2016 Presidential Election Archives - Page 14 of 179

“It Certainly Sounds Creepy:” John Durham Adopts the “Coffee Boy” Defense

At one point during his redirect of FBI Supervisory Analyst Brian Auten yesterday, John Durham was so desperate to insinuate that the Crossfire Hurricane/Mueller team was incompetent, that he even argued that they didn’t investigate Sergei Millian thoroughly enough.

Durham was trying to suggest that Auten should have discovered and pulled the call records for a 212 number, in addition to the 404 prefix number around which Durham has built his entire case.

Q. Right. Do you recall whether or not the FBI ever did — in Crossfire Hurricane ever run that number down to see what the records might show?

A. The 212 number?

Q. Correct.

A. It’s possible. I don’t have a recollection of that while I sit here now.

Q. If you had done that, if the investigators had done that, is that something you think you would recall?

A. Not necessarily.

Q. There’s some probability that if you had actually run the numbers to the ground, you would remember that?

A. No. But, I mean, for a number trace, that may have been one of the analysts that I had under me. If we did it, again, I don’t know whether it was run or not.

Durham was trying to suggest that the FBI should have found a second phone number used by Sergei Millian that — it appears from Durham’s own exhibit list — Durham either didn’t know about or wanted to keep hidden. In the process, he implied that Mueller didn’t investigate Millian, whom Durham still believes was a victim in all this, aggressively enough.

I predicted, on multiple occasions, that Durham would be destroying his purported victims in a claimed effort to avenge them.

He should have listened to me.

Because thus far, Durham’s vengeance for Trump and his flunkies has done more to air details of the criminal investigations into everyone Durham claims to be defending than it has served to present proof of Danchenko’s guilt.

Close to the beginning of his cross-examination yesterday, Danchenko attorney Danny Onorato got Auten to lay out that three of the original subjects of the Crossfire Hurricane investigation — everyone but Carter Page — were convicted.

Q Now, you also understand that when Crossfire Hurricane opened — I think you testified yesterday that there were four people who the government was looking at, correct?

A Correct.

Q Papadopoulus?

A Correct.

Q Paul Manafort, the former campaign manager?

A Correct.

Q Carter Page?

A Correct.

Q And the fourth?

A Michael Flynn.

Q And are you aware that — I think Mr. Durham asked you — whether Mr. Page was ever charged or convicted of a crime?

A Yes, he did. He asked me that.

Q And what did you tell him?

A No.

Q What about the other three people?

A Well, Mr. Manafort, yes.

Q Was he convicted?

A Yes.

Q Next person?

A Michael Flynn.

Q Convicted?

A Yes.

Q Okay. Next?

A George Papadopoulos.

Q Okay. And?

A Yes.

Q So three of those four were convicted of crimes?

A Correct.

Q Based on the Crossfire Hurricane investigation?

A As it went over to the special counsel’s office, yes.

Q Okay.

Even before rehearsing the results of the Mueller investigation, Onorato had Auten describe that the Australian tip that predicated the entire investigation pertained to George Papdopoulos.

Okay. Now, given your background with respect to, you know, analytics and, you know, your work history, is it fair to say that you were assigned to the Crossfire Hurricane investigation?

A Yes.

Q Now, a quick summary would be to say that Crossfire Hurricane started because someone who was represented to be a high-level Trump campaign official and advisor, Mr. Papadopoulos, allegedly indicated that the Russians would help leak damaging information to the Clintons and Obamas, right?

A They had received a suggestion that they could be helped that way, yes.

Q Again, that person was George Papadopoulos, right?

A That is correct.

Q Okay. And the FBI opened an investigation on July 31, 2016?

A Yes.

Q That was before you had any information regarding the Steele dossier, right?

A That is correct.

Q That was before you even — so you would agree with me that the opening of that investigation had nothing to do with the Steele information; it had nothing to do with the initiation of Crossfire Hurricane?

A Correct.

Q You would agree that the goal of Crossfire Hurricane was to determine whether or not there was truth to the allegation that a friendly foreign government had provided the U.S. with respect to Russia and collusion between the Trump administration?

A That is correct. [my emphasis]

Onorato was laying the foundation — as I also predicted — to show proof that Durham’s entire basis for claiming that Millian could not have called Danchenko in July 2016 was easily disproven with basic details of Millian’s cultivation of Papadopoulos in the very same time period. This wasn’t about the fact that Papadopoulos admitted he had lied to cover up his ties with Russian-linked figures.

But it seems to have made Durham nervous that the jury would notice he had.

Perhaps because of this, Durham several times made really defensive comments about George Papadopoulos.

Durham spent part of his redirect of Auten attacking his claim that Papadopoulos was a “high level advisor to the Trump Campaign” (which arose from Onorato’s accurate description of the tip from Australia, as I noted in bold above), delivering the “Coffee Boy” defense Trump once used with great flourish to the “ladies and gentlemen of the jury.”

Q. Okay. Now, there were a number of questions that defense counsel asked you that you — well, there were a number of questions that counsel asked you that I want to probe a little bit more deeply. Mr. Onorato asked you or made reference to George Papadopoulos and said — and said — incorporated in his question, that George Papadopoulos was a high level advisor to the Trump Campaign, and you said yes. Well, tell the ladies and gentlemen of the jury with respect to George Papadopoulos, how old was George Papadopoulos in the 2016 election?

A. I want to say Papadopoulos was in his 30s.

Q. How about 28? Does that refresh your recollection?

A. It could be around 28.

Q. And was he such a high level advisor that he still had on his resume that he was in a student UN panel?

A. No, that was on his resume.

Q. Right. So this person that you agreed to was a high level advisor to Trump, the Trump Campaign, was a 28-year old who still had on his resume that he was a UN — a student UN person? [my emphasis]

When Auten tried to remind Durham that Trump himself had pitched Papadopoulos as a key foreign policy advisor, Durham interrupted.

A. I would say that part of my articulation of that deals with the fact that Mr. Papadopoulos was part of the small group of advisors that were named, I believe, in March of 2016

Q. Right.

A. For the president — for the former president.

Q. With respect to high level advisor, you don’t have any idea whether Papadopoulos even, you know, had occasion to talk to Trump, do you?

A. Well, he was at the meeting that — that was announced —

Q. He was at one meeting —

MR. ONORATO: Can the witness finish his question — his answer?

MR. DURHAM: Sure.

Remember that Durham and Bill Barr went on a junket to Italy together to chase Papadopoulos’ conspiracy theories without ever interviewing Papadopoulos first (which he still has not done, three years later). And now he’s telling us Papadopoulos was just a low level coffee boy?

After attempting to debunk that people — like the former President, the former Attorney General, and he himself treated Papadopoulos as if he had credibility — Durham then tried to get Auten to agree that Mueller was more worried that Papadopoulos was an asset of Israel’s than Russia’s. When Auten tried to clarify that, no, Mueller investigated Papadopoulos for both, Durham interrupted again.

Q. And, in fact, with respect to Mr. Papadopoulos, isn’t it, in fact, true that, as to Papadopoulos, what the FBI thought it was more — of more interest in Papadopoulos was his relationship to Middle Eastern countries, not to Russia?

A. Actually, I would argue that it was a combination of both. I think —

Q. And I — I’m sorry.

THE COURT: Go ahead. Finish your answer.

THE WITNESS: I think I’ve asserted in testimony that it was a both and.

Before this, Durham twice went on at great length suggesting that Millian couldn’t be a spy recruiting George Papadopoulos — even though Papadopoulos himself described Millian as “a very shady kind of person” — because they were discussing real estate and energy, not “collusion” with Russia. He did this first in a morning hearing before the jury came in.

The defendant has provided what he has premarked as Defendant’s Exhibit 480, 4-8-0, which is an email, a LinkedIn message from Millian to George Papadopoulos. Unless the defendant is going to somehow explain to the jury what Millian and Papadopoulos were communicating about at this period of time, then the Court should not permit it. Papadopoulos and Millian, as I think the defense knows from the discovery in this case, were exchanging any number of emails or Facebook exchanges or LinkedIn all about real estate, potential real estate transactions.

And so what the defense would be asking the jury to do is to draw some adverse inference that there was something going on between Millian and Papadopoulos that they really don’t know about, but it certainly sounds creepy. Well, in fact, if you look at what the communications were, as I say, between Papadopoulos and Millian, they are all about real estate, potential real estate investments.

[snip]

MR. DURHAM: 486 is from Millian to Papadopoulos. Again, you know, its irrelevant to these proceedings, but for the same reason, in the government’s view, it would be inadmissible unless we want to get into evidence relating to what Papadopoulos and Millian were doing at or about the time these email exchanges were occurring. [my emphasis]

He did it again in the middle of Onorato’s cross in the guise of voir dire before admitting the communications between Millian and Papadopoulos.

Q. And do you remember what Papadopoulos and Millian were involved in that generated these numbers?

A. I don’t recall exactly what they were involved in, but it was —

Q. But was it pretty much they were involved in real estate or investment discussions over a long period of time?

A. That, I don’t recall exactly.

Q. Well, how about generally? Do you generally refer — recall that Papadopoulos and Millian were involved in discussions about real estate projects and the like?

A. In January of…

Q. Well, this whole period that’s reflected in Defendant’s Exhibit 403.

A. Yeah, again, I don’t know if I — I don’t know if I can speak to that at this point.

Q. Well, you — you were the analyst — that supervisory analyst, correct?

A. Yes.

Q. Did you recall, sir, what it was that Mr. Millian was involved in, the kind of investments?

A. Yes, he was involved in investments and the like.

Q. Right.

A. But I don’t know if I can speak to, at this point, these phone records being tied to any real estate deals or anything of that sort.

Q. Right. So all of these records have shown there was contact between the two of them, correct?

A. Correct.

Q. And did you know that Millian was involved in the energy sector as well?

A. Yes, correct.

Q. And did you know that Papadopoulos was talking about getting involved in the energy sector in the Middle East?

A. Yes, I did know that.

Q. Does that refresh any recollection as to whether or not the contact between Millian and Papadopoulos had to do with energy and other investments?

A. Again, I am familiar with both of those things. I don’t know if that is what this document was actually written for.

Q. Okay. And there’s nothing in this document that tells you what it is about, correct?

A. No. Gmail talks about — there are a couple of references on — it’s not — it’s Bates Number — last Bates number is 105262.

Q. Uh-huh.

A. And there are two paragraphs that talk about another individual involved with energy.

Q. Right. This is all about business, correct?

A. Again, I don’t know if all of this is about business. I know that there are paragraphs in here involving energy.

Q. Okay. So one can tell from this is that they were involved in exchanges of emails or the like, correct?

A. Correct.

Q. And it appears it has to do with energy, correct?

A. It might , yes. Again, there are a lot of — there are a lot of communications on here.

Q. Yes.

A. So I would not be able to state with any substance that these are all involving energy issues.

Q. You can’t say that because the document doesn’t tell the jury what it’s about, other than that it, at least it has partially to do with energy?

A. Correct.

Q. Between Millian and Papadopoulos, correct?

A. That’s what it appears, correct.

Q. So it would be unreasonable to conclude anything or draw any conclusions from this other than Papadopoulos and Millian were involved in investments in the energy sector, right?

A. I don’t know if I can say that it follows necessarily from this, that all of these things deal with that.

Q. That wasn’t my question, though.

A. Okay.

Q. My question was: It would be unreasonable to conclude from this document anything other than they were at least involved in talking about — the energy sector, correct?

A. I would say that from this document there may —

Q. Uh-huh.

A. — there are likely communications within this list of communications dealing with energy, though I cannot say, analytically speaking, that all of these deal with energy

Q. Fair enough. You know that Millian was involved in the energy sector and real estate?

A. I do recall that.

Q. And Papadopoulos is involved in the energy sector and real estate?

A. I recall that.

Q. And so this document doesn’t have anything to do, from looking at it on its particulars, anything to do with Russia and Russia collusion and the like, correct?

A. So the only thing that this has is — it has a list of — most of it is a list of communications between the two parties, dates, times.

Q. Okay. [my emphasis]

When he finally got the witness back and the exhibits admitted, Onorato mocked the way Durham had wasted all his time.

Q. Okay. And I’m glad that Mr. Durham took five minutes of my examination with you to talk about something I didn’t want to ask you about, okay? I don’t care if they were talking about going to the beech or vacation. It’s not relevant to —

He then noted that he really didn’t give a fuck what they were talking about. This was about metadata. Onorato was introducing it to show that the investigation into both Millian and Papadopoulos revealed that there were communications between the two men — communications not relying on the single cell phone that Durham bothered to obtain the call records for. Danchenko’s lawyer was showing that, during the same period when, Durham is arguing, Millian could not have arranged a meeting in New York with Danchenko because he was in Asia and the single phone the records of which Durham bothered to pull had been turned off temporarily, Millian had been arranging a meeting in New York with Papadopoulos.

Q. So the import of that document is that you were investigating Mr. Papadopoulos after Crossfire Hurricane, right?

A. In Crossfire Hurricane, yes.

Q. Right. But you got —

A. And special counsel.

Q. Right. And then Mr. Millian was also being investigated, right?

A. Correct.

Q. And so, the import of that is that there’s communication between Papadopoulos and Millian, and the FBI was documenting that because it was important, right?

A. Correct.

Q. Okay. It doesn’t — I don’t care about the contents of what they were discussing, just the fact that there was this relationship that you needed to explore, right?

Again, the primary purpose of introducing Papadopoulos was to show that the entire metadata-based argument that Durham will make about the impossibility of a call between Millian and Danchenko simply ignored publicly-known metadata from the very same period, metadata that the FBI believed was important.

Onorato was not trying to and does not need to prove that Millian was recruiting Papadopoulos as a Russian asset.

But the mere act of introducing these communications flipped the table, and Durham started making a desperate defense of two of the claimed victims he was championing.

Durham’s observation that all those communications “certainly sound[] creepy” was made outside the presence of the jurors. But in his bid to claim Papadopoulos was just a Coffee Boy, Durham himself introduced the possibility that two men he is attempting to claim were unfairly investigated really were engaged in “Russia collusion.”

John Durham Twice Misread Steele Dossier Sourcing to Invent a Partisan Claim

To understand what a train wreck FBI Supervisory Analyst Brian Auten was for John Durham’s case yesterday, let’s start with the fact that, on redirect, Durham lied about — or maybe just doesn’t understand — what Igor Danchenko said to the FBI about Sergei Millian in January 2017. He did so when trying to get Auten to agree that Millian couldn’t have called Danchenko because he’s a Trump supporter.

Q. So would you find it peculiar that somebody who had never spoken to Millian, Millian never spoken to him, would be telling somebody he doesn’t know about a, quote, well-developed conspiracy of cooperation, between The Trump Organization and Russian leadership?

A. I mean, I would say that is peculiar, yes.

Q. That is very peculiar, right?

A. Yes.

Q. Almost unbelievable, wouldn’t you say? A. I don’t know if I would say “unbelievable,” but I would say “peculiar.”

Durham, of course, was citing from the Steele dossier’s report attributed to Sergei Millian, which Danchenko didn’t write and claimed not to have seen before it was published. In fact, one of the reasons why the FBI found Danchenko was credible is that he didn’t try to protect Steele. Danchenko implied that Steele exaggerated his report on Millian, which instead amounted to a 10 to 15 minute phone call.

More importantly, Danchenko claims that he didn’t tell Steele that Millian had described a “well-developed conspiracy of cooperation.” On the contrary, Danchenko told the FBI that Millian had told him there were ties between Russia and Trump, but there was “nothing bad about it.”

[The Primary Sub-source] recalls that this 10-15 minute conversation included a general discussion about Trump and the Kremlin, that there was “communication” between the parties, and that it was an ongoing relationship. (The Primary Sub-source] recalls that the individual believed to be [Source E in Report 95] said that there was “exchange of information” between Trump and the Kremlin, and that there was “nothing bad about it.” [Source E] said that some of this information exchange could be good for Russia, and some could be damaging to Trump, but deniable. The individual said that the Kremlin might be of help to get Trump elected, but [the Primary Sub-source] did not recall any discussion or mention of Wiki[L]eaks.

If Danchenko is to be believed — and the FBI long believed he was — Danchenko interpreted Millian’s comments as helpful for, not harmful to, to Trump.

And that’s important because a fundamental article of faith, as far as John Durham goes, is that someone’s political party dictates all regarding sourcing. Millian couldn’t have called Danchenko, in Durham’s book (even though a whole ton of evidence was presented that he could have), because he was a vocal Trump supporter.

Q. Right. Did you find it at all peculiar — you and your colleagues find it at all peculiar that somebody who is an avid Trump supporter would be calling somebody he had never met and talked to before to provide negative information about the Trump campaign?

A. I would say, in this case, you don’t know.

Durham needs the Millian report to be negative because he needs to find a partisan angle to everything in the dossier, but he simply invents what Danchenko — as opposed to Steele — claims Millian said.

By comparison, Durham suggests that Chuck Dolan’s role in potentially sourcing the arguably most accurate report in the dossier (it’s unsurprising it was accurate because it was based on press coverage) is suspect because of Dolan’s role in Democratic politics.

BY MR. DURHAM: Q Do you recall whether or not when you were chatting with Mr. Danchenko in January 2017 if he indicated that the work he was doing with Christopher Steele was an important project for him?

A I don’t know if he characterized it as an important project for him, but he characterized it as a project that he was very busy with.

Q With respect to the second part of that sentence, “…and our goals clearly coincide,” in context Mr. Danchenko’s and Mr. Dolan’s goals?

A That is how I would read that.

Q Would it have been of value to the FBI to know that Mr. Danchenko’s goals and Mr. Dolan’s goals related to the Trump campaign coincided?

[snip]

Q And with respect to goals coinciding, let me ask you this: Did you determine whether or not Mr. Dolan had any particular partisan persuasion?

A Yes.

Q And what was that?

A Democratic.

Q And how deeply involved in democratic politics was Mr. Dolan, if you know, based on your own personal participation in the investigation?

MR. ONORATO: Objection to relevance.

THE COURT: I’ll let him answer. Go ahead.

A I understand he worked with various aspects of democratic campaigns over the years.

Q And when you say over the years, was it like two or three years or a longer period?

A My recollection is it was longer.

Q Much longer?

A For a while back. I wouldn’t be able to actually specify how long back.

Q In any event, it would have been valuable for you to know that Mr. Danchenko’s goals coincided with Mr. Dolan’s goals, correct?

Note, Durham doesn’t consider — apparently doesn’t even conceive of the possibility — that Danchenko would have told Dolan their goals coincide as an appeal to Dolan’s partisanship even if he himself had none.

Steele (and therefore Danchenko) was first paid to dig up dirt on Paul Manafort by Oleg Deripaska, someone working to get Trump elected, and in fact one of the most important new details of this exchange is that Danchenko prefaced it by referencing asking someone much earlier, in May — possibly during the time when Deripaska was still paying the tab — for dirt on Manafort. With regards to Manafort, it’s not clear Danchenko would have reason to distinguish between the two projects paying to develop dirt (and he didn’t know precisely who was paying either time). He wanted dirt and the record shows that even someone closely tied to Manafort, Deripaska, was willing to pay for that dirt.

In any case, Durham makes a materiality claim that it was really important for the FBI to know Dolan’s partisan leanings.

Q. But for the FBI’s purposes in evaluating 105, Government’s Exhibit 112, was of significance this reportedly was coming from, quote, an American political figure associated with Donald Trump and his campaign, closed quote?

A. Yes, that was important.

Q. So with respect, then, to that information, that person that was providing the information, was Donald — was Charles Dolan, would that be import to you?

A. Yes, that would be of import.

Later, to play up the import of Dolan’s politics, Durham again misreads the dossier and in the process, misstates his entire case. He implies that the FBI, in assessing Report 105 — which, as Danchenko’s lawyer got Auten to agree, “has absolutely nothing to do about collusion in Russia, which is the whole point that Crossfire Hurricane was opened,” but which is Durham’s single piece of evidence that the Steele dossier was sourced to Democrats — should have known that a source described as “an American political figure associated with Donald TRUMP and his campaign” was actually a Democrat.

Q. And would it be of import to you that Mr. Dolan was not somebody who was an American political figure associated with Donald Trump and his campaign but, in fact, was a Democratic operative for a long period of time? Would that have been significant to you?

A. Yes, we were interested in all of the —

Q. Right.

A. — sources.

Q. So if you knew that that was the case, it wasn’t some Republican insider or some associate of Donald Trump’s, what, if any, impact did that have on your evaluation of the validity and credibility of the information that’s being conveyed in these dossier reports?

A. Well, it helps — it would have helped to understand kind of accuracy and things of that sort for the dossier reports.

Except that, once again, that’s not what the sourcing indicates. If Durham’s allegations are correct and this came from Dolan, it amounts to Danchenko sourcing something Dolan attributed to a Republican friend of his. If this claim is inaccurate, it’s not because Danchenko lied, it’s because Dolan did.

That is, Durham’s problem isn’t that Dolan is a Democrat. It’s that Dolan — his own witness — is an admitted fabricator.

And John Durham is trying so hard to invent partisanship rather than Russian rat-fuckery, that he doesn’t understand he’s impugning his source, not Danchenko.

John Durham’s Re-Virgined Birth of the Carter Page and Sergei Millian Investigations

October 12, 2022/26 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

The Igor Danchenko trial kicked off yesterday to contentious start, with prosecutor Michael Keilty accusing Danchenko of lying while making some, um, expansive claims about the public record, and Danchenko attorney Danny Onorato accusing Keilty of lying about the extent of the immunity Danchenko was granted for his January 2017 interviews, after which Judge Anthony Trenga admonished Onorato for overstating the extent to which Keilty overstated Danchenko’s immunization.

And then John Durham — in the flesh!! — after naming some more FBI employees so the former President could include them in another frivolous lawsuit, settled in for some rather painful direct examination of Supervisory Analyst Brian Auten.

Most of it–because it focused on events that preceded the first FBI interviews of Danchenko (and because during his interview he could not have known how much of his reports or in what form were used in the Carter Page FISA)–was irrelevant to the charges against Danchenko.

The country wasn’t served by any of this.

But along the way, we learned that Sergei Millian was once a source for the FBI, and that the investigation into Millian was closed without charges. By the end of the day yesterday, prosecutors hadn’t been permitted to raise details of the investigation into Danchenko.

About two key details, however, Durham deliberately obscured the record.

First, as the Durham team did during the Michael Sussmann trial, Durham made a big deal about the fact that Crossfire Hurricane investigation was opened as a full investigation from the start.

Q. And the FBI opened that up to say full investigation?

A. That is correct.

Q. From day one?

He did this without mentioning the hack-and-leak by a hostile intelligence service targeting Hillary Clinton, making it sound, instead, as if Australia shared the George Papadopoulos tip out of the blue, rather than in response to the seeming corroboration of the tip by the WikiLeaks publication.

John Durham never tires of minimizing Russian attacks on democracy, it seems.

As his team did during the Sussmann trial, Durham made a big deal about the fact that only at a Full Investigation could DOJ get a FISA warrant targeting Page (Durham also incorrectly suggested the primary goal of a FISA warrant is to find criminal information).

Q. Explain to the jurors, then, what tools, investigative tools, the FBI had available at that time as a result of opening a full investigation as opposed to some lesser level of —

A. With a full investigation, you are able to use the Foreign Intelligence Surveillance Act, or FISA.

Q. And are court authorized FISAs, essentially, the most powerful tool that the FBI has available and —

A. I would say one of.

The problem with this entire premise — and the problem with his attack on the Horowitz Report is that there was already an investigation into Carter Page. What FBI did, with Carter Page, was take an existing counterintelligence investigation arising out of Page’s fondness for being recruited by Russian intelligence officers, and open it as part of an UNSUB (see this post for an explanation of what that means) tied to apparent advance knowledge of an attack on democracy.

Similarly, with Millian, Durham tried to get Auten to suggest that the first investigative focus the FBI developed on Millian in 2016 was from Steele.

Q. Let me ask you this: With respect to your meeting with Mr. Steele in early October of 2016, do you recall whether or not the name Sergei Millian came up?

A. Yes.

Q. And how did that come up?

A. Sergei Millian’s name came up as —

MR. ONORATO: Your Honor, I’m going to object.

THE COURT: Overruled. Go ahead.

BY MR. DURHAM: Q. With respect to Sergei Millian, whatever you learned from Mr. Steele in October of 2016, what, if anything, did you and your colleagues do regarding Sergei Millian?

A. Out of what we learned from Steele or from — or what came up before —

Q. With respect to Sergei Millian, whatever you learned from Mr. Steele in October of 2016, what, if anything, did you and your colleagues do regarding Sergei Millian?

A. Out of what we learned from Steele or from — or what came up before —

Q. Based on what you knew. Let’s not worry about hearsay from Steele.

A. No, no. I mean —

Q. What did you learn?

A. Millian’s name came up in the course and scope of the investigation prior to us talking to Mr. Steele.

Q. Okay. So — and this just calls for a yes or no. Did you have a — in your meetings with Steele, did Sergei Millian’s name come up?

A. Yes.

As the DOJ IG Report revealed, by that point, Millian was already a focus of other FBI agents.

According to a document circulated among Crossfire Hurricane team members and supervisors in early October 2016, Person 1 had historical contact with persons and entities suspected of being linked to RIS. The document described reporting [redacted] that Person 1 “was rumored to be a former KGB/SVR officer.”

Again, Durham tried to create a virgin rebirth to create original harm from the dossier where it did not exist.

Unsurprisingly, Durham also didn’t elicit from Auten that Steele had called Millian a “boaster” and said he “may engage in embellishment” in that meeting, or that as described in that meeting, Steele had claimed that the Carter Page information came from his research during the period when Oleg Deripaska, not Hillary, was paying for his research.

I assume Danchenko’s team will lay all this out in cross-examination today.

It’s just rather pathetic that, in his first outing, Durham is still obscuring the public record to create harm against Trump rather than an attack against the US by Russia.

Igor Danchenko Would Have Been a Crucial Witness to Understanding the Disinformation in the Dossier

October 11, 2022/38 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Igor Danchenko claims that a Supervisory Special Agent involved in the Russian investigation described his cooperation with the FBI as a confidential source as one of the upsides of that investigation.

As one supervisory special agent has agreed, “one of the upshots [of the Crossfire Hurricane Investigation] has been a relationship with [Mr. Danchenko] which has provided the FBI insights into individuals and to areas that it otherwise was lacking [ ] because of the difficulty with which the FBI has in recruiting people from that part of the world.” The agent further agreed that the FBI’s relationship with Mr. Danchenko was “one thing that in terms of usefulness really did result from this [investigation].”

Danchenko cited it as part of his successful effort to limit how much detail about the 2010 counterintelligence into him John Durham could present at trial, which starts today.

It’s an odd statement, insofar as he doesn’t cite the source (I was wondering if it comes from a pre-trial interview of a witness he plans to call, the precise details of which he’s withholding until the trial). Plus, there are FBI agents who seemed happy to have participated in the investigation, notwithstanding the way Trump found a way to ruin the career of virtually every FBI person involved in it (besides the two guys who botched the Alfa Bank investigation). This person, with the reference to “usefulness,” sounds like one of the skeptics.

Imagine if one of the FBI agents the frothers have been celebrating as a Mueller skeptic for years had good things to say about the (hopefully last) target in Durham’s witch hunt?

Whoever it is, the frothers’ continued obsession with Danchenko’s role as an FBI source — now joined by Chuck Grassley and Ron Johnson — and their certainty there was impropriety about it is a testament to how deep within a bubble they all are, in which Trump matters but US security does not.

Start with what we know or can infer about his vetting. First, he was brought on as a source in March 2017, before the FBI stopped including FISA material among the databases it used to vet potential informants. So they likely checked collections of communications from known Russian spies before they formalized the relationship, including those they knew he had contact with years earlier. If that’s right, they knew a lot about what ties he had with Russians.

Then, at least if we can believe Danchenko, every time there was a discrepancy between what he said and others said, they were resolved in his favor.

To the contrary, not only did investigators and government officials repeatedly represent that Mr. Danchenko had been honest and forthcoming in his interviews, but also resolved discrepancies between his recollection of events and that of others in Mr. Danchenko’s favor.

Frothers blew over the implications of this just like they blew over Danchenko’s reference, in this same filing that, “The government had unfettered access to Mr. Danchenko for approximately four years following his first interview in January 2017” (a presumed allusion to his relationship with the FBI).

This statement about “discrepancies” between Danchenko’s versions and those of others would have to include the interview with Christopher Steele that Durham attempted (unsuccessfully) to introduce as evidence.

On September 18 and 19, 2017, FBI personnel from the Robert Mueller Special Counsel team interviewed Christopher Steele. Steele informed the FBI personnel, in part, that the defendant had collected election-related material in the United States for Orbis. As part of that undertaking, the defendant informed Steele that he met in person with Sergei Millian on two or three occasions – in New York and once in Charleston, South Carolina. The defendant subsequently informed the FBI that he had not in fact met with Millian on any occasion. On November 2, 2017, the defendant further stated to the FBI that Steele incorrectly believed the defendant had met in-person with Millian, and that he (the defendant) did not correct Steele in that misimpression.

Danchenko makes this even more explicitly clear later.

[W]hile the facts alleged in the indictment may show that [Steele] provided the FBI with an inaccurate statement about a meeting between Mr. Danchenko and [Millian] in New York, the facts also clearly show that Mr. Danchenko corrected the record for the FBI by unequivocally stating, on multiple occasions, that he had never met with [Millian] in New York and did not know whether he ever spoke on the phone with [Millian].

Most Republicans claim that Steele’s dossier was garbage. Danchenko maintains he had no role in writing it and Durham doesn’t seem to have any evidence to the contrary. Everything in Danchenko’s prosecution (and the entire DOJ IG Report on Carter Page) is consistent with the FBI believing Danchenko over Steele. And yet the frothers are sure that one of the first guys to raise questions about Steele (Bruce Ohr was actually the first, though he never gets credit for that) is suspect.

If Danchenko’s claim (made after reviewing discovery) is true — something I expect we’ll learn more about during the trial — Mueller, at least, came away from a series of interviews in fall 2017 crediting Danchenko’s claims about the construction of the Steele dossier over Steele’s own. I think the record is somewhat more equivocal than that. For example, Danchenko’s claim that he, “did not view his/her contacts as a network of sources, but rather as friends with whom he/she has conversations about current events and government relations,” is not credible; he knew he was getting paid for this information. But Danchenko showed proof of some of his other claims (for example, in texts with his friend Olga Galkina), and I assume whatever vetting FBI did — including the FISA 702 collection targeting Galkina — held up as well.

If you think Steele fucked over Trump, that should matter to you.

But Danchenko (and that anonymous FBI agent) make it clear Steele was not the only person who Danchenko helped the FBI to understand. Danchenko describes that the investigation into the dossier ended in November 2017.

The investigation into the Reports was ultimately completed by Special Counsel Robert S. Mueller, III, in or about November 2017

But he remained an approved source until October 2020. A Danchenko filing describes being interviewed “dozens of times,” of which roughly eight are included in the scope of the indictment against him (three in January, and one each in March, May, June, October, and November 2017), which therefore must be the only ones that pertain to the dossier. Durham’s project, with his conspiracy theory driven prosecution, is to claim that Danchenko lied at least once in every interview about the dossier.

That Danchenko was interviewed some 16 more times is news: it would suggest Danchenko’s was asked to explain more than just Steele’s reporting methods. It’s not even clear Durham would have reviewed all that reporting before he charged Danchenko; he’s not known to have investigated past the beginnings of the Mueller investigation, and Durham only produced a December 2017 draft opening memo for an investigation into Charles Dolan in the last month.

[W]hen agents drafted a December 2017 communication in support of opening an investigation into Dolan, they included the information Mr. Danchenko provided them as support for opening the investigation. 3

3 The December communication is highly exculpatory with regard to the essential element of materiality and it is not clear why it was only produced 30 days from the start of trial. It was produced as Jencks material (also late by the terms of the Court’s Order requiring all Jencks to be produced by September 1) but is obviously Brady evidence.

Durham certainly didn’t bother learning all of Rodney Joffe’s contributions to the FBI before he made wild insinuations about him and got him discontinued as an FBI source, so it’s possible he did not for Danchenko either.

And that’s interesting given what is in the public record about related events.

Try to look at the Russian investigation not as an attempt to sink Trump (much of what we know about matters Danchenko may have cooperated on comes from before the investigation was predicated on Trump), and not as the precursor to the prosecutions we know happened. Try to consider the Russian investigation as an investigation in the wake of a hostile attack from a foreign power. And consider what the DOJ IG Report on Carter Page — a document most frothers treat with near biblical reverence and ignorance, the declassified footnotes to the report, the Bruce Ohr 302s, and details revealed in the Danchenko filings disclose about where the investigation into the dossier and related topics developed between December 2016 and September 2000.

In the period when Danchenko was brought on as an informant (and before the time Steele was interviewed) the FBI learned that Steele had problematic ties with Oleg Deripaska and his (and Danchenko’s) source network had been compromised by Russian spooks.

December 2016: As much as Steele was trying to push the dossier to the FBI, he was also trying to push Oleg Deripaska’s complaints that Manafort had stolen money from him
January 12, 2017: Another intelligence service relayed an inaccuracy about the Michael Cohen claims in the Steele Report, claims Danchenko sourced to his friend Galkina, who had gotten close to Dmitry Peskov via Dolan
January 24, 2017: Danchenko didn’t know that Deripaska was the one who paid Steele to investigate Manafort in spring 2016
February 14, 2017: Steele was working for certain attorneys, including the attorney for Oleg Deripaska
February 27, 2017: An individual with ties to Trump and Russia said the pee tape was the product of Russia infiltrating a source into the Steele network
March 2017: The Crossfire Hurricane considers the full import of the open counterintelligence investigation on Millian
June 2017: Someone affiliated with Oleg Deripaska learned of Steele’s project by early July 2016 — so before all but the first report
Early June 2017: Russian spooks became aware of Steele’s election investigation in early 2016 [this date is probably wrong but still an indication that Russia learned about the project from the start]
Early June 2017: FBI targeted Olga Galkina under Section 702 (and discovered her ties to Chuck Dolan and both their ties to Dmitry Peskov)
December 2017: FBI at least considered opening an investigation into Dolan
February 2018: The reason Manafort shared campaign information in August 2016 was in an effort to get “whole” with Deripaska; Kilimnik shared a clever plot to defeat Hillary
April 2018: Treasury sanctions Deripaska, among others
May 2018: More on how Kilimnik’s August meeting pertained to a plan to beat Hillary
September 2000: Deripaska’s US associate, Olga Shriki, appears before grand jury

By 2019, the IG Report makes clear, there were abundant reasons to suspect that Deripaska had played a key role in injecting disinformation into the dossier. In the earlier days of the investigation, key people on the Crossfire Hurricane team didn’t know of Steele’s ties to Deripaska, something that, “could have indicated that Steele was being used in a Russian ‘controlled operation’ to influence perceptions (i.e., a disinformation campaign).” Until the way Deripaska was working both sides — increasing Manafort’s legal jeopardy while using his desperation to get his cooperation with the election operation — became clear, Deripaska’s ties to the dossier didn’t make sense, as Bill Priestap explained.

[I]f that’s the theory [that Russian Oligarch 1 ran a disinformation campaign through [Steele] to the FBI], then I’m struggling with what the goal was. So, because, obviously, what [Steele] reported was not helpful, you could argue, to then [candidate] Trump. And if you guys recall, nobody thought then candidate Trump was going to win the election. Why the Russians, and [Russian Oligarch 1] is supposed to be close, very close to the Kremlin, why the Russians would try to denigrate an opponent that the intel community later said they were in favor of who didn’t really have a chance at winning, I’m struggling, with, when you know the Russians, and this I know from my Intelligence Community work: they favored Trump, they’re trying to denigrate Clinton, and they wanted to sow chaos. I don’t know why you’d run a disinformation campaign to denigrate Trump on the side.

But as the Manafort side of the equation became clear, it all made more sense. And the implication is that by 2019, that’s what the FBI understood to have happened.

Chuck Grassley was the first person to start raising public questions about Deripaska’s role in the dossier. Similarly, he was among the first to raise concerns about disinformation and the dossier.

The more likely explanation for Danchenko’s CHS status is one he and other Republicans should welcome: that the FBI investigated how the dossier was used as disinformation. Danchenko was fed a lot of shit, from people (like Galkina) he trusted implicitly; that shit happened to be tailored to sow maximal dissension in US politics. And then Steele, unbeknownst to Danchenko, packaged it up inside exaggerations.

If it bothers you that the dossier was larded with disinformation — and it should bother people on both sides of the aisle — then you should welcome FBI’s effort to understand how that happened. And one crucial step in that process is to understand how the network behind it tied right back to the Russians who played central roles in the 2016 attack on US democracy. Danchenko would have been a key guide to that information.

Imagine If Maggie Had Reported that Vladimir Putin Dictated Trump’s June 9 Meeting Cover Story?

October 9, 2022/176 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Imagine how much differently things might have worked out if, on July 19, 2017 Maggie Haberman had reported that Vladimir Putin had dictated the statement Trump had his failson release, excusing the meeting Don Jr had to collect Russian dirt in exchange for lifting the Magnitsky sanctions?

It was a short introductory meeting. I asked Jared and Paul to stop by. We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at the time and there was no follow up.

I was asked to attend the meeting by an acquaintance, but was not told the name of the person I would be meeting with beforehand.

As you contemplate that, consider how Trump’s various means of withholding the documents he stole serve as a metaphor for how he covers up his own criminal exposure.

At first, Trump stonewalled, refusing to cooperate at all. Then, he got some of his aides to privately tell lies on his behalf. But then, when that looked like it wouldn’t work any more, he packed boxes himself, personally curating the first limited hangout for the Archives. In January, Trump delivered 15 boxes — nine fewer than NARA knew he had taken, but three more (Maggie is the only one who cares about this) than he had told NARA he’d deliver. When NARA opened the boxes that Trump had curated personally, they found some, but not all, of what they were expecting. Hidden amidst, “newspapers, magazines, printed news articles,” they also found “a lot of classified records.” This expert liar believed he could fool professional archivists by hiding the evidence of his crime behind a curtain of press clippings.

At this point, Trump started lying publicly, both by releasing statements designed to go viral on social media falsely claiming to have cooperated, and in the public claims that Kash Patel made that were broader than the set of Russian documents Trump did or attempted to steal, but which were primarily about that story.

Trump had to find new people to lie for him, which he did in the form of a far less qualified legal team. Trump had that less qualified legal team try to bully DOJ legally, claiming that he couldn’t be charged with the single crime he wanted applied to his criminal behavior. When all that failed to stave off DOJ, Trump curated another story, having boxes removed from the storage room, having one of the new, less-qualified lawyers search through what was left and discover another limited hangout of documents to return, and getting another of the less-qualified lawyers to certify that’s the end of the story, all without letting investigators actually check what actually lay behind that search.

This time it was DOJ that knew better than to believe the series of cover stories the reality TV show star kept telling, and so they quietly put together a search of the beach resort, seizing another 27 boxes of government records, yielding 18 more boxes than NARA even knew about. It’s not clear Trump would have revealed the search, at all, if Peter Schorsch — not one of the national journalists paid handsomely as a full time Trump-whisperer, but instead a local reporter — hadn’t revealed it. (There’s no evidence Trump ever told the Trump-whisperers about this investigation before the search, and most have not credited Schorsch’s role in the process, perhaps to obscure that there was news about Trump accessible without Trump offering it up.) Then, via a statement, via preferential leaks to journalists, via misleading legal filings, Trump repeated the process again, claiming different laws applied and distracting with details — like the fucking lock he claimed DOJ told him to put on his storage closet — largely irrelevant to the crimes actually at issue.

When Trump gets in trouble, the showman curates stories to distract from his real legal woes, obscuring the real legal jeopardy he faces, while distracting the crowd with a blizzard of stories serially revealing tidbits that are distractions from the real story.

That’s how it happens that, five months after Kash Patel publicly used the Russian investigation documents Trump tried to release in the last hours of his Administration as an alibi for stealing other documents, Maggie and Mike have gotten the chattering classes worked up over something related to that cover story that Trump did not do: offer the government to return documents unrelated to Russia if the government would let him burn more sources and methods relating to Russia.

Late last year, as the National Archives ratcheted up the pressure on former President Donald J. Trump to return boxes of records he had taken from the White House to his Mar-a-Lago club, he came up with an idea to resolve the looming showdown: cut a deal.

Mr. Trump, still determined to show he had been wronged by the F.B.I. investigation into his 2016 campaign’s ties to Russia, was angry with the National Archives and Records Administration for its unwillingness to hand over a batch of sensitive documents that he thought proved his claims.

[snip]

It was around that same time that Mr. Trump floated the idea of offering the deal to return the boxes in exchange for documents he believed would expose the Russia investigation as a “hoax” cooked up by the F.B.I. Mr. Trump did not appear to know specifically what he thought the archives had — only that there were items he wanted.

Mr. Trump’s aides — recognizing that such a swap would be a non-starter since the government had a clear right to the material Mr. Trump had taken from the White House and the Russia-related documents held by the archives remained marked as classified — never acted on the idea.

Maggie and Mike published this story one day after ABC published a story describing the very specific set of documents Trump had spent his last days in office trying to publicly release. Even the ABC story, which reveals, “White House staffers produced multiple copies of documents from the binder,” misses key parts of the story — including why a document John Solomon claims to have obtained in June has a September 2021 creation date. But it nevertheless makes clear that the Russian documents are more central to the stolen document story than either of the two versions Maggie has told admit.

And yet that misleading Russia tidbit distracted from more important details. Buried in the story was the detail that Alex Cannon, a lawyer who negotiated with the Archives late last year, was worried that Trump was withholding documents responsive to subpoenas from the January 6 Committee. This was a detail Paul Sperry publicly floated on August 16. It comes in the wake of the filter inventory accidentally docketed that shows the FBI seized at least three items pertinent to the known January 6 investigations. In a piece reporting, possibly for the first time, that Trump may have withheld documents to obstruct other investigations, Maggie and Mike (purveyors of the false claim that Mueller primarily investigated Trump for obstruction) describe DOJ’s investigation into violations of the Espionage Act and obstruction this way, as if poor Donald Trump and those paid to lie for him were just innocent bystanders in all this.

In the process, some of his lawyers have increased their own legal exposure and had to hire lawyers themselves. Mr. Trump has ended up in the middle of an investigation into his handling of the documents that has led the Justice Department to seek evidence of obstruction.

The more important point is that rather than focusing on Cannon’s concerns that Trump was obstructing the January 6 investigation (or even that he suspected Trump was hoarding classified records but didn’t tell NARA that), Maggie and Mike focus on the deal that Trump never formally pitched, trading one set of classified documents for the classified documents describing sources and methods Trump wanted to burn.

This detail, in a story describing the lies Trump has told to cover up his stolen documents, is pure distraction, a side-show to the evidence of criminal behavior that matters. But nevertheless, the sheer audacity of it has gone viral, distracting from the real evidence of criminal intent or even the ABC report that at least substantiates the real ties between the Russian documents and the documents Trump was hoarding.

As noted in the ABC report, this is actually the second limited hangout about the Russian documents that Maggie spread. The first — part of her book campaign — is that Trump was sitting on copies of the Strzok and Page texts.

(In one of our earlier interviews, I had asked him separately about some of the texts between the FBI agent and the FBI official working on the Robert Mueller investigation whose affair prompted the agent’s removal from the case; we had learned the night before Biden’s inauguration that Trump was planning to make the texts public. He ultimately didn’t, but he told me that Meadows had the material in his possession and offered to connect me with him.)

This is the basis on which many people have claimed that Maggie withheld the story that Trump had stolen documents. But it’s actually not. It’s a limited hangout suggesting (John Solomon’s public statements that Trump would release everything notwithstanding) that Trump had only taken home the Strzok-Page texts, and not also a bunch of documents describing sensitive human sources and SIGINT collection points. Maggie has also claimed that Trump’s DOJ advised against releasing the texts because it would constitute another violation of the Privacy Act, without explaining why, then, Trump’s DOJ itself had done just that in September 2020.

Once again, it’s another less damning story rather than the more damning one for which there is just as much evidence. If Trump (or Mark Meadows) stole a copy of the Strzok and Page texts, it would be a violation of the Presidential Records Act and the Privacy Act, but not a violation of the Espionage Act or (if they stole a copy of the unredacted Carter Page application) FISA.

With Saturday’s story, which purports to share with readers how Trump “exhibited a pattern of dissembling,” Maggie and Mike either don’t understand this this story is just another press clipping that Trump is hiding the real criminal evidence behind, or are having a great big laugh at how stupid their readers are, making this non-story about something Trump didn’t do go viral whereas more factual details go unnoticed.

Which makes it very much like the story Maggie and Mike published, along with Peter Baker, on July 19, 2017. The story was based on an interview all three did that same day, one day after other journalists disclosed a second meeting between Putin and Trump, without a US translator, which lasted as long as an hour. The interview happened on the same day — the Mueller Report notes — that Trump renewed his request to Corey Lewnadowski to order the Attorney General to limit the Russian investigation to prospective election tampering.

On July 19, 2017, the President again met with Lewandowski alone in the Oval Office.621 In the preceding days, as described in Volume II, Section II.G, infra, emails and other information about the June 9, 2016 meeting between several Russians and Donald Trump Jr., Jared Kushner, and Paul Manafort had been publicly disclosed. In the July 19 meeting with Lewandowski, the President raised his previous request and asked if Lewandowski had talked to Sessions.622 Lewandowski told the President that the message would be delivered soon.623 Lewandowski recalled that the President told him that if Sessions did not meet with him, Lewandowski should tell Sessions he was fired.624

[snip]

Within hours of the President’s meeting with Lewandowski on July 19, 2017, the President gave an unplanned interview to the New York Times in which he criticized Sessions’s decision to recuse from the Russia investigation.630 The President said that “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job, and I would have picked somebody else.”631 Sessions’s recusal, the President said, was “very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, ‘Thanks, Jeff, but I can’t, you know, I’m not going to take you.’ It’s extremely unfair, and that’s a mild word, to the president.”632 Hicks, who was present for the interview, recalled trying to “throw [herself] between the reporters and [the President]” to stop parts of the interview, but the President “loved the interview.”633

Later that day, Lewandowski met with Hicks and they discussed the President’s New York Times interview.634 Lewandowski recalled telling Hicks about the President’s request that he meet with Sessions and joking with her about the idea of firing Sessions as a private citizen if Sessions would not meet with him.635 As Hicks remembered the conversation, Lewandowski told her the President had recently asked him to meet with Sessions and deliver a message that he needed to do the “right thing” and resign.636 While Hicks and Lewandowski were together, the President called Hicks and told her he was happy with how coverage of his New York Times interview criticizing Sessions was playing out.637

The NYT article that resulted from the interview with Trump reported the following, in order:

Trump’s claim he never would have hired Jeff Sessions if he knew he would recuse from an investigation Trump didn’t know about yet
Trump’s complaint that Sessions’ recusal led to Mueller’s hiring
Details about the interview
Trump’s false claims that Mueller had conflicts
The “red line” comment that Maggie and Mike would henceforward use to say Mueller could not investigate Trump’s finances
Trump’s claim that he was not under investigation even though there were public reports he was being investigated for obstruction
A description of Trump’s claim only to have spoken with Putin for 15 minutes, mostly about “pleasantries, but also “about adoption” [without explaining that “adoption” is code for Magnitsky sanctions]
Trump’s description that “his son, Donald Trump Jr., said that was the topic of a meeting he had” on June 9, 2016 (days earlier, Maggie and Peter had reported Trump had been involved in that statement)
Trump’s claim that he didn’t need the dirt on Hillary because he had other dirt
More discussion about the interview again
Descriptions of Trump’s “amiable side,” including his story of holding hands with Macron and — this was described as amiable! — his hopes for a military parade in DC
A description of Trump’s interactions with his then 6-year old grand-daughter
More about how angry he was with Sessions
Quotes from Trump attacking Sessions for recusing
Attacks on Sessions’ confirmation testimony about Sergey Kislyak
A no-comment from Sessions
A claim that Jim Comey had briefed the Steele dossier in an attempt to keep his job
Trump’s claim he dismissed the claims in the dossier
A no-comment from Comey
An explanation of why Trump’s briefers had briefed the dossier
Trump’s claim that Comey’s sworn testimony about the February 14 meeting was false
Trump’s boasts that he did the right thing by firing Comey
A return to his claims that Mueller had conflicts
Trump’s claim that he didn’t know that Deputy Attorney General he himself had appointed was from Baltimore
A claim Rosenstein had a conflict of interest with Mueller
A citation to a Fox interview where Rosenstein said Mueller could avoid conflicts
Trump’s claims that Andrew McCabe had conflicts because of the donation Terry McAuliffe gave to McCabe’s spouse
A return to the discussion with Putin, including quoting his comment about adoption
Trump’s claim that he did not know of the June 9 meeting in real time
Trump’s false claim he didn’t need (much less seek out) more dirt on Hillary because he had everything he could need

Most journalists would have taken that detail — that Trump and Putin had used an unmonitored face-to-face meeting to talk about the subject of a burgeoning scandal at the center of the investigation of Russian interference in the election — and dedicated an entire story to it. They likely would have included an explanation that “adoptions” was code for sanctions relief. They probably would have noted how Trump’s claims about the conversation differed from the public reports about it, particularly with regards the claimed length.

Journalists who — as Maggie and Baker had — reported, just days earlier, that Trump had “signed off on the statement,” might cycle back to sources for that story and lay out the possibility — confirmed by Mueller years later — that after Trump discussed adoptions with the President of Russia, he in fact dictated a misleading story about the things he had just discussed with Putin, over his son’s and Hope Hick’s wishes to get the entire story out.

Imagine how that story, that after discussing the topic with Putin, Trump dictated a misleading story, would have changed the direction of the Russian investigation.

But that’s not the story that Maggie and Mike and Peter told. On the contrary, they buried their lede — the smoking gun that Trump had “colluded” with the President of Russia on a cover story — and instead focused the story where Trump wanted it: on pressuring Jeff Sessions and Rod Rosenstein for allowing the appointment of a Special Counsel, on ending the investigation in which they had just revealed a smoking gun. As Mueller explained, Trump “was happy with how coverage of his New York Times interview criticizing Sessions was playing out.” It buried really damning half-admissions inside an article that primarily served his obstructive purpose (and disseminated a number of lies with limited push-back).

When Trump wanted to obstruct the Russian investigation on July 19, 2017, Maggie proved a more reliable partner than Corey Lewandowski.

That continued throughout the investigation, in which Maggie consistently misled her credulous readers that Mueller only investigated Trump for obstruction, neutralized one of the most damning revelations of the investigation providing Paul Manafort’s provided campaign strategy to Oleg Deripaska, ignored all the most damning details of her old friend Roger Stone, as well as the investigation into a suspected bribe via an Egyptian bank that kept Trump’s campaign afloat in September 2016.

A vast majority of the country believes that Mueller only investigated Trump for obstruction, and Maggie is a big reason why that’s true. And that mistaken belief is one of the reasons the aftermath of the Mueller investigation — with Bill Barr’s sabotage of multiple ongoing criminal investigation and the pardons for four of the five Trump aides who lied to cover up their ties with Russia — proceeded without bigger outcry.

And yet still, five years later, people don’t understand that Maggie successfully led them to believe a false, far less damning story of Trump’s exposure in the Russian investigation, that he was only investigated for the obstruction she was a part of, and not for doing things that led him to directly coordinate cover stories with Vladimir Putin before he dictated the story Putin wanted told.

The problem with Maggie’s memoir of her access to Donald Trump is not that she withheld details Trump told her as she pursued the least legally problematic part of the Russian document cover story for Trump’s stolen documents. It’s that people still think all of this is news, rather than a distraction from the real criminal exposure that — history proves — Trump’s transactional relationship with Maggie serves to cover-up.

When Trump attempts to cover up his crimes, he literally buries the evidence under stacks of press clippings. And those press clippings are, often as not, distractions he has fed (directly or indirectly) to Maggie to tell.

Anthony Trenga Smothers the Frothers’ Hopes for a Pee Tape Trial … But Not the Damage Done by Credulous Press

October 5, 2022/11 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Judge Anthony Trenga has issued his order on John Durham’s omnibus motion in limine in the Igor Danchenko case which was — as the equivalent motion was in the Michael Sussmann case — a last desperate bid to turn a false statements trial into a conspiracy theory.

On all the most substantive issues, including whether Durham will be able to fly a German Ritz Hotel staffer in to testify about the pee tape, which is not charged, Trenga ruled against Durham.

His rulings include:

That the pee tape allegations are not intrinsic to the charged crimes and the confusing and prejudicial nature of the claims would outweigh any probative value of the story
Unless Durham can prove that Danchenko gave Steele the information on Millian that ties him to the pee tape, prosecutors can’t introduce utterly equivocal answers Danchenko gave to the FBI that a pee tape source could be Millian
Durham can introduce evidence that Danchenko told Charles Dolan he worked for Steele (though the communications in question show primarily that Dolan knew it), but he can’t introduce evidence showing that Danchenko told others he worked for Steele
The only reason to introduce an email to a business associate would be as impermissible evidence of bad character; it is not sufficiently related to the charges against Danchenko to be admitted under 404(b)
An email Sergei Millian sent on July 26, 2016 can be admitted (I’ve shown that it reflects Millian coming back from Asia earlier than he otherwise would have), but two emails from 2020 are inadmissible hearsay because by then, “Millian certainly possessed motive and opportunity to misrepresent his thoughts”
Durham cannot introduce the details of the 2009 counterintelligence investigation into Danchenko because to introduce those details would require hearsay, and the details themselves would not be all that useful to proving the case against Danchenko but would be very prejudicial
Trenga will rule on evidence pertaining to the reliability or credibility of Durham’s witnesses at trial

Both the issues on which Trenga ruled for Durham — Dolan’s knowledge that Danchenko worked for Steele and Millian’s July 2016 email — may actually hurt Durham’s case. On all the other issues, every bit of Durham’s effort to spin a conspiracy theory, Trenga has ruled for Danchenko.

And aside from noting, twice, that Millian had “opportunity and motive to fabricate and/or misrepresent his thoughts,” there’s another sign that Trenga gets what Durham’s ruse is.

His reasoning for excluding the pee tape lays out all the flimsy threads Durham spun in an effort to present his conspiracy theory.

Through [German Ritz employee] Kuhlen, for example, the government seeks to prove that Danchenko completely fabricated his sources to Steele on the Ritz-Carlton allegations and then lied about it to the FBI to keep Dolan off the FBI’s radar. But that justification faces several obstacles. First, Dolan’s role in these uncharged false statements is unclear. The government does not allege that Dolan was a source for Danchenko’s Ritz-Carlton reporting, and therefore this evidence seemingly is not being used to prove the falsity of Danchenko’s statement in Count I. While Dolan, in June 2016, received a tour of the presidential suite and had lunch with the hotel’s general manager and staff, the government does not appear to intend to present evidence that Dolan told Danchenko about those events, including meeting or speaking with Kuhlen.2 Thus, the link between Danchenko’s allegedly false statement about the Ritz and Dolan is a highly attenuated one. Perhaps recognizing this, the government instead proffers that this evidence goes to proving the materiality of Danchenko’s Count I statement, not its falsity. But the proffered evidence relating to the RitzCarlton allegations bears little probative value in terms of materiality. The government contends that had Danchenko told the FBI that Dolan was a source it is more likely that it would have interviewed Dolan, in part, because of his proximity to Danchenko in June 2016. But that fact can be established separate and apart from trying to prove Danchenko lied about his Ritz-Carlton sourcing. The government can sufficiently establish at trial that Danchenko engaged in fact gathering for the Steele Reports in Moscow in June 2016, that Dolan was present in Moscow during that same time, and that the two met in Moscow, without getting into the purported false statements or the underlying details, which have an attenuated connection to the charged false statement. Additionally, and perhaps more importantly, proving up an uncharged false statement does not bear on the materiality of the charged false statement.

Second, the government fails to reference any evidence that Danchenko told Steele either that he met with Kuhlen or, more generally, a western member of the hotel staff. The government does not, by all indications, intend to call Steele as a witness; and in terms of what Danchenko told Steele, the jury will be left solely with the hearsay description in the Report itself, which Steele, not Danchenko, prepared. Why Steele characterized the sources for the Ritz-Carlton allegations as he did in the Report or, indeed, whether the listed sources, in fact, came from Danchenko are subject to a significant degree of speculation. As such, the reference in the Report to those sources does not provide strong evidence that Danchenko informed Steele that he met with a western member of the hotel staff. Moreover, when asked by the FBI about “Source E” in his May 18, 2017 interview, Danchenko completely equivocated. See [Doc. No. 84], at 11 (“Danchenko: . . . I don’t think it’s just uh, I don’t think [UI] one of the um, hotel managers. Agent 1: You think source E is? Danchenko: [ ] Somebody I met. . . . And I don’t know who, who [Steele’s] referring to.”). The government seeks to prove that Danchenko never met with Kuhlen; and while that may be true, that evidence does not, given the circumstances, have much probative value concerning whether Danchenko lied to the FBI about his sourcing of the Ritz-Carlton allegations.

2 The government’s position on the probative value of this evidence, aside from materiality, is unclear. The government at one point, characterizes Dolan as a “fact witness” because of his tour of the presidential suite and time at the Ritz-Carlton in general, but does not draw a clear line between Dolan’s experiences and Danchenko’s reporting to Steele. [Doc. No. 78], at 10. The Indictment strongly implies, however, that Danchenko used information learned from Dolan during the June 2016 Moscow planning trip in his reporting to Steele. [Indictment], ¶¶ 30-34.

Judge Trenga won’t let this stuff in not just because the Rules of Evidence say you can’t rely on the emails of an unreliable witness written four politicized years after the fact without making him show up and risk prison himself to substantiate his claims.

He ruled against this stuff because Durham has not claimed to have any evidence to justify a number of wild leaps of logic he made to spin this conspiracy theory in the first place: Durham has not claimed to have (reliable) evidence about what Dolan told Danchenko over 6 years ago (indeed, Dolan apparently, “will testify that he has no recollection of seeing the defendant at the Ritz Carlton in June 2016”). Durham does not claim to know what Danchenko really told Steele about the pee tape, and he does not claim to know to what degree Steele exaggerated what Danchenko told him or if he otherwise reported it unfaithfully. The evidence Durham does have — that Danchenko made equivocal statements in response to a speculative cue and told the FBI his reporting stopped well short of what Steele claimed it did — doesn’t say what Durham claims it does.

Trenga won’t let Durham present his pee tape conspiracy theories in part because it is the pee tape, with six years of rabid focus by all parties behind it. But more importantly, he won’t let Durham present his pee tape conspiracies because Durham’s pee tape conspiracies were never any more substantive than Christoper Steele’s pee tape report drafted back in 2016.

That didn’t stop any number of media figures — Devlin Barrett, Jonathan Swan, Barry Meier, Rachel Weiner, and Marshall Cohen, among others — who regurgitated the evidentiary flimsiness of Durham’s conspiracy theories and printed them as fact.

You might be under the impression that John Durham has charged Igor Danchenko with multiple counts of lying regarding the role of Charles Dolan in the sourcing of the dossier. You might similarly be under the impression that, in the indictment, Durham alleges that Dolan was the source for the pee tape.

You’d be forgiven for believing those things. After all, the WaPo reported charges, plural, showed that “some of the material” in the Steele dossier came from Dolan.

The indictment also suggests Danchenko may have lied to Steele and others about where he was getting his information. Some of the material came from a Democratic Party operative with long-standing ties to Democratic presidential nominee Hillary Clinton, according to the charges, rather than well-connected Russians with insight into the Kremlin.

The allegations cast new uncertainty on some past reporting on the dossier by news organizations, including The Washington Post.

Relying on that report, Jonathan Swan described charges, plural, that Dolan was, “one of the sources for the rumors about Trump.”

And Barry Meier, who so badly misunderstood the import of Oleg Deripaska in his book on private intelligence, also claimed there were charges, plural, relating to Dolan and insinuated that Durham had alleged the pee tape came from him.

In Durham’s indictment, however, Danchenko comes across more like the type of paid informant often found in the world of private spying — one who tells their employer what they want to hear.

According to those charges, he supposedly fed Steele some information that did not come from Kremlin-linked sources, as the dossier claims, but was gossip he picked up from an American public-relations executive with Democratic Party ties who did business in Moscow. In 2016, the indictment states, the manager of the Ritz-Carlton in Moscow gave that executive a tour of the the hotel’s presidential suite, and soon afterward, Danchenko took a selfie of himself and the executive at the hotel.

Reporting on Danchenko’s arraignment, WaPo went off at more length, not only failing to distinguish an uncharged accusation as such (one likely source of the belief that Durham charged multiple counts pertaining to Dolan), but stating as fact that Danchenko made up an entire conversation — one Danchenko has consistently attributed to a named Russian source — regarding the pee tape.

He is also accused of lying about revealing to sources that he was working for Steele.

Durham says Danchenko made up a conversation he claimed was the source of one of the dossier’s most salacious claims, that Trump paid prostitutes at a Moscow hotel room to urinate on a bed in which President Barack Obama had once slept. The dossier also suggested Russian intelligence agencies had secretly recorded that event as potential blackmail material. Trump has denied any such encounter.

The indictment suggests that story came from Dolan, who in June 2016 toured a suite at a hotel in Moscow that was once occupied by Trump.

Judge Trenga’s ruling will spoil the frothers’ hopes for a trial about the pee tape.

But the frothers aren’t the problem: The problem is how many actual journalists bought this sleight of hand and now remain silent about the baseless claims they perpetuated last year.

Update: Meanwhile, Danchenko has moved to:

Prevent Durham from eliciting testimony from Dolan about how he once speculated that Danchenko was a Russian spy
Prevent Durham from arguing he withheld or omitted information
Introduce Tips on Testifying from one or several US Attorneys Offices advising that a witness should stop once they’ve answered a question

FBI Approved Igor Danchenko as a Source before It Stopped Doing Back-Door FISA Searches to Vet Informants

October 4, 2022/7 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Last Thursday, Judge Anthony Trenga denied Igor Danchenko’s motion to dismiss, while making it clear the government’s case was really shoddy.

Judge Anthony J. Trenga ruled that Danchenko’s case must be weighed by a jury, clearing the way for his trial next month. But it was “an extremely close call,” Trenga said from the bench.

(This AP piece has more detail but it also makes really obvious errors.) While there’s no ruling on the docket, Trenga must have approved any remaining CIPA issues.

The frothers, of course, remain obsessed with the news that the FBI formally made Danchenko a confidential human source in 2017. Most prominently, for example, Chuck Grassley and Ron Johnson wrote a pissy letter to Merrick Garland and Christopher Wray demanding information about why he was made an informant by October 22.

In December 2016, the FBI’s Crossfire Hurricane team identified Danchenko as Steele’s primary sub-source and, according to the FBI, “became familiar with the 2009 investigation.”[8] The FBI, even in light of the extensive derogatory information attached to Danchenko, proceeded to pay him as a confidential human source three months later from March 2017 to October 2020 as part of Crossfire Hurricane. Therefore, while we were investigating the Justice Department’s and FBI’s misconduct with respect to Crossfire Hurricane, you maintained him on the government’s payroll.

This extraordinary fact pattern requires additional information from the Justice Department and FBI relating to why Danchenko was placed on the payroll and paid by the taxpayer to assist in the federal government’s flawed investigation into President Trump.

I hope to finish a post explaining why all the frothers are painfully stupid in their response to this news before Danchenko’s trial starts next week.

I’m not surprised that Grassley and Johnson are just as clueless on this point as the rest of the frothers.

But I am somewhat surprised that Grassley, the Ranking Member of the Senate Judiciary Committee, doesn’t know something about how FBI vetted informants until 2018, after they formalized Danchenko as one: They queried the person against all the FBI’s databases, including their FISA databases.

For example, we were told disputes occurred related to queries conducted for vetting purposes.52 Specifically, according to the FBI, it was concerned that as a result of the change to the query standard it could no longer perform vetting queries on raw FISA information before developing a confidential human source (CHS). FBI officials told us that it was important for agents to be able to query all of its databases, including FISA data, to determine whether the FBI has any derogatory or nefarious information about a potential CHS. However, because of the implementation of the 2018 standard, the FBI is no longer able to conduct these queries because they would violate the standard (unless the FBI has a basis to believe the subject has criminal intent or is a threat to national security). According to the FBI, because its goal is to uncover any derogatory information about a potential CHS prior to establishing a relationship, many agents continue to believe that it is irresponsible to engage in a CHS relationship without conducting a complete query of the FBI’s records as “smoking gun” information on a potential CHS could exist only in FISA systems. Nevertheless, these FBI officials told us that they recognize that they have been unsuccessful when presenting these arguments to NSD and the FISC and, as noted below, they follow NSD’s latest revision of query standard guidance.

Particularly given the past investigation into Danchenko and concerns about his past ties to Russian spooks, it is highly likely the FBI would have done such a back door search with Danchenko. They would have done it for precisely the concern Grassley and Johnson raised: to chase down some of the derogatory information on Danchenko from the earlier investigation. They would have done it to see the content of conversations he had with anyone of particular interest. Indeed, for a variety of reasons, the FBI likely could have done a backdoor search on Danchenko even after the querying standard changed in 2018.

The FBI likely made Danchenko a CHS not only for very good reasons, but for reasons that the frothers, if endless saturation inside a disinformation bubble hadn’t rotted their brains, might even approve of.

And before they did so, they likely did some very thorough vetting of him first.

DOJ Inspector General Report on the Tensions Created by Parallel Construction

October 3, 2022/26 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Before you read this report on tensions between FBI Office of General Counsel’s National Security and Cyber Law Branch (NSCLB) and DOJ’s National Security Division (NSD), remember the following things:

In significant part because of jurisdictional limitations, DOJ Inspector General blamed FBI for everything that went wrong with the Carter Page FISA applications, and in the wake of that report, Bill Barr, Trump, and his allies in Congress used it to damage the career every single person at FBI who had been involved with the Russian investigation (except for the two guys who made multiple mistakes in dismissing the Alfa Bank allegations).
John Durham then used that damage to attempt to coerce testimony, sometimes false, from FBI figures in his never-ending witch-hunt.
For the same jurisdictional limitations, any abuse John Durham engages in or Andrew DeFilippis engaged in can only be reviewed by DOJ’s feckless Office of Professional Responsibility, not by DOJ IG.
After that report, DOJ IG developed proof that Carter Page was not special; by some measures, his FISA application was better than those of people who hadn’t been fired by a future President for precisely the same foreign ties that the FISA was meant to assess.
The NSD then dismissed those findings from DOJ IG, largely by adopting a standard different from the one that had been adopted with Carter Page (it’s unclear whether DOJ IG is still trying to resolve these discrepancies or not).
None of the stuff that happened thus far addresses the substantive problems with the Page applications.

The report talks about the “historically strained” relationship between these two sets of lawyers, without laying out the role that the Carter Page review — and the Trump DOJ’s use of DOJ IG to punish his enemies generally — did to make things worse.

That tension plays out in the report. For example, Horowitz only provides recommendations to NSCLB and FBI’s OGC, not NSD. In each case, FBI is directed to coordinate with NSD, without the counterpart recommendation. The tension is particularly critical to something that DOJ IG cannot, therefore, recommend: That NSD have access to FBI case files, which would allow them to play a more proactive role in the vetting of FISA applications. It would also make NSD share in accountability for any problems that arise (as they should have with Page), though, and unsurprisingly NSD doesn’t want that.

NSCLB attorneys expressed their concern that although NSD attorneys assist agents in drafting the FISA applications submitted to the FISC, they do not share accountability when compliance incidents are reported to the FISC. Although NSCLB officials acknowledged the oversight role that NSD has related to FISA, they emphasized the need for FISA to be a team effort and not an adversarial relationship and stated their belief that the number of compliance incidents would be reduced if NSD would review the FISA-related documents housed in the FBI’s IT systems. However, according to NSCLB attorneys, NSD has expressed disinterest in ensuring FISA compliance on the front end and has said that it is the agent’s responsibility to identify in the first instance, anything that is necessary to be reported to the FISC. We were also told by NSCLB attorneys that NSD has said that it is concerned that an appearance of NSD attorneys having knowledge of the underlying documents would imply that they have full knowledge of all of the supporting documents, which would not be practicably feasible for them to have.

A senior NSD official that we spoke with told us that NSD has limited resources, and it does not have direct access to FBI systems.

NSD wants none of this accountability and DOJ IG can’t make them.

For all the tensions, though, it’s a fascinating report, as useful for providing both historical and bureaucratic background on this process as anything else. Much of this tension arises out of DOJ’s admitted parallel construction — using alternative sources for certain facts to protect sources and methods. There’s even a paragraph that describes NSCLB’s role as such (though not by name).

For instance, we were told that NSD relies on NSCLB to review documents such as search warrants and criminal complaint affidavits for law enforcement or other sensitivity concerns before they are filed with the court by prosecutors. When this process is not followed, it can become particularly problematic if NSCLB later finds that sensitive information was contained in the court filing. For example, if the FBI used a sensitive platform to obtain information, prosecutors may decide that a description of the platform is needed to support the search warrant or complaint. In such instances, NSCLB may ask prosecutors to anonymize that information. However, if NSCLB does not review the case agent’s draft affidavit in support of a search warrant or complaint before the agent provides it to the prosecutor, sensitive information may be exposed. Also, senior NSCLB officials told us that including an NSCLB attorney early in this process can provide an effective means of ensuring prosecutors have information necessary to support their case. Specifically, NSCLB can help identify which information may be difficult to use from a classification and sensitivity perspective and provide suggestions to obtain the information from an independent source without implicating sensitive techniques.

The report claims the particular roles of each side are not well-defined. I’m not convinced that’s the case, though. As described, NSCLB protects national security and the secrets that go along with that (including secret intelligence techniques). And NSD fulfills the needs of prosecutions as well as “protect[ing] FISA as a tool so the FBI can continue to use it.”

In one telling explanation,

NSCLB senior officials highlighted the fact that criminal prosecution is not necessarily the FBI’s aim in every national security investigation and that the FBI sometimes appropriately pursues investigations with the aim of disrupting threats or collecting intelligence.20

These are tensions, but they are not necessarily bad tensions. And it doesn’t seem like this report considers how this compares to the relationship between a prosecutor and a case agent where there are none of the national security (and classification) concerns.

In any case, the report attributes that tension for two radically different understandings about the standards involved in two FISA concepts, including one — material facts that must be disclosed to the FISA Court — that was at the core of the Carter Page case.

In the case of materiality, the FBI seems to be playing dumb (perhaps to avoid opening a whole historical can of worms given the aftermath of the Page IG Report).

The 2009 Accuracy Memorandum defined material facts as, “those facts that are relevant to the outcome of the probable cause determination.” The FBI had interpreted this standard as facts that are outcome determinative, or facts that would invalidate the legal determination. However, NSD had applied a broader standard than the FBI, with NSD’s interpretation of material facts being facts that are capable of influencing the requested legal determination. An NSD senior official told us that the FBI’s viewpoint was based on the FBI’s involvement in the criminal law enforcement arena where the threshold for materiality in a criminal search warrant is outcome determinative. This official also stated that most material errors reported to the FISC do not invalidate the legal determination, and that the FISC still expects for these types of errors to be reported to them.

Senior NSD officials stated NSD had applied the same standard for at least 15 years and NSCLB had known of NSD’s application of the standard because it was reflected in previous Rule 13 notices filed with the FISC. For example, in the OIG’s report on the FBI’s Crossfire Hurricane Investigation, NSD supervisors stated that “NSD will consider a fact or omission material if the information is capable of influencing the court’s probable cause determination, but NSD will err on the side of disclosure and advise the court of information that NSD believes the court would want to know.”41 Similarly, in a FISC filing on January 10, 2020, NSD referred to this statement in the OIG report while describing its oversight and reporting practices when errors or omissions are identified.42 However, senior NSCLB officials told us that NSCLB was first made aware of NSD’s interpretation of the materiality standard in the OIG’s Crossfire Hurricane Investigation report and NSD’s subsequent January 2020 FISC filing.43

In the case of the claimed differing understand of querying techniques under 702 (in which, by my read, both sides were pretending this hasn’t dramatically changed as FISC became aware of how 702 collection was really used), NSD seems to engage in the knowing bullshit.

In contrast, NSD told us that the query standard has been the same since 2008. A senior NSD official stated that the FBI had a fundamental misunderstanding of the standard and that compliance incidents were not identified sooner because NSD can only review a limited sample of the FBI’s queries and NSD improved upon its ability to identify non-compliant queries over time.

I knew the standard the FBI was using. It is not credible that I knew what it was and NSD did not.

In both cases, this claimed disagreement seems to be an effort to avoid applying the standards adopted post-Page to the FISA approach (and not just on individualized orders) applied before then.

The report confirms something that had been obvious from heavily redacted sections of the last several 702 reauthorizations: FBI had been using 702 collection (and FISA collection generally) to vet potential confidential human sources.

For example, we were told disputes occurred related to queries conducted for vetting purposes.52 Specifically, according to the FBI, it was concerned that as a result of the change to the query standard it could no longer perform vetting queries on raw FISA information before developing a confidential human source (CHS). FBI officials told us that it was important for agents to be able to query all of its databases, including FISA data, to determine whether the FBI has any derogatory or nefarious information about a potential CHS. However, because of the implementation of the 2018 standard, the FBI is no longer able to conduct these queries because they would violate the standard (unless the FBI has a basis to believe the subject has criminal intent or is a threat to national security). According to the FBI, because its goal is to uncover any derogatory information about a potential CHS prior to establishing a relationship, many agents continue to believe that it is irresponsible to engage in a CHS relationship without conducting a complete query of the FBI’s records as “smoking gun” information on a potential CHS could exist only in FISA systems. Nevertheless, these FBI officials told us that they recognize that they have been unsuccessful when presenting these arguments to NSD and the FISC and, as noted below, they follow NSD’s latest revision of query standard guidance.

Using back door searches to vet informants is an approved use on the NSA and, probably, CIA side. In the FBI context, my understanding is that informants understand they’re exchanging Fourth Amendment protections as part of their relationship with the FBI. Perhaps if the FBI had simply made this public, it could have been an approved use. Instead, we’re playing all these games about the application.

The report describes — but doesn’t really address — how the tension between NSCLB and NSD undermined National Security Reviews which,

examine (1) whether sufficient predication exists for FBI preliminary and full investigations, (2) whether a sufficient authorized purpose exists for assessments, (3) whether tools utilized during or prior to the assessment are permitted, and (4) all aspects of National Security Letters issued by the FBI.

There was a huge backlog of these until NSD hurriedly closed a bunch of them in 2020, which is the kind of thing that when Bush did them with FISA tools in 2008 was itself a symptom. So, too, may be some policy memos that happened in Lisa Monaco’s first days and John Demers’ last ones.

The section I found to be most interesting (and one that DOJ IG could not or chose not to address in recommendations) pertains to the tension over declassification of material for prosecutions.

According to the FBI’s Declassification of Classified National Security Information Policy Guide, NSCLB must participate in the approval of discretionary declassification decisions concerning FBI classified information. NSCLB assists in ensuring that the declassification of either FISA derived material or other FBI classified information is: (1) necessary to protect threats against national security; (2) will not include classified materials obtained from foreign governments; (3) will not include classified materials obtained from other U.S. agencies (unless authorized by the originating agency); (4) will not reveal any sensitive or special techniques; and (5) will not adversely impact other FBI investigations.

[snip]

Despite the FBI’s limited support role, NSD and DOJ staff we spoke with told us that they believe NSCLB has involved itself inappropriately in discovery matters. For example, an NSD senior official told us that NSCLB has attempted to second guess discovery decisions made by prosecutors. This NSD official believed that NSCLB’s role is not to participate in the determination of how the prosecutors choose to protect a piece of classified information, but instead to identify information that is classified, its level of classification, and how a declaration from the owner of that information would explain to a court why the information presents a national security concern. According to this official, NSCLB may rightfully conclude the information is too sensitive to provide in discovery and, as a result, prosecutors may have to dismiss that case. However, we were told that discovery issues do not generally reach that point. We also were told by some AUSAs that they have had to remind NSCLB attorneys that AUSAs have the discovery obligations to courts and will make discoverability determinations.

An official from one USAO told us that, while it is understood that satisfying discovery obligations is the responsibility of the prosecutor, the FBI’s interest in protecting its equities may justify challenging a prosecutor’s discovery decisions. The official explained that such back and forth may be necessary to reach a balance between the needs of discovery and the protection of sensitive information; however, when the FBI’s role in the process extends into making assessments of what is discoverable it can slow the process down and necessitate the prosecutor asserting authority over discovery decisions.

[snip]

By contrast, senior NSCLB officials noted that several factors outside of NSCLB’s control can cause the declassification process to take a considerable amount of time. According to these officials, the FBI addresses the risk of disclosing information that could cause significant harm to the American public by using a thorough, deliberate process which can be impacted by the volume of information, the sensitivities involved, and the resources available to conduct a review. In defending NSCLB’s role in the discovery process, a senior NSCLB official expressed the view that AUSAs tend to err on the side of making material discoverable, even when it involves national security information, and do not appreciate how the disclosure of information may affect other FBI or USIC operations. This official told us that NSD often prefers to declassify all information that could be relevant, necessary, or discoverable to ease the prosecution of the case or the discovery process. .

This is, in my opinion, the description of what lawyers for an intelligence agency would do. That seems to be the role NSCLB is playing, for better or worse. In light of the cases described out of which the more specific tensions arise, I find the complaint that NSCLB is delaying discovery rather telling. If prosecutors choose to make a case that NSCLB believes would have been better handled via disruption, for example, or are entirely frivolous, such tensions are bound to surface. That said, if FBI’s General Counsel’s Office has been coopted people trying to protect sources and methods, NSD lawyers are going to look like the only ones guarding due process (though I’m sure they would with CIA’s lawyers, too).

There’s a lot of worthwhile observations in this report. But it’s hard to shake the conclusion that the most important takeaway is that DOJ cannot continue to have such asymmetry in the oversight that FBI and DOJ experience.

Oleg Deripaska Indicted for His Anchor Baby and Flowers for a TV Host

September 29, 2022/9 Comments/in 2016 Presidential Election, 2020 Presidential Election, Foreign Influence /by emptywheel

SDNY just unsealed an indictment against Oleg Deripaska and three others for sanctions violations. Just one person — naturalized US Citizen Olga Shikri — was in the US to be arrested. The other main consequences from this indictment will be the forfeiture of property related to the sanctions violations. The indictment lists the three properties that were searched last year.

The central allegations in the indictment pertain to efforts — successful with a first child, and unsuccessful with a second — to set up Deripaska’s girlfriend to give birth in the US and via that process, obtain US citizenship for the child.

Then, in or about 2020, SHRIKI and BARDAKOVA helped DERIPASKA’s girlfriend, VORONINA, travel from Russia to the United States so she could give birth to DERIPASKA’s and VORONINA’s child in the United States. Despite DERIPASKA’s ongoing support for the Russian regime, he funded hundreds of thousands of dollars of transactions so that his child could take advantage of the U.S. healthcare system and U.S. birthright. SHRIKI orchestrated the payment of approximately $300,000 worth of U.S. medical care, housing, childcare, and other logistics to aid VORONINA and DERIPASKA’s efforts to help VORONINA give birth in the United States, which resulted in the child receiving U.S. citizenship. DERIPASKA counseled VORONINA on obtaining a visa to travel to the United States, including by telling her to be “careful” ahead of an interview by U.S. immigration authorities. VORONINA thereafter applied for and obtained a U.S. visa for a purported ten-day tourism visit without disclosing her intent to travel and stay in the United States for approximately six months to give birth to DERIPASKA’s child. Following the birth, SHRIKI, BARDAKOVA, and VORONINA conspired to conceal the name of the child’s true father, DERIPASKA, going so far as to change, slightly, the spelling of the child’s last name.

Later, in or about 2022, at DERIPASKA’s further behest and for his further benefit, SHRIKI and BARDAKOVA attempted to facilitate VORONINA’s return to the United States to give birth to DERIPASKA’s and VORONINA’s second child. This second attempt included BARDAKOVA and VORONINA’s attempt to use false statements to conceal DERIPASKA’s funding and secure VORONINA’s entry into the United States – an attempt that was thwarted, and VORONINA was denied entry and returned immediately to Istanbul, through which she had flown from Russia to the United States.

In addition to a music studio sold in 2019, the indictment refers to other purchases in the US, including Easter flowers for a US TV host.

BARDAKOVA – largely based in Russia – directed SHRIKI to engage in particular illegal transactions on DERIPASKA’s behalf. These instructions included directing SHRIKI to obtain U.S. goods and technology for DERIPASKA. Moreover, between in or about May 2018 and in or about 2020, BARDAKOVA instructed SHRIKI to purchase and send flower and gift deliveries on behalf of DERIPASKA to DERIPASKA’s social contacts in the United States and Canada. The deliveries included, among others, Easter gift deliveries to a U.S. television host, two flower deliveries to a then-former Canadian Parliament member, and two flower deliveries in 2020 to VORONINA while she was in the United States in 2020 to give birth to DERIPASKA’s child.

Perhaps most interesting to me is that the investigation was active in 2020, in the wake of Geoffrey Berman’s firing. Shriki is accused of destroying records in advance of a September 23 grand jury appearance. This was the period when Barr was furiously cleaning up all remaining traces of the Russian investigation (and it was the same month when Yevgeniy Prigozhin’s Interpol red notice was withdrawn, even though the indictment against him in the US remains).

In Berman’s book (which I’ll write about one of these days), he makes it quite clear Barr was protecting Rudy in this period. Was he also protecting Deripaska?

Update: Interesting timing! Andy Beshear announced he has recouped the $15 Million Matt Bevin dumped in Deripaska’s aluminum venture in KY.

The Gaslighter’s Psychiatrist: My Response to Dan Drezner

September 29, 2022/108 Comments/in 2016 Presidential Election, 2020 Presidential Election, Press and Media /by emptywheel

I wasn’t going to weigh in on the latest kerfuffle over Maggie Haberman. She wrote a book. It reveals things that would have been useful to know years ago. On several key points (such as what Trump did with the Strzok and Page texts), she seems unaware of related details that undermine her claims to exclusive smarts. The kerfuffle is not that interesting to me.

But Dan Drezner said two things in defense of her that are so fascinating, I couldn’t resist.

His most substantive defense of Maggie, bullet point 1, halfway into his post, is that most other politicians would not have remained standing after her stories.

Haberman is a pretty great reporter! Her stories on Trump were chock-full of tidbits that would have destroyed the standing of most other politicians. That Trump remained standing (sort of) after every one of her bombshell stories is a source of frustration to many, but Haberman is hardly to blame for this.

Drezner, who is a news-savvy political science professor with a column, not a journalist, spends much of the rest of his post lecturing about how journalism works.

For all the lecturing, he doesn’t note the most curious journalistic fact about Maggie’s book tour, at least to me: not that she delayed stories for the book, not necessarily that she’s telling stories she could have told in 2016 or 2018 or 2020 but did not, but that none of the teaser exclusives are being published at the NYT. The Atlantic, CNN, Axios, WaPo’s own Trump-whisperer — they’re the ones getting traffic from Maggie’s tidbits this week, not the NYT. After I started this, Joe Klein — better known as Joke Line!! — did a fawning review of the book in the NYT, but that’s not news or even, given that it was written by Joke Line, marginally reliable (though it may nevertheless be the most unintentionally insightful piece on the book).

When James Risen’s book about George Bush’s war on terror abuses was shunned by the NYT, it was a symptom of far more significant problems at the newspaper, problems that had to do with that outlet’s relationship to the Presidency (or perhaps Vice Presidency). Who knows whether that’s the case here. But it does raise questions about whether something is going on that explains NYT’s choice to let their star Trump-whisperer scoop them in virtually all the competing outlets — or whether they even had a choice in the matter.

Like I said, Drezner is a political science professor, so perhaps it was no surprise he missed what I find to be a more interesting curiosity about Maggie’s book blitz.

But he’s a political science professor, and so I would have welcomed some reflection about why he believes most other politicians, but not Trump, would have been destroyed by Maggie’s tidbits. Do Maggie’s strengths and weaknesses as a journalist offer any insight into Trump’s unique resilience? Is she a symptom of it? Or one of the causes? Those seem like utterly critical questions for political science professors as we try to stave off fascism in the United States.

As an access journalist, Maggie rises and falls with the subjects of her access. And this book — the payoff for years of access — is not just a story about Trump. It’s a story of her access, the transactional relationship it entailed, what Trump does with those he has selected to be witnesses to his power.

In the Atlantic excerpt of her book, Maggie famously described Trump likening her to his psychiatrist. She used that as a cue to close the piece with her wisdom about Trump — written in the first person but often, not always, quoting Trump’s direct speech, heightening both her own status as omniscient narrator but also the degree to which she is a manufactured character in her own book.

Then he turned to the two aides he had sitting in on our interview, gestured toward me with his hand, and said, “I love being with her; she’s like my psychiatrist.”

It was a meaningless line, almost certainly intended to flatter, the kind of thing he has said about the power of release he got from his Twitter feed or other interviews he has given over the years. The reality is that he treats everyone like they are his psychiatrists—reporters, government aides, and members of Congress, friends and pseudo-friends and rally attendees and White House staff and customers. All present a chance for him to vent or test reactions or gauge how his statements are playing or discover how he is feeling. He works things out in real time in front of all of us. Along the way, he reoriented an entire country to react to his moods and emotions.

I spent the four years of his presidency getting asked by people to decipher why he was doing what he was doing, but the truth is, ultimately, almost no one really knows him. Some know him better than others, but he is often simply, purely opaque, permitting people to read meaning and depth into every action, no matter how empty they might be.

We’re all like Maggie, omniscient narrator Maggie explains, all just bit players serving as a sounding board to witness him ramble for 20 minutes, all the while cutting us off so he can find the precise word he wants. But maybe not. In the next paragraph, first person Maggie reminds us that everyone else asks her, the sounding board Trump likens to his shrink, to “decipher” him. And this woman who stages herself as a participant in three interviews in this piece, concludes not that she’s got no insight, but that he’s simply opaque, something that we — including Maggie the character portrayed interviewing Trump — project our interpretations of depth onto.

Maggie sells herself as the false promise that you might get to know Trump through his quoted lies and not through his means or his deeds, not through understanding how those lies and the way they are circulated wielded power.

And that, Drezner observes, didn’t end up sticking to Trump the way it would other politicians. That seems like a really important insight.

Which brings me to the other thing Drezner set me off with.

The best explanation of Maggie’s work he offers — and it’s a frightfully good explanation — is the way he starts his post:

When I was curating the Toddler-in-Chief thread on Twitter and adapting it into The Toddler in Chief, I leaned pretty hard on Maggie Haberman’s reporting for the New York Times. I literally said, “Maggie Haberman’s reportage… is all over that thread.”

Drezner was talking about his interminable chronicle of Trump’s tantrums. Each tweet screen capped an example of Trump’s closest aides bitching to someone — and yes, that someone was often Maggie — about how they had to coddle Trump, how they built the entire Administration to cater to Trump’s every mood or emotion. In each tweet, Drezner the political science professor would categorize this report as yet more proof that Trump was not “growing into the presidency.” I took the observation as shorthand for false expectations of normality after Trump’s election, a hope that it wouldn’t be so bad after Trump came to understand the gravity of the office. Drezner contines to cling to that observation, even after Trump’s failed coup attempt.

I found the series funny and occasionally baited Drezner on it. It was a worthy observation about false reassurances certain pundits made about Trump. But it ended up being an inadequate rubric for understanding the damage Trump could do as we all laughed at his ineptitude.

In retrospect there were probably better ways to try to convey the danger posed by Trump than to serially mock him on Twitter, reinforcing the editorial decisions that treated his tantrums but not his actions as the news, even while exacerbating the polarization between those who identified with Trump’s tantrums and those who with their fancy PhDs knew better.

And Drezner’s first impulse, when defending Maggie’s journalism, was to point to the sheer number of times she obtained a hilarious quote that served as another artifact in a never-ending string of news stories that treated Trump’s tantrums as the news, rather than the actions Trump pulled off by training people to accommodate his tantrums.

Those stories, individually and as a corpus, revealed Trump to be a skilled bully. But those stories of Trump’s bullying commanded our attention, just like his reality TV show did, and reassured him that continued bullying would continue to dominate press coverage.

That press coverage, I’m convinced, not only was complicit in the bullying, but also served as a distraction from things that really mattered or levers that we might have used to neutralize the bullying.

It was power by reality TV. And Maggie Haberman was and remains a key producer of that power.

Update: Drezner did a really thoughtful response here. I totally agree with this point:

The part unique to Trump is his abject lack of shame. Some scandals that bring politicians down involve illegality, but most involve the revelation of actions or statements that are either embarrassing or completely at odds with their public positions. Most politicians are human beings who embarrass easily, and so are vulnerable to scandal. They will withdraw from the stage to avoid further unwanted attention. Trump’s entire career, by way of contrast, gloried in scandal. During the 2016 campaign he contradicted himself constantly, said and did repugnant things, and did not care a whit. As Ezra Klein noted way back in 2015, that was Trump’s political superpower: “This is Donald Trump’s secret, his strategy, his power…. He just doesn’t fucking care. He will never, ever give an inch. Better to be a monster than a wuss. You cannot embarrass Donald Trump.”

This would not have mattered if two other trends that I discussed at length in The Ideas Industry had not also kicked in: the rise in political polarization and the erosion of trust in institutions. These two trends created a permission structure in which ordinary Republicans could dismiss damning Maggie Haberman stories in the New York Times as fake news. Even if Haberman (and every other reporter) had published absolutely everything she knew in real time, it would not have affected this dynamic.

His discussion of how great stories reporting on scandal barely blip in the coverage, however, goes right to my biggest gripe with Maggie. Drezner denies that Maggie’s reporting serves to distract from real crimes.

The part unique to Trump is his abject lack of shame. Some scandals that bring politicians down involve illegality, but most involve the revelation of actions or statements that are either embarrassing or completely at odds with their public positions. Most politicians are human beings who embarrass easily, and so are vulnerable to scandal. They will withdraw from the stage to avoid further unwanted attention. Trump’s entire career, by way of contrast, gloried in scandal. During the 2016 campaign he contradicted himself constantly, said and did repugnant things, and did not care a whit. As Ezra Klein noted way back in 2015, that was Trump’s political superpower: “This is Donald Trump’s secret, his strategy, his power…. He just doesn’t fucking care. He will never, ever give an inch. Better to be a monster than a wuss. You cannot embarrass Donald Trump.”

This would not have mattered if two other trends that I discussed at length in The Ideas Industry had not also kicked in: the rise in political polarization and the erosion of trust in institutions. These two trends created a permission structure in which ordinary Republicans could dismiss damning Maggie Haberman stories in the New York Times as fake news. Even if Haberman (and every other reporter) had published absolutely everything she knew in real time, it would not have affected this dynamic.

But Maggie’s access and the way Trump’s associates exploit her — gleefully — makes it really easy to play her to kill a story. Her limited hangouts then become the breaking news, rather than the real details disclosed by an investigation.

Both on specific parts of the Russian investigation — such as Paul Manafort’s sharing of campaign strategy in the same meeting where he talked about $19 million in financial benefits to him — and more generally — such as Maggie and Mike Schmidt’s demonstrably false claim that Trump was only investigated for obstruction — stories involving Maggie helped Trump and his associates cover up his criminal exposure.