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Judge Sanctions Alina Habba for Misrepresenting Igor Danchenko Indictment

There are a number of reasons why Judge Donald Middlebrook sanctioned Alina Habba and Peter Ticktin for the frivolous claims they made against Chuck Dolan in the omnibus lawsuit against Hillary Clinton and a bunch of other people.

In reverse order, Middlebrook found that the lawsuit was filed for improper purpose: to advance a political grievance.

Every claim was frivolous, most barred by settled, well-established existing law. These were political grievances masquerading as legal claims. This cannot be attributed to incompetent lawyering. It was a deliberate use of the judicial system to pursue a political agenda.

[snip]

The rule of law is undermined by the toxic combination of political fundraising with legal fees paid by political action committees, reckless and factually untrue statements by lawyers at rallies and in the media, and efforts to advance a political narrative through lawsuits without factual basis or any cognizable legal theory.

He ruled that it’s not RICO, it’s never RICO (or any of the other conspiracies Habba alleged, either).

In the RICO count of the Amended Complaint, Plaintiff realleged the previous 619 paragraphs, and it was a mystery who he intended to sue. In the caption to Count II, he named 22 defendants but in the prayer for relief for that count 28 were named. Added were HF ACC, Inc., the DNC Services Corporations, James Comey, Peter Strzok, Lisa Page, and Andrew McCabe. (Am. Compl. ¶ 633). Whoever he intended to sue, Plaintiff alleged that each of them “knew about and agreed to facilitate the Enterprise’s scheme to harm the Plaintiff’s political career, tarnish his electability, and undermine his ability to effectively govern as the President of the United States . . . . ” (Am. Compl. ¶ 627).

The RICO conspiracy claims were entirely conclusory. Moreover, there is no standing to bring a RICO conspiracy claim unless injury resulted from violation of a substantive provision of RICO.

Of greatest interest to me, however, to substantiate a finding that the lawsuit’s allegations against Chuck Dolan lacked any reasonable factual basis, Judge Middlebrook laid out how Habba misrepresented the Igor Danchenko indictment to include Dolan in her conspiracy theories. Middlebrook focused closely on Habba’s claims that the pee tape allegation in the Steele dossier “was derived from Dolan.” He rejected Habba’s defense of the allegations against Dolan by pointing to stuff she left out.

Mr. Trump’s lawyers claim “nearly all” of the allegations against Mr. Dolan were sourced directly from the Indictment brought against Igor Danchenko by special counsel John Durham. (DE 270-2 at 6). But this is simply not so. As was the practice throughout the Amended Complaint, Plaintiff cherry-picked portions which supported his narrative while ignoring those that undermined or contradicted it.1 Mr. Trump’s lawyers persisted in this misrepresentation after being warned by the sanctions motion, and they doubled down on this falsehood in their response to the motion.

[snip]

Even more telling are the portions of the Indictment ignored by Plaintiff. The Indictment alleges that Mr. Dolan and others were planning a business conference to be held in Moscow on behalf of businessmen seeking to explore investments in Russia. (DE 270-2 ¶ 21). Mr. Danchenko was introduced to Mr. Dolan in connection with business activities. (Id. ¶ 18).

Significantly the Indictment alleges two other facts relevant to and, if true, fatal to Plaintiff’s claim of conspiracy.

According to [Mr. Dolan], individuals affiliated with the Clinton Campaign did not direct, and were not aware of, the aforementioned meetings and activities with Danchenko and other Russian nationals.

***

According to [Mr. Dolan], he [Mr. Dolan] was not aware at the time of the specifics of Danchenko’s ‘project against Trump,’ or that Danchenko’s reporting would be provided to the FBI.

And with regard to the allegation about sexual activity, the Indictment alleges that Mr. Dolan and another individual were given a tour of a Moscow hotel in June 2016, told that Mr. Trump had previously stayed in the Presidential suite, and according to both Mr. Dolan and the other individual, the staff member who gave the tour did not mention any sexual or salacious activity. (Id. ¶¶ 60-61). The Indictment does not allege that the information concerning sexual activity was provided by Mr. Dolan.

The May 31, 2022 warning letter told the Trump lawyers that Mr. Dolan had been questioned by the FBI on multiple occasions, that the Danchenko Indictment detailed his contacts with Mr. Danchenko but did not indicate he “discussed any sexual rumors with Mr. Danchenko — because he did not.” (DE 268-1 at 2). The Indictment confirms that Mr. Dolan spoke to the FBI, and not only was he not charged with any falsehood, but his statements are included within the Indictment. The Indictment contradicts rather than supports Plaintiff’s allegations against Mr. Dolan. Far from being “sourced directly” and cited “word-for-word,” (DE 270 at 5), Plaintiff’s use of the Indictment is nothing short of a deliberate disregard of the truth or falsity of their claims. This is a textbook example of sanctionable conduct under Rule 11.

Rather than express any regret, Plaintiff doubled down on his claims: “Plaintiff’s allegation that Defendant was the source of the salacious sexual activity rumor has a legitimate factual basis and is based upon a well-reasoned theory that may well be proven correct during the [Office of Special Counsel’s] upcoming trial of Danchenko.” (DE 270 at 10).

It was never to be. In the Danchenko trial, Mr. Dolan was called as a witness by the government about matters unrelated to the Ritz Carlton rumors. The government never alleged that Mr. Dolan was a source for the Ritz Carlton story. See Order, United States v. Igor Y. Danchenko, Case No. 21-cr-00245-AJT at 5 (Oct. 4, 2022). And Mr. Danchenko was ultimately acquitted by the jury.

1 The “sourced directly” claim is untrue. For example, the Indictment says: “In or about April 2016, Danchenko and [Mr. Dolan] engaged in discussions regarding potential business collaboration between PR Firm-1 and UK Investigative Firm-1 on issues related to Russia.” (DE 270-2 ¶ 23). The Amended Complaint, however, states: “In late April 2016 Danchenko began having discussions with Dolan about a potential business collaboration between Orbis Ltd. and Kglobal to create a ‘dossier’ to smear Donald J. Trump and to disseminate the false accusations to the media.” (Am. Compl. ¶ 96(c)).

The order as a whole generated a lot of attention on the failed birdsite. But there was no self-awareness that the exercise that Habba engaged in with respect to Dolan and the Danchenko prosecution was similar to what a number of journalists (and a great number of right wingers and other frothers) themselves did, when the Danchenko indictment was rolled out last year.

For example, here’s what the WaPo claimed in a still-uncorrected report last year:

Durham says Danchenko [1] made up a conversation [2] 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 [3] suggests that story came from Dolan, who in June 2016 toured a suite at a hotel in Moscow that was once occupied by Trump. According to the indictment, Danchenko [4] falsely told Steele and the FBI that the information came from the president of the U.S. Russian-American Chamber of Commerce at the time.

All four of the above claims are not supported by the indictment, much less Danchenko’s published interviews with the FBI, which attributed the pee tape claim to someone else — though it is definitely the case that Durham encouraged such unsupported inferences.

Jonathan Swan condensed the same kinds of claims that Habba just got sanctioned for in one tweet.

Just one “rumor” was attributed to Dolan in the Danchenko indictment, the most provably true one (because it came from media coverage), and one about which — as the trial established — the FBI never once asked Danchenko, in significant part because it had nothing to do with Russia.

And while Middlebrook notes that Danchenko was acquitted, he doesn’t note that Judge Anthony Trenga dismissed the single Dolan count because the allegedly false statement Danchenko made about Dolan was “literally true.” That should not have been a surprising judgment. I noted problems with that charge exactly a year ago, when I catalogued all the sloppy reporting on the Danchenko indictment.

Middlebrook’s order makes for great reading. It’s fun to laugh at Habba getting called out.

But it should bring some reflection from the journalists who made the same kind of logical jumps that Habba did, but who cannot be sanctioned for professional failures.

Middlebrook may not be done. The other defendants have asked for sanctions, as well (though without doing the same preparation in advance to ask for Rule 11 sanctions). So Donald Trump’s lawyers may yet have the privilege of paying Peter Strzok and Hillary Clinton for the privilege of having sued them.

Update: Corrected Middlebrook’s name.

John Durham’s Last Word: An Outright Lie about the Mueller Conclusions

There were aspects of Igor Danchenko attorney Stuart Sears’ closing argument yesterday that could have been stronger.

He could have more strongly emphasized that Danchenko had nothing to do with the words that appear in the dossier, and so when John Durham claims that the words in the dossier — alleging a conspiracy between Trump and Russia — are what Danchenko told the FBI he told Steele, he’s lying. Or maybe too stupid to understand that? That said, Sears did emphasize that Danchenko told the FBI the anonymous caller had said there was nothing bad about the ties between Russia and Trump.

It’s entirely possible it wasn’t Sergei Millian, but even if it was, the caller only said there was coordination between the campaign and Russia and that there was nothing bad about it. Agent Helson told you that. That’s not anti-Trump, and we do know from the government’s own evidence that Millian was at least telling people he was going to meet with Trump campaign people the week before the phone call, the anonymous phone call.

Still, this case is about reported speech, and Durham is prosecuting Danchenko for what the record shows is Christopher Steele’s speech, not for what the record shows is Danchenko’s speech.

Sears’ materiality argument could have been more forceful (though he correctly noted, jurors should never even have to get that far). Durham claims the alleged lies about Millian were material because they caused the surveillance against Carter Page; that is literally impossible for two of the alleged lies (which were told after surveillance stopped), including the October 24 alleged lie that, for the reasons I’ve laid out here, the jury may have more reason to believe Danchenko lied. And whether Danchenko told the FBI what Durham believes to be the truth — that no call with Millian happened — or Danchenko told them what he did — that the call that happened was so sketchy it shouldn’t have been relied on, and it did not include any claim of conspiracy — the decision the FBI should have taken would have been the same, to stop relying on that allegation in the FISA application. Importantly, Danchenko raised questions about the reliability of the call with no knowledge of the FISA application or the import of the conspiracy of cooperation language to the FISA application, but nevertheless told FBI everything they would need to remove the allegation from the FISA application.

And I think Sears could have hit the significance of the mobile apps harder. He did remind jurors about how Durham attempted to elicit false testimony about whether Danchenko had said this could be a mobile app.

The government set out to prove — Mr. Keilty told you in his opening statement he was going to prove Mr. Danchenko never received an anonymous call. Now, this is where — if you recall during the trial, special counsel got a little tricky here. Remember, they asked Agent Auten to refresh his recollection by reviewing a document, a report he had written, that Mr. Danchenko claimed to have received a cellular call from an anonymous caller. That was all they had him review. Just read that part, and what does it say? A cellular call, a cellular phone.

Then Mr. Onorato got up on cross-examination and literally said: Review the same report but read the rest of the sentence onto the next page.

And the full sentence that Agent Auten actually read out loud read: The call was either a cellular phone, or it was a communication through a phone app.

It was a good try, but it didn’t work. And it was a try because they know they have no evidence at all from which you could conclude there was not a call through a messaging app. They don’t have it. It’s their burden. They don’t have it. He doesn’t have to prove he received a call on a messaging app. They have to prove he didn’t.

Sears had more evidence here, though. There was the evidence that Millian was communicating via mobile apps using his iPad in the period he was in South Korea (though Durham worked hard to withhold it from the jury), and because he was overseas, Millian would be far more likely to use mobile apps than telephony. It might have been useful to explain why Ryan James’ effort to rule out a mobile app call by looking at only telephony calls didn’t even attempt steps that could have clarified the issue. The steps Durham’s hand-picked FBI agent failed to take prove, definitively, that Durham never attempted to fill what Sears called “a giant hole” in Durham’s case.

And if they have not convinced you beyond a reasonable doubt that he did not receive an anonymous call through a phone app, that’s the end of the case. They had to prove that.

They told you they would, but did they? Are you convinced beyond a reasonable doubt, as you sit here today, that Millian or perhaps someone else didn’t reach out to him anonymously over a messaging app in July 2016? What evidence do you have to make that conclusion? What evidence do you have to make that conclusion beyond a reasonable doubt? There’s none. It’s a giant hole in the case, and they can’t fill it with conjecture, speculation, and argument. Where is the evidence?

All that said, Sears laid out all the other compelling proof against Durham: that Durham’s own witnesses, Brian Auten and Kevin Helson, said Danchenko didn’t lie, and that all the details that Durham collected believing they would disprove Danchenko’s story in fact corroborated the claims Danchenko had made about the call and aftermath.

We’ll learn soon enough what the jury thinks about it. They deliberated for about three and a half hours yesterday and will resume deliberations at 9:30 this morning.

I’d like to address the underlying dynamic about the closing arguments, though.

Michael Keilty, the least corrupt member of the Durham team, had the initial close, which often is the longer of prosecutors’ two presentations, the one in which prosecutors explain to the jury which the most important pieces of evidence are and where to find them. At least by transcript pages, that wasn’t the case here: Keilty’s close spanned 21 pages, whereas Durham’s rebuttal spanned 22. Still, that’s totally within the norm, and how the prosecution splits their time is their own decision.

But that time differential is not what Judge Anthony Trenga expected. Even before Durham started, he remarked on how short Keilty’s close was and asked Durham in a bench conference how long he expected to take.

THE COURT: I thought the government’s closing was going to be a lot longer than it was. How long were you intending for rebuttal?

MR. DURHAM: I would say half an hour, 40 minutes.

THE COURT: Well, I’ll give you half an hour. All right.

MR. DURHAM: Yes, Your Honor.

I think Trenga suspected — as did I after Keilty’s close — that the entire plan from the start was to sandbag Danchenko’s team, effectively present the bulk of the close after Sears could no longer respond (this is what Durham did with Special Agent Kevin Helson’s testimony, raising the most damning testimony of the trial for the first time in a second redirect).

Sears anticipated that would happen. Based on all the times Durham pointed to evidence he didn’t have because he himself didn’t bother to try to collect it, Sears warned the jury about the Special Prosecutor’s efforts to shift the burden on Danchenko, repeatedly demanding that Danchenko affirmatively prove his claims, rather than just disprove Durham’s.

So now is the part where I have to sit down in a minute, and it’s the hardest part of the case for a defense attorney because they get the last word. And so we just have to sit there and listen and think about the things we meant to say when we were up here and forgot or the things that we think they’re getting wrong and that we feel like we can correct, like I was just able to do now, and we can’t.

And it’s particularly concerning in this case and difficult in this case because the burden shifting I heard in the government’s closing about where is the evidence that Mr. Danchenko did this or did that. He didn’t have any burden. You’re not going to see an instruction back there that says he has a burden to do anything. It’s the government’s burden to prove their case. It’s not his burden to disprove it.

The special counsel at times through its questions and arguments, they’ve not given you the full picture. They haven’t told you the whole story. Just like when they were showing the agents and had the agents testifying, well, if you knew this or if you knew that, what would you think? Oh, yeah, that would affect my views of that, or I would think that was important. They only showed them the stuff that they think helped their case.

[snip]

So I’m worried more so than usual when I go back to sit down about what you’re going to hear now and what I can’t respond to. And while I can’t do that, you can. You can pay attention to what’s said now, and you can discover those inaccuracies or misstatements, if there are any, when you go back to deliberate and consider the actual evidence in this case.

Before he did this, though, Sears talked about how Bill Barr started this investigation, burned Danchenko as a source, and how as part of the investigation Barr set up, Durham has not investigated what happened, but instead set out to prove guilt.

Agent Helson also told you that Mr. Danchenko’s information was vital to national security and led to the opening of more than two dozen active influence cases. He became a trusted source of information for our government that even led to the creation of a new team at the FBI as a result of the information he provided, the guy they are saying is a liar.

But as you’ve also heard at trial, the political winds in this country changed once then-President Trump appointed a new attorney general, William Barr. Barr not only essentially revealed Mr. Danchenko’s identity by releasing a redacted version of his January 2017 interview to the Senate Judiciary Committee, but that committee released that report within an hour of receiving it to the public.

Attorney General Barr also ordered an investigation into the investigation of the Trump campaign and its connections to Russia. So a new special counsel was appointed, this special counsel, to lead that investigation.

I submit to you that if this trial has proven anything, it’s that the special counsel’s investigation was focused on proving crimes at any cost as opposed to investigating whether any occurred.

I submit to you that a fair and reasonable look at the evidence in this case shows that the special counsel — they started out with the presumption of guilt, that Mr. Danchenko had lied, and they read guilt into every piece of evidence they came across and at every detail they saw. They ignored — and we’re going to show you. They ignored how their own evidence showed he was not guilty, that he was innocent.

This narrative is all true. Even within the trial, there was abundant evidence presented that Durham sought out to find someone to charge, not to find out what happened (neither of which is an appropriate use of prosecutorial resources, absent evidence of a crime).

For any critique I have about things Sears could have done tactically, the strategic decision to make Durham defend his own investigation clearly had an effect. I think Sear’s comments got to Durham, and made him defensive.

In his close, in the middle of spending much of his close focusing on a single 2020 LinkedIn message in which Danchenko admitted he was the source for 80% of the raw intelligence in the dossier, John Durham took the time to rebut the accusation about Bill Barr deliberately exposing Danchenko by blaming Danchenko for speaking to the press.

But what do you also know about that? And don’t forget what the evidence is. Mr. Sears wants to put this on Bill Barr. He wants to put it on politicians or whatever. You heard testimony from Mr. Helson that Mr. Danchenko himself, when he was interviewed by the press — all right. I think it was couched in the terms of your recollection controls, of course, but I think it’s couched in terms of, well, he had to do what he had to do to protect himself. He went and talked to the press.

And then later in his close, he returned to it again, not presenting the proof that Sears said was absent, but instead defending Bill Barr.

That’s when Durham decided to explain to the jury what he believes the results of the Mueller investigation were.

Now, I think that counsel’s suggestion is, oh, it’s Bill Barr. Bill Barr did this for political reasons. But reflect on how this came about. The Mueller report had come out, and there’s no collusion that was established. It’s not an illogical question to ask, well, then how did this all get started? Now, you can call that political. You can suggest, I guess, inferentially that somehow people who have spent a considerable period of time away from their families and whatnot did this for political reasons or what have you. If that’s your mind-set, I suppose that’s your mind-set.

But to look into the question of how did this all happen — Director Mueller, a patriotic American, the former director of the FBI, concludes there’s no evidence of collusion here or conspiracy. Is it the wrong question to ask, well, then how did this get started? Respectfully, that’s not the case. [my emphasis]

That’s the first time when Judge Trenga interrupted and told Durham to wrap it up.

THE COURT: You should finish up, Mr. Durham.

MR. DURHAM: Yes, Your Honor.

Only after Trenga told him to stop and only after defending Billy Barr twice did Durham turn to the crucial issue before him, attempting to disprove a mobile app call.

You know that the defendant didn’t receive an anonymous call here on an app from Millian or anyone else for at least three reasons:

First, there’s absolutely no evidence in the record of such a call, none.

Second, the statements the defendant made to the FBI are not in any way consistent with how someone would describe an anonymous call. They’re consistent with how somebody would describe a call that they made up.

Even though Danchenko was a trained business intelligence analyst whose entire task from orders from Christopher Steele was to find evidence of collusion between Trump and the Russians — if he had received an anonymous call, whether he thought it was Millian or it was somebody else, that would be the very evidence of collusion that he was looking for so eagerly. As a trained researcher, he clearly would have noted every detail possible: What’s the incoming call number? What’s the area code number? What other details are there? What do you know about the person’s speech pattern? None of that information is recorded or provided. It’s simply an anonymous caller.

He would have known to remember the cell phone application if it was a cell phone application that was involved. Look, that’s what a good research analyst does, looks into the details, records those details, and reports on those details. Mr. Danchenko did none of that. He didn’t provide any of that information to Steele, and he didn’t provide any of that information to the FBI.

Third, the most conclusive evidence that such a call never occurred, if you look at Government’s Exhibit 207T, the defendant’s August 18 email to Mr. Millian where the defendant states in his own words — I mean, he can’t get away from his own words. His words state that he wrote to Millian several weeks earlier and that they were contacts on LinkedIn but says nothing about the call that he told the FBI he thought was probably Millian. What possible reason could explain why the defendant wouldn’t at least ask Millian if he had called?

Because he had spent his time doing other things, including defending Bill Barr twice, in the middle of walking the jury through what Durham believes is his smoking gun evidence, he made a bid for more time.

I want you to look at Government’s Exhibit 115T, the August 24 email — Can I have five more minutes, Your Honor?

THE COURT: One minute.

MR. DURHAM: One minute.

The point being, I think (and Trenga may have thought) that Durham attempted to sandbag Danchenko, delaying the entirety of his substantive close until after Sears had finished.

And indeed, Durham’s presentation of what they believe is their smoking gun evidence didn’t come until Durham’s own close, not Keilty’s.

An attempted sandbag.

Though it only came after Durham spent his time trying to defend Barr’s actions, not just in exposing an FBI source, but in launching this investigation in the first place.

Which is why it matters that Durham lied about the conclusion of the Mueller investigation when he claimed, “Director Mueller, a patriotic American, the former director of the FBI, concludes there’s no evidence of collusion here or conspiracy.”

Mueller didn’t charge conspiracy and it is true that he said the available evidence did not prove it (in at least two cases, notably, because people had destroyed mobile app communications). But even ignoring the then-ongoing investigation into whether Roger Stone conspired to hack with Russia, Mueller explicitly stated that, “A statement that the investigation did not establish particular facts” — such as the finding that, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities” — “does not mean there was no evidence of those facts.”

Mueller pointedly said his statement explaining that he didn’t charge conspiracy doesn’t mean there is no evidence of conspiracy, but John Durham got up before a jury and asserted that anyway. To defend his actions spending almost twice as long hunting for guilt as Mueller did investigating Trump aides for their potential role in a crime, Durham affirmatively claimed what Mueller said one could not claim.

All the more so given that (as Onorato had already established), three of the first four subjects of the investigation were convicted, and five of those convicted — Mike Flynn, George Papadopoulos, Michael Cohen, Paul Manafort, and Roger Stone — were either convicted or (in the case of Manafort) found by a judge to have lied to cover up their interactions with agents of Russia in 2016.

Indeed, Brittain Shaw even explicitly used the standard on which the FBI first opened the investigation — to figure out whether claims like the ones George Papadopoulos made to Australia were true or not — in her attempt to prove the materiality of the literally true alleged lie Durham prosecuted Danchenko for.

With respect to knowing whether someone passed false information that contained allegations — not the Lewandowski part but somebody made up that they were an insider or had inside information, in the course of looking at Russian interference, as you did in the Special Counsel’s investigation, would that have been important to you?

In their bid to win this case, Durham and his prosecutors have argued not only that one can investigate whether someone is telling the truth when he claims to have inside access to Trump (as evidence in this trial showed Millian was doing), much less to Russia, as Papadopoulos was doing. Indeed, in his attacks on the FBI, Durham claimed one would be negligent not to investigate such things. Durham even argued that Mueller didn’t investigate Sergei Millian thoroughly enough.

And yet, when it came time to prove his own case, to explain why he hadn’t taken basic steps to disprove a mobile app call, Durham instead squandered his time inventing false claims about the results of the Mueller investigation.

We’ll see what the jury has to say about Durham’s defense of his prosecution. But there is no more fitting way for Durham to end this fiasco than to lie about how and why it all got started in the first place.

Update: Changed how long the jury has deliberated to include their lunch.

John Durham’s Missing Signals (and FaceTime and WhatsApp and iPad)

As is common, the case agent for the Durham investigation against Igor Danchenko, Ryan James, was the last witness on Friday. Case agents are often used to summarize the case against a defendant and introduce boring communications records that the prosecution will rely on in the closing arguments.

As Durham cued James to describe, he spent the first nine years of his career as an FBI employee in New Haven, where Durham was, first an AUSA and then US Attorney.

Q When you finished up at the Quantico Training Academy, you would then be a first office agent as it’s sometimes referred to?

A Yes.

Q And what’s a first office agent?

A So that’s the term that you get when you graduate the academy, and it’s the first office you’re assigned to.

Q And where were you first assigned?

A New Haven, Connecticut.

Q And how long were you in New Haven, Connecticut?

A So I was there from late ’09 to September of 2018.

By description, he’s the single current or former FBI employee of five who testified at the trial (the others being Brian Auten, Kevin Helson, Amy Anderson, and Brittany Hertzog) who described no expertise in Russian counterintelligence.

James’ job was to introduce a bunch of travel and communications records that — Durham will claim on Monday — rule out the possibility that Igor Danchenko got a call from an anonymous caller, probably around July 24 or 25, 2016, someone Danchenko claimed to believe was Sergei Millian. This is the burden Durham chose to take on when he charged Danchenko with four counts — the four remaining after Judge Anthony Trenga dismissed the fifth on Friday — about whether Danchenko was lying on four different occasions in 2017 when he described what he had believed in July 2016.

Here are those four counts as quoted in transcripts or interview reports from the indictment, and how Durham charged the alleged lie.

Durham is not proving that Danchenko lied that the person on the call was Millian. He has to prove that Danchenko lied about what he believed in about the call in 2016, five years after the interviews in question and six after the call.

At times, even Durham seems not to have understood what he got himself into by charging that Danchenko lied when he said he believed in 2016 that he thought that a call he described to the FBI came from Millian. Durham can’t just prove that Millian didn’t call Danchenko (though he has presented insufficient evidence to prove that). To rule out the possibility that Danchenko really believed a call even he described as weird came from Millian, Durham is stuck — with one exception I’ll lay out below — attempting to prove that Danchenko received no call from anyone, whether Millian or anyone else.

In an attempt to do that on Friday, Durham had James walk through how his team obtained all the records possible for the phone numbers they identified for Millian at the time (at least one, a Russian one, seems not to have been included, though exhibits aren’t available remotely).

Q And as to telephone records, would you indicate to the ladies and gentlemen of the jury what telephone records — specific telephone records that you obtained relating to Mr. Millian.

A We obtained all the records possible for the phone numbers that we had identified for Mr. Millian.

Durham had Ryan describe what sounds like a time-consuming effort to track down every single telephony call that called Danchenko’s known line in that time period in late July early August 2016.

Q Now, you told the jurors that among other things that were subpoenaed were three telephone lines that were active in 2016 for Millian, correct?

A Yes.

Q But I think you also told them that you had looked for any other number that may have been in FBI databases that would tie in some fashion to Millian, correct?

A Yes.

Q And did you compare all of those numbers to any calls going into Mr. Danchenko’s telephone number?

A Yes.

Q And the jury saw a particular record that will be in evidence reflecting the fact that Millian was providing his new Moscow number. Do you remember that? It was a plus-45 telephone number?

A Yes.

Q Did you also check that number against any incoming calls to Mr. Danchenko’s telephone line?

A Yes.

Q And what can you tell the jurors about that?

A We didn’t identify any known numbers for Sergei Millian making an incoming call to Mr. Danchenko.

They made a great show of bragging about getting records from Sergei Millian and Danchenko that (they suggested) the NY Field Office and Mueller team before them had not.

Q To your knowledge, had anybody gotten those before?

A No.

[snip]

Q Do you know if prior to you and your colleagues retrieving that information, if anybody had gone and retrieved it? Do you know?

A I do know. No, they didn’t.

But in the entire performance, neither Durham nor James described the records that would be most probative to determine if Millian called Danchenko in late July 2016: Details of LinkedIn contacts between Danchenko and Millian (probably as early as May or June) and what Danchenko’s LinkedIn page looked like when that happened. That presumed LinkedIn contact was not mentioned at all during James’ testimony.

Durham’s entire premise — that a review of incoming telephony calls to Danchenko could serve to rule out a call from Millian — is based off a claim that Millian would have no way of contacting Danchenko on anything but his telephony line, because that’s all the information Danchenko included in the signature block of the email he sent on July 21, asking to meet. Mind you, even on direct examination, when Durham had Brian Auten agree there was no mention of mobile apps in the signature block, Auten noted there was a mention of a mobile app in the body of the message: to LinkedIn.

Q And then there’s a signature block, correct?

A Correct.

[snip]

Q Is there anything anywhere in this document, Government’s Exhibit 204T, Mr. Danchenko’s initial outreach to Millian, that says anything about the use of apps?

A In the signature block, no. And the only app I believe that’s mentioned is LinkedIn, which is the last line of 204T in the letter.

Q And LinkedIn isn’t communication — verbal communication, correct?

A Not to my knowledge, no.

Q Right. So nothing in here about contact me using an app or anything of that sort?

A According to the block, no.

Durham wasn’t interested because LinkedIn, itself, does not support voice calls.

Danny Onorato emphasized the reference to LinkedIn at more length with Auten on cross.

Q. Okay. And that would be the email that Mr. Durham showed you July 21st, and that, kind of, starts off with the strange phone call, right? So the timeline is late May, right, where there’s an introduction?

A. Right.

Q. Which is Mr. Danchenko told you?

A. Yes.

Q. And then, he said in, kind of, late June or late July he reached out to Millian, right?

A. Correct.

Q. Okay. And so this is reach out, right?

A. This is — this is a July 21st —

Q. Yep.

A. — 2016, Igor Danchenko to [email protected]

Q. Okay. And what I want you to focus on, right, is that he said [As read:] “It would be interesting if it were possible to chat with you by phone or meet for coffee/beer in Washington or New York where I’ll be next week.” Right?

A. Right.

Q. “I am, myself, in Washington.” So he’s giving him alternatives as to where the meeting could take place, right?

A. Correct.

Q. Okay. I want you to focus on the last line of the email, please.

A. Yes.

Q. He said [As read:] “I sent you a request to LinkedIn. There my work is clearer.” Right?

A. Correct.

The reason Danchenko’s referral to his LinkedIn is important (aside from the prior communication that never got introduced as evidence) is because people often list all modes of communication at LinkedIn, including their mobile apps. Danchenko’s current LinkedIn bio has a link to his Telegram account.

At the time , before he started being stalked by frothers, Danchenko used at least four more mobile apps: in addition to the Telegram he still uses, WhatsApp, Viber, FaceTime, and Wickr.

Q. Okay. Thank you. Are you aware that when Mr. Danchenko spoke to the FBI he told them that he used, in this timeframe, WhatsApp, Viper, [sic] FaceTime, Wickr, and Telegram?

A. I think it would depend on what time frame you are talking about talking to the FBI.

Q. Sure. But between, let’s say, January, when you met with him, and call it July, after he’s meeting with Mr. Helson.

A. I don’t know if I would be able to rattle off all of those different things.

Q. Sure. Some of them?

A. Some of them.

Q. Okay. And, again, those apps — whether it’s one, two, three, four, or five of them — do not leave records on my Verizon cell phone bill, right?

A. I do not believe so.

If Danchenko had those apps listed on his LinkedIn in 2016, as he has Telegram listed on his LinkedIn today, then it would be readily apparent how Millian could have figured out how to call Danchenko in late July 2016: on the LinkedIn profile that Danchenko explicitly pointed him to.

The explanation from Ryan James — an FBI agent who likely worked closely with Durham since the start of his FBI career, but who claims no expertise at all in counterintelligence — about how he ruled out a call to Danchenko from Millian (much less anyone else) in 2016 did nothing to exclude mobile app calls, at all.

Short of having the cell phone Danchenko was using all the time and the devices used with the at-least four SIM cards Millian was using at the time, Durham couldn’t even begin to rule out such a call. That’s how mobile apps work, and that’s why people making spooky anonymous phone calls prefer to use apps.

Absent having the devices themselves, the FBI routinely uses Apple and Google store records to show what apps someone has downloaded onto their various phones. That’s how I know precisely when Roger Stone added ProtonMail, Signal, and WhatsApp to his phone in August, October, and (on the new phone he got after the election) November 2016: from app store records used in FBI affidavits. To make a show of figuring out what apps, besides LinkedIn, Danchenko and Millian used in common, James could have obtained records from the app stores. He didn’t describe doing that either.

But the details of the LinkedIn communications between Danchenko and Millian might have either explained or ruled out the most obvious explanation for how Millian would have known to call Danchenko on a mobile app: That Millian referred to Danchenko’s LinkedIn account, which we know he used because he used it himself to approach Papadoploulos.

When Danchenko’s lawyers lay all this out Monday, Durham will point to the single Danchenko LinkedIn communication he did introduce — a 2020 LinkedIn message confirming that he was the source for 80% of the raw intelligence in the Steele dossier.

BY MR. DURHAM: Q. Sir, with respect, then, to the Government’s Exhibit 1502, that’s a LinkedIn message, correct?

A. Correct.

Q. Now, the date of the Government’s Exhibit 1502, you indicated was, again, what?

A. It was October 11, 2020.

It’s unclear to me whether the LinkedIn messages that Durham obtained include the one(s) Danchenko sent Millian in 2016. He said he had deleted a bunch of records, including those pertaining to Millian, before first meeting with the FBI in 2017.

During cross-examination, Kevin Helson revealed that FBI themselves twice advised Danchenko to purge his phone to protect against compromise, including once after Bill Barr released his January 2017 interview materials.

Q. Okay. And, in fact, Agent Helson, once Mr. Danchenko became a confidential human source, and for good reason, you told him that he should scrub his phone, correct?

A. Yeah, at the beginning, there were two times that we had discussed that action was at the beginning to kind of mask and obfuscate his connection to Steele and any connection to us. And then after the three-day interview became public, we readdressed that as well as we assumed he would be most likely targeted from — by cyber means by the Russians.

Q. So to the extent it’s possible there were any communications that were left on his phone from the period when he was doing the reporting that later ended up being the dossier, they were likely erased?

A. Yeah, depending on how he did it.

When Danchenko submitted his objections to Durham’s exhibits on September 15, Durham had not yet identified that he planned to pull out only that October 2020 one.

The government has not identified which LinkedIn messages it seeks to introduce and Mr. Danchenko objects to admission of any messages not sent by Mr. Danchenko and objects to the inclusion of any messages not specifically admitted as evidence.

That would have been the period Durham was working on his strategy in the wake of Sergei Millian’s refusal to show up to testify under oath to any of this, the strategy preformed Friday to deny a call of any kind by reviewing only telephony calls,

The transcript reflects that only Exhibit 1502 — the October 2020 LinkedIn message — was introduced as evidence. But the stipulation mentions Exhibit 1500.

MR. DURHAM: Okay. This is in the matter of United States versus Igor Y. Danchenko, Criminal No. 1:21-cr-245, parenthesis, (AJT), close parenthesis. [As read]: It is hereby stipulated and agreed by and between the undersigned parties that, if called to testify, a records custodian from LinkedIn would testify as follows: Paragraph No. 1, Government’s Exhibits 1500 and 1502 are true and accurate copies of the contents of the LinkedIn account “Igor Danchenko” controlled by Igor Danchenko. Paragraph No. 2, Government’s Exhibits 1500 and 1502 are true and accurate copies of authentic business records of LinkedIn that were made at or near the time of the acts and events recorded in them by a person with knowledge and were prepared and kept in the course of LinkedIn’s regularly conducted business activity. And it was the regular practice of LinkedIn to make such business records, and the source of the information or the method and the circumstances of preparation are trustworthy. The parties stipulate to the authenticity of Government’s Exhibits 1500 and 1502.

All of Danchenko’s LinkedIn records that still existed in 2020 could have been available at trial, but just the October 2020 one was introduced.

There was, however, one LinkedIn message from 2016 introduced. In cross-examination of Auten, Onorato introduced the LinkedIn request that Millian sent to George Papadopoulos just days before Danchenko initially reached out to Millian on July 21.

Q. First of all, does it appear to be a LinkedIn message between George Papadopoulos and Mr. Millian?

A. Yes, it does.

Q. And the date of that is July 15th of 2016, right?

A. Correct.

Q. Okay. And just — it appears to be an email that LinkedIn is sending to Mr. Millian, correct?

A. Yes.

Q. Okay. And I’m just going to direct your attention to a specific portion of the second page. Okay?

A. Yes.

MR. ONORATO: And, Your Honor, I’m not going to talk about the —

THE COURT: All right.

BY MR. ONORATO: Q. Okay. Millian writes to George — do you see where it says, “To George”?

A. Yes.

Q. Okay. So that’s Millian sending a comment to Mr. Papadopoulos, right?

A. Correct.

Q. Okay. And I want to direct your attention to the bottom of the highlighted portion where it says, “Please do not hesitate to contact me at (212) 844-9455.”

A. I see that, yes.

Q. Okay. And do you see in the last line it says, “Sent from LinkedIn for iPad”? Okay?

A. Yes, I see that.

Q. Okay. And so in this timeframe Mr. Millian is saying on the 15th that Mr. Papadopoulos can call him at that phone number that we discussed, right?

A. Correct.

Q. Okay. And so do you know that the 212 area code is from New York?

A. Yes.

Q. Okay. And that’s where Mr. Millian lived, right?

A. Correct.

Q. Okay. And you also sent an iPad — a message from an iPad, right?

A. Correct.

Q. And, again, that’s a device that you can FaceTime people from that we all know, right?

A. Yes.

Q. And the one that doesn’t leave a record or footprint on a device, right? A. In terms of a record on a device.

Q. I mean a — with a cell phone carrier, like Verizon or Sprint or AT&T. A. Correct.

[snip]

Q. And so remember before when I introduced an email from Mr. Papadopoulos to Mr. Millian?

A. Yes.

Q. That came in the form of an email, didn’t it?

A. Yes, it did.

Q. And so this is, you know, him saying that I sent you a previous email, the LinkedIn email. And then I’m sending you an email on July 21st, correct?

A. I think it’s sending a request on LinkedIn.

Q. Right.

A. So I think that might be a little different than an actual email, but it’s a request.

Q. But when you get a request, it comes via email, right?

A. Yes, that does.

Millian was already in South Korea on July 15. Onorato made much of the fact, with Auten, that Durham hadn’t introduced these records. While Durham will point to the voicemail reference (which doesn’t help him as much as he thinks it does), the LinkedIn request will show that Millian wasn’t using the phone that Durham made a big deal out of being turned off. He was using an iPad.

And that detail will make the inadequacy of James’ search evident. When Durham got James to explain that he had pulled the records that would show up in a toll records report from the 917 phone number tied to Millian’s iPad. Durham almost seemed to concede you would get no phone records for telephony calls tied to an iPad.

Q You said there was a 917 area code, correct?

A Correct.

Q What were you able to determine as to that telephone number?

A It appeared that that number was assigned to an iPad.

Q Okay. And did you look at whatever records were available by way of subpoena or search warrant there?

A Yes.

James’ summary of Millian’s contacts is not online. But the LinkedIn contact with Papadopoulos would not show up on the call records Durham pulled. Its absence on James’ exhibit will serve as proof that Millian was communicating during the period for which James conducted a review in ways that would never show up in telephony records.

Danchenko’s team may have more to disprove Durham’s telephony distraction. Onorato seemed to want to say more about all this. After Durham finished questioning James on direct, Danny Onorato responded to Judge Trenga’s question about how long cross would take by hinting that he wanted to ask James questions, but he would have to convince Stuart Sears to do so first over lunch.

THE COURT: How long do you think you’ll be, Mr. Onorato?

MR. ONORATO: So Mr. Sears is going to —

THE COURT: Mr. Sears, how long do you think you’ll be? (Reporter clarification.)

MR. ONORATO: There may be no questions unless I talk him into questions.

When I read this in the transcript, I was thinking of all the questions I would want asked: about the coercion of witness testimony by threatening them with indictment, about James’ insinuation that having telephony records is more comprehensive than having actual devices — which is what Mueller’s team used to understand some of Millian’s contacts at the time. I would have asked James to describe how Durham never bothered to interview George Papadopoulos, either before Durham and Bill Barr went on a junket to Europe based off Papadopoulos’ claims, or in the wake of learning that Sergei Millian had handed him his ass.

I would have asked how he could competently claim to have ruled out a call with Danchenko without at least reviewing those LinkedIn exchanges.

But Sears convinced Onorato to holster whatever surprises they have. After lunch, Stuart Sears revealed that Onorato hadn’t talked him into questions of James at all.

THE COURT: Please be seated. Mr. Sears, any cross?

MR. SEARS: It’s a little anti-climatic, Your Honor, but I have no questions for this witness.

Rather than point out the gaping problems with James’ claimed proof that Millian didn’t call Danchenko, rather than giving Durham a chance to add to the record, they let it rest.

Damnit!

But particularly given their sustained effort to show that Durham has been withholding comms far more than Danchenko has, I expect James’ silence about LinkedIn records to be central.

So will Durham’s effort to get Auten to testify inaccurately to suggest that Danchenko had said the call from someone he believed to be Millian could only have been a telephony call.

Q. Okay. But I do want to try to correct something about what you testified about this morning. Okay?

A. Okay.

Q. And you prepared to testify with Mr. Durham and his team, right?

A. Yes.

Q. Okay. And I think he asked you to look at Government Exhibit 100.

A. Yes.

Q. Okay. And when he asked you to look at Government one- — Exhibit 100, I think you may have answered that he did not mention a call app on Page 20, right, in response to his questions?

A. Yes.

Q. Okay. Well, do me a favor. Look at Page 20 and then 21, And see if that refreshes your memory the first day about what Mr. Danchenko told you.

A. I apologize. Yes, it basically says — would you like me to read it?

Q. Yeah.

A. Okay. I’ll start at the middle of — middle of the last paragraph of Page 20. [As read:] “The two of them talked for a bit and the two of them tentatively agreed to meet in person in New York City at the end of July. At the end of July, Danchenko traveled with his daughter to New York but the meeting never took place and no one ever called Danchenko back. Altogether, he had only a single phone call with an individual he thought to be Millian. The call was either a cellular call or it was a communication through a phone app.”

Q. I’m sorry, what did you just say?

A. “Or it was a communication through a phone app.”

Q. Okay. So remember when Mr. Durham asked you questions this morning, right?

A. Yes.

Q. Did he omit — ask you to look at page 21 to see what Mr. Danchenko told you that day?

A. I don’t think he was omitting. I think I —

Q. Okay. And did you intentionally omit, intentionally tell the jury something wrong, right?

A. No.

Q. But the import of the testimony was that, no, he never mentioned in that first meeting it could have been a phone app, right?

A. Correct.

Q. And now we all know that that’s false, right?

A. Correct.

Q. So he did mention a mobile app?

A. That is correct.

Onorato then introduced Auten’s notes from the interview where he underlined “app.”

Q. Okay. And just for the record, again, we’re at — they’re not page-numbered, but it’s Defense Exhibit 497, and it’s Bates-stamped SCO350067270. Okay? And those appear to be — but I don’t want you to just agree with me — the interview notes from your first conversation with Mr. Danchenko. So that’s on July 24th — or January 24th. I keep saying July.

A. Yeah.

Q. Okay. I want you to look at the middle of the page.

A. Yes.

Q. And he said to you, which you wrote down at the same time and it looks like you underlined it, “Either cell phone or an app,” with an underscore, right?

A. That is correct.

Q. Those are your handwritings, right?

A. That is my handwriting, yes.

Q. And when he wrote “app,” the instant is that it’s probably an app because you’re emphasizing “app,” right?

A. I don’t necessarily know if I was emphasizing, but I did draw a line under it, yes.

Q. And you would agree that when you draw a line under something that’s generally — one of the reasons you do it is you want to emphasize —

A. It can be one of the reasons, yes.

Onorato repeated the point: Durham had introduced affirmatively false testimony about whether that call, hypothetically from Millian, may have been on a phone app.

Q. All right. And just to show the jury what you were looking at, right? A. Right. Q. So, again, despite the testimony this morning, that Mr. Danchenko did not mention a phone app, just to highlight it for you, right?

A. Correct.

Q. And so that’s the correct testimony, right?

A. Yes.

Q. And whether it was Mr. Durham’s question or whether it was your misunderstanding, you did not intentionally leave the jury with the impression, right?

A. Correct.

Q. That he didn’t say that on the first day, right?

A. Correct.

Q. But you would think as lawyers in the case that we should know the general state of the evidence?

A. Correct.

Q. And could correct that for you, right?

A. Correct.

Q. And Mr. Durham didn’t take any steps to correct your wrong answer, did he?

A. I don’t recall him correcting that.

Q. Okay. But now, I’m correcting it, right?

A. You are correcting it.

To be fair to Durham, for Onorato’s complaints here that Durham misrepresented the evidence, on several occasions, Danchenko’s lawyers have suggested that Danchenko said the call was on a mobile app, rather than it could have been. But unlike Durham and his team, Danchenko’s lawyers didn’t repeatedly elicit false testimony about what transcripts said.

None of that will be the most central part of Danchenko’s closing argument tomorrow. What will come before debunking Durham’s claim that such a call could not have taken place and showing how Durham tried to exclude records corroborating that such a call did take place is the testimony from both men who interviewed Danchenko, saying they believe him.

With Brian Auten there was some equivocation (during which Danny Onorato raised the fact that Durham had made him a subject of the investigation during the period any doubts creeped in), but ultimately he said he still does not doubt that Danchenko believed the call came from Millian, the only thing at issue in the remaining four counts.

Q. And so when you made that statement under oath before the Senate, you didn’t think he was lying to you that he had contact with Mr. Millian, right, or believed — not that he did, that he believed? A. I — I have no reason to doubt that he believed he was talking to Mr. Millian based upon what he told us in the interview. Q. Okay. I’m sorry. Once more, can you please repeat that to the jury? A. I don’t have any basis to — at the time to believe that —

[snip]

Q. So do you remember being — do you remember giving the following answer: [As read:] “On the whole, you did not see any reason to doubt the information the primary sub-source provided about who he received information from, which was the supervisory intel’s analyst focus.” Right?

A. Yes. That is from my — that’s from my OIG testimony.

Q. Right. But you said it under oath, subject to penalty of perjury?

A. Correct.

Q. And it’s true?

A. Correct.

Q. And it’s true today?

A. Correct.

Stuart Sears walked Helson first through his general opinion that Danchenko never lied to him.

Q. Agent Helson, it was no — it was no secret, during the course of your relationship with Mr. Danchenko, that there was a discrepancy between how Mr. Steele described how Mr. Danchenko represented his interactions with Mr. Millian and how Mr. Danchenko told you he actually explained his interactions?

A. Yes.

Q. Okay. It was no — it was no secret. Everyone knew all along that there was a disconnect there?

A. Correct.

Q. And at no point during your entire time of meeting with Mr. Danchenko over those three years, did you ever walk away thinking that he was lying to you about anything; is that fair?

A. That’s fair.

Q. In fact, for years after your conversations with Mr. Danchenko about his anonymous phone call with the person he believed to be Mr. Millian, you would submit reports indicating that he was a reliable source?

A. Correct.

Q. And some of those reports would even mention the Millian discrepancy and you would write that you believed that Mr. Danchenko had accurately reported the information as best you could recall?

Sears then had Helson describe how, in reports in 2019 and 2020, he had dismissed the import of any inconsistencies in the Millian reporting.

Q. And this report even addresses the inconsistency regarding the Millian issue?

A. Correct.

Q. Correct? And this report that you generated says that Mr. Danchenko’s position or story on the Millian situation never changed while the motivation of others came into question, right?

A. Correct.

Q. And that’s Chris Steele?

A. That is true.

The most important testimony from Helson, though, addresses the one exception I noted above. As I noted in this post and this table above, Danchenko’s story about the Millian call, in the four charged conversations and the one with Auten, deviated from form on one occasion: on October 24, 2017.

That October 24 conversation came during the period when Auten was trying to address the discrepancies between Steele’s claims of the Millian conversations and Danchenko’s (though the FBI didn’t tell Danchenko they were interviewing Steele — they were basically playing the men off each other).

I fully expect that Durham, in an attempt to salvage at least one guilty verdict, will focus on the October 24 case and claim that the deviation from prior testimony — at a time when Danchneko was trying to fix immigration issues — was the tell that he lied.

Who knows? It might work! If he can convince the jury that the October 24 deviation was a tell that he was lying, maybe he can convince the jury that Danchenko invented the lie that he believed he had actually talked to Millian to cover up inventing a story for Durham.

That’s what he’s left with.

Which is why Helson’s note, on the back of his interview notes from that conversation, will be critically important. Explaining that he pushed Danchenko really hard on this point (this is one of the interviews for which there’s no recording and less reliable documentation), he wrote that he believed Danchenko’s response — including the inconsistent reference to two calls — was what you’d expect from particularly confrontational questioning.

Q. Okay. And you wrote — and you can close that now. And you wrote — going back to Government Exhibit 102, which was your memorandum of the interview of Mr. Danchenko — you wrote in addition to that he didn’t inquire about the nature of the questions regarding Mr. Millian, quote, “Mr. Danchenko’s responses were consistent with what would be expected during this type of questioning.”

A. Correct.

Q. And that meant that his reaction to the line of questioning did not lead you to believe he was lying to you, correct?

A. Correct.

Whether you find Danchenko’s stories credible or not, the fact of the matter is that Durham charged Danchenko with lying in these conversations in spite of the fact that his primary witnesses both attested, sometimes under oath, that they believed him.

There’s no telling what the jury will do. Durham will use testimony from a validation review to suggest that at least one person at the FBI, someone who didn’t have a personal investment in Danchenko’s success, suspected he was a GRU spy. Durham will likely argue that Auten and Helson only believe Danchenko because they’re incompetent.

Which is why, ultimately, Durham’s own evasions and failures will be central.

John Durham Created a False Pee Tape Panic Based Off a “Literally True” Alleged Lie

Here’s how Judge Anthony Trenga explained his decision to dismiss the false statement charge against Igor Danchenko tied to Chuck Dolan, a charge alleging that Danchenko lied to his handling agent Kevin Helson when he responded to a question about whether he, “talked to Chuck Dolan about anything that showed up in the dossier,” with, “No. We talked about, you know, related issues, perhaps, but no, no, no, nothing specific.”

[A] prosecution for a false statement under Section 1001 cannot be based on a literally true statement even if that response is nonresponsive or misleading.

[snip]

The government presented two witnesses that provided direct evidence concerning Count 1: Charles Dolan and FBI Special Agent Kevin Helson. Dolan identified to one occasion when he spoke on the phone with Mr. Danchenko about the dossier, specifically on January 11, 2017, the day after it was published by BuzzFeed. Dolan testified, however, that there was no discussion about anything in the dossier, precisely what Danchenko told Helson, although the dossier was mentioned.

[snip]

Special Agent Helson confirmed in his testimony that he never explained to the defendant what he meant by “talked,” nor did he follow up with the defendant about what the defendant meant by his answer that he had talked about related issues with Dolan.

[snip]

The standard definition of “talk” means communication through the spoken word.

Applying that definition, the evidence in this case establishes that Mr. Danchenko’s answer was literally true.

[snip]

Helson asked an unambiguous question, defined otherwise would allow the government to impose the serious consequences of criminal liability under Section 1001 by divorcing words from the commonly understood meaning.

[snip]

Agent Helson testified that if what Dolan said was true, Mr. Danchenko’s answer was literally true; and in light of that testimony, Agent Helson understood the question the same way that Mr. Danchenko did, as asking for verbal communications.

Trenga’s decision came after the prosecution rested Friday, and Danchenko opted not to mount a defense (he was never going to do so; he never provided a witness list). On Monday, the two sides will present their closing arguments, and the jury will move to deliberating over the four remaining charges, which allege that Danchenko lied when he told the FBI, over and over, that he believed that an anonymous caller he claimed to have spoken to in late July 2016 was Sergei Millian. I hope to do a follow-up post explaining the evidence presented on those four charges.

Judge Trenga dismissed this charge because John Durham had accused Igor Danchenko of lying when all the evidence, including the affirmative testimony of two of Durham’s own witnesses, shows his statement was “literally true.”

Trenga judged that Durham had accused Danchenko of lying when in fact he was telling the truth after Durham, the frothers, and far too many members of the legacy press spent almost a year spinning conspiracy theories based on it, most notably by claiming that Chuck Dolan (whose ties to Democrats Durham and the press also wildly overstated) was the source for the pee tape allegation, even though Danchenko had named one of his Russian associates as the source and even though (we now know) Dolan claims he doesn’t remember meeting Danchenko at the Moscow Ritz, much less talking about pee tapes.

Trenga dismissed the charge after Durham spent much of the four day trial trying to bolster the materiality claims behind this charge.

For example, Durham prosecutor Michael Keilty had former FBI analyst Brittany Herzogg testify about how, months after the literally true alleged lie (Herzogg first joined the Mueller team the month after the literally true alleged lie), she tried but was not permitted to get the Mueller team to take further steps to investigate Dolan. Similarly, prosecutor Brittain Shaw had Special Agent Amy Anderson describe how at least three and possibly as many as six months after Danchenko told the literally true alleged lie, her supervisor on the Mueller team (which had to have new predications approved by Rod Rosenstein) did not let her open an investigation into Dolan.

On at least two occasions, these efforts to bolster the materiality of this literally true alleged lie extended to attempting to introduce false or misleading testimony to the jury.

On cross, Danny Onorato caught Shaw eliciting a false claim from Anderson — that Danchenko had not revealed Dolan’s ties to Dmitry Peskov — when in fact he had revealed that during the interview where he told the literally true alleged lie.

Q Okay. And are you aware that Mr. Danchenko in June, despite what Ms. Shaw asked you and despite what you told her, actually described that Mr. Dolan knew the press secretary of Vladimir Putin? Right?

A According to this document, yes.

Q Yeah. And it came from Mr. Danchenko, right?

A Yes.

Q Okay. And so you said that if you knew there was a connection back in June of Mr. Peskov and Mr. Dolan, that would be significant, right?

A Yes.

Q And you knew it in June, right?

A Yes.

Q And when you testified, you weren’t trying to lie; were you?

A I was absolutely not trying to lie.

Earlier that morning, Danchenko attorney Stuart Sears caught Durham himself trying to make further misrepresentations on this topic. In an attempt to suggest that Sears had coached Danchenko handler Kevin Helson to claim (falsely, Durham wanted to prove) that Danchenko had never been asked about the report at issue in this charge, Steele Report 105, Durham asked Helson to refer back to the original Danchenko interviews where — Durham falsely claimed — Helson would find Supervisory Analyst Brian Auten asking Danchenko about Report 105.

Q Now, counsel also asked you some questions on cross-examination yesterday that you — the question was asked and you kind of adopted it. The question was essentially — and Mr. Auten never asked Mr. Danchenko about the report number, which was 2016/105. It was the Manafort report.

A Okay.

Q He asked you if Auten asked him about that, and you said no or you adopted the question no. Do you recall, sir, whether or not — in the three-day interview in January of 2017 whether or not Mr. Danchenko was, in fact, asked questions and there was reporting in the report about the Manafort part of the dossier?

A I didn’t recall that, no.

Q All right. Do you recall it now? Well, let me withdraw that. I’d ask you to take a look at Government’s Exhibit 100. It’s just for identification in the record now. You are free, of course, to look at the entirety of it, but I would direct your attention most particularly to pages 11 and 12 to see if that refreshes your recollection as to whether or not Mr. Danchenko is, in fact, asked questions relating to Paul Manafort and the like in January 2017.

[snip]

A Is there a particular page?

Q Pages 11 and 12, but look through it as you want. Does that refresh your recollection, sir, as to whether, in fact, Mr. Danchenko had been asked about the Manafort matters back in January of 2017?

Here’s the passage of Danchenko’s January 2017 interviews where, Durham falsely claimed, Helson would find memorialization of Auten asking Danchenko about Report 105 — the report describing that Corey Lewandowski hated Manafort.

Not only does this passage relate to entirely different details about Manafort — his ties to Viktor Yanukovych rather than his animosity with Corey Lewandowski, not only does it address events that transpired even before Manafort started replacing Lewandowski as Trump’s Campaign Manager, not only do these events precede the report in question by five months, but this is not even a reference to what is known as the Steele dossier, paid for by Perkins Coie.

It’s a reference to the reporting on Manafort specifically that Oleg Deripaska paid for.

As Sears explained in a sidebar, Durham was deliberately conflating broader Manafort reporting (nobody pointed out what I have, that this specific reference wasn’t even to what is known as the Steele dossier) with the single report he charged.

MR. SEARS: Your Honor, Mr. Durham’s question has created the impression, I think, that the Manafort discussion, as referenced in that report, was about Report 105. My question was very specific about whether he had ever been shown that specific report. It is true that Paul Manafort came up during discussions.

THE COURT: In January?

MR. SEARS: In January. But just about his relationship with Ukraine, not about his resignation from the campaign or any of those issues. I’m concerned about the impression he’s giving to the jury because of the way the questions were asked. It is redirect.

THE COURT: On cross, he said that he wasn’t aware of —

MR. SEARS: Whether or not he had ever been shown that report.

THE COURT: So the report itself?

MR. SEARS: The report itself.

John Durham, in his attempt to prove that Danchenko lied about something that actually mattered in that literally true alleged lie, misrepresented the record, falsely claiming that Helson had misspoken.

I know! It’s dizzying even for me! And I knew this was a misrepresentation as soon as frothers falsely claimed Durham had caught Sears in a lie.

By yesterday’s testimony, Danchenko’s lawyers summarized what the Dolan charge was really about as opposed to what Durham had spun it into by mocking the idea you’d open an espionage investigation into someone because they repeated the publicly known fact that Corey Lewandowski hates Paul Manafort.

Q Okay. And I just want to ask one final question because I think you talked about Russian misinformation. Correct?

A Correct.

Q Do you think it could be Russian misinformation that Corey Lewandowski hated Paul Manafort back in July of 2016?

A I honestly don’t remember that specific allegation. Anything could be Russian misinformation.

Q Sure.

A It’s possible.

Q But I’m asking you. If you heard from me, “Corey Lewandowski hates Paul Manafort,” would you then run and open up an espionage investigation based on that fact?

A No.

The pushback from Durham’s prosecutors, discussing the the dossier in terms of “Russian interference,” “Russian-related,” and “related to Russia,” is actually a fair enough point.

Q And in terms of — he asked you about Mr. Manafort and Lewandowski. With respect to knowing whether someone passed false information that contained allegations — not the Lewandowski part but somebody made up that they were an insider or had inside information, in the course of looking at Russian interference, as you did in the Special Counsel’s investigation, would that have been important to you?

[snip]

Would it be relevant to you if that information actually had come from somebody the dossier claimed to be a Trump insider and the dossier was a Russian related — related to Russia and Donald Trump’s connections to Russia? Correct?

A Correct.

Q So would it have been relevant to know in that dossier that that information came from a Trump insider?

A Yes.

But that was an argument to investigate Dolan, not to prosecute Danchenko for his literally true statements about Dolan.

Taken on its face, too, it’s a vindication of opening an investigation to find out which of Trump’s Coffee Boys were lying about their role in a Russian influence operation. If this is your standard — and it is the standard Durham has finally adopted — then every investigation Crossfire Hurricane opened up was justified.

As I’ll show, Durham went further still yesterday, arguing that Mueller’s investigators hadn’t investigated Sergei Millian aggressively enough in 2017.

In any case, thus far, the only people who have been demonstrably lying are Durham’s own witnesses and, arguably, his own prosecution team. As Durham has been sustaining this claim that Danchenko lied even though what he said was literally true, Durham has burned two reportedly valuable FBI sources, damaged US cybersecurity efforts, partnered with a now-sanctioned Russian bank, and forced the declassification of details of multiple FBI counterintelligence investigations.

That is the damage Durham has wrought while he has been spinning tales of pee tapes to sustain his investigation.

At least with regards to Chuck Dolan, Judge Trenga has ruled, Igor Danchenko was literally telling the truth. Durham made of that literally true statement a bogus pee tape panic that has done breathtaking amounts of damage.

Update: Added more context per Frank Probst’s comment.

As John Durham Preps for his Closing Report, His Own Withholdings become Key

Update: Judge Trenga has dismissed the Chuck Dolan charge because it was based entirely on the definition of “talk.”

It’s sometimes helpful to think of all the witnesses at a trial as just tactical preparation for a closing argument. Their credibility is important, sure, but they also serve to get evidence admissible, which the two sides then use in their closing arguments to direct how the jury will assess it.

In the Igor Danchenko case, however, John Durham appears to be prepping not for his closing argument in this trial, but for the report he will write after it’s clear who will run which houses in Congress next year.

At the end of the day yesterday, as part of a second redirect of Danchenko’s handling agent Kevin Helson, Durham introduced evidence I suspect he’ll use to argue that Danchenko — and not, say, Oleg Deripaska — was the prime mover of disinformation in the dossier. After duping poor Christopher Steele for years, Durham may argue in his report (but not necessarily to the EDVA jury), Danchenko succeeded in duping poor Kevin Helson and through him the poor FBI for years, and as a result led the FBI to believe a whole bunch of false information about Russian influence operations. Again, that’s not what the record shows, but I suspect Durham is laying foundation to make that argument.

Based on what Durham pulled yesterday, if Republicans win at least one house of Congress, I expect there will be a concerted effort to force the Biden Administration to deport Danchenko, whether or not he’s acquitted (and thus far, both Durham’s initial witnesses have testified that Danchenko didn’t lie, so acquittal is a good possibility).

None of this makes any sense. But it only has to make sense for people like Jim Jordan and (if they’re reelected) Ron Johnson and Chuck Grassley. They’ve never cared about the damage they do to national security by trying to criminalize being a Democrat (nevermind that testimony yesterday from Danchenko’s handling agent said he’s not one).

I’ll return to this — as well as the damage that Grassley is alleged to have already done — tomorrow, after I get a chance to read the transcript for what will be Durham’s continued questioning of Helson this morning.

But the likelihood that Durham is only trying to prep material for his own report, not for this jury, raises the stakes on Durham’s own withholdings.

Key to Durham’s materiality argument is that if Danchenko had told the truth about things Durham claims Danchenko lied about, there would have been a much closer immediate focus on Chuck Dolan and the access Danchenko facilitated between Dolan and his childhood friend, Olga Galkina. In Durham’s mind, that would have allowed Crossfire Hurricane to ask questions of Dolan that Durham’s own questions and an FBI investigation of Dolan didn’t surface when they did investigate Dolan, starting in late 2017, some details of which Danchenko attorney Stuart Sears introduced during cross-examination of Dolan yesterday.

Q You’re aware, Mr. Dolan, aren’t you, that the government was investigating you at some point?

A Yes.

Q You’re aware that they issued search warrants and subpoenas for your email communications?

A Yes.

Q You’re aware that they issued subpoenas for your phone records?

A Yes.

Q Your work email records?

A Yes.

Q Your Facebook records?

A Yes.

Q And I think you have already testified to this, but even knowing everything that the government has done to look into you, it’s still your testimony today that you’ve never talked to Mr. Danchenko about anything that ended up in the dossier, correct?

A Correct.

Durham imagines that if Danchenko had told the truth about a report no one much cared about and he was never asked about, the FBI would have proven that Chuck Dolan was behind the pee tape, even though neither a prior FBI investigation nor Durham’s own have developed evidence he is (though that didn’t stop Durham from falsely implying he had in the Danchenko indictment).

If Danchenko had told the truth about things Durham claims he lied about — again, I’m just thinking with Durham-brain here, the evidence thus far is that Danchenko didn’t lie — then the FBI would have realized from the start that Danchenko lied to Christopher Steele about ever speaking to Millian. Such a claim is utterly useless to materiality of the Mueller investigation, both because Mueller didn’t use the dossier and the FBI didn’t integrate Danchenko’s own warnings about the limits of his conversation with Millian into the FISA applications against Carter Page. But it would be useful if Durham wants to spin an even bigger conspiracy theory, that Danchenko duped first Steele and then the FBI.

I mean, there are other reasons it wouldn’t make sense (not least that Steele, not Danchenko, drove the focus on Millian). But it only needs to make sense for Jim Jordan and Chuck Grassley to have an effect.

And so, Durham wants the jury to believe that Danchenko was covering something up because he didn’t hand over key communications — including:

  • August 2016 emails with Dolan that might have sourced the arguably most accurate Steele report, one that –as Brian Auten testified the other day — “has absolutely nothing to do about collusion in Russia, which is the whole point that Crossfire Hurricane was opened”
  • Any evidence of a mobile app phone call made by Millian (or anyone else) to Danchenko in late July 2016
  • An August 2016 email with Millian (and/or possibly August 2016 emails with the RIA Novosti journalists who facilitated Danchenko’s introduction to Millian)

FBI would have obtained the Dolan emails in question — including his much more extensive communications with Olga Galkina — both from FISA 702 collection on Galkina by June 2017 as well as from the investigative steps Sears laid out, above, and even still, the FBI was simply not interested in the report that Durham has made the centerpiece of this case.

As for the communications with or about Millian, after saying in his first interview that the call with Millian could have been on a phone app, Danchenko said from the third day of his first interview in January 2017 that he had deleted some communications.

[Danchenko] said that he had gone back to check for electronic communications records, but he said that he had deleted most of the election-related communications “months ago.” He also has a different phone from the one he used previously. He didn’t delete communication involving [Dmitry Zlodorev], and he had reported that communication to Christopher Steele.

Whether that’s true or not will likely be a key detail the lawyers will confirm or debunk in days ahead. It’s also true, however, that from the start Danchenko described both his emails to Millian and his exchanges with the RIA Novosti journalists, and email with whom Danchenko did turn over, and his original descriptions were consistent with what Durham eventually obtained.

And that’s why it’s interesting that Durham himself withheld things, and attempted to withhold critical evidence from the jury (and in the process, avoid having it made public to debunk his own eventual report).

Critically, Durham (who charged Danchenko without first getting a commitment that Millian wouldn’t hand him his ass, as he eventually did), attempted to withhold from they jury and did withhold from Brian Auten and Helson documents that show a phone call with Millian in late July was possible as well as documents that show Danchenko acted as if he believed he would meet someone he believed to be Millian.

Perhaps the most important exchange came when Durham led Auten through questions in which — possibly by cutting his review of a document one page short — he got Auten to say that Danchenko said Millian called him on a telephony call.

Q You have a version of it. What you have in front of you is the portion relating to Report 95, correct?

A 100, sorry.

Q The excerpt you have relates to — on page 19 — starting on page 19 going to 20?

A Yes, correct.

Q And will you take a look at that and see if it refreshes any recollections on either the 24th or the 25th, which then appears at 37 as to what kind of device he purportedly received a phone call?

A On page 20 — this would have been the 24th — it says “phone call.”

Again, you can see that the reference in question carries over to page 21, but Durham asked Auten to review just pages 19 to 20.

Danny Onorato later went back and — in exchange that not only caught Durham in his deceit, but showed the hazards of claiming others were withholding material information — had Auten correct his testimony.

Q. Okay. And, again, I’m not giving you a hard time because you didn’t ask a lot of probing questions on that day because you were just trying to break the ice with him to see if you can get him to work with you. Somma said you’d have more time to work with him, right?

A. Correct.

Q. Okay. But I do want to try to correct something about what you testified about this morning. Okay?

A. Okay.

Q. And you prepared to testify with Mr. Durham and his team, right?

A. Yes.

Q. Okay. And I think he asked you to look at Government Exhibit 100.

A. Yes.

Q. Okay. And when he asked you to look at Government one- — Exhibit 100, I think you may have answered that he did not mention a call app on Page 20, right, in response to his questions?

A. Yes.

Q. Okay. Well, do me a favor. Look at Page 20 and then 21, And see if that refreshes your memory the first day about what Mr. Danchenko told you.

A. I apologize. Yes, it basically says — would you like me to read it?

Q. Yeah.

A. Okay. I’ll start at the middle of — middle of the last paragraph of Page 20. [As read:] “The two of them talked for a bit and the two of them tentatively agreed to meet in person in New York City at the end of July. At the end of July, Danchenko traveled with his daughter to New York but the meeting never took place and no one ever called Danchenko back. Altogether, he had only a single phone call with an individual he thought to be Millian. The call was either a cellular call or it was a communication through a phone app.”

Q. I’m sorry, what did you just say?

A. “Or it was a communication through a phone app.”

Q. Okay. So remember when Mr. Durham asked you questions this morning, right?

A. Yes.

Q. Did he omit — ask you to look at page 21 to see what Mr. Danchenko told you that day?

A. I don’t think he was omitting. I think I —

Q. Okay. And did you intentionally omit, intentionally tell the jury something wrong, right?

A. No.

Q. But the import of the testimony was that, no, he never mentioned in that first meeting it could have been a phone app, right?

A. Correct.

Q. And now we all know that that’s false, right?

A. Correct.

Q. So he did mention a mobile app?

A. That is correct. [my emphasis]

I expect that Danchenko’s team has a follow-up or two for days ahead on this issue. Note that in this case, unlike the Michael Sussmann case, Durham intends to put his case agent on the stand.

The point, however, is that Onorato caught Durham eliciting knowingly false testimony about a central issue in the case: whether Millian could have called Danchenko using a phone app, leading Danchenko to honestly believe they might meet face to face in NYC on July 28, 2016.

But, for all Durham’s claims that withholding emails are evidence of guilt, Danchenko’s team caught him doing that too. Here’s how Onorato walked Auten through an email Millian sent bragging about his ties to Trump in July 2016.

Q And, again, I don’t want to discuss whether the information in this email is truthful, okay. But it purports to be an email from Sergei Millian, right?

A 481, yes.

Q Okay. And it purports to be sent on July 15 of 2016?

A Correct.

Q And it purports to be to someone named bridgeusa —

A @aol.com, yes.

Q And the subject matter is Trump?

A Trump, yes.

Q Okay. And do you remember when Mr. Durham asked you questions about if you had certain facts, would they have been material or helpful to you? Right?

A Yes. Yes.

Q Okay. So in July 15 of 2016, again, the same time frame that Mr. Danchenko allegedly received this anonymous phone call, right?

A Yes.

Q If you had known that Mr. Millian was telling people that he would be meeting with Trump and his people, would that be significant to you?

A Yes.

Q Okay. So I’m going to ask you to look at 4 — and that’s what that email purports to say, that Mr. Millian was going to be meeting with Trump and his people?

[snip]

Q Okay. So that would have been material and important when evaluating whether the anonymous caller could have been Mr. Millian? A Yes, this would have been helpful.

Q Correct. Did anybody from Mr. Durham’s team ever show you that document?

A This is the first time I’ve seen this document.

Similarly, Onorato walked Auten through an email — of uncertain content — between Millian and Dmitry Zlodorev, the RIA Novosti journalist who gave Danchenko Millian’s contact information.

Q Okay. So let’s go to the next document. That’s 482, again, the translated page. It’s also dated the same day. So it’s July 15, 2016, but this time it’s from Millian to a person named Zlodorev, right?

A Correct.

Q And Zlodorev is someone that Mr. Danchenko discussed with you in your January meetings, correct?

A That is correct.

Q In fact, he told you that Zlodorev was actually the individual that put him in touch with Millian, right?

A That is my recollection, yes.

Q Okay. And it’s fair to say, again, not whether a meeting happened or it was truthful, but that Millian was saying at the beginning of August, “I’m meeting with Trump and his people. I assume we will discuss Russia.” Right?

A Yes.

Q And, again, that fact would be important for you as an analyst, right?

A Yes.

Q And that’s a document that Mr. Danchenko, of course, was not copied on, right?

A Correct.

Q But did the special counsel show you that document before today?

A I have not seen this document.

Yesterday, Stuart Sears walked Helson through the fact that neither the Mueller team nor Durham ever told him that Danchenko had turned over emails relating to Millian.

Q. And I think you already testified to this, but were you aware that Mr. Danchenko had told Mr. Auten about that email in January 2017?

A. No.

Q. Okay. Were you also aware that he had provided them with an email during the January interviews between him and Mr. Zlodorev, which is the person he got Mr. Millian’s contact information from in August?

A. No.

Q. He actually gave him a screenshot of the email?

A. No.

Q. You were not aware of that?

A. No.

The most important of these is a Facebook message Danchenko sent, apparently to his spouse, on July 28, 2016, referencing that he had one more meeting that day. Outside the presence of the jury, Durham fought hard against admitting the communication, arguing it was hearsay, even though he had planned on introducing the exhibit himself until just days ago.

The government has evidence in its possession that is, frankly, Brady or exculpatory. And what they’re telling this Court is — and this was co-marked as Government Exhibit 607 until Friday night, so we relied on this to be used by them. And, again, I don’t want to say that it’s truthful that there was a meeting, just a statement of intent, because there was no meeting. He told them there was no meeting, and this supports that notion. And there’s going to be evidence that he left New York City later that night in a window where that meeting could have taken place.

MR. DURHAM: The issue is that it is not admissible under the rules of evidence. And the defense —

THE COURT: Well, I’m not sure — I’m not sure that’s dispositive, though, as far as what importance he would have attached to it, had he known of it. I understand your point.

MR. DURHAM: But the point is — Your Honor had observed earlier — you don’t know what’s even being talked about here. You don’t know whether it’s a meeting that Mr. Danchenko is supposed to intend, that he was invited to, if it relates to the L messages. You just don’t — you don’t know if it is a meeting involving other people that he’ll get information on down the road. It just — it is unclear and it just invites speculation on the part of the jury. So to incorporate that same information in a question would be, respectfully, inappropriate.

MR. ONORATO: And, Your Honor, I just have one more point to make. It’s almost as if Mr. Danchenko would be omniscient, right? I mean, to have his state of mind where I have a meeting tonight and then he leaves New York, you know, five or six hours later, and knowing that he’s going to be sitting in this courtroom and, my god, he’s so lucky this email exists and they want to suppress the fact — not that it happened, but that was part of the intent from the agent who they said — you believe he’s now lying because we showed you a couple of emails you haven’t seen.

THE COURT: This was previously a proposed Government Exhibit?

MR. ONORATO: Yes. Government’s Exhibit 607.

What didn’t get mentioned in this colloquy is that what appears to be the same communication was included in the Danchenko indictment.

c. Also on or about July 28, 2016, DANCHENKO messaged an acquaintance the following: “Another meeting tonight. Thanks to my reporting in the past 36 hours, [U .K. Person1] and [U.K. Investigative Firm Employee] are flying in tomorrow [i.e., July 29, 2016] for a few days so I might be busy-don’t know when but in Downtown D.C.”

Here’s how Onorato walked Auten through the Facebook message Danchenko sent during the afternoon of July 28 expressing a belief that he had another meeting that day.

Q. But somewhere in that ballpark between 2:23 and 4:23, Mr. Danchenko makes a post. And I want to focus on the third line of that post. Can you highlight that? Okay. What does that say?

A. [As read:] “Another meeting tonight.”

Q. Okay. And Mr. Danchenko was posting at some point in the afternoon from New York City that he had another meeting tonight between 2:23 and 4:23 p.m., depending on how you interpret UTC time, right?

A. Correct.

Q. Okay. And I think — and he told you that he went to New York City for the purpose of having a meeting, right?

A. Correct.

Q. Okay. And the special counsel never showed you this exhibit, I take it?

A. I have not seen this.

Q. And so you’ve never been aware before today that Mr. Danchenko professed in the evening hours on the 28th that he believed he had a meeting at the time?

A. No. This is the first I am seeing this.

Q. Okay. And would you say that’s material to your consideration as to whether there’s a probability that would support the fact of his belief that it could have been Millian, that he had a meeting, first of all —

A. Right.

Q. It’s corroborative that he thought he had a meeting, right?

A. Correct.

Q. Okay. And that it would also corroborate that it could be Millian because you saw Millian’s travel records, right?

A. It is the possibility that it could be Millian.

Here’s how Stuart Sears walked Helson through the same material.

Q. Did they share with you evidence they had uncovered that Mr. Danchenko had sent a Facebook message to his wife from the Bronx Zoo in New York where he wrote, among other things, another meeting tonight on July 28th of 2016?

A. No.

Q. Did they share with you when they were sharing you the evidence they had uncovered in their investigation, that Mr. Millian had been reaching out to George Papadopoulos who was a foreign policy advisor to President Trump at the time, during the same time frame or very close to it, that Mr. Danchenko believed he spoke to Mr. Millian?

A. No.

Q. Would you agree with me, Agent Helson, that those additional facts that were uncovered by the Durham team tend to offer some support for Mr. Danchenko’s belief that the caller may have been Sergei Millian?

A. It could, yes.

Durham had in his possession abundant communications that showed not only that it was possible that Millian called Danchenko, but that Danchenko took action that suggested he believed someone, whether Millian or someone else, had set up that meeting.

But he tried to keep it away from the jury — even a detail he himself included in the indictment, that on the afternoon of July 28, Danchenko still believed he had one more meeting in New York.

John Durham is arguing that when someone withholds communications that are material to an investigation, it is proof he’s lying.

Thus far, the trial has shown he did far more of that than Igor Danchenko.

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

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.

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

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:

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

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.

John Durham Wants to Lecture EDVA Jurors about Being Played by Foreign Spies

We’ve gotten to that stage of another Durham prosecution where each new filing reads like the ramblings of a teenager contemplating philosophy after eating hallucinogenic mushrooms for the first time. This time it’s a reply filing in a motion in limine written by Michael Keilty (who I used to think was the adult in this bunch).

Before I show what I mean, I’m going to just share without comment my favorite part of the filing, where someone claims in all seriousness that hotel staffers — in a foreign country!! — don’t gossip about the kink of famous people.

It strains credulity, however, to believe that Ritz Carlton managers – with no apparent relationship to the defendant – would confirm lurid sexual allegations about a U.S. presidential candidate to a guest, let alone a stranger off the street.

Well, okay, I’ll make one comment. This is a gross misrepresentation of what Danchenko said, which is that the hotel staffers did not deny the rumor, not that they had confirmed them.

That done, I’m going to jump to the end, to where Keilty argues Durham should be able to present the allegation that led to the predication of a counterintelligence investigation against Danchenko in 2009 as well as the reason it was closed (because the FBI incorrectly believed Danchenko had left the US). Durham should be able to do that, the filing argues, so that the jury can contemplate the FBI’s obligation to consider whether they’re being played by foreign spies. [All the bold and underlining in this post are mine; the italics are Durham’s.]

The defendant asks the Court to limit the admissibility of evidence concerning the FBI’s prior counterintelligence investigation of the defendant to only the fact that there was an investigation. Limiting the evidence in this manner would improperly give the jury the false impression that the investigation closed due to a lack of evidence against the defendant. As discussed in its moving papers, the Government believes the facts underlying the investigation are admissible as direct evidence because in any investigation of potential collusion between the Russian Government and a political campaign, it is appropriate and necessary for the FBI to consider whether information it receives via foreign nationals may be a product of Russian intelligence efforts or disinformation. And in doing so, the FBI must consider the actual facts of the prior investigation. Had the FBI known at the time of his 2017 interviews that the defendant was providing them with false information about the sourcing of his claims, this naturally would have (or should have) caused investigators to revisit the prior counterintelligence investigation and raise the prospect of revisiting prior conduct by the defendant, including his statements to a Brookings Institute colleague regarding receipt of classified information in exchange for money and his prior contact with suspected intelligence officers. Whether or not the defendant did or did not carry out work on behalf of Russian intelligence, these specific facts are something that any investigator would or should consider and, therefore, the jury is entitled to learn at trial about the facts of the prior investigation in assessing the materiality of the defendant’s alleged false statements. The defendant should not be permitted to introduce the existence of the counterintelligence investigation for his benefit while suppressing the details of his conduct at issue in that very investigation.

This largely repeats the argument Keilty made in his original motion, before Danchenko responded, “Bring it!” to this request. I’ve underlined the language that appears exactly the same in both.

The Government anticipates that a potential defense strategy at trial will be to argue that the defendant’s alleged lies about the sourcing of the Steele Reports were not material because they had no affect on, and could not have affected, the course of the FBI’s investigations concerning potential coordination or conspiracy between the Trump campaign and the Russian Government. Thus, the Government should be able to introduce evidence of this prior counterintelligence investigation (and that facts underlying that investigation) as direct evidence of the materiality of the defendant’s false statements. Such evidence is admissible because in any investigation of potential collusion between the Russian Government and a political campaign, it is appropriate and necessary for the FBI to consider whether information it receives via foreign nationals may be a product of Russian intelligence efforts or disinformation. Had the FBI known at the time of his 2017 interviews that the defendant was providing them with false information about the sourcing of his claims, this naturally would have (or should have) caused investigators to revisit the prior counterintelligence investigation and raise the prospect that the defendant might have in fact been under the control or guidance of the Russian intelligence services. Whether or not the defendant did or did not carry out work on behalf of Russian intelligence, the mere possibility that he might have such ties is something that any investigator would consider and, therefore, the jury is entitled to learn at trial about the prior investigation in assessing the materiality of the defendant’s alleged false statements.

As noted, Danchenko responded to this request by stating that he planned to elicit the fact of the investigation himself.

The government seeks to admit evidence, in its case-in-chief or to rebut a potential defense strategy, that Mr. Danchenko was previously the subject of an FBI counterintelligence investigation over 10 years ago. On this point, Mr. Danchenko generally agrees that the proffered evidence is admissible but likely disagrees about the extent of evidence that should be admitted at trial. It is not disputed that Mr. Danchenko was the subject of a counterintelligence investigation. Nor is it in dispute that the counterintelligence investigation was closed in 2011. Likewise, it will not be in dispute that the FBI agents involved in the Crossfire Hurricane investigation were well aware of the prior counterintelligence investigation, that it was factored into their evaluation of Mr. Danchenko’s credibility and trustworthiness, that an independent confidential source review committee accounted for the prior investigation when recommending the continued use of Mr. Danchenko as a confidential human source through December 2020, and that the agents involved in the prior investigation were consulted and ultimately raised no objections, at the time, to Mr. Danchenko’s continued use as a source.

As an initial matter, those facts obliterate the government’s argument that any alleged false statements were material to the government’s ability to evaluate whether Mr. Danchenko could have been working for the Russians all along. It would be one thing to argue that the Crossfire Hurricane investigators were not aware of the prior investigation and Mr. Danchenko failed to inform them of it when asked. But, as one might expect, Mr. Danchenko was not aware of the investigation. He learned of it when then Attorney General William Barr made public a summary of that investigation on September 24, 2020. Moreover, it stretches credibility to suggest that anything else would have caused the FBI to be more suspicious of Mr. Danchenko’s statements and his potential role in spreading disinformation than the very fact that he was previously investigated for possibly engaging in espionage on behalf of Russia. Armed with that knowledge, however, and based on the substantial and “critical” information Mr. Danchenko provided to the FBI throughout his time as a source, the FBI nevertheless persisted. The Special Counsel perhaps disagrees with that decision, but Mr. Danchenko’s trial on five specific statements and this is not the place to air out the Special Counsel’s dissatisfaction.

Mr. Danchenko himself intends to elicit from government witnesses their general knowledge of Mr. Danchenko’s prior investigation. But the details of that investigation are not relevant and, more importantly, are unproven, would involve multiple levels of hearsay to establish the basis for the investigation let alone prove the allegation, and resulted in no negative action or conclusion. Indeed, the investigation was closed and to undersigned counsel’s knowledge never reopened even after the Special Counsel’s investigation and Indictment. Contrary to the Special Counsel’s insinuations and allegations, we expect the jury will hear that Mr. Danchenko was a vital source of information to the U.S. government during the course of his cooperation and was relied upon to build other cases and open other investigations. [my emphasis]

Curiously, this dispute is taking place without discussion of how Durham intends to introduce this information, other than precisely the way Danchenko proposes to: by asking the Crossfire Hurricane witnesses what they knew about it, which would lead them to explain that they knew about the prior investigation and took it into account, which would be the relevant issue as far as materiality.

Given Danchenko’s suggestion (bolded above) that the counterintelligence agents from 2011 didn’t complain that Danchenko was used as a source “at the time,” I wonder whether they’ve since decided (or been coerced, as Durham has done with so many of his witnesses) that they now think it’s relevant. That might explain why Danchenko was discontinued as a source, too: Imagine if, after Billy Barr violated DOJ guidelines by making this public in 2020, the original agents were invited to complain in October 2020, which led to Danchenko’s discontinuation. Perhaps Durham wants to have those other agents testify as witnesses about what a sketchy man they believed Danchenko to be, over ten years ago, so sketchy that they lost track of him and concluded incorrectly he had left the country.

But having learned that Danchenko not only is willing but wants Crossfire Hurricane witnesses to explain how they took this earlier counterintelligence investigation into account, Durham has doubled down that that is not enough. It is not enough to hear how the FBI personnel who interviewed Danchenko took the earlier investigation into account, the jurors must learn the details of the earlier investigation so they can take it into account.

Granted, your average EDVA jury might have one or two people who have security clearances on it. But Durham is effectively asking untrained jurors to weigh decade-old uncharged and unproven counterintelligence allegations in their deliberation over whether answers Danchenko gave the FBI five years ago should have been viewed more skeptically by trained counterintelligence personnel. He’s doing so even though (and this a key point in Danchenko’s motion to dismiss, though that MTD is unlikely to work) the FBI took action based on Danchenko’s responses on these topics as if the answer was precisely what Durham says it should have been.

The FBI took Danchenko’s descriptions of Charles Dolan’s close ties to Russians like Dmitry Peskov and opened an investigation into him, just like Durham says would have happened if Danchenko had not (allegedly) hidden that Dolan provided him information that showed up in the dossier. The FBI took Danchenko’s descriptions of how sketchy the call he thought might have been with Sergei Millian and concluded from that that the report in the dossier wasn’t all that credible (though they didn’t incorporate that into their FISA applications), just like Durham says should have happened. And based, in part, on Danchenko’s description of his contributions to the dossier, the Mueller team made no further use of the dossier — not to predicate the investigation into Michael Cohen, not to continue the investigation into Paul Manafort (which was premised instead on his money laundering), not to direct the focus of the investigation, which instead looked at things like the June 9 Trump Tower meeting and Konstantin Kilimnik’s role, both of which would have been in the dossier if it were a credible product.

Durham is accusing Dancehnko of lying about two topics that the FBI nevertheless responded to (Page FISA aside) as if they took the answer to be precisely what Durham says it should have been.

He’s doing it in a filing where Durham can’t keep straight basic details of knowability and truth.

For example, in one place he accused Danchenko of telling the truth, just not the truth that Durham wishes he had told. He says it is proof that Danchenko lied that he truthfully answered Christopher Steele would know about Dolan because Danchenko cleared his October 2016 trip to Russia with Steele.

Second, when the defendant was asked “would Chris know of [Dolan]?” the defendant replied “I think he would . . . . because I cleared my [October] trip with Chris.” However, as discussed in the Government’s moving papers, the defendant (1) attempted to broker business between Steele and Dolan, (2) provided Dolan with a copy of his Orbis work product, and (3) apparently informed Dolan of Steele’s former employment with MI-6.

Two of Durham’s complaints — that Danchenko provided Dolan something from Orbis and that Danchenko informed Dolan that Steele worked for MI6 (I suspect Durham is wrongly attributing this to Danchenko but let’s run with it) — have nothing to do with what Steele would know, and so would be non-responsive to the FBI question. They have to do with what Dolan would know, not what Steele would know (even there, as I have noted, the uncharged question Danchenko was asked and his response were not what Durham claims it was).

Durham similarly complains that Danchenko didn’t tell the FBI something he didn’t know but that they did: the extent of communications between Dolan and Olga Galkina.

Third, while the defendant did introduce Dolan to Ms. Galkina, the Government anticipates introducing evidence through the defendant’s handling agent that the defendant was unaware of the extent of communication between Dolan and Galkina. This is a highly material fact given that both Dolan and Galkina are alleged to have been sources for the Steele Reports.

Durham may mean to suggest that if only Danchenko had … I’m not even sure what, the FBI would have discovered the communications that he describes here and wants to present at trial that the FBI discovered. Except as I noted last year, the reason the FBI started asking about Dolan is because they targeted Olga Galkina with a 702 directive that disclosed the contacts she had with Dolan. The FBI came into the interview in question knowing what Danchenko didn’t know and nevertheless Danchenko didn’t hide what he did know. What Danchenko did not know but the FBI did is proof, Durham says, that Danchenko lied.

Perhaps the craziest claimed proof that Danchenko is lying in this filing is where Durham complains that Danchenko didn’t offer up something that his own witness, Dolan, still won’t testify to.

According to the indictment, Danchenko both visited Dolan at the Ritz on June 14, 2016 and posted a picture of the two of them in Red Square (remember, he’s claiming Danchenko was hiding this stuff — the stuff he posted on social media).

On or about June 14, 2016, DANCHENKO visited PR Executive-1 and others at the Moscow Hotel, and posted a picture on social media of himself and PR Executive-1 with Red Square appearing in the background.

He complains that when Danchenko was specifically asked if Dolan could be a source for Steele (Durham has persistently misrepresented the nature of this question), he did mention they were in Moscow together in fall 2016, but didn’t mention June 2016.

In the January 2017 interviews, the defendant never mentioned Charles Dolan. Further, during the defendant’s June 2017 interview with the FBI (which forms the basis of the false statement charge related to Dolan), the defendant only informed the FBI that he was present with Dolan during the October 2016 YPO conference. Again, the defendant conveniently whitewashed Dolan from the June 2016 planning trip in Moscow.

[snip]

First, as discussed above, the defendant did not inform the FBI that Dolan was present at the Ritz Carlton in June 2016. Again, this is a material omission because the defendant informed the FBI that he collected information for the Steele Reports in June 2016, but not during the October 2016 trip. Dolan’s proximity to the defendant during this time period is a highly relevant fact.

Durham wants to prove that Danchenko told an affirmative lie in June 2017 by denying that he had spoken to Dolan about topics that showed up in the dossier (in reality, Danchenko told the FBI, “We talked about, you know, related issues perhaps but no, no, no, nothing specific”). And to support that claim, he offers as proof that Danchenko offered up true information but not the information that Durham himself would have wanted him to offer up. Again, he’s arguing that Danchenko lied by pointing to his true statements.

And he’s making that argument even though his primary witness to all this — Dolan — apparently continues to testify that he does not remember meeting Danchenko at the Ritz.

[T]he Government anticipates that Dolan will testify that he has no recollection of seeing the defendant at the Ritz Carlton in June 2016.

Durham will prove that Igor Danchenko lied, he says, because along with offering true information, he didn’t offer up something that his star witness still won’t testify to remembering.

Let’s go back, shall we, to where we started: The urgency of letting EDVA jurors consider whether FBI’s counterintelligence personnel weighed Igor Danchenko’s past counterintelligence investigation adequately before they decided he was credible and took exactly the actions they would have taken if Danchenko had testified the way Durham claims he falsely did not.

It has been clear from the start that they did take the past CI investigation into account. Indeed, when his interview transcript was first made public, I observed that Danchenko’s interviewers were most skeptical of his evasions about ties to Russian spies. And Danchenko reveals that “an independent confidential source review committee” gave that earlier investigation particular focus when they did a source review of Danchenko’s reporting.

The Crossfire Hurricane team considered it and found Danchenko reliable. The confidential source review committee considered it and found Danchenko reliable. But Durham knows better, and he’s betting that an untrained EDVA jury will agree with him on that point.

But it’s not just Danchenko’s credibility that is at issue. As I previously noted, one reason Durham wants to get into the nitty gritty details of the predication of the investigation against Danchenko is because he expects Danchenko will look at the investigations of others on whom Durham is relying as sources.

[T]he Government expects the defense to introduce evidence of FBI investigations into other individuals who the Government anticipates will feature prominently at trial. Thus, the introduction of the defendant’s prior counterintelligence investigation – should the defense open the door – does not give rise to unfair prejudice that substantially outweighs its probative value.

Durham wants to be able to talk about the earlier counterintelligence investigation that the Crossfire Hurricane team did consider, because Danchenko is likely to raise the counterintelligence investigation into Sergei Millian and Dolan and probably some other people too. There’s no evidence Durham considered those counterintelligence investigations before building elaborate conspiracy theories based on the claims of those witnesses.

Durham said that in the same section where he also said,

[T]n any investigation of potential collusion between the Russian Government and a political campaign, it is appropriate and necessary for the FBI to consider whether information it receives via foreign nationals may be a product of Russian intelligence efforts or disinformation.

That is, shortly before Durham said that he has to talk about the predication of the counterintelligence investigation into Danchenko to even things out if he decides to raise the counterintelligence investigations into Millian, Dolan, and who knows who else, Durham said it is necessary to consider whether someone is being played by Russian intelligence.

In fact, he originally made this claim in a long filing in which he laid out how he had had his ass handed to him by Sergei Millian (though he didn’t confess how badly Millian had played him).

 

Before Durham charged Danchenko, he had not obtained the evidence from the DOJ IG investigation; he shows no familiarity with either the Mueller Report or the Senate Intelligence Committee Report. He never once made Millian substantiate his claims in an interview in which he could be held accountable for false claims. And he never once interviewed George Papadopoulos to learn how Millian was cultivating him during precisely the period that Durham is sure he didn’t call Danchenko. But he wants a jury to decide that the Crossfire Hurricane team didn’t consider the reliability of someone about whom the FBI has opened a counterintelligence investigation.

Durham charged two men as part of a larger uncharged conspiracy theory that the Hillary campaign “colluded” [sic] with Russia to say bad things about Donald Trump. And yet he never “consider[ed] whether information” he received from Millian and others “may be a product of Russian intelligence efforts or disinformation.”

And because he charged this case without considering that, Durham is demanding that he get to present why the FBI opened a counterintelligence investigation against Danchenko 13 years ago.