nothing, and he’s just undermining the integrity of the system at a time when it needs defenders.

        • Shadowalker says:

          They use the same pool of prospective jurors for both grand and petit, if two petit juries were both so tainted by political bias that they both rendered unanimous verdicts (and not hung), then it is very unlikely he could have gotten a grand jury to pass a true bill even if the bill only requires a simple majority and the evidence only has to meet the lower probable cause standard.

      • Interlineal Peruser says:

        “[..] …juries can bring strongly held views to the courtroom in criminal trials… [..]”

        This is simply called ‘jury nullification’ when the jury decides pragmatically exactly that which should obtain given it, the jury, is never bound by ‘the rules of evidence’. Like when, many years ago in England, a man admitted in court that he had deliberately taken possession of some sheep which he did not own and the jury returned a finding of ‘not guilty’, provided he returned the sheep to their rightful owner. And during ‘prohibition’ in the U.S., a man charged with selling liquor illegally and freely admitted in court that he had done so, was also acquitted when the jury returned a finding of ‘not guilty’, presumably because the jury and many others besides all wanted this man at large to be able to sell them some alcohol. Necessity is the mother of all invention. Let’s hear it for ‘jury nullification’.

        • bmaz says:

          This is a complete load of shit. “Jury nullification” is outside of the law and inappropriate. This is NOT England, and this is not prohibition. Let me be crystal clear, do not bring jury nullification shit here, it is a completely false premise.

          By the way, do not gaslight this community with “jury nullification”. Welcome, but do not come back with that garbage.

          • Interlineal Peruser says:

            You need to read-up on the law, but far more important than but the ludicrous law, which changes like the weather (ho hum), educate yourself somewhat by reading-up on irrefutable FACT, because ‘jury nullification’ IS NOT outside of the law, never has been and never will be. ‘The law’ isn’t a proven panacea, not by a long shot. ‘Jury nullification’ dines aloof and won’t be ‘messed’ with. Many members of juries have long been oblivious to the authority that has ALWAYS rested in their hands; like when the jury can exercise their right to ask the judge what the punishment will be if they find the accused guilty. The judge of course will tell the jury members that they are not to concern themselves with what the punishment will be but the jury can and should always put this question to the judge, and if the jury wishes to take umbrage at not being provided with exactly what they want to hear, they can simply return a finding of ‘not guilty’ as they have done many times and there’s nothing that the judge or the law can do to alter ‘jury nullification’ PER SE. If there is a mandatory punishment for any offence and the jury believes this punishment is too severe and does not fit the crime, then ‘jury nullification’ will predominantly prevail, and so it should. The jury represent ‘the people’ in a true democracy. ‘The people’ own everything in a democracy, not the government nor the judiciary. The courts and the law belong to ‘the people’. Good luck with your futilely attemping to police and prevent ‘jury nullification’. Methinks you protesteth too much. Tsk.

            • bmaz says:

              Hi there rookie commenter. Get lost, I understand jury trial law just fine. Don’t bring that nullification crap here. You could not possibly be barking up a wronger tree. By the way, since you are in Australia, what is your agenda here?

  4. 2Cats2Furious says:

    Durham’s report is so unprofessional in so many ways, but his insistence on smearing Sussman and Danchenko after they were acquitted of all charges (that were not otherwise dismissed) is particularly galling.

    I’m curious as to whether the jury members will now choose to speak out, even anonymously, given that Durham has basically accused them of being too biased and/or stupid to convict. In particular, I’d be interested to know whether the jurors believed that the defendants didn’t lie in their statements to the FBI, and/or that the alleged lies were not material.

    After reading probably thousands of words that Marcy has posted on this topic, I’m inclined to believe, at a minimum, that the jury rightfully concluded that Durham’s team was trying to make a mountain out of a molehill, and sent the message to fuck off with that shit.

  5. Maureen A Donnelly says:

    Thanks Marcy. Will Durham EVER face the music for his BS? Ever? This entire debacle deserves it, I just wonder, if anyone but you Dr. Wheeler, is going to demand some answers. Durham was inside the government when appointed. Isn’t that also hinky? The entire Low Barr return to government was a disaster for law and order. Great for scotch bars though.

  6. HikaakiH says:

    For the benefit of non-lawyers, can Danchenko and/or Sussman sue Durham for defamation for maintaining his allegations against them in the face of their acquittals?

    • bmaz says:

      No a prosecutors words in a pleading would be found to be protected speech, and they should be Again, people need to stop thinking defamation law is a path as a substitute for proper modalities.

    • Ravenous hoarde says:

      I was thinking the same thing as you. Based on bmaz answer to you, I now wonder what the proper modality would be.

      Others have made the point that Mueller couldn’t/wouldn’t point to Trump in his report because the OLC memo prevented the current president from being charged. And accusing him in a report but unable to try him in court would “violate” Trump’s rights to face his accuser in court. I may be butchering the argument and also don’t really buy into it wholeheartedly.

      But in that vein, it seems to me that being acquitted by a jury but still accused by Durham/DOJ of illegality is unsettling. Where do you go to clear your name at that point?

      These are genuine questions and me trying to gain understanding.

      • bmaz says:

        To my eye at least, there is no path. A civil defamation case over things said in an official DOJ pleading is not going to work. OPR is a dead end, they will never go after their own special counsel. And no bar authority will go after him without a formal request by DOJ or a judge. None of that is ever likely to be forthcoming. There are a lot bigger fish to fry instead wasting time seeking reprisal against Durham. This chapter is almost certainly over.

        • SaltinWound says:

          Sorry another naive question. Could DOJ ask Durham to make factual corrections to the report? Could DOJ make factual corrections? Or is there no path for that?

          • bmaz says:

            They could, but won’t, they already passed it as is. Hard to see DOJ wasting one more second on Durham.

        • Peterr says:

          It’s not just Sussman, though – Durham is dissing the judge who presided over the Sussman case. It would be a really long shot at best, but might Sussman be able to raise this with the judge, and ask the judge to sanction Durham for refusing to accept the court’s verdict?

          • bmaz says:

            Seriously, people need to give up on this. It is not happening. Also, too, why would the court want to bog itself down after all this time? Cases got acquitted, cases got not charged; it is over, give it up.

        • 2Cats2Furious says:

          Couple of things:

          1. While I agree that statements made by prosecutors in a charging document or other document filed with the court are protected under the litigation privilege, I don’t believe that Durham’s final report falls within that exception. He most certainly overstepped his obligations with his 300+ report seeking to re-litigate matters already decided by the courts. Do you have a citation otherwise?

          2. That said, I agree that Sussman and/or Danchenko filing a defamation lawsuit would likely be an exercise in futility. If they feel the need to correct the record, they could simply issue statements clarifying that they were acquitted of all charges by juries that heard all the evidence presented (to the extent that the charges weren’t otherwise dismissed).

          3. I also agree that there are far too many pointless defamation lawsuits being filed by political figures. For example, see basically every lawsuit filed by Devin Nunes and his hack counsel, Steven Biss. Or the recent Trump case filed against the Washington Post for $3.8 Billion, for reporting on claims by a whistleblower at Trump’s media company (also filed by Biss). Hopefully, a lot more of these ridiculous lawsuits will result in the plaintiffs paying defense fees and costs pursuant to Anti-SLAPP statutes (as was the case in a recent Trump lawsuit against the NYT) or as Rule 11 sanctions.

          4. However, there have obviously been several high-profile defamation suits that were successful, including E.Jean Carroll’s suit against Trump that resulted in a multi-million jury verdict, and the eye-popping settlement of Dominion’s defamation case against Fox. Regardless of whether or not you think these claims should have been brought, the plaintiffs were successful, so it’s not surprising that folks are curious about the potential success of other defamation claims.

          • Shadowalker says:

            The only one who could have done anything with the report is AG Garland. Now he could have released his own summary like Barr did with the Mueller report, but what would that do? It would just give more ammunition that Biden’s DOJ is hiding the “truth”. This was just Barr/Durham trying to put something out which can be used as a counter narrative to the Mueller report.

            Bmaz is correct. This whole affair is over and best not to perpetuate it any longer, because that is exactly what they (Trump camp) want you to do.

      • Frank Anon says:

        In eras past, the venue for public review of a malicious governmental entity would have been Congress, the idea of that happening is almost comical in this environment. A Woodward and Bernstein type might have engaged in an organic investigation or public reveal in the past, a bar association might once ago even might have reviewed the Durham work. In today’s environment, there is no interest in the public good with this kind of issue, just political positioning, and no matter how you wish his defrocking should happen, it will not. There are so many battles that need attention now just to hold the line. Durham will just, and should just, fade into oblivion which he won’t if there is the smell of liberal anger keeping that from happening

  7. klynn says:

    IANAL

    Is it possible to file FOIA’s regarding Durham’s report as an “unusual circumstance exception” to receive copies of report organizational notes to address Durham’s conclusions being in conflict with the jury outcomes? He manipulated these outcomes to continue his “no Russia anything – Trump’s a victim,” argument. The report is not a “follow the facts,” report as it should have been.

  8. Doctor My Eyes says:

    This lying is certainly infuriating. How can a person NOT want to see Durham pay a price? But the reality is, unless many other battles are lost on many other fronts, Durham’s lying words will never have much affect on the real world. No one is even trying to prosecute Trump for Russian interference in the 2016 election. Marcy has pointed out that every FBI agent involved in going after Trump has paid a price, and perhaps Durham’s report adds to this chilling effect, but all in all, Durham’s attempts to legitimize his waste of money is similar to Russia’s “victory” in Bakhmut.

    And this brings me back to what I keep thinking about: the similar psychology behind Bakhmut, Durham, and Hunter Biden’s laptop, to name three prominent ones. These are all “special operations” which failed. But their perpetrators won’t take no for an answer, much like gangsters insist on controlling reality. Setting up an operation, having it fail to yield fruit, then doubling, tripling, and quadrupling down on that failed operation is a common factor in all 3. It’s the behavior of those whose goal is to force people to accept as true things that don’t even come close to seeming true. “You bet, boss, your wife has terrific taste.”

    I fully expect to be hearing about the Hunter laptop story until my dying day, notwithstanding that it was obviously a ham-handed, poorly conceived and absurdly executed clandestine operation.

    • bmaz says:

      Nobody does NOT want Durham held accountable, but folks need to be realistic about the lack of a viable path. The Statute of limitations for any 2016 interference long since expired.

      • OldTulsaDude says:

        A friend originally from New York City whom I met when I worked in Las Vegas told me his Italian grandmother said this: Pete, there is what’s real and there is what’s right. You have to deal with the real.

        You may be a long lost relative.

        • Savage Librarian says:

          “…there is what’s real and there is what’s right. You have to deal with the real.”

          That’s exactly how I dealt with my own civil case. It was such a crazy train for a long, long time. Libelous statements about me were featured in various media. But a defendant actually reached out to me on one particularly harsh occasion and claimed they had not said what the media reported. Oddly, I told them not to worry about it, probably because I thought nothing would come of it. Besides, I already had plenty of other things to deal with.

          Even after the case was settled, there were violations of the settlement agreement, as well as subsequent retaliatory actions taken on the premise that they were something else. It is quite remarkable how vindictive people can be as a result of wounded egos.

          So right did not always prevail, but I was successful in dealing with the real. And, to my surprise, a fair amount of poetic justice became part of the mix in the real. But the historical record is another thing entirely. Things that slipped through the cracks may remain there. And, in my case, that is not something I feel a need to correct.

          • Doctor My Eyes says:

            For a while I participated in a Bohm dialog group. In that process, one listens to others speak without challenging or contradicting them. When one does speak, it is from one’s own truth without being framed as challenge to anyone else. Participants do not engage in arguments through which to define reality. I noticed early on that, if someone said something I thought to be incorrect, it was all I could do to contain myself from immediately disagreeing with them and pointing out the “real truth”. I noticed that it did not matter whether the “mistake” was important. It could be that the color of the wallpaper was called pink but was actually red. I still felt the same emotional pressure to correct the record. It’s not always rational, nor always helpful, to correct the record. And in any case, there is no real record and it can never be fully corrected. I still work at letting things go. This one here with Durham, giving that he lies under the imprimatur of the DOJ, is very difficult to let go.

  9. newbroom says:

    The truth is that we know that we don’t know what we don’t know, and the lie is saying that you know when you know you do not. The liars are just protecting us from the truth we ‘truthers’ can’t handle. Or, maybe it’s just that some don’t care to know when they can default to belief.
    It’s the racist economy, stoopid. From where does this boneheaded manifest destiny derive? Crapitalists.
    I will now return you to your normal stations. Thank you for your indulgence.

  10. The Old Redneck says:

    If you read Durham’s report and didn’t know anything else, you’d probably think it impossible that Sussman and Danchenko weren’t convicted. Durham just omits every exculpatory fact – and not just with respect to those two.
    It’s terribly frustrating if you care about this stuff. But I take some comfort in the fact that this intellectually dishonest hack job will soon be consigned to the dustbin of history.

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