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John Durham Avenged Warrants Targeting Carter Page by Getting a Warrant Targeting Sergei Millian

In both his opening and closing statements, John Durham prosecutor Michael Keilty described the materiality of the alleged lies Igor Danchenko told the FBI about Sergei Millian by pointing to the role the Steele report on Millian played in getting FISA warrants targeting Carter Page.

The evidence in this trial will show that the Steele dossier would cause the FBI to engage in troubling conduct that would ultimately result in the extended surveillance of the United States citizens. And the defendant’s lies played a role in that surveillance.

[snip]

So let’s now talk about why the defendant’s lies matter. The defendant’s lies about Sergei Millian mattered because the information he allegedly received from Millian ended up in a FISA warrant against a U.S. citizen, one of the most intrusive tools the FBI has at its disposal. The FBI gets to listen to your calls and read your emails. It’s a really significant thing.

You heard Brian Auten testify that that Millian information — alleged Millian information was contained in every single FISA application on four different occasions. The FBI surveilled a U.S. citizen for nearly a year based on those lies.

Even accepting the problems of the FISA warrants, the claim never made any sense.

According to the trial record, Danchenko’s information didn’t end up in FISA applications. Language Christopher Steele wrote based on Danchenko’s information did. Danchenko claimed that Steele had exaggerated it, and even after interviewing Steele twice, the FBI believed Danchenko.

Keilty was accusing Danchenko of doing something that — no one has contested — that Steele did, not Danchenko.

Plus, two of the alleged lies took place after the FBI had ceased surveilling Page, in October and November 2017. Even if Danchenko did lie, it would defy the laws of physics to blame those alleged lies for surveillance that ended in September.

Crazier still, one reason why DOJ retroactively withdrew the probable cause claims for the last two FISA orders on Page, obtained in April and June 2017, is because FBI didn’t integrate the warnings Danchenko gave them about the report in the applications. Danchenko is the last person you should blame for the FISA surveillance of Page. He claims he didn’t even know the reports were being shared with the FBI!

The obvious problems with this claim have not stopped stupid propagandists like Margot Cleveland from repeating the nonsensical claim.

It all the weirder, though, when you consider that John Durham was himself responsible for obtaining senseless search warrants against two American citizens.

First, there are the warrants Durham served to obtain Chuck Dolan’s communication, as Stuart Sears had Dolan explain on cross examination.

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.

As Sears had Dolan explain, those warrants yielded nothing to refute his claim never to have “talked” to Danchenko about anything that appeared in the dossier.

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.

Last Friday, in dismissing the single count pertaining to Dolan, Judge Trenga ruled that any evidence these warrants targeting Dolan yielded did not prove a crime.

And Durham also obtained warrants targeting Sergei Millian — one of his purported victims! — who at least in 2016 had dual citizenship. Durham had his case agent, Ryan James, describe all the surveillance Durham did of Millian.

Q With respect to those documents, tell the ladies and gentlemen of the jury whether you personally have been involved in sorting through those records.

A Yes, I have.

Q Travel records, the travel records relating to Sergei Millian was brought to the jury’s attention. Who obtained those records?

A Our team did.

[snip]

Q The jury has heard testimony relating to a number of telephone numbers involved with a fellow by the name of Sergei Millian. Would you tell the jury, sir, whether or not you have any knowledge about records and information being retrieved concerning Sergei Millian.

A Our team requested legal process on some of his numbers that we’ve identified that belong to him.

Q When you say legal process, just so the jurors have an understanding of that, what kind of legal process would typically be involved in getting those records?

A In this particular case, subpoenas.

Q All right. And in addition to subpoenas, do you know if Facebook records and the like were retrieved using the leal process?

A Yes.

Q And what kind of legal process was used to obtain those records?

A Those would be via search warrants.

Even more than the Facebook warrant, Durham’s collection of Millian’s travel records — all the way through current day! — are probably more intrusive on Millian’s privacy.

Q Now, let me start, if I might then. With regard to the records in this matter, you’ve told the jurors that among those records that you obtained were travel records for Sergei Millian, correct?

A Yes.

Q And with respect to Millian’s travel records, how would you describe them? Were they plentiful or there was one or two? What’s your best recollection as to Millian’s travel records?

A I would say he frequently comes in and out of this country.

Q Based on your review of all the travel records, has he been in the country anytime recently?

A No.

It’s too early to say whether any of these records included evidence of a crime. After all, DOJ’s KleptoCapture complaint against Elena Branson shows that one of Millian’s colleagues at the Russian-American Chamber of Commerce viewed the requirement to register under FARA as a “problem” way back in 2013.

But according to an EDVA jury, any evidence the warrants and subpoenas targeting Millian obtained did not prove Danchenko committed a crime.

Durham unpacked the digital lives of two American citizens, plus Danchenko, partly through search warrants that he attacked Mueller’s investigators for not obtaining.

And unless the evidence obtained ends up being used to show that Millian was an illegal foreign agent of Russia, that evidence did not provide that anyone committed a crime.

The right wing is defending John Durham today because he avenged an American who was unfairly targeted by a warrant. And along the way, they seem to have missed that Durham himself obtained a bunch of apparently pointless search warrants targeting American citizens, including Trump fan Sergei Millian.

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.

Did Kash Patel Already Confess to Illegally Disseminating Carter Page FISA Information?

I’m pretty proud of how closely my two posts (first, second) predicted what the likely and known contents of the Trump affidavit would be. I pretty accurately described the structure, the contents, and many of the known details of what we’ve seen of the application so far.

That’s especially true of the statutory section. I not only predicted that — “Particularly given the novel legal issues implicating a search of the former President” — there would be a substantial statutory background section, but that, “If there’s a version of this statutory language, it may be among the things DOJ would acquiesce to releasing.”

Which they did.

And, to a significant extent, I predicted what would be in that statutory section. Here is that section of my post, with the paragraphs of the Trump affidavit where that language appears in bold and linked.

Everything I expected to be in there, was in there. The details I didn’t anticipate, though, are pretty noteworthy.

That’s particularly true of the section describing special designations. These designations all stem from what the FBI found in the 15 boxes Trump returned in January.

From May 16-18, 2022, FBI agents conducted a preliminary review of the FIFTEEN BOXES provided to NARA and identified documents with classification markings in fourteen of the FIFTEEN BOXES. A preliminary triage of the documents with classification markings revealed the following approximate numbers: 184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET. Further, the FBI agents observed markings reflecting the following compartments/dissemination controls: HCS, FISA, ORCON, NOFORN, and SI. Based on my training and experience, I know that documents classified at these levels typically contain NDI. Several of the documents also contained what appears to be FPOTUS ‘s handwritten notes.

If the FBI found a document of a particular type in May, it included that designation in this statutory section.

The Atomic Energy Act was not included, which means (as some knowledgable people predicted in advance), if Trump had nuke documents, they’re not about our nukes, they’re about someone else’s. Trump’s affidavit also includes a description of HCS and SI, Human and Signals Intelligence, designations which have appropriately sobered the response of at least some Republicans, because they mean Trump could get someone killed.

The mention of ORCON — Originator Controlled material — would mostly matter if the FBI found that one of NSA documents that Mike Ellis was sharing with unauthorized people and places during the period Trump was packing up were among the things in the boxes. Those documents were both described as relating to (a or some), “controlled, compartmented NSA program,” in the Inspector General Report on Ellis and the designation ORCON would matter more if documents were retained after the Originator made a sustained effort to get them back, as NSA did in this case.

It’s the mention of FISA, though, that I should have anticipated, and which could present heightened legal problems for Trump — and Kash Patel, and others.

14. Foreign Intelligence Surveillance Act, or “FISA,” is a dissemination control designed to protect intelligence information derived from the collection of information authorized under the Foreign Intelligence Surveillance Act by the Foreign Intelligence Surveillance Court, or “FISC.”

That’s because both Kash and John Solomon have been attempting to create an alibi for information that may include the final Carter Page application. And, as that preliminary review determined, there was at least one FISA document in the boxes returned in January.

On top of any violations of the Espionage Act, if Trump took a copy of that with him after he was fired, it might constitute unlawful dissemination under FISA.

Between them, Kash and Solomon — whom Trump made his representatives to NARA on June 19 — have described that materials relating to the Russian investigation were among those NARA found in the returned boxes and that they might include a Carter Page FISA warrant (which I assume must mean the application).

There’s the May 5 column in which Kash claimed that everything that had been returned in the 15 boxes had been declassified.

“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel told Breitbart News in a phone interview.

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel said. “I was there with President Trump when he said ‘We are declassifying this information.’”

In that column, Kash exhibited knowledge that the materials included documents from “Russiagate” [sic] and Impeachment 1.0.

“It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”

That’s the column cited in the Trump affidavit — though there’s at least one sentence of that paragraph that remains redacted.

I am aware of an article published in Breitbart on May 5, 2022, available at https://www.breitbart.com/politicsi2022i05/05/documents-mar-a-lago-marked-classified-wereah-eadv-declassifi.ed-kash-patel-savs/, which states that Kash Patel, who is described as a former top FPOTUS administration official, characterized as ”misleading” reports in other news organizations that NARA had found classified materials among records that FPOTUS provided to NARA from Mar-a-Lago. Patel alleged that such reports were misleading because FPOTUS had declassified the materials at issue. [redacted]

Kash has issued a statement complaining, even though he had no complaint when information about Michael Isikoff was unsealed in the Carter Page FISA application for a similar published statement.

More interesting still, on July 20, John Solomon (who did a podcast on January 14, 2021 bragging of detailed knowledge of what Russian investigation materials would be released in the coming days) described having newly obtained a January 20, 2021 Mark Meadows memo to DOJ instructing them to declassify documents from the Russian investigation.

Even though the Meadows memo cites from Trump’s own January 19, 2021 order stating that the declassification, “does not extend to materials that must be protected from disclosure pursuant to orders of the Foreign Intelligence Surveillance Court,” Solomon described that the declassified information did include both transcripts of “intercepts made by the FBI of Trump aides,” (which may have included the intercepts of Mike Flynn obtained by targeting Sergey Kislyak which, because the intercepts took place in the US, may have been conducted under FISA) and “a declassified copy of the final FISA warrant approved by an intelligence court.”

The declassified documents included transcripts of intercepts made by the FBI of Trump aides, a declassified copy of the final FISA warrant approved by an intelligence court, and the tasking orders and debriefings of the two main confidential human sources, Christopher Steele and Stefan Halper, the bureau used to investigate whether Trump had colluded with Russia to steal the 2016 election.

In the end, multiple investigations found there was no such collusion and that the FBI violated rules and misled the FISA court in an effort to keep the probe going.

The documents that Trump declassified never saw the light of day, even though they were lawfully declassified by Trump and the DOJ was instructed by the president though Meadows to expeditiously release them after redacting private information as necessary. [my emphasis]

Curiously, the PDF of the Mark Meadows memo Solomon linked (my link) — which includes a staple mark and other oddities for an original document preserved by NARA — shows a September 27, 2021 creation date, with a modification date just days after Trump designated Solomon as his representative at NARA. (h/t @z3dster for the observation)

Back to Solomon’s implication that the documents in question — documents that Kash had suggested were among those boxed and sent back to NARA — included the final Carter Page warrant.

If the former President’s stash included an unredacted copy of the final FISA application targeting Carter Page, it could mean additional trouble for him and anyone else involved.

Even a Kislyak intercept would, because it would impact Mike Flynn’s privacy.

Similarly, even if, after three years of effort led largely by Kash Patel, an Inspector General hadn’t deemed the Carter Page FISA applications problematic, Trump took the Carter Page warrant application home after he left office, it would be an egregious violation of FISA’s minimization procedures, which strictly limit how such material can be disseminated. A disgruntled former government’s employee’s desire to spread propaganda about his tenure is not among the approved dissemination purposes.

But Carter Page, almost uniquely of any American surveilled under FISA, has special protections against such things happening.

That’s because in the wake of the IG Report on Carter Page, and in the wake of Bill Barr’s DOJ withdrawing its claim of probable cause for the last two Page warrants, James Boasberg required the government to ensure that materials for which there might not have been probable cause were no longer disseminated. In issuing that order, Boasberg cited 50 USC 1809(a)(2), the part of FISA that makes it a crime, punishable by a five year sentence, to disseminate improperly collected material from a targeted person. As a result, in June 2020, Boasberg issued an order sequestering the material collected from the Carter Page FISA except for five designated purposes.

Indulging the former President’s tantrum is not one of those five purposes.

And Trump and Kash, especially, have reason to know about this sequester. That’s because in October 2020 — at a time when Kash was still babysitting John Ratcliffe at DNI — DOJ violated the sequester by sharing information on Page with the Jeffrey Jensen and John Durham inquiries. As far as we know, that violation of the sequester order didn’t result in surveillance records on Carter Page being stored in a poorly secured storage closet in a resort hotel, but it still involved a hearing before the FISC and a public scolding.

If there’s an unredacted copy of the Page application, it would mean sections like this and this would be unsealed. There’s even a description of the emails that Page sent to the campaign bragging about his access to top Russian officials that, because of how it came to be in the application, would be subject to Boasberg’s sequestration order. There might even be contacts that Page had with Steve Bannon, whose privacy would also be implicated. Disseminating any of that stuff in unredacted form is, by itself, a crime, one the FISC has warned Trump and Kash’s bosses about repeatedly.

In his January 2021 podcast, Solomon claimed that the material Trump wanted to release would prove he was spied on. To show that from materials relating to Carter Page would require sharing information specifically covered by the sequestration order. Shipping that from the White House to Mar-a-Lago would be a crime. Sharing it from there would definitely be a crime. And any authorization would have to involve the FISA Court. No President — not Trump and not Biden — can lawfully ignore that order.

Since at least May, both Kash and Solomon seem frantic to help Trump develop a cover story. And their frantic efforts seem to explicitly include materials pertaining to Carter Page.

And that’s why the confirmation that Trump had FISA materials in his stolen boxes could present additional headaches for the former President and his flunkies.

Hillary Clinton’s Devious Plot to Get Oleg Deripaska to Install Paul Manafort as Trump’s Campaign Manager

Out of curiosity and a good deal of masochism, I listened to the latest podcast of “The Corner,” the frothy right wingers who spend their time spinning conspiracy theories about the Durham investigation.

It was painful.

At every step, these men simply assert evidence must exist — like a Democratic order to bring dirt to the FBI — for which there’s no evidence. They ignore really basic facts, such as that Sussmann was necessarily working with the FBI because his client was being systematically hacked, and therefore it wasn’t just Christopher Steele who had ongoing ties to the Bureau. They make a huge deal about the fact that the US government’s Russian experts know each other, and that Christopher Steele persistently reported on topics — like Rosneft — that really were and are important to British and US national security and on which he had legitimate expertise.

They’re already starting to make excuses for Durham (such as that Durham chose not to obtain privileged emails the same way Mueller and SDNY did, without noting that Mueller had probable cause of a crime, which Durham admits he does not, much less that Mueller got them in a different way and a different time then they believe he did).

They keep making much of the coincidence of key dates in 2016 — “We continue to have a very, very tight timeline that that accelerates” — but never mention either the WikiLeaks dump of the DNC emails or Trump’s request that Russia hack Hillary some more, a request that was followed closely by a new wave of attacks. Those two events in July 2016 explain most of the actions Democrats took in that period, and these men don’t even exhibit awareness (or perhaps the belief?) that the events happened.

Worse still, they are ignorant of, or misrepresent, key details.

For example, all but Hans Mahncke assert that John Brennan must have been acting on some kind of corrupt intelligence in July 2016, rather than real intelligence collected from real Russian sources. They do so even though Billy Barr described in his book bitching at Trump after Trump complained that Durham found that, “the CIA stayed in its lane in the run-up to the [2016] election.”

Emblematic of the fraying relationship between the President and me was a sharp exchange at the end of the summer in the Oval Office. To give the President credit, he never asked about the substance of the investigation but just asked pointedly when there might be some sign of progress. On this occasion, we had met on something else, but at the end he complained that the investigation had been dragging on a long time. I explained that Durham did not get the Horowitz report until the end of 2019, and up till then had been look- ing at questions, like any possible CIA role, that had to be run down but did not pan out.

“What do you mean, they didn’t pan out?” the President snapped.

“As far as we can tell, the CIA stayed in its lane in the run-up to the election,” I said.

The President bristled. “You buy that bullshit, Bill?” he snarled. “Everyone knows Brennan was right in the middle of this.”

I lost it and answered in a sarcastic tone. “Well, if you know what happened, Mr. President, I am all ears. Maybe we are wasting time do- ing an investigation. Maybe all the armchair quarterbacks telling you they have all the evidence can come in and enlighten us.”

Durham looked for this evidence for years. It’s not there (and therefore the intelligence Brennan viewed is something other than the dossier or even the Russian intelligence product that the frothers also spin conspiracies on).

All but Fool Nelson misrepresent a July 26, 2016 email from Peter Fritsch to WSJ reporter Jay Solomon, which says, “call adam schiff, or difi for that matter. i bet they are concerned about what page was doing other than giving a speech over 3 days in moscow,” suggesting that that must be proof the top Democrats on the Intelligence Committees had the Steele dossier, rather than proof that it was a concern to see an advisor to a Presidential campaign traveling to Russian and saying the things Page was saying. (Jeff Carlson makes the same complaint about former Ambassador to Russia Michael McFaul’s observations about something that all experienced Russia watchers believed was alarming in real time.)

They get the evidence against Carter Page wrong, among other ways by misstating that all his time in Moscow had been accounted for and that the rumor he met with Igor Sechin was ever entirely debunked. “Of course it’s impossible. He was chaperoned. He had a hotel. He had a driver. Without people noticing.” For example, the son of the guy who brought Page to Russia, Yuval Weber, told the FBI that they weren’t with Page 100% of the time and there was a rumor that he had met with Sechin.

In July, when Page had traveled to give the commencement speech at NES, Weber recalled that it was rumored in Moscow that Page met with Igor Sechin. Weber said that Moscow is filled with gossip and people in Moscow were interested in Page being there. It was known that a campaign official was there.

Page may have briefly met with Arkady Dvorkovich at the commencement speech, considering Dvorkovich was on the board at NES. But Weber was not aware of any special meeting.

[redacted] was not with Page 100% of the time, he met him for dinner, attended the first public presentation, but missed the commencement speech. They had a few other interactions. Page was very busy on this trip.

This testimony was consistent with Mueller’s conclusion about Page’s trip: given boasts he made to the campaign, “Page’s activities in Russia — as described in his emails with the Campaign — were not fully explained.”

They badly misrepresent emails between a handful of journalists and Fusion GPS, spinning real skepticism exhibited by journalists as journalists somehow conspiring with Fusion. Indeed, they repeatedly point to an email from WaPo’s Tom Hamburger pushing back on the Sechin claim, “That Page met with Sechin or Ivanov. ‘Its bullshit. Impossible,’ said one of our Moscow sources.” They claim that Hamburger nevertheless reported the story after that. They’re probably thinking of this story, which reported Page’s 2014 pro-Sechin comments, not that he had met with the man in 2016.

After the Obama administration added Rosneft Chairman Igor Sechin to its sanctions list in 2014, limiting Sechin’s ability to travel to the United States or do business with U.S. firms, Page praised the former deputy prime minister, considered one of Putin’s closest allies over the past 25 years. “Sechin has done more to advance U.S.-Russian relations than any individual in or out of government from either side of the Atlantic over the past decade,” Page wrote.

In other words, they’re claiming journalists doing actual journalism and not reporting what Fusion fed them is somehow corrupt, when it is instead an example, among many, of failed attempts by Fusion to get journalists to run with their tips.

They complain that Fusion was pointing journalists to Felix Sater, in spite of the fact that Sater really was central to tying Trump Organization to Russian funding and really did pitch an impossibly lucrative real estate deal in the year before the campaign that involved secret communications with the Kremlin and sanctioned banks and a former GRU officer, a deal that Michael Cohen and Trump affirmatively lied to cover up for years.

They grossly misrepresent a long text to Peter Strzok reflecting someone else’s early inquiries on the DNS allegation to Cendyn, imagining (the redaction notwithstanding) that it reflects the FBI concluding already at that point that there was nothing to the DNS allegations and not that the FBI inquiry instead explains why Trump changed its own DNS records shortly thereafter (addressing one but not both of the questions raised by NYT reporting).

Obviously, none of them seem interested in the nearly-contemporaneous text from Strzok noting that “Russians back on DNC,” presumably reflecting knowledge of the serial Russian effort to steal Hillary’s analytics stored on an AWS server, a hack that — because it involved an AWS server, not a DNC-owned one — not only defies all the favorite right wing claims about what went into the Russian attribution, but also explains why Sussmann would be so concerned about seeming evidence of ongoing covert communication between Trump and a Russian bank. The Russians kept hacking, both in response to Trump’s request in July, and in the days before and after Sussmann met with James Baker in September.

Crazier still, none of these men seem to have any understanding of two details of the back-and-forth between Sussmann, the FBI, and NYT, one that is utterly central to the case against Sussmann. They conflate a request FBI made to NYT days after Sussmann’s meeting with the FBI to kill the story — one made with the assent of Sussmann and Rodney Joffe — with later follow-up reporting by the NYT reporting that the FBI had not substantiated the DNS allegation. Those were at least two separate calls! Durham had chased down none of them before he indicted Sussmann. It wasn’t until almost six months after charging Sussmann that Durham corroborated Sussmann’s HPSCI testimony that Sussmann and Joffe agreed to help kill the initial NYT story, which provides a lot of weight to Sussmann’s explanation for his meeting with James Baker, that he wanted to give the FBI an opportunity to investigate the allegation before the press reported on it. As a result, Mahncke states as fact that Sussmann’s September 18 text telling Baker, “I’m coming on my own – not on behalf of a client or company – want to help the Bureau,” (even ignoring the temporal problem it creates for Durham’s charge) proves Sussmann lied, when in fact, his and Joffe’s efforts to help the Bureau kill the story strongly supports Sussmann’s public story.

If you don’t know that Sussmann and Joffe helped the FBI to kill what would have been a damning story about Trump, you’re not assessing the actual evidence against Sussmann as opposed to Durham’s conspiracy theories.

All that said, laying out all the ways the supposed experts on the frothy right prove they’re unfamiliar with the most basic details about events in 2016 and since is not why I wrote this post.

I wrote this post because of the way Fool attempted to explain away the inconvenience of Paul Manafort to his narrative. Fool went on at length showing how (a possible Russian fabrication claiming) Hillary’s plan to focus on Trump’s ties to Russia must have predicated an investigation that started before that point. He ignored, entirely, that an FBI investigation had already been opened on Page by then (and all four frothers ignore that Fusion started focusing on Page when Paul Singer was footing the bill). But Fool does acknowledge that the money laundering investigation into Manafort had already been opened before Crossfire Hurricane started. He treats Manafort’s very real corrupt ties to Putin-backed oligarchs as a lucky break for what he imagines to be Hillary’s concocted claims, and not a fact that Trump ignored when he hired the man to work for him “for free.” “Luckily, I don’t know if this was a coincidence or not, Manafort joined the Trump campaign and that gave them a reason to look deeper.” In other words, Fool suggests Manafort’s hiring might be part of Hillary’s devious plot, and not the devious plot of Oleg Deripaska to get an entrée to Trump’s campaign or the devious alleged plot of Mohammed bin Zayed to direct Trump policy through Tom Barrack.

Because I expect the circumstances of Manafort’s hiring may become newsworthy again in the near future and because Deripaska was pushing an FBI investigation into Manafort before Hillary was, I wanted to correct this detail.

According to Gates, the effort to install Manafort as campaign manager started earlier than most people realize, in January 2016, not March.

In January 2016, Gates was working mostly on [redacted] film project. Gates was also doing some work on films with [redacted] looking for new DMP clients, and helping Manafort pull material together to pitch Donald Trump on becoming campaign manager. Roger Stone and Tom Barrack were acting as liaisons between Manafort and Trump in an effort to get Manafort hired by the campaign. Barrack had a good relationship with Ivanka Trump.

Tom Barrack described to Mueller how Manafort asked for his help getting hired on Trump’s campaign in that same month, January 2016.

But Manafort may have started on this plan even before January 2016. Sam Patten told SSCI Kilimnik knew of the plan in advance. Patten’s explanation of his involvement in the Mueller investigation describes Ukrainian Oligarch Serhiy Lyovochkin asking him about it in late 2015.

In late 2015, Lyovochkin asked me whether it was true that Trump was going to hire Manafort to run his campaign. Just as I told Pinchuk that Putin’s perception of America’s capabilities was ridiculous, I told Lyovochkin that was an absurd notion; that Trump would have to be nuts to do such a thing.

In any case, even before his hiring was public, on March 20, Manafort wrote his Ukrainian and Russian backers to let them know he had installed himself with the Trump campaign. He sent one of those letters to Oleg Deripaska, purportedly as a way to get the lawsuit Deripaska had filed against Manafort dropped.

Gates was shown an email between Gates and Kilimnik dated March 20, 2016 and four letters which were attached to this email. Gates stated he was the person who drafted the letters on Manafort’s behalf. Manafort reviewed and approved the letters.

Manafort wanted Gates to draft letters announcing he had joined the Trump Campaign. Manafort thought the letters would help DMP get paid by OB and possibly help confirm that Deripaska had dropped his lawsuit against Manafort. Manafort wanted Kilimnik to let Deripaska know he had been hired by Trump and he needed to make sure there were not lawsuits against him.

Gates was asked why Manafort could not have employed counsel to find out of the Deripaska lawsuit had been dropped. Gates stated Manafort wanted to send Deripaska a personal note and to get a direct answer from Deripaska. Gates also thought this letter was a bit of “bravado on Manafort’s part.”

Gates was asked if the purpose of the letter to Deripaska was to determine if the lawsuit had been dropped, why didn’t the letter mention the lawsuit. Gates stated that Manafort did not want to put anything about the lawsuit in writing.

This explanation, true or not (and it’s pretty clear the FBI didn’t believe it), is critical to the frothers because even before Christopher Steele started collecting information on Trump, he was collecting information on Manafort at the behest of Deripaska in conjunction with this lawsuit. And Steele was feeding DOJ tips about Deripaska’s lawsuit before he started feeding the FBI dirt paid for by Hillary’s campaign. The first meeting at which Steele shared dossier information with Bruce Ohr, for example, Steele also pushed the Deripaska lawsuit, and not for the first time.

Either the Deripaska lawsuit was a cover story Manafort used consistently for years (including through his “cooperation” with Mueller in 2018), or it was real. Whichever it was, it bespeaks some kind of involvement by Deripaska long before Hillary got involved. Viewed from that perspective, the dossier (and Deripaska’s presumed success at filling it with disinformation) was just part of a brutal double game that Deripaska was playing with Manafort, one that led Manafort to share campaign strategy and participate in carving up Ukraine, another event the frothers are trying to blame on the ever-devious Hillary. Whichever it is, the process by which a bunch of Putin allies in Ukraine knew Trump was going to hire Manafort before Trump did is a big part of the story.

But according to the frothers, Hillary Clinton is just that devious that she orchestrated all of this.

John Durham Says Election-Hack Victims Should Wait Until After the Election to Report Tips

Even as Russia assaults a peaceful democracy (which invasion, in a separate filing, Durham calls, “recent world events in Ukraine”), John Durham suggests that a political campaign victimized by Russia should expect to wait until after the election before the FBI opens an investigation into a cybersecurity anomaly potentially implicating her opponent.

Durham even asserts that such a cybersecurity anomaly is not a cybersecurity matter, but instead a political one.

Almost six years after Trump’s request, “Russia are you listening,” was met with a renewed Russian attack on Hillary Clinton, John Durham continues to treat Hillary’s attempts to run a campaign while being attacked as a greater threat than that nation-state attack by Russia.

Durham’s latest contortions come in a response to Micheal Sussmann’s motion to dismiss the indictment.

Sussmann argued that the alleged lie he told (motions to dismiss must accept the alleged facts as true), could not have affected the single decision facing the FBI when he shared information about a DNS anomaly: whether to open an investigation or not.

Following the Supreme Court’s clear instruction in Gaudin, in order to assess the materiality of the false statement that Mr. Sussmann is alleged to have made, this Court must ask what statement he is alleged to have made to the FBI; what decision the FBI was trying to make; and whether the false statement could have influenced that decision. Here, even accepting all the allegations in the Indictment as true—and the evidence would prove otherwise—the only decision the FBI was trying to make was the decision whether or not to commence an investigation into the allegations of suspicious internet data involving the Trump Organization and Russian Bank-1. Ample precedent—and the Special Counsel’s own allegations in this case—make clear that Mr. Sussmann’s purported false statement did not influence, and was not capable of influencing, that decision.

Predictably and reasonably, Durham’s response cited the precedent that leaves it up to juries to determine whether something is material or not.

In any event, the defendant’s arguments on the materiality of his statement are also premature. The Supreme Court in Gaudin held that materiality is an essential element of Section 1001 that must be resolved by a jury.

As I noted back in October, “Prosecutors will argue that materiality is a matter for the jury to decide.”

Prosecutors also noted what I did: a long list of precedents about materiality that Sussmann cited in his motion are all post-trial challenges to materiality, not pretrial motions to dismiss.

The defendant cites to multiple cases where the Supreme Court and Circuit Courts have held that the false statements and misrepresentations at issue were immaterial as a matter of law. See Def. Mot. at 7-10. But critically, all of those cases involved post-conviction appeals or motions to vacate the conviction after the Government presented its case at trial. Accordingly, none of these cases support the defendant’s requested relief here – that is, that the court dismiss the Indictment before trial because it fails to sufficiently allege that the defendant’s false statement is material. What the cases do show is that courts have routinely declined to usurp the jury’s role in making the determination on whether a false statement is material.

For those two reasons, Sussmann’s motion to dismiss is unlikely to succeed, and should instead be viewed as an opening bid to frame his defense and establish issues for appeal.

Those two arguments are all Durham really needed to respond to Sussmann’s motion to dismiss. Instead of leaving it with responsible lawyering, however, Durham instead launches into an illogical attempt to criminalize tip reporting.

Take his attempt to dismiss Rodney Joffe’s real cybersecurity expertise. In the three months since he charged Sussmann, Durham belatedly (at Sussmann’s request) discovered how closely Joffe had worked with the FBI on other investigations. As Sussmann scoffed in an earlier filing, “The notion that the FBI would have been more skeptical of the information had it known of Tech Executive-1’s involvement is, in a word, preposterous.” Now that Durham has discovered the close ties between Joffe and the FBI, he claimed that that history of reliability was itself something the FBI needed to know.

Namely, as the defendant’s motion reveals (Def. Mot. at 18-19, fn. 8), Tech Executive-1 had a history of providing assistance to the FBI on cyber security matters, but decided in this instance to provide politically-charged allegations anonymously through the defendant and a law firm that was then-counsel to the Clinton Campaign. Given Tech Executive-1’s history of assistance to law enforcement, it would be material for the FBI to learn of the defendant’s lawyer-client relationship with Tech Executive-1 so that they could evaluate Tech Executive-1’s motivations. As an initial step, the FBI might have sought to interview Tech Executive-1. And that, in turn, might have revealed further information about Tech Executive-1’s coordination with individuals tied to the Clinton Campaign, his access to vast amounts of sensitive and/or proprietary internet data, and his tasking of cyber researchers working on a pending federal cybersecurity contract.

Durham’s claim that “learning” how much data Joffe had access to (which is something the FBI undoubtedly knew — it is surely the reason why FBI partnered with him, because the volume of data Neustar had made their observations more useful) would make them more skeptical of the DNS tip is nonsensical. In fact, elsewhere (in tracking all the YotaPhone requests in the US over a three year period), Durham treated it as presumptively reliable.

Plus, Durham made no mention here of one of a number of the other things he belatedly learned: that the September 2016 tip Sussmann shared with FBI General Counsel James Baker was not the only one Joffe had shared via Sussmann anonymously. He shared a tip anonymously during this same time period with DOJ IG. Durham has no way of knowing, either, whether those two were the only ones, but his revised theory of materiality depends on an anonymous tip like this one being unique.

Similarly, Durham struggled to explain (including by citing an inapt precedent) why the FBI would need to be told that Sussmann represented Hillary when, in notes of Baker’s retelling of the meeting, Bill Priestap wrote that Sussmann represented the DNC and Clinton Foundation.

As he did with Joffe, Durham tried to flip Sussmann’s expertise, arguing that the former prosecutor’s recognized qualification as a cybersecurity expert, something that would help him assess whether DNS data were anomalous or not, is precisely why the Perkins Coie lawyer needed to disclose he was working for Hillary.

In an effort to downplay the materiality of this false statement, the defendant asserts that the FBI General Counsel was aware that the defendant represented the DNC. See Def. Mot at 18. But the Government expects that evidence at trial will establish that the FBI General Counsel was aware that the defendant represented the DNC on cybersecurity matters arising from the Russian government’s hack of its emails, not that he provided political advice or was participating in the Clinton Campaign’s opposition research efforts. Indeed, the defendant held himself out to the public as an experienced national security and cybersecurity lawyer, not an election lawyer or political consultant. Accordingly, when the defendant disclaimed any client relationships at his meeting with the FBI General Counsel, this served to lull the General Counsel into the mistaken, yet highly material belief that the defendant lacked political motivations for his work.

There are many crazy assumptions built into this statement: that, had Sussmann identified Hillary as his client, it would have required him to reveal her motives as political rather than security-related to the FBI, breaching privilege; that reporting an anomaly potentially involving Trump after Trump had begged Russia to further hack Hillary would not be a sound decision from a cybersecurity standpoint; that researching the context of an anomaly, such as Alfa Bank’s ties to Putin, is not part of cybersecurity. Effectively, Durham has unilaterally decided that pursuing this anomaly was a political act, with no basis in law or fact.

Which is how Durham espoused the claim that the FBI, facing an unprecedented attack by Russia on American elections in 2016, might have delayed investigation of a part of it that might have implicated one of the contestants.

The defendant’s false statement to the FBI General Counsel was plainly material because it misled the General Counsel about, among other things, the critical fact that the defendant was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign. The defendant’s efforts to mislead the FBI in this manner during the height of a Presidential election season plainly could have influenced the FBI’s decision-making in any number of ways. The defendant’s core argument to the contrary rests on the flawed premise that the FBI’s only relevant decision was binary in nature, i.e., whether or not to initiate an investigation. But defendant’s assertion in this regard conveniently ignores the factual and practical realities of how the FBI initiates and conducts investigations. For example, the Government expects that evidence at trial will prove that the FBI could have taken any number of steps prior to opening what it terms a “full investigation,” including, but not limited to, conducting an “assessment,” opening a “preliminary investigation,” delaying a decision until after the election, or declining to investigate the matter altogether.

[snip]

Moreover, the Department of Justice and the FBI maintain stringent guidelines on dealing with matters that bear on U.S. elections. Given the temporal proximity to the 2016 U.S. presidential election, the FBI also might have taken any number of different steps in initiating, delaying, or declining the initiation of this matter had it known at the time that the defendant was providing information on behalf of the Clinton Campaign and a technology executive at a private company.

[snip]

And the evidence will show that it would have been all the more material here because the defendant was providing this information on behalf of the Clinton Campaign less than two months prior to a hotly contested U.S. presidential election. [my emphasis]

The first paragraph here is really telling, given Durham’s public complaint that the Crossfire Hurricane team should have opened the investigation as a preliminary investigation, not a full investigation (the investigation into Mike Flynn, specifically, wasn’t opened as a full investigation, but none of the techniques used would have otherwise been unavailable, not least because there was already a full investigation opened on Carter Page). This is an argument Durham may reprise in his report: That it was unreasonable for Hillary Clinton to ask the FBI to inquire into Trump’s campaign after he publicly asked a foreign country for help (even ignoring the tip from Australia).

Durham seems to think Hillary should have had no assistance from law enforcement when her opponent publicly asked Russia to hack her some more if people close to her found more reason to be concerned. He even mocked Sussmann as too powerful to choose to use anonymity.

[W]hile the defendant’s motion seeks to equate the defendant with a “jilted ex-wife [who] would think twice about reporting her ex-husband’s extensive gun-smuggling operation,” this comparison is absurd. Def. Mot. at 24

Far from finding himself in the vulnerable position of an ordinary person whose speech is likely to be chilled, the defendant – a sophisticated and well-connected lawyer – chose to bring politically-charged allegations to the FBI’s chief legal officer at the height of an election season.”

This also betrays pure insanity. The anomaly involving Trump could always have reflected disloyal insiders compromising the candidate, as could the YotaPhones potentially in use in Trump headquarters. In fact, Page did compromise Trump when he went to Russia in December 2016 and tell Russians there that he was representing Trump on matters pertaining to Ukraine, just as Mike Flynn did by selling his access to Trump to Turkey, just as Tom Barrack is accused of doing with the Emirates. The reason why Sussmann was providing this information less than two months before an election is because cybersecurity researchers had gone looking because there was an ongoing multi-faceted cybersecurity attack, one that continued right through the election, one that could have victimized Trump as well as Hillary.

Which brings me to the one point Sussmann made that Durham completely ignored. In his response, Durham’s response uses the word “purported” to describe the DNS allegations from Sussmann five times:

  1. The defendant provided the FBI General Counsel with purported data and “white papers” that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank
  2. the purported data and white papers
  3. the purported DNS traffic that Tech Executive-1 and others had assembled
  4. the defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (“IP”) addresses affiliated with a Russian mobile phone provider (“Russian Phone Provider-1”)
  5. examine the origins of the purported data

What Durham did not do is ever address this point from Sussmann:

Indeed, the defense is aware of no case in which an individual has provided a tip to the government and has been charged with making any false statement other than providing a false tip. But that is exactly what has happened here.

In the fall of 2016, Michael Sussmann, a prominent national security lawyer, voluntarily met with the Federal Bureau of Investigation (“FBI”) to pass along information that raised national security concerns. He met with the FBI, in other words, to provide a tip. There is no allegation in the Indictment that the tip he provided was false. And there is no allegation that he believed that the tip he provided was false. Rather, Mr. Sussmann has been charged with making a false statement about an entirely ancillary matter—about who his client may have been when he met with the FBI—which is a fact that even the Special Counsel’s own Indictment fails to allege had any effect on the FBI’s decision to open an investigation.

[snip]

Again, nowhere in the Indictment is there an allegation that the information Mr. Sussmann provided was false. Nowhere is there an allegation that Mr. Sussmann knew—or should have known—that the information was false. And nowhere is there an allegation that the FBI would not have opened an investigation absent Mr. Sussmann’s purported false statement.

I could fund an entire Special Counsel investigation if I had $5 for every time in this prosecution Durham has used the word “purported.” For almost six months, his entire prosecution has been premised on this anomaly not being “real,” meaning unexplained traffic that might represent something serious.

And yet he has not charged that (though he seems to have bullied April Lorenzen, perhaps because he needs her to be something other than she was). Instead, he just keeps doing the work for which actual evidence is normally required by repeating the word “purported” over and over.

This motion to dismiss will likely fail, because juries get to decide what is material. But contrary to Durham’s claims, unless and until he can prove that Sussmann, Jofffe, and Lorenzen didn’t believe this was a real anomaly worth investigating given all the other attacks that, Sussmann especially, knew were ongoing, then he really will be prosecuting someone for reporting a valid national security concern.

On CIPA and Sequestration: Durham’s Discovery Deadends

In this post, I laid out the range of highly classified or other potentially unavailable information that Igor Danchenko will be able to make a credible claim to need to defend himself against charges he knowingly lied to the FBI.

That list includes:

  • Details about a Section 702 directive targeting Danchenko’s friend, Olga Galkina
  • Extensive details about Sergei Millian’s Twitter account, including proof that Millian was always the person running it
  • Details of the counterintelligence investigation into Millian
  • Materials relating to Millian’s cultivation, in the same weeks as a contested phone call between Danchenko and Millian, of George Papadopoulos
  • Evidence about whether Oleg Deripaska was Christopher Steele’s client for a project targeting Paul Manafort before the DNC one
  • All known details of Deripaska’s role in injecting disinformation into the dossier, up through current day
  • Details of all communications between Deripaska and Millian
  • Details of the counterintelligence investigation into Carter Page
  • Both the FISA applications targeting Page and the underlying discussions about them
  • FISA-obtained collection that is helpful and material to Danchenko’s defense, including all substantive collection incriminating Page obtained before Danchenko’s January interviews, and all intelligence relating to the specific alleged lies in the indictment
  • Materials relating to FBI’s attempt to corroborate the dossier, including materials from Page’s FISA collection that either corroborated or undermined it

As I noted, I know of no prior case where a defendant has had notice of two separate FISA orders as well as a sensitive ongoing counterintelligence investigation and a credible claim to need that information to mount a defense. Durham has committed to potentially impossible discovery obligations, all to prosecute five (or maybe two) lies that aren’t even alleged to have willingly obstructed an investigation. For reasons I lay out below, Durham may not, legally, be able to do that.

To be quite clear: that Danchenko can make a credible claim to need this stuff doesn’t mean he’ll get it, much less be permitted to present it at trial. But, particularly given that the two FISA orders and the counterintelligence investigations have all been acknowledged, DOJ can’t simply pretend they don’t have the evidence. For perhaps the first time ever, DOJ doesn’t get to decide whether to rely on FISA information at trial, because the indictment was written to give the defense good cause to demand it.

Still, much of this stuff will be dealt with via the Classified Information Proecdures Act, CIPA. CIPA is a process that purports to give the government a way to try prosecutions involving classified information, balancing discovery obligations to a defendant with the government’s need to protect classified information. (Here’s another description of how it works.)

Effectively, Danchenko will come up with a list similar to the one above of classified information he believes exists that he needs to have to mount a defense. The government will likewise identify classified information that it believes Danchenko is entitled to under discovery rules. And then the judge — Anthony Trenga, in this case — decides what is material and helpful to Danchenko’s defense. Then the government has the ability to “substitute” language for anything too classified to publicly release, some of it before ever sharing with the defendant, the rest after a hearing including the defense attorneys about what an adequate substitution is.

Here’s a fragment of an exhibit from the Joshua Schulte case that shows the end product of the CIPA process: The CIA was able to replace the name of a vendor the CIA used (presumably as a cover) with the generic word, “vendor,” thereby preventing others from definitively attributing the cover with the CIA. It replaced the description of those who would use the hacking tool with “operators.” Elsewhere, the same exhibit replaced the name of one of Schulte’s colleagues. It redacted several other words entirely.

Here are some more exhibits — CIA Reports submitted at the Jeffrey Sterling trial — that show the outcome of the CIPA process.

On top of the fact that CIPA adds a way for the government to impose new roadblocks on discovery (and discovery only begins after a defendants’ attorneys are cleared), it can end up postponing the time when the defendant actually gets the evidence he will use at trial. So it generally sucks for defendants.

But the process is also onerous for the prosecutor. Basically, the prosecutor has to work with classification authorities from the agency or agencies that own particular classified information and cajole them to release enough information to get past the CIPA review. In my earlier post, I described that Patrick Fitzgerald had to do this with the Presidential Daily Briefs, and it took him several attempts before he had declassified enough information to satisfy Judge Reggie Walton that it provided Scooter Libby with the means to make his defense. If the agency involved in the CIPA process hasn’t totally bought off on the importance of the prosecution, they’re going to make the process harder. Often, the incentive for agencies to cooperate stems from the fact that the defendant is accused of leaking secrets that the agency in question wants to avenge.

Because the process is so onerous, DOJ works especially hard to get defendants to plead before the CIPA process, and often because the defendant is facing the kind of stiff sentence that comes with Espionage charges, CIPA makes it more likely they’ll plead short of trial.

Those two details already make Danchenko’s trial different from most CIPA cases. That’s true, first of all, because Danchenko never had any agency secrets, and prosecutors will be forced to persuade multiple agencies (at least the FBI and NSA, and possibly CIA and Treasury) to give a Russian national secrets even though his prosecution will set no example against leaking for the agencies. Indeed, the example Danchenko will be setting, instead, is that the FBI doesn’t honor its commitments to keep informant identities safe. Additionally, there’s little reason for Danchenko to plead guilty, as the punishment on five 18 USC 1001 charges would not be much different than one charge (remember, Kevin Clinesmith got probation for his 18 USC 1001 conviction), and Danchenko would still face deportation after he served any sentence, where he’s likely to face far greater retaliation than anything US prisons would pose. That will influence the CIPA process, too, as a successful prosecution would likely result in the Russian government coercing access to whatever secrets that intelligence agencies disclose to Danchenko during the prosecution.

CIPA always skews incentives, but this case skews incentives differently than other CIPA cases.

Add in that Judge Trenga, the judge in this case, has been pondering CIPA issues of late in the case of Bijan Kian, Mike Flynn’s former partner, who was prosecuted on Foreign Agent charges. Trenga was long unhappy with the way DOJ charged Kian’s case, and grew increasingly perturbed with DOJ’s attempts to salvage the case after Flynn reneged on his cooperation agreement. Trenga overturned the jury’s guilty verdict, but was subsequently reversed on that decision by the Fourth Circuit. Since then, Kian has been demanding two things: more access to classified materials underlying evidence he was given pursuant to the CIPA process right before trial showing previously undisclosed contacts between Flynn and Ekim Alptekin not involving Kian, and a new trial, partly based on late and inadequate disclosure of that CIPA information.

Following a series of ex parte hearings regarding classified evidence pursuant to the Confidential Information Procedures Act (“CIPA”), the government, on the eve of trial, handed Rafiekian a one-sentence summary, later introduced as Defendant’s Exhibit 66 (“DX66”), informing Rafiekian that the government was aware of classified evidence relating to interactions between Flynn and Alptekin that did not “refer[] to” Rafiekian. DX66.1 Following receipt of DX66, Rafiekian immediately sought access to the underlying information pursuant to CIPA because “[i]t goes right to the question of what happened and what he knew and what statements were made and who was making them,” and “[i]f Mr. Rafiekian is convicted without his counsel having access to this exculpatory evidence, we believe it will go right to the heart of his due process and confrontation rights.” Hr’g Tr. 31 (Jul. 12, 2019), ECF No. 309. The Court took the request under advisement, noting that it “underst[ood] the defense’s concern and w[ould] continue to consider whether additional disclosure of information” would be necessary as the case developed. Id. at 32. At trial, the government used DX66 in its rebuttal argument in closing to show that Rafiekian participated in the alleged conspiracy—“even though the information in that exhibit related solely to Flynn and explicitly excluded Rafiekian.” Rafiekian, 2019 WL 4647254, at *17.

1 DX66 provides in full: The United States is in possession of multiple, independent pieces of information relating to the Turkish government’s efforts to influence United States policy on Turkey and Fethullah Gulen, including information relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn, and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign, without any reference to the defendant or FIG.

With regards to the first request, Trenga has ruled that Kian can’t have the underlying classified information, because (under CIPA’s guidelines) the judge determined that, “the summary set forth in DX Exhibit 66 provides the Defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.” But his decision on the second issue is still pending and Trenga seems quite open to Kian’s request for a new trial. So Danchenko and Durham begin this CIPA process years into Trenga’s consideration about how CIPA affects due process in the Kian case. I don’t otherwise expect Trenga to be all that sympathetic to Danchenko, but if Trenga grants Kian a new trial because of the way prosecutors gained an unfair advantage with the CIPA process (by delaying disclosure of a key fact), it will be a precedent for and hang over the CIPA process in the Danchenko case.

Then there are unique challenges Durham will face even finding everything he has to provide Danchenko under Brady. In the Michael Sussmann case, I’ve seen reason to believe Durham doesn’t understand the full scope of where he needs to look to find evidence relevant to that case. But given the centrality of investigative decisions in the Danchenko case — and so the Mueller investigation — to Durham’s materiality claims, Durham will need to make sure he finds everything pertaining to Millian, Papadopoulos, and Kiliminik and Deripaska arising out of the Mueller case. In the case of Steve Calk, that turned out to be more difficult than prosecutors initially imagined.

But all of these things — the multiple sensitive investigations relevant to Danchenko’s defense, normal CIPA difficulties, unique CIPA difficulties, and the challenges of understanding the full scope of the Mueller investigation — exist on top of another potential problem: DOJ doesn’t control access to some of the most important evidence in this case.

As I noted in my earlier post, there are multiple things FBI obtained by targeting Carter Page that Danchenko will be able to demand to defend himself against Durham’s materiality claims. For example, FBI obtained information under FISA that seems to undercut Page’s claims that he didn’t meet with Igor Diveykin, a claim Danchenko sourced to Olga Galkina, who is central to Durham’s materiality claims.

If this information really does show that Page was lying about his activities in Russia, it would provide proof that after the initial FISA order, FBI had independent reason to target Page.

Similarly, FBI believed that Page’s explanation for how he destroyed the phone he was using in Fall 2016 was an excuse made up after he knew he was being investigated; that belief seems to be based, in part, on information obtained under FISA.

The FBI’s suspicions about that broken phone seem to be related to their interest in collecting on an encrypted messaging app Page used, one of the two reasons why FBI sought reauthorization to target Page in June 2017. Danchenko will need this information to prove that the June 2017 reauthorization was driven entirely by a desire to get certain financial and encrypted communication evidence, and so could not have been affected by Danchenko’s May and June 2017 interviews.

Information obtained from targeting Page under FISA will similarly be central to Danchenko’s defense against Durham’s claims that his alleged lies prevented FBI from vetting the dossier. That’s because the spreadsheet that FBI used to vet the dossier repeatedly relied on FISA-collected information to confirm or rebut the dossier. Some of that pertains to whether Page met with Igor Diveykin, an allegation Danchenko sourced to Olga Galkina, making it central to his defense in this case.

Other FISA-collected material was used to vet the Sergei Millian claim, which Durham charged in four of five counts.

Some of this may not be exculpatory (though some of it clearly would be). But it is still central to the case against Danchenko.

The thing is, Durham may not be legally able to use this information in Danchenko’s prosecution, and even if he is, it will further complicate the CIPA process.

Back on January 7, 2020, James Boasberg — acting in his role as the then-presiding FISA Judge — ordered that the FBI adopt limits on the use of any information obtained via the four Carter Page FISA orders. Such orders are one of the only tools that the FISA Court has to prohibit the use of information that the Executive collects but later determines did not comply with FISA (the government only retracted the probable cause claims for the third and fourth FISA orders targeting Page, but agreed to sequester all of it). A subsequent government filing belatedly obtaining permission to use material obtained via those FISA orders in conjunction with Carter Page’s lawsuit laid out the terms of that sequester. It revealed that, according to a June 25, 2020 FISA order, the government can only legally use material obtained under those FISA orders for the following purposes:

  1. Certain identified ongoing third-party litigation pursuant to the Freedom of Information Act (FOIA)
  2. Ongoing and anticipated FOIA and civil litigation with Page
  3. FBI review of the conduct of its personnel involved in the Page investigation
  4. DOJ OIG monitoring of the implementation of one of the recommendations stemming from the OIG Report
  5. The review of the conduct of Government personnel in the Page and broader Crossfire Hurricane investigations [my emphasis]

On November 23, 2020, Boasberg issued a follow-up order in response to learning, on October 21, 2020, that DOJ had already shared sequestered FISA information with the US Attorney for Eastern Missouri (the Jeffrey Jensen review), the US Attorney for DC (possibly, though not certainly, the Durham case), and the Senate Judiciary Committee (FISC may have learned of the latter release when the vetting spreadsheet was publicly released days before DOJ informed FISC of that fact). Effectively, Bill Barr’s DOJ had confessed to the FISA Court that it had violated FISA by disseminating FISA-collected information later deemed to lack probable cause without first getting FISC approval. Boasberg ordered DOJ to “dispossess” the MOE USAO and DC USAO of the sequestered information and further ordered that those US Attorneys, “shall not access materials returned to the FBI … without the prior approval of the Court.”

There’s no evidence that Durham obtained approval to access this information (though DOJ applications to FISC often don’t get declassified, so it’s not clear it would show up in the docket). And when I asked DOJ whether Durham had obtained prior approval to access this sequestered information even for his own review, much less for use in a prosecution, I got no response. While accessing the sequestered material for review of the conduct of Government personnel is among those permitted by the original order (bolded above), using it to review the conduct of non-governmental sources like Danchenko was not, to say nothing of prosecuting such non-governmental sources. To get approval to use sequestered information in the Danchenko case, Durham would have to convince FISC to let Durham share such information with a foreign national whose prosecution would lead to his deportation to Russia. And if he shared the information without FISC approval, then Durham himself would be violating FISA.

To be sure, it would be the most unbelievable kind of malpractice to charge the Danchenko case without, first, ascertaining how Durham was going to get this sequestered information. I’d be shocked if Durham hadn’t gotten approval first. But then, I was shocked that when Durham charged Kevin Clinesmith, he didn’t know what crimes FBI investigated Page for. I am shocked that Durham used Sergei Millian’s Twitter feed to substantiate a factual claim that Millian didn’t speak with Danchenko. So who knows? Maybe Durham has not yet read this evidence, to say nothing of ensuring he can share it with a Russian national in discovery. It would shock me, but I’m growing used to being shocked by Durham’s recklessness.

In any case, depending on what the FISC has decided about disseminating — and making public — this sequestered information, it will, at the very least, create additional challenges for Durham. Durham couldn’t just assert that DOJ IG had determined that the this information was not incriminating to Page and therefore not helpful to Danchenko to avoid sharing the sequestered FISA information. Under CIPA, Judge Trenga would need to review the information himself and assess whether information obtained under Page’s FISA was material and helpful to Danchenko’s defense. If he decided that Danchenko was entitled to it in his defense, then Durham might have to fight not just with FBI and NSA to determine an adequate substitution for that information, but also FISC itself.

CIPA assumes that the Executive owns the classification decisions regarding any information to be presented at trial, and therefore the Executive gets to balance the value of the prosecution against the damage declassifying the information would do. Here, as with Fitzgerald, a Special Counsel will be making those decisions, setting up a potential conflict with all the agencies that may object. But here, FISC has far more interest in the FISA information than it would if (say) it were just approving the use of FISA-obtained material to prosecute the person targeted by that FISA.

Again, John Durham is going to have to declassify a whole bunch of sensitive information, including information sequestered to protect Carter Page, to give it to a foreign national who never had those secrets such that, if Durham succeeds at trial, it may lead inevitably to Russia obtaining that sensitive information. All that for five shoddily-charged false statements charges. This is the kind of challenge that a prosecutor exercising discretion would not take on.

But Durham doesn’t seem to care that he’s going to damage all the people he imagines are victims as well as national security by bringing this case to trial.

Danchenko posts

The Igor Danchenko Indictment: Structure

John Durham May Have Made Igor Danchenko “Aggrieved” Under FISA

“Yes and No:” John Durham Confuses Networking with Intelligence Collection

Daisy-Chain: The FBI Appears to Have Asked Danchenko Whether Dolan Was a Source for Steele, Not Danchenko

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

Aleksej Gubarev Drops Lawsuit after DOJ Confirms Steele Dossier Report Naming Gubarev’s Company Came from His Employee

In Story Purporting to “Reckon” with Steele’s Baseless Insinuations, CNN Spreads Durham’s Unsubstantiated Insinuations

On CIPA and Sequestration: Durham’s Discovery Deadends

The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

It would be unfortunate if the press corps responded to evidence that significant numbers of reporters had uncritically magnified the Steele dossier by uncritically magnifying other demonstrably unreliable documents. Yet that is what has happened in response to the Igor Danchenko indictment, today in fairly notable form in a Bill Grueskin op-ed in the NYT.

Grueskin calls for more reporting

To be clear, the conclusion of Grueskin’s op-ed (like the dossier’s conclusion that members of the Trump campaign were in contact with key players in the Russian election operation and the DOJ IG Report’s conclusion that the Carter Page FISA applications were badly flawed) is absolutely correct: news organizations should come clean about past erroneous reporting on the dossier and, when in doubt, should do more reporting.

[N]ews organizations that uncritically amplified the Steele dossier ought to come to terms with their records, sooner or later. This is hard, but it’s not unprecedented. When The Miami Herald broke the news in 1987 that the Democratic presidential candidate Gary Hart was seeing a woman other than his wife, the paper followed that scoop with a 7,000-plus-word examination of its investigation, which showed significant flaws in how the paper surveilled its target.

[snip]

Newsrooms that can muster an independent, thorough examination of how they handled the Steele dossier story will do their audience, and themselves, a big favor. They can also scrutinize whether, by focusing so heavily on the dossier, they helped distract public attention from Mr. Trump’s actual misconduct. Addressing the shortcomings over the dossier doesn’t mean ignoring the corruption and democracy-shattering conduct that the Trump administration pushed for four years. But it would mean coming to terms with our conduct and whatever collateral damage these errors have caused to our reputation.

In the meantime, journalists could follow the advice I once got from Paul Steiger, who was the managing editor of The Journal when I was editing articles for the front page. Several of us went to his office one day, eager to publish a big scoop that he believed wasn’t rock solid. Mr. Steiger told us to do more reporting — and when we told him that we’d heard competitors’ footsteps, he responded, “Well, there are worse things in this world than getting beaten on a story.”

As someone who first raised concerns about the provenance of the dossier on January 11, 2017, caught a lot of grief for a long piece calling out real errors in it on September 6, 2017, and started raising concerns about disinformation in the dossier on January 29, 2018, before that became the consensus among Republicans in Congress, there are still key details about the dossier that demand more attention. But they’re not the ones that are getting the most attention.

Oleg Deripaska’s role in the dossier remains largely unreported

By far the most important unreported detail about the dossier, in my opinion, is the brutal double game Oleg Deripaska was playing with Christopher Steele and Paul Manafort. Consider the following details, all readily available in the public record:

  • In March 2016, per Igor Danchenko’s January 2017 interview report, Steele tasked him to collect information on Paul Manafort. Danchenko said he did not know the client for that project, but communications between Steele and DOJ’s Organized Crime expert Bruce Ohr FOIAed by Judicial Watch as well as documents leaked to Byron York show that Steele was doing work on behalf of Deripaska’s lawyers at the time (note that York mistakes a reference to Deripaska as “our favourite business tycoon” for Donald Trump).
  • By early July 2016 (so after just the first dossier report), according to a footnote from the DOJ IG Report declassified for Chuck Grassley and Ron Johnson, “a [person affiliated] to Russian Oligarch 1  [[Deripaska]] was [possibly aware] of Steele’s election investigation.”
  • On July 30, 2016 (so after a Deripaska associate may have learned of the dossier), according the DOJ IG Report, “Steele told Ohr that [Oleg Deripaska]‘s attorney was gathering evidence that Paul Manafort stole money from [Deripaska].”
  • On August 2, 2016, according to the Mueller Report, partly in an attempt to “get whole” on the money Deripaska accused Manafort of stealing, Manafort met with Deripaska deputy Konstantin Kilimnik and discussed, in addition to how to get that debt forgiven, “the state of the Trump Campaign and Manafort’s plan to win the election,” including, “discussion of ‘battleground’ states, which Manafort identified as Michigan, Wisconsin, Pennsylvania, and Minnesota,” and what Manafort described as a “backdoor” way for Russia to control eastern Ukraine.

Even as the investigator employed by Deripaska’s lawyers, Christopher Steele, was sharing Deripaska-sourced claims of Manafort’s corruption with DOJ, Deripaska was using Manafort’s legal and financial vulnerability arising from that corruption to learn how Trump planned to win the election and to recruit Manafort’s help in carving up Ukraine. Deripaska was working a brutal double game, using Steele as cover with DOJ and FBI even as he exploited Manafort’s vulnerability — which had been enhanced by Steele — to make demands on Manafort. That’s the core scandal of Steele’s actions in 2016. Yet reporters who entirely missed this story are being treated as experts on the problems with the dossier.

So I find Grueskin’s conclusion, there’s still reporting to be done, sound.

It’s just how gets there, by replicating the very problems he critiques, that I object to. In a piece complaining that journalists uncritically amplified the dossier, Grueskin uncritically relies on the DOJ IG Report on Carter Page and Durham’s indictment of Igor Danchenko.

The dossier’s credibility suffered a grievous blow in December 2019, when an investigation by the Department of Justice’s inspector general found that F.B.I. investigations “raised doubts about the reliability of some of Steele’s reports.” The F.B.I. “also assessed the possibility that Russia was funneling disinformation to Steele,” the report said, adding that “certain allegations were inaccurate or inconsistent with information gathered” by investigators.

Then, this month, a primary source of Mr. Steele’s was arrested and charged with lying to the F.B.I. about how he obtained information that appeared in the dossier. Prosecutors say that the source, Igor Danchenko, did not, as The Wall Street Journal first reported, get his information from a self-proclaimed real estate partner of Mr. Trump’s. That prompted a statement promising further examination from The Journal and something far more significant from The Washington Post’s executive editor, Sally Buzbee. She took a step that is almost unheard-of: removing large chunks of erroneous articles from 2017 and 2019, as well as an offending video.

Neither should be treated uncritically, particularly with regards to the dossier.

Indices of unreliability in the DOJ IG Report

The DOJ IG Report revealed its unreliability itself, issuing two sets of corrections in the days after its release. Two of those corrections pertained to the dossier. The first correction admitted that the Report had initially miscited Igor Danchenko’s interview report regarding a report Danchenko sourced to Sergei Millian, the key report at issue in the Danchenko indictment.

On pages xi, 242, 368, and 370, we changed the phrase “had no discussion” to “did not recall any discussion or mention.” On page 242, we also changed the phrase “made no mention at all of” to “did not recall any discussion or mention of.” On page 370, we also changed the word “assertion” to “statement,” and the words “and Person 1 had no discussion at all regarding WikiLeaks directly contradicted” to “did not recall any discussion or mention of WikiLeaks during the telephone call was inconsistent with.” In all instances, this phrase appears in connection with statements that Steele’s Primary Sub-source made to the FBI during a January 2017 interview about information he provided to Steele that appeared in Steele’s election reports. The corrected information appearing in this updated report reflects the accurate characterization of the Primary Sub-source’s account to the FBI that previously appeared, and still appears, on page 191, stating that “[the Primary SubSource] did not recall any discussion or mention of Wiki[L]eaks.”

Effectively, DOJ IG realized only after it published that it had not cut-and-pasted from Danchenko’s interview report accurately.

The second correction admitted that, in its original release, the IG Report had complained that the FBI had not integrated information that it learned from Danchenko starting on January 24, 2017 in a FISA reauthorization approved on January 12, 2017, a temporal impossibility.

On page 413, we changed the word, “three” to “second and third.” The corrected information appearing in this updated report reflects the accurate description of the Carter Page FISA applications that did not contain the information the FBI obtained from Steele’s Primary Sub-source in January 2017 that raised significant questions about the reliability of the Steele reporting. This information previously appeared, and still appears, accurately on pages xi, xiii, 368, and 372.

These corrections show that DOJ IG got all the way through its initial release without noticing sloppiness of the sort it found inexcusable from the FBI.

But the far more important change DOJ IG made after first publication — one that still has not been fully corrected — is that all the way through its initial release, IG investigators had misdescribed what crimes the FBI team was investigating, conflating FARA and 18 U.S.C. § 951. The error was absolutely critical, because the investigation into Carter Page was initially opened because he was willingly sharing non-public economic information with people he knew to be Russian intelligence officers. Page would have already passed certain First Amendment review required for a FARA case before the case was picked up by the Crossfire Hurricane team. The correction should have, but did not, lead to wholesale reconsideration of the First Amendment discussion in the IG Report. Relatedly, the IG Report still includes an uncorrected miscitation to a Senate Report on the statute in question, to a passage that explained that an American could be targeted for First Amendment activities if he was — as Carter Page had been prior to 2016 — “acting under the direction of an intelligence service of a foreign power.”

Incidentally, John Durham replicated this error in the first document formally filed as part of his investigation, the Kevin Clinesmith information, revealing that 15 months into his investigation into Crossfire Hurricane, he didn’t even know what crimes Crossfire Hurricane had been investigating.

The corrections the IG Report made are not the only evidence that it is not entirely reliable. The report included a number of omissions, just like the Carter Page FISA applications did. For the purposes of this post, the most important are that it made no mention of the contacts Christopher Steele and Bruce Ohr had before July 30 during 2016 — contacts that focused on Deripaska; it left out one topic of their discussion on July 30, Russian doping; and it misrepresented Ohr’s key role in providing derogatory information about Steele to the FBI that they used to vet the dossier. In other words, DOJ IG misrepresented some of the relevance of Oleg Deripaska to the Russian election operation, which may be why that remains an unreported aspect of Steele’s role in 2016.

Indices of unreliability in Durham’s Danchenko indictment

Grueskin’s — and much of the media’s — uncritical reliance on the Danchenko indictment raises still further problems. Of course, all DOJ press releases on indictments, including the one announcing Danchenko’s charges, emphasize that, “Charges contained in an indictment are only allegations.” And as reporters learn early on, prosecutors (more often state and local prosecutors, but Federal prosecutors are not immune) often make allegations that aren’t backed by the facts.

We won’t be able to fully assess the allegations that Durham has made against Danchenko until Danchenko either pleads guilty or goes to trial.

But there are three reasons not to treat this indictment as credible without further proof:

  • It fails to represent transcripts faithfully
  • It relies on Sergei Millian’s Twitter account as evidence for a key allegation
  • A number of its most newsworthy allegations are not actually charged

Durham’s misrepresentation of Danchenko’s alleged lies

Durham’s indictment of Michael Sussmann, unusually for a false statements indictment, does not quote the lie that Sussmann is alleged to have told.

By contrast, Durham does provide transcripts for some, but not all, of the lies he charges in the Danchenko indictment, though in the actual charges, he usually relies on a few words rather than the full statement of Danchenko’s alleged lie.

That means we can test Durham’s reliability by comparing the actual transcripts with how Durham describes the alleged lies in his charges. (Durham does not include the interview report for the uncharged January 24 allegation below, but it is publicly available, and Durham provided neither a transcript nor summary of Danchenko’s language relating to a November 16, 2017 interview.)

In each case, Durham’s charged lies leave out key caveats or context that appear in the actual transcripts.

In his (uncharged) allegation that Danchenko falsely claimed, on January 24, 2017, that he hadn’t told any of his associates he “worked for Chris Steele or Orbis,” Durham didn’t explain that this was a question specifically about whether Danchenko’s friends knew he collected intelligence for Orbis, not whether he knew Steele at all, nor does he reveal that Danchenko responded to the question, “yes and no.”

In the Millian-related charge pertaining to a recorded March 16, 2017 interview, Durham claimed that Danchenko “well knew” that Millian had never called him, omitting that Danchenko actually stated that “I don’t know” whether he really spoke to Millian.

In the Millian-related charge pertaining to a recorded May 18, 2017 interview, Durham omitted several key details, including that Danchenko was describing what he believed, “at the time,” (in 2016) and that he was “not sure” if Millian really called.

In the single charge relating to Charles Dolan, Durham omitted that the first question the FBI Agent asked Danchenko about Dolan on June 15, 2017 appears to pertain to whether Dolan was a source for Steele, not whether he was a source for Danchenko. It also omits Danchenko’s caveat that he and Dolan had “talked about  … related issues” to the dossier, though not anything “specific,” which is not a categorical denial that he spoke to Dolan about “any material contained” in the dossier.

In a Millian-related charge pertaining to an October 24 interview (Durham doesn’t say whether this was recorded), Durham omits that Danchenko caveated his answer by saying that the caller “was someone who I thought” — again reflecting his belief in 2016, not in 2017 — was Millian.

These omissions don’t doom Durham’s case; they don’t mean Danchenko didn’t lie. But they do show that Durham left out key language and context in the language charging these as lies.

Durham may well prove his case (the Dolan charge is, in my opinion, the strongest one), but his failures in cutting and pasting the language from the transcripts accurately suggests he cannot be relied on uncritically as a source about what really happened.

Sergei Millian’s Twitter feed is no more reliable in an indictment than outside it

All the more so given that Durham, remarkably, relies on Sergei Millian’s Twitter feed as one of the few pieces of proof that the call Danchenko believed to have come from Millian did not take place.

Chamber President-I has claimed in public statements and on social media that he never responded to DANCHEKNO’s [sic] emails, and that he and DANCHENKO never met or communicated.

Durham presents just two other pieces of evidence that the call didn’t take place, both of which post-date the first dossier report purportedly based on the call (meaning neither is proof, at all, that Danchenko didn’t believe Millian was the caller at the time he submitted the report to Steele). And he leaves out a communication Danchenko had that may corroborate the call (or at least Danchenko’s contemporaneous belief it did).

Unless there are FBI interviews with Millian that Durham is obscuring (he’s not obscuring Dolan’s interviews), it is fairly unbelievable that Durham presented this Twitter allegation to a grand jury, because it is not remotely admissible for the facts claimed at trial. Durham appears to be treating Millian — whom FBI also had a counterintelligence investigation on in 2016 — as a fact witness without requiring Millian undergo the same kind of FBI exposure that Danchenko was willing to.

That, itself, is newsworthy, because it reflects poorly on the seriousness of Durham’s case.

Journalists treating Durham’s Twitter-based allegations as credible should ask themselves why they hadn’t, themselves, treated the very same Millian assertions as credible four years earlier, before this indictment. The answer is obvious: because Twitter feeds aren’t normally sufficient proof, for prosecutors or journalists, of any fact beyond that a statement was made. Yet journalists are now taking the appearance of this Twitter claim within an indictment as proof that it is true.

Durham’s uncharged allegations

The last reason why Durham’s Danchenko indictment should be treated with skepticism is more technical but one that has been the key source of bad reporting on it.

Durham charged five false statements, a single charge relating to Charles Dolan, and four counts charging the same lie about a Sergei Millian call allegedly made in four different FBI interviews (one instance of this claimed lie, made in January 2017, is not charged).

Durham also made another allegation that he didn’t charge — the alleged lie on January 24 regarding whether Danchenko told others he was collecting intelligence for Steele.

And Durham presented, as materiality arguments, three dossier reports that Durham doesn’t allege Dolan was the direct source for, but instead, describes that he, “was otherwise involved in the events and information described in the reports.” Here’s how Durham justifies including the allegations about the pee tape as a materiality claim.

Based on the foregoing, DANCHENKO’s lies to the FBI denying that he had communicated with PR Executive-I regarding information in the Company Reports were highly material. Had DANCHENKO accurately disclosed to FBI agents that PR Executive-I was a source for specific information in the aforementioned Company Reports regarding Campaign Manager-1 ‘s departure from the Trump campaign, see Paragraphs 45-57, supra, the FBI might have taken further investigative steps to, among other things, interview PR Executive-I about (i) the June 2016 Planning Trip, (ii) whether PR Executive-I spoke with DANCHENKO about Trump’s stay and alleged activity in the Presidential Suite of the Moscow Hotel, and (iii) PR Executive-1 ‘s interactions with General Manager-I and other Moscow Hotel staff. In sum, given that PR Executive-I was present at places and events where DANCHENKO collected information for the Company Reports, DANCHENKO’s subsequent lie about PR Executive-1 ‘s connection to the Company Reports was highly material to the FBI’ s investigation of these matters.

Durham doesn’t claim that Dolan was the source for the pee tape (though a number of media outlets have claimed he did, even while complaining about bad reporting on the dossier). A likely — and damning — potential explanation is that Danchenko learned from Dolan the name of Ritz Hotel staffers and then used their names, without interviewing them, to make the pee tape rumor Danchenko sourced to a Russian friend of his look more credible. But there’s no hint that Dolan willfully participated in the manufacture of the pee tape report (indeed, the indictment provides several reasons to believe he did not). Durham actually doesn’t even claim that he knows what Dolan’s role was in the pee tape, other than inviting Danchenko to the Ritz for lunch. For example, he may not be able to rule out that, after getting the names of Ritz staffers from Dolan, Danchenko interviewed them. Nor does Durham claim to know what happened with the other two Dolan-related allegations he includes as materiality arguments.

But based off a long narrative presented as a materiality argument, not a separate charged crime (it’s all part of Danchenko’s alleged denial of discussing anything specific that appeared in the dossier), multiple reporters have claimed that there are charges, plural, tied to Dolan and that a Clinton associate had a role in manufacturing the pee tape claim. Neither claim is supported by the Danchenko indictment, but the misimpression may be what Durham was hoping to accomplish by including it.

Durham did something similar in the Sussmann indictment, and as lawyers for both Sussmann and Danchenko have noted, the move impermissibly presents Rule 404(b) information in an indictment, information about motive or other bad acts that might be presented at trial with prior approval from the judge to help prove the case. By doing it, Durham skirts a DOJ rule (the one Jim Comey broke in 2016) against making public allegations that DOJ is not prepared to prove beyond a reasonable doubt.

Effectively, these materiality claims are the equivalent of journalistic scoops that aren’t rock solid that — Paul Steiger told Grueskin years ago — require more investigation before charging or reporting. These materiality claims are no more substantive than the reports in the Steele dossier.

And yet some in the press are treating them as such, most often by treating them (or at least the pee tape one) as a separate charge, and claiming that Durham has alleged something about the pee tape that he has not.

Durham’s Danchenko indictment may one day prove — like the dossier, the DOJ IG Report, and Grueskin’s op-ed — generally right, even if some of the facts in it are wrong.

But it hasn’t yet proven any more reliable, with regards to specific facts, than the dossier itself. And there are several signs that it is not reliable.

It would be a mistake to respond to the bad reporting on the dossier by replicating the same bad habits with the Danchenko indictment.

Danchenko posts

The Igor Danchenko Indictment: Structure

John Durham May Have Made Igor Danchenko “Aggrieved” Under FISA

“Yes and No:” John Durham Confuses Networking with Intelligence Collection

Daisy-Chain: The FBI Appears to Have Asked Danchenko Whether Dolan Was a Source for Steele, Not Danchenko

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

Aleksej Gubarev Drops Lawsuit after DOJ Confirms Steele Dossier Report Naming Gubarev’s Company Came from His Employee

In Story Purporting to “Reckon” with Steele’s Baseless Insinuations, CNN Spreads Durham’s Unsubstantiated Insinuations

On CIPA and Sequestration: Durham’s Discovery Deadends

The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin

John Durham: Destroying the Purported Victims to Save Them

I’ve covered a great deal of prosecutions involving FISA materials. In just one — that of Reaz Qadir Khan — was the defendant able to use sensitivities around FISA to get a better plea deal (and in that case, there were extenuating circumstances, possibly including a dead FISA target and Stellar Wind collection). I also covered the Scooter Libby case, in which Libby attempted — and very nearly succeeded — in forcing prosecutors to dismiss the case by demanding the declassification of a slew of Presidential Daily Briefs. But even the Libby case may pale in comparison to the difficulties John Durham has signed up for in his prosecution of Igor Danchenko.

That’s true because Danchenko will credibly be able to demand materials from at least two FISA orders, as well as two other counterintelligence investigations, including a sensitive, multi-pronged, ongoing investigation, to defend himself.

Indeed, there’s even a chance DOJ cannot legally prosecute Danchenko in this case.

What follows is true regardless of whether Danchenko was indicted on shoddy evidence as part of a witch hunt or if Durham has Danchenko dead to rights defrauding the FBI to target Donald Trump. I remain agnostic which is the case (the truth is likely somewhere in-between). It is true regardless of whether Carter Page and Sergei Millian were truly victimized as a result of the Steele dossier, or whether they were reasonable counterintelligence targets whose investigations got blown up in a political firestorm.

This has everything to do with the prosecutorial discretion that Durham did not exercise in charging Danchenko (and because of some sloppiness in the way he did so) and nothing to do with Danchenko’s guilt or innocence or Page and Millian’s victimization.

Consider the following moves Durham made in his indictment:

  • He invoked Danchenko’s source, Olga Galkina, in his materiality claims and based his single charge pertaining to Charles Dolan on a June 15, 2017 FBI interview.
  • He relied on claims Sergei Millian made about interactions with Danchenko as part of his proof that Danchenko lied about his belief that he had spoken with Millian. Durham did so, apparently, based entirely on Millian’s currently public Twitter blatherings.
  • He made Carter Page’s FISA targeting — and its role in the investigation into Trump associates (which Durham recklessly called “the Trump campaign”) — central to his materiality claims.

Whether Igor Danchenko is a reckless smear agent or someone screwed by Christopher Steele’s own sloppiness, he is entitled to all the evidence pertaining to the full scope of the indictment, as well as any exculpatory evidence that could help him disprove Durham’s claims. One of the prosecutors in the case, Michael Keilty, already warned Judge Anthony Trenga, who is presiding over the case, that there will be “a vast amount of classified discovery” in this case. But if prosecutors haven’t vetted Millian any further than reading his Twitter feed, they may have no idea what discovery challenges they face.

There has never been a case like this one, relying on two already publicly identified FISA orders, so this is literally uncharted waters.

Durham’s Matryoshka Materiality Claims

Before I explain the challenges Durham faces, it’s worth explaining how Durham has used materiality in this indictment. Durham will have to prove not just that Danchenko lied, but that the lies were material.

The words “material” or “materiality” show up in the indictment 20 times, of which just one instance is used to mean “stuff” (in a misquotation of a Danchenko response to an FBI question stating, “related issues perhaps but … nothing specific”). Five are required in the charging language.

Maybe Durham focused so much making claims about materiality, in part, because he’s smarting about the way people made fun of him for his shoddy materiality claims in the Michael Sussmann indictment. But many of his discussions about the “materiality” of Danchenko’s alleged lies, both charged and uncharged, serve as a gratuitous way for Durham to include accusations in the indictment he didn’t charge. The tactic worked like a charm, as multiple journalists reported that things — particularly regarding the pee tape — were alleged or charged that were not. But now he’s on the hook for them in discovery.

Below, I’ve shown how these materiality claims form a nested set of allegations, such that even the materiality claims for uncharged conduct make up part of his overall materiality argument. I’m not, at all, contesting that Durham has a sound case that — if he can prove Danchenko lied — at least one of lies was material. While some of his materiality claims are provably false and some (such as the claims that Danchenko’s alleged lies about Millian in October and November 2017 mattered for FISA coverage that ended in September 2017) defy physics, the bar for materiality is low and he will clearly surpass it on some of his materiality claims.

The issue, however, is that Durham is now on the hook, with regards to discovery, for all of his materiality claims covering both the charged lies and the uncharged allegations. Danchenko may now demand evidence that undercuts these claims, even the ones that don’t relate directly to the charged lies.

The Section 702 directive targeting Olga Galkina

Durham makes two materiality claims pertaining to Danchenko’s friend, Olga Galkina, to whom he sourced all the discredited Michael Cohen reports and a claim about Carter Page’s meetings in July 2016:

  • That by lying about how indiscreet he was about his relationship with Christopher Steele, Danchenko prevented the FBI from learning that Russian spies might inject disinformation into the dossier through people like Galkina.
  • That by lying on June 15, 2017, Danchenko prevented the FBI from learning that Charles Dolan “maintained a pre-existing and ongoing relationship” with Galkina, which led Galkina to have access to senior Russian officials she wouldn’t otherwise have had. Dolan’s ties with Galkina also appear to have led to Galkina serving as a cut-out between Dolan and Danchenko for information for one of the reports (pertaining to the reassignment of a US Embassy staffer) in the dossier.

I’m unclear why Durham made these claims — possibly because it was one of the only ways to criminalize the way Dolan served as a source for reports that were unrelated to the Carter Page applications, possibly because he wanted to do so to dump HILLARY HILLARY HILLARY in the middle of his indictment. But both claims are false.

To prove the first is false, Danchenko will point to Durham’s miscitation of the question Danchenko was actually asked, his answer — “yes and no” — to a question Durham claims he answered “no” to, and to his descriptions, from his very first interview, of how Galkina knew he was collecting intelligence and had even, after the release of the dossier, tasked him with an intelligence collection request herself.

To prove the second is false, Danchenko will point to the declassified footnote in the DOJ IG Report showing that in “early June 2017” (and so, presumably before June 15), the FBI obtained 702 collection that (the indictment makes clear) reflects extensive communications between Dolan and Galkina.

The FBI [received information in early June 2017 which revealed that, among other things, there were [redacted]] personal and business ties between the sub-source and Steele’s Primary Sub-source; contacts between the sub-source and an individual in the Russian Presidential Administration in June/July 2016; [redacted] and the sub‐source voicing strong support for candidate Clinton in the 2016 U.S. elections. The Supervisory Intel Analyst told us that the FBI did not have Section 702 coverage on any other Steele sub‐source. [my emphasis]

It’s highly likely the FBI set up that June 15, 2017 interview with Danchenko precisely to ask him about things they learned via that Section 702 collection. Based on what Durham has said so far, Danchenko provided information about key details of the relationship between Galkina and Dolan in the interview, thereby validating that he was not hiding the relationship entirely.

Had Danchenko affirmatively lied about this in January or March 2017, rather than just not sharing this information, Durham might have a case. But by June 2017, the FBI was already sitting on that 702 collection (to say nothing of the contact tracing analysts would have used to justify the 702 directive). That’s almost certainly why they asked the question about Dolan.

So even if Durham could manage to avoid introducing, as evidence at trial, Danchenko’s communications with Galkina that the FBI would have first obtained under FISA 702, and thereby stave off the FISA notice process required for aggrieved persons under FISA, Danchenko is still going to have cause to make Durham admit a slew of things about that Section 702 directive targeting Galkina, including:

  • What kind of contact-tracing alerted the FBI and NSA that Galkina had US-cloud based communications that would be of investigative interest (because that contact-tracing, by itself, disproves Durham’s materiality claim)
  • What communications FBI obtained from that Section 702 order and when (because if they indeed had the Galkina-Dolan communications on June 15, then nothing Danchenko could have said impeded the FBI from discovering them)
  • The approval process behind the release of this Section 702 information to Inspector General Michael Horowitz, and then to Congress, which in turn presumably alerted Durham to it, and whether it complied with new requirements about unmasking imposed in 2018 in response to the Carter Page FISA and conspiracy theories about Mike Flynn (it surely did, because unmasking for FBI collections is not really a thing, but Danchenko will have reason to ask how Congress got the communications and from there, how Durham did)

None of this kind of information has been released to a defendant before, but all of it is squarely material to combatting the claim that the FBI didn’t know about Galkina’s communications with Dolan when they asked Danchenko a question precisely because they did know about those communications. And Danchenko has the right to ask for it because of that reference to Section 702 that Ron Johnson and Chuck Grassley insisted on declassifying.

The Sergei Millian counterintelligence investigation

The paragraph describing that Durham is relying on Sergei Millian’s Twitter rants as part of his evidence to prove that Danchenko lied five times about Millian (just four of which are charged) misspells Danchenko’s name, the single such misspelling in the indictment. [Update: Though see William Ockham’s comment below that notes there’s a different misspelling of Danchenko’s name elsewhere in the Millian part of the indictment.]

Chamber President-1 has claimed in public statements and on social media that he never responded to DANCHEKNO’s [sic] emails, and that he and DANCHENKO never met or communicated.

That makes me wonder whether it was added in at the last minute, after all the proof-reading, perhaps in response to a question from the grand jury or Durham’s supervisors. If it was, it might indicate that Durham didn’t really think through all the implications of invoking Millian as a fact witness against Danchenko.

But, unless Durham has rock-solid proof that Danchenko invented a call he claimed to believe had involved Millian altogether, then this reference now gives Danchenko cause to submit incredibly broad discovery requests about Millian to discredit Millian as a witness against him. Durham made no claim that he has such rock-solid proof in the indictment. As I’ve noted, Danchenko told the FBI he replaced his phone by the time the Bureau started vetting the Steele dossier, so to rule out that the call occurred, Durham probably would need to have obtained the phone and found sufficient evidence that survived a factory reset to rule out a Signal call.

Before I explain all the things Danchenko will have good reason to demand, let me review Durham’s explanation for why the alleged lies about Millian (Durham has charged separate lies on March 16, May 18, October 24, and November 16, 2017) were material:

Based on the foregoing, DANCHENKO’s lies to the FBI claiming to have received a late July 2016 anonymous phone call from an individual that DANCHENKO believed to be Chamber President-1 were highly material to the FBI because, among other reasons, the allegations sourced to Chamber President-1 by DANCHENKO formed the basis of a Company Report that, in turn, underpinned the aforementioned four FISA applications targeting a U.S. citizen (Advisor­ 1). Indeed, the allegations sourced to Chamber President-1 played a key role in the FBI’s investigative decisions and in sworn representations that the FBI made to the Foreign Intelligence Surveillance Court throughout the relevant time period. Further, at all times relevant to this Indictment, the FBI continued its attempts to analyze, vet, and corroborate the information in the Company Reports. [my emphasis]

As I have noted above, it is temporally nonsensical to claim that lies Danchenko told in October and November 2017 “played a role in sworn representations that the FBI made to FISC” when the last such representation was made in June 2017. And Danchenko will be able to make a solid case that no matter what he said in March and May, it would have had no impact on the targeting of Carter Page, because as a 400-page report lays out in depth, really damning details about the Millian claim that Danchenko freely did share in January had no impact on the targeting of Carter Page. Even derogatory things Christopher Steele said about Millian in October 2016 never made any of the Page FISA applications. The DOJ IG has claimed and Judge Rosemary Collyer agreed that FBI was at fault for all this, because they weren’t integrating any of the new information learned from vetting the dossier. Danchenko might even be able to call a bunch of FBI witnesses who were fired as a result to prove they were held accountable for it and so he can’t be blamed.

So Durham will substantially have to rely on “investigative decisions” and FBI efforts to vet the dossier to prove that Danchenko’s claimed lies about Millian were material. And that will make the FBI investigations into Millian himself and George Papadopoulos relevant and helpful to Danchenko’s defense, because those are some of the investigative decisions at issue.

That’s not the only reason that Danchenko will be able to demand that DOJ share information on Millian. Durham has made Millian a fact witness against Danchenko, and — by relying on Millian’s Twitter feed — in the most ridiculous possible way. So Danchenko will be able to demand evidence that DOJ should possesses (but may not) that he can use to explain why Millian might lie about a call between the two.

Some things Danchenko will credibly be able to demand in discovery include:

  • Extensive details about Sergei Millian’s Twitter account. Durham presented Millian’s Twitter account to the grand jury as authoritative with regards to Millian’s denials of having any direct call with Danchenko. Danchenko has reason to ask Durham for an explanation why he did so, as well as a collection of all tweets that Millian has made going back to 2016 (most of which Millian has since deleted, some of which will raise questions about Millian’s sincerity and claimed knowledge of non-public information). In addition, because there have been questions (probably baseless, but nevertheless persistent) during this period about whether Millian was personally running his own Twitter campaign, Danchenko can present good cause to ask for the IP and log-in information for the entire period, either from the government or from Twitter. While it would be more of a stretch, Millian’s Twitter crowd includes some accounts that have been identified as inauthentic by Twitter and others that were involved in publicly exposing Danchenko’s identity; Danchenko might point to this as further evidence of Millian’s motives behind his Twitter rants. Finally, Danchenko will also have cause to ask how Millian got seeming advance notice of his own indictment if Durham’s investigators never bothered to put Millian before a grand jury.

  • Details of the counterintelligence investigation into Millian. After the first release of the DOJ IG Report, the FBI declassified parts of discussions of a counterintelligence investigation that the New York Field Office opened into Millian days before October 12, 2016. The IG Report describes that Millian was “previously known to the FBI,” and does not tie that CI investigation to any allegations that Fusion made against Millian (though I don’t rule it out). Danchenko will obviously be able to ask for access to the still-redacted parts of those IG Report references, because the same things (whatever they were) that led FBI to think Millian was a spy would be things that Danchenko could use to offer a motive for why Millian would lie about having spoken to Danchenko. Danchenko also has cause to ask for details from Millian’s own FBI file. The basis for that counterintelligence investigation, and any derogatory conclusions, would provide Danchenko means to raise questions about Millian’s credibility or at least alternative motives for Millian to claim no such call took place.
  • Details of how Millian cultivated George Papadopoulos. The IG Report also reveals that, even before the Carter Page application, the FBI was aware of the extensive ties between Millian and George Papadopoulos. Because Durham claims that Danchenko’s alleged lies — and not direct evidence pertaining to the relationship between Millian and Papadopoulos — drove the FBI’s investigative decisions from 2017 through the end of the Mueller investigation, Danchenko will have reason to ask for non-public details about some aspects of the Papadopoulos investigation, as well, not least because (as the Mueller Report makes clear) the initial contacts between Millian and Papadopoulos exactly parallel in time — and adopted the same proposed initial meeting approach — the initial contact and the call that Danchenko claimed to believe he had with Millian. If the July 2016 call he believes he had with Millian didn’t occur, Danchenko will be able to argue persuasively, then how did he know precisely where and how Millian would conduct such meetings a week in advance of the initial meeting, in New York, that Millian had with Papadopoulos?

The Office investigated another Russia-related contact with Papadopoulos. The Office was not fully able to explore the contact because the individual at issue-Sergei Millian-remained out of the country since the inception of our investigation and declined to meet with members of the Office despite our repeated efforts to obtain an interview. Papadopoulos first connected with Millian via Linked-In on July 15, 2016, shortly after Papadopoulos had attended the TAG Summit with Clovis.500 Millian, an American citizen who is a native of Belarus, introduced himself “as president of [the] New York-based Russian American Chamber of Commerce,” and claimed that through that position he had ” insider knowledge and direct access to the top hierarchy in Russian politics.”501 Papadopoulos asked Timofeev whether he had heard of Millian.502 Although Timofeev said no,503 Papadopoulos met Millian in New York City.504 The meetings took place on July 30 and August 1, 2016.505 Afterwards, Millian invited Papadopoulos to attend-and potentially speak at-two international energy conferences, including one that was to be held in Moscow in September 2016.506 Papadopoulos ultimately did not attend either conference.

On July 31 , 2016, following his first in-person meeting with Millian, Papadopoulos emailed Trump Campaign official Bo Denysyk to say that he had been contacted “by some leaders of Russian-American voters here in the US about their interest in voting for Mr. Trump,” and to ask whether he should “put you in touch with their group (US-Russia chamber of commerce).”507 Denysyk thanked Papadopoulos “for taking the initiative,” but asked him to “hold off with outreach to Russian-Americans” because “too many articles” had already portrayed the Campaign, then-campaign chairman Paul Manafort, and candidate Trump as “being pro-Russian.”508

On August 23, 2016, Millian sent a Facebook message to Papadopoulos promising that he would ” share with you a disruptive technology that might be instrumental in your political work for the campaign.”509 Papadopoulos claimed to have no recollection of this matter.510

On November 9, 2016, shortly after the election, Papadopoulos arranged to meet Millian in Chicago to discuss business opportunities, including potential work with Russian “billionaires who are not under sanctions.”511 The meeting took place on November 14, 2016, at the Trump Hotel and Tower in Chicago.512 According to Papadopoulos, the two men discussed partnering on business deals, but Papadopoulos perceived that Millian’s attitude toward him changed when Papadopoulos stated that he was only pursuing private-sector opportunities and was not interested in a job in the Administration.5 13 The two remained in contact, however, and had extended online discussions about possible business opportunities in Russia. 514 The two also arranged to meet at a Washington, D.C. bar when both attended Trump’s inauguration in late January 2017.515 [my emphasis]

John Durham claims that Sergei Millian is a victim. But by making Millian a fact witness against Danchenko, Durham has given Danchenko the opportunity to obtain and air a great many details about why a DOJ prosecutor should review more than Twitter rants before treating Millian as a credible fact witness.

The Oleg Deripaska counterintelligence and sanctions investigations

Durham has also provided Danchenko multiple reasons to request details of a counterintelligence investigation that is ongoing and remains far more sensitive than the Millian one: The investigation into Oleg Deripaska.

Oleg Deripaska was the most likely client for a tasking Steele gave Danchenko immediately before the DNC one, collecting on Paul Manafort. Danchenko credibly claimed to the FBI that he did not know what client had hired Steele. If Deripaska was that client, it would be relevant and helpful to Danchenko’s defense to understand why Deripaska hired Steele.

That’s true, in significant part, because Deripaska is also the most likely culprit behind any disinformation injected into the Steele dossier. Among other things, by asking Steele to collect on Manafort and then monitoring how Steele did that, Deripaska could have used it to identify Steele’s reporting network.

Durham blames Danchenko for hiding the possibility of disinformation with one of his (false) uncharged conduct claims, but the Deripaska angle, about which Danchenko claimed to have no visibility either in real time in 2016 or by 2017, when he is accused of lying, would be the more important angle. And we know they were aware of the possibility and trying to assess whether that was possible even as they were vetting the dossier. But, as Bill Priestap told DOJ IG, he couldn’t figure out how this would work.

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

Since Durham blamed Danchenko for hiding the possibility of disinformation when questions like these did more to impede such considerations, Danchenko has good reason to ask for anything assessing whether Deripaska did use the dossier as disinformation, not least because DOJ was getting ample information to pursue that angle before Danchenko’s first interview, via Bruce Ohr (for which DOJ fired Ohr).

There’s a Millian angle to Danchenko’s case he should get information on the counterintelligence investigation into Deripaska, too. At a time when Deripaska was already tasking both sides of his double game — using Christopher Steele to make Paul Manafort legally vulnerable and then using Manafort’s legal and financial vulnerability to entice his cooperation in the election operation — Deripaska and Millian met at the St. Petersburg International Economic Forum in June 2016, the same convention that Michael Cohen was invited to attend to pursue an impossibly lucrative Trump Tower deal and to which Russian Deputy Prime Minister Sergei Prikhodko repeatedly invited Trump (as this post makes clear, Mueller obtained only unsigned versions of Trump’s letter declining Prikhodko’s invitation).

Millian’s documented meeting with Deripaska during 2016 would provide Danchenko several reasons to want access to some of the investigative materials from the Deripaska investigations. First, if Millian and Deripaska had further contact, either in 2016, or since then, it would suggest that Millian’s denials that he called Danchenko may be part of the same disinformation strategy as any disinformation inserted via Deripaska-linked sources into the dossier itself.

If Millian had no ongoing relationship with Deripaska after they met up in June 2016, however, it suggests a possible alternate explanation for the call that, Danchenko consistently claimed in 2017, he believed to be Millian: That someone learned of Danchenko’s outreach (the Novosti journalists through whom Danchenko first got Millian’s contact information are one possible source of this information, but not the only one) and called Danchenko seemingly in response to Danchenko’s outreach to Millian as another way to inject disinformation into the dossier.

Finally, Danchenko may request information on Deripaska to unpack the provenance of the investigation against him altogether. After meeting with a Deripaska deputy in January 2017, Paul Manafort returned to the US and pushed a strategy to discredit the Russian investigation by discrediting the dossier, using Deripaska’s associate Konstantin Kilimnik to obtain information about its sources. That strategy adopted by Manafort is a strategy that has led, directly, to this Durham inquiry.

If Deripaska participated in any disinformation efforts involving the dossier and instructed Manafort to exploit the disinformation he knew had been planted — if this very investigation is the fruit of the same disinformation campaign that Durham blames Danchenko for hiding — then Danchenko would have good reason to make broad discovery requests about it.

DOJ has continued to redact Deripaska-related investigative detail under ongoing investigation exemptions. And Treasury refused Deripaska’s own attempt to learn why he was sanctioned. So it’s likely DOJ would want to guard these details closely.

But Deripaska’s key role in the Russian operation even as he was tasking Steele to harm Manafort, the tie between Millian and Deripaska, and the effort to use the dossier to discredit the Russian investigation make such requests directly relevant and helpful to Danchenko’s defense.

The Carter Page FISA Collection

This entire Durham investigation is, at least metonymically, an attempt to avenge Carter Page’s (and through him, Trump’s) purported victimization at the hands of the Steele dossier.

But even with Page, Durham’s materiality claims may expose Page to more scrutiny than he ever would have been without this case. Page may well have been victimized by the dossier itself, but Danchenko is not accused of any crime in conjunction with his collection related to the dossier. Instead, he is charged with lies to the FBI in March, May, October, and November 2017. There’s plenty of evidence in the 400-page DOJ IG Report that nothing Danchenko could have said in those earlier interviews could have altered FISA targeting decisions in April and June, and it would be impossible for lies told in October and November to have affected coverage that ended in September.

That means that Durham will have to provide Danchenko a great deal of information on the investigation into Page — including on Page’s willing sharing of non-public information with Russians in 2013, his seeming efforts to reestablish contact with the Russians in 2015, his enthusiastic pursuit of Russian funding to set up a think tank in 2016, and his ongoing connections in 2017 — to afford Danchenko the ability to argue that the dossier didn’t matter because, as a Republican Congressperson with access to all the intelligence told me in July 2018, the case for surveilling Page was a slam dunk even without it.

Providing Danchenko the Mueller materials will be the easy part. They would be helpful to Danchenko’s defense because they show that rumors about Page meeting Igor Sechin were circulating Moscow, not just among Steele’s sources; there was time during Page’s July 2016 trip to Moscow that was unaccounted for, even to those who organized his trip; and via the Page investigation, Mueller corroborated that Kirill Dimitriev (the guy who had a back channel meeting with Erik Prince) would be an important source on Russia’s tracking of Trump. Mueller materials will also show that the FBI came to suspect that one of the contacts involved in bringing Page to Russia in July 2016 was being recruited by Russian spies, providing independent reason to continue the investigation into Page. Mueller investigative materials will provide new details on Konstantin Kilimnik’s report to Paul Manafort that Page was claiming to speak on Trump’s behalf on his trip to Moscow in December 2016, something that may have exposed Trump as a victim of Page’s misrepresentations in Russia, which in turn, heightened the import of learning why Page was making such claims. Language from Mueller’s still-classified description of his decision not to charge Page as a Russian agent may also prove relevant and helpful to Danchenko’s defense.

But it’s not just the Mueller materials. To combat Durham’s claim that Danchenko’s claimed lies were material to the ongoing targeting of Carter Page in April and June 2017, the defendant obviously must be given access to substantial materials from Page’s FISA applications (October 2016, January 2017, April 2017, June 2017). Danchenko will be able to undercut Durham’s materiality arguments in at least two ways with these materials. First, as Andrew McCabe understood it, the first period of FISA collection was “very productive,” and others at FBI described that the collection showed Page’s, “access to individuals in Russia and [his communications] with people in the Trump campaign, which created a concern that Russia could use their influence with Carter Page to effect policy.” Danchenko can certainly ask for these discussions to argue that, even before he ever spoke to the FBI in January 2017, things the FBI learned by targeting Page under FISA created new reason to continue to task him, independent of the dossier.

Even more critically, redacted passages of the DOJ IG Report suggest that the decision to continue targeting Page in June 2017 stemmed almost entirely from a desire to get to financial and encrypted app information from Page that might not be otherwise available.

[A]vailable documents indicate that one of the focuses of the Carter Page investigation at this time was obtaining his financial records. NYFO sought compulsory legal process in April 2017 for banking and financial records for Carter Page and his company, Global Energy Capital, as well as information relating to two encrypted online applications, one of which Page utilized on his cell phone. Documents reflect that agents also conducted multiple interviews of individuals associated with Carter Page.

Case Agent 6 told us, and documents reflect, that despite the ongoing investigation, the team did not expect to renew the Carter Page FISA before Renewal Application No. 2’s authority expired on June 30. Case Agent 6 said that the FISA collection the FBI had received during the second renewal period was not yielding any new information. The OGC Attorney told us that when the FBI was considering whether to seek further FISA authority following Renewal Application No. 2, the FISA was “starting to go dark.” During one of the March 2017 interviews, Page told Case Agent 1 and Case Agent 6 that he believed he was under surveillance and the agents did not believe continued surveillance would provide any relevant information. Cast Agent 6 said [redacted]

SSA 5 and SSA 2 said that further investigation yielded previously unknown locations that they believed could provide information of investigative value, and they decided to seek another renewal. Specifically, SSA 5 and Case Agent 6 told us, and documents reflect, that [redacted] they decided to seek a third renewal. [redacted]

If declassified versions of this report (and the underlying back-up) confirm that, it means Danchenko’s alleged lies in May and June were virtually meaningless in ongoing decisions to target Page, because FBI would otherwise have detasked him if not for very specific accounts they wanted to target. Danchenko would need to be able to get declassified versions of that material to be able to make that argument.

Then there’s the FISA collection used to reauthorize FISA targeting on Page. There’s enough public about what FBI obtained for Danchenko to argue that he needs this collection to rebut the materiality claims Durham has made. For example, one redacted passage in reauthorization applications suggests that FBI learned information about whether Page’s break with the campaign was as significant as the campaign publicly claimed it was. Another redacted passage suggests FBI may have obtained intelligence that contradicted Page’s denials of certain meetings in Russia. A third redacted passage suggests that the FBI learned that Page was engaged in a limited hangout with his admissions of such meetings. Not only might some of this validate the dossier (and explain why Mueller treated the question of Page’s trips to Russia as inconclusive), but it provides specific reasons the FISA collection justified suspicions of Page, meaning FBI was no longer relying on the dossier.

Finally, since Durham claims that Danchenko’s lies impeded the FBI’s efforts to vet the dossier, Danchenko will need to be provided a great deal of information on those efforts.  This is another instance where files released as part of Trump’s efforts to undermine the investigation will help Danchenko prove there are discoverable materials he should get. This spreadsheet is what FBI used to vet the dossier. It shows that the FBI obtained information under the Carter Page FISA they used to vet a claim Danchenko sourced to his friend, Galkina, whom Durham made central to questions of materiality. Similarly, the FBI used information from the Page FISA to help vet the claim that Danchenko sourced (incorrectly or not) to Millian, which is utterly central to the case against him. Given Durham’s claims that Danchenko’s lies prevented FBI from doing this vetting, he can easily claim that obtaining this vetting information may be helpful and material to his defense (though it may in fact not be helpful).

This is a very long list and I’m not saying that Danchenko will succeed in getting this information, much less using it at trial.

What I’m saying is that it is quite literally unprecedented for a defendant to know specific details of two FISA orders — the 702 directive targeting Galkina and the Carter Page FISAs — that they can make credible arguments they need access to to mount a defense. Similarly, the ongoing, sensitive counterintelligence investigation into Oleg Deripaska (and Konstantin Kilimnik) is central to the background of the dossier. And Durham has made someone who — like Danchenko before him, was investigated as a potential Russian asset — a fact witness in this case.

Normally, prosecutors might look at the discovery challenges such legitimate defense demands would pose and decide not to try the case (it’s one likely reason, for example, why David Petraeus got away with a wrist-slap for sharing code-word information with his mistress, because the discovery to actually prosecute him would have done more damage than the conviction was worth; similarly, the secrecy of some evidence Mueller accessed likely drove some of his declination decisions). But Durham didn’t do so. He has committed himself to deal with some of the most sensitive discovery ever provided, and to do so with a foreign national defendant, all in pursuit of five not very well-argued false statements charges. That doesn’t mean Danchenko will get the evidence. But it means Durham is now stuck dealing with unprecedented discovery challenges.

In a follow-up, I’ll talk about how this will work and why it may be literally impossible for Durham to succeed.

Update: I’ve corrected the date of the month of the charged interview pertaining to Charles Dolan.

Update: In a story on an ongoing counterintellience investigation into a Russian expat group, Scott Stedman notes that the group was involved in Millian’s pitch to Papadopoulos in 2016.

Forensic News can reveal that Gladysh’s pro-Trump internet activity was much broader than previously known. In 2020, Gladysh’s Seattle-based Russian-American Cooperation Initiative founded a news website that nearly exclusively promoted Trump and disseminated Russian propaganda, according to internet archives.

The news website featured articles with the titles such as “Second Trump term is crucial to prospect of better U.S.-Russia relations, safer world,” and “Biden victory will spell disaster for U.S.-Russia relations, warns billionaire.” The billionaire referenced by the outlet is Oleg Deripaska, a key figure in the 2016 Trump campaign’s collusion with Russia.

[snip]

Morgulis attempted to rally Russian voters for Donald Trump in both the 2016 and 2020 U.S. Presidential Elections and allied himself with numerous associates connected to Russian intelligence and influence operations that have caught the attention of the FBI.

According to the Washington Post, Morgulis and Sergei Millian worked on a plan to rally Russian voters for Trump in 2016. Millian, who was in contact with Trump aide George Papadopoulos, later fled the country and was not able to be interviewed by investigators.

[snip]

Morgulis, Branson, and Millian all received Silver Archer Awards in 2015, a Russian public affairs accomplishment given to U.S. persons advancing Russian cultural and business interests. The founder of Silver Archer is Igor Pisarsky, a “Kremlin-linked public relations power player” who facilitated money transfers from a Russian oligarch to Maria Butina.

This will provide Danchenko cause to ask for details of that counterintelligence investigation.


Durham’s Materiality Claims

Durham’s general materiality argument makes three claims about the way that Danchenko’s alleged lies affected the FBI investigation. And then, nested underneath those claims, he made further claims (about half of which aren’t even charged), about the materiality of other things, a number of which have nothing to do with the Carter Page FISA. Of particular note, the bulk (in terms of pages) of this indictment discusses lies that Durham doesn’t tie back to Carter Page, even though he could have, had he treated Olga Galkina differently.

      • Danchenko’s lies were material because FBI relied on the dossier to obtain FISA warrants on Carter Page: “The FBI’ s investigation of the Trump Campaign relied in large part on the Company Reports to obtain FISA warrants on Advisor-1.”
        • Danchenko’s lie about believing Millian called him in July 2016 because it formed the basis of the FISA applications targeting Page: Danchenko’s alleged lies to the FBI about Millian, “claiming to have received a late July 2016 anonymous phone call from an individual that DANCHENKO believed to be Chamber President-I were highly material to the FBI because, among other reasons, the allegations sourced to Chamber President-I by DANCHENKO formed the basis of a Company Report that, in turn, underpinned the aforementioned four FISA applications targeting a U.S. citizen (Advisor­ 1).”
      • Danchenko’s lies were material because they made it harder for the FBI to vet the dossier: “The FBI ultimately devoted substantial resources attempting to investigate and corroborate the allegations contained in the Company Reports, including the reliability of DANCHENKO’s sub-sources.”
        • Danchenko’s lies about how indiscreet he was about collecting information for Steele prevented the FBI from understanding whether people, including Russia, could inject disinformation into the dossier: Accordingly, DANCHENKO’s January 24, 2017 statements (i) that he never mentioned U .K. Person-I or U .K. Investigative Firm-I to his friends or associates and (ii) that “you [the FBI] are the first people he’s told,” were knowingly and intentionally false. In truth and in fact, and as DANCHENKO well knew, DANCHENKO had informed a number of individuals about his relationship with U.K. Person-I and U.K. Investigative Firm-I. Such lies were material to the FBI’ s ongoing investigation because, among other reasons, it was important for the FBI to understand how discreet or open DANCHENKO had been with his friends and associates about his status as an employee of U .K. Investigative Firm-I, since his practices in this regard could, in tum, affect the likelihood that other individuals – including hostile foreign intelligence services – would learn of and attempt to influence DANCHENKO’s reporting for U.K. Investigative Firm1.
        • Dancheko’s lies about Charles Dolan prevented the FBI from learning that Dolan was well-connected in Russia, Dolan had ties to Hillary, and Danchenko gathered some of his information using access obtained through Dolan:  DANCHENKO’s lies denying PR Executive-1 ‘s role in specific information referenced in the Company Reports were material to the FBI because, among other reasons, they deprived FBI agents and analysts of probative information concerning PR Executive-I that would have, among other things, assisted them in evaluating the credibility, reliability, and veracity of the Company Reports, including DANCHENKO’s sub-sources. In particular, PR Executive-I maintained connections to numerous people and events described in several other reports, and DANCHENKO gathered information that appeared in the Company Reports during the June Planning Trip and the October Conference. In addition, and as alleged below, certain allegations that DANCHENKO provided to U.K. Person-I, and which appeared in other Company Reports, mirrored and/or reflected information that PR Executive-I himself also had received through his own interactions with Russian nationals. As alleged below, all of these facts rendered DANCHENKO’s lies regarding PR Executive-1 ‘s role as a source of information for the Company Reports highly material to the FBI’ s ongoing investigation. [snip] PR Executive-1 ‘s role as a contributor of information to the Company Reports was highly relevant and material to the FBI’s evaluation of those reports because (a) PR Executive-I maintained pre-existing and ongoing relationships with numerous persons named or described in the Company Reports, including one of DANCHENKO’s Russian sub-sources ( detailed below), (b) PR Executive-I maintained historical and ongoing involvement in Democratic politics, which bore upon PR Executive-I’s reliability, motivations, and potential bias as a source of information for the Company Reports, and (c) DANCHENKO gathered some of the information contained in the Company Reports at events in Moscow organized by PR Executive-I and others that DANCHENKO attended at PR Executive-1 ‘s invitation. Indeed, and as alleged below, certain allegations that DANCHENKO provided to U.K. Person-I, and which appeared in the Company Reports, mirrored and/or reflected information that PR Executive-I himself also had received through his own interactions with Russian nationals.
          • Danchenko’s lies about Dolan prevented the FBI from asking whether Dolan spoke to Danchenko about the Ritz Hotel: Based on the foregoing, DANCHENKO’s lies to the FBI denying that he had communicated with PR Executive-I regarding information in the Company Reports were highly material. Had DANCHENKO accurately disclosed to FBI agents that PR Executive-I was a source for specific information in the aforementioned Company Reports regarding Campaign Manager-1 ‘s departure from the Trump campaign, see Paragraphs 45-57, supra, the FBI might have taken further investigative steps to, among other things, interview PR Executive-I about (i) the June 2016 Planning Trip, (ii) whether PR Executive-I spoke with DANCHENKO about Trump’s stay and alleged activity in the Presidential Suite of the Moscow Hotel, and (iii) PR Executive-1 ‘s interactions with General Manager-I and other Moscow Hotel staff. In sum, given that PR Executive-I was present at places and events where DANCHENKO collected information for the Company Reports, DANCHENKO’s subsequent lie about PR Executive-1 ‘s connection to the Company Reports was highly material to the FBI’ s investigation of these matters.
          • Danchenko’s lies about Dolan prevented the FBI from asking Dolan whether he knew about a Russian Diplomat being reassigned from the US Embassy: Based on the foregoing, DANCHENKO’s lies to the FBI denying that he had communicated with PR Executive-I regarding information in the Company Reports were highly material. Had DANCHENKO accurately disclosed to FBI agents that PR Executive-I was a source for specific information in the Company Reports regarding Campaign Manager-I ‘s departure from the Trump campaign, see Paragraphs 45-57, supra, the FBI might also have taken further investigative steps to, among other things, interview PR Executive-I regarding his potential knowledge of Russian Diplomat-1 ‘s departure from the United States. Such investigative steps might have assisted the FBI in resolving the above-described discrepancy between DANCHENKO and U.K. Person-I regarding the sourcing of the allegation concerning Russian Diplomat-I.
          • Danchenko’s lies about Dolan prevented the FBI from asking whether Dolan was the source for the [true] report about reasons why Paul Manafort had left the Trump campaign: Based on the foregoing, DANCHENKO’s lie to the FBI about PR Executive-I not providing information contained in the Company Reports was highly material. Had DANCHENKO accurately disclosed to FBI agents that PR Executive-I was a source for specific information in the aforementioned Company Reports regarding Campaign Manager-I’s departure from the Trump campaign, see Paragraphs 45-57, supra, the FBI might have taken further investigative steps to, among other things, interview PR Executive-I regarding his potential knowledge of additional allegations in the Company Reports regarding Russian Chief of Staff-I. Such investigative steps might have, among other things, assisted the FBI in determining whether PR Executive-I was one of DANCHENKO’s “other friends” who provided the aforementioned information regarding Putin’s firing of Russian Chief of Staff-I.
        • Danchenko’s lies about a phone call made it harder for the FBI to vet the dossier: Danchenko’s alleged lies about Millian were material because, “at all times relevant to this Indictment, the FBI continued its attempts to analyze, vet, and corroborate the information in the Company Report.”
      • The FBI took and did not take certain actions because of Danchenko’s lies: “The Company Reports, as well as information collected for the Reports by DANCHENKO, played a role in the FBI’s investigative decisions and in sworn representations that the FBI made to the Foreign Intelligence Surveillance Court throughout the relevant time period.”
        • Danchenko’s alleged lies about Millian affected both FBI’s investigative decisions and played a role in their FISA applications: They “played a key role in the FBI’s investigative decisions and in sworn representations that the FBI made to the Foreign Intelligence Surveillance Court throughout the relevant time period.”

Sources

DOJ IG Report on Carter Page

Mueller Report

October 2016 Page FISA Application

January 2017 Page FISA Application

April 2017 Page FISA Application

June 2017 Page FISA Application

Dossier vetting spreadsheet

Danchenko posts

The Igor Danchenko Indictment: Structure

John Durham May Have Made Igor Danchenko “Aggrieved” Under FISA

“Yes and No:” John Durham Confuses Networking with Intelligence Collection

Daisy-Chain: The FBI Appears to Have Asked Danchenko Whether Dolan Was a Source for Steele, Not Danchenko

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

Aleksej Gubarev Drops Lawsuit after DOJ Confirms Steele Dossier Report Naming Gubarev’s Company Came from His Employee

In Story Purporting to “Reckon” with Steele’s Baseless Insinuations, CNN Spreads Durham’s Unsubstantiated Insinuations

On CIPA and Sequestration: Durham’s Discovery Deadends

The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin

 

The Two New Material Errors Are the News from the IG Report on Woods File Errors

Footnote 14 in a DOJ Inspector General Report summarizing the problems with the FBI’s compliance with the Woods requirement released last week claims to lay out why reviewing Woods file compliance is a good measure of FISA.

14 The OIG’s December 2019 FISA Report demonstrates the significant problems that can result from a lack of compliance with the Woods Procedures. For example, one of the Woods Procedures-based failures detailed in our December 2019 report concerned the failure to seek and document the handling agent’s approval of the source characterization statement for Christopher Steele in the FISA applications, which we found overstated Steele’s bona fides and gave the misimpression that Steele’s past reporting to the FBI had been deemed sufficiently reliable by prosecutors to use in court and that more of his information had been corroborated than was actually the case. As detailed in our December 2019 report, the handling agent told us that had he been shown the source characterization statement, as required by the Woods Procedures, he would not have approved it. Given the importance of a source characterization statement to the FISC’s determination of a source’s reliability, the failure to comply with the Woods Procedures was a significant error on the part of the FBI case agents involved and their supervisors. Moreover, this issue compounded other serious problems with the subsequent FISA renewal applications, such as the FBI’s continued reliance on Steele’s information despite the fact that the Primary Sub-source, during his FBI interviews, had contradicted Steele’s reporting on several critical issues.

The footnote badly overstates its claim.

In a post laying out how the Woods file errors in Carter Page’s applications weren’t the real indicators of a problem, I noted that Steele’s FBI handler, Mike Gaeta, had explained why he treated Steele’s reporting as reliable, even though Steele had never testified in any trials, the measure FBI normally uses to measure the reliability of a source.

[DOJ IG identified two claims unsupported by the Woods file stating] that Christopher Steele’s reporting had been corroborated, something the DOJ IG Report lays out at length was not true in the terms FBI normally measured. Except, even there, Steele handler Mike Gaeta’s sworn testimony actually said it had been. He described jumping when Steele told him he had information because he was a professional,

And at that time there were a number of instances when his information had borne out, had been corroborated by other sources.

He also provided a perfectly reasonable explanation for why Steele’s reporting was not corroborated in the way DOJ IG measured it in the report: because you could never put Steele on a stand, so his testimony would never be used to prosecute people.

From a criminal perspective and a criminal investigative kind of framework, you know, Christopher Steele and [redacted] were never individuals who were going to be on a witness stand.

In other words, while it appears that DOJ cleaned up many of the errors identified by DOJ IG by finding the documentation to back it over the course of months, the public record makes it clear that Crossfire Hurricane would have been able to clear up even more of the Page Woods file.

Per the IG Report, Gaeta would not have approved the source statement in the Carter Page application as written. But Gaeta is on the record explaining what measure he used to assess a source who would never be asked to testify but whose reporting had nevertheless “borne out.” And Gaeta, per his Congressional testimony, believed Steele’s reporting was worth immediate attention.

There was just one other Woods file error identified in the Carter Page IG Report that wasn’t proven elsewhere that can be publicly tested — a James Clapper claim that Russia had provided money (unproven) and disinformation (proven) to particular candidates. The majority of the problems in the Page report, however, weren’t related to a Woods violation, in large part because they were about critical information omitted from the applications, not included.

That is, the Woods file was pretty much useless for identifying the real errors in the Carter Page applications. That’s why I’m sympathetic with a comment that DOJ IG cited critically — DOJ IG judged that the comment “dismiss[ed …] the weaknesses we identified related to compliance with the Woods Procedures” — that the IG emphasis on Woods file compliance may distract from getting material facts correct.

While we all understand the extreme importance of presenting accurate facts to any court on material issues, there is a concern that we are allowing our efforts to be diverted from that very important goal and instead diverted to the creation of picture perfect Woods binders that literally support every granular fact in the application regardless of whether it is material to probable cause.

That’s why — as my previous post laid out at length — the DOJ IG audit is most useful for identifying problems in the claims FBI and DOJ made about the FISA process, as well as larger systematic problems identified. For example, DOJ IG scolded DOJ for releasing a statement boasting, in summer of 2020, of its accuracy, while downplaying the seriousness of the errors DOJ IG identified (something I noted in my earlier post).

On July 30, 2020, following the Department’s review of the remaining applications, the FBI issued a press statement that again referenced the FBI’s “dedicat[ion] to the continued, ongoing improvement of the FISA process to ensure all factual assertions contained in FISA applications are accurate and complete,” while highlighting that “DOJ and FBI discovered only two material errors [in the 29 FISA applications] but—most importantly—neither of these errors is assessed to have undermined or otherwise impacted the FISC’s probable cause determinations” (emphasis in original). The statement went on to state that “Within these thousands of facts, there were approximately 201 non-material errors found, across the 29 applications. These include minor typographical errors, such as misspelled words, and slight date inaccuracies.”28 However, the statement did not mention that the majority of the FISA application errors—124 of these 201—involved errors beyond minor typographical mistakes and date errors, including deviations from source documentation, misidentified sources of information, and unsupported facts.

The report provided examples of the kinds of errors that DOJ deemed fairly insignificant. My favorite — which DOJ considered non-material — is that a counterintelligence suspect had visited an entirely different continent than the country they were suspected of being an agent of, but FBI misreported that destination.

Example: The FISA application stated the target returned from a trip overseas from the specific country of counterintelligence threat concern, but the support in the Woods File stated that the target was returning from a country on a different continent.

In perhaps the most telling example, though, DOJ IG described how FBI blew off as “subjective” a FISA application assertion that DOJ IG identified as a “potential inaccuracy,” only to have NSD determine the inaccuracy was not only an error, but a material one requiring a report to FISC.

[T]here were 30 instances where FBI field personnel initially determined that the potential inaccuracy we identified was not an error, yet NSD OI ultimately determined it was an error, which was thereafter reported to the FISC. In one instance that was ultimately determined to be a material omission of fact by NSD OI, the FBI field office’s initial response dismissed our note and stated that the issue was “subjective” and “not material to probable cause.”

The IG Report identifies that, in addition to two publicly released letters to FISC (one, two) describing the errors DOJ identified based off DOJ IG’s preliminary review of 29 cases, there was a third, dated October 28, 2020, which DOJ NSD has not made public, revealing two additional material errors.

In three separate filings with the FISC on June 15, July 29, and October 28, 2020, the Department and FBI provided the results after their assessment of the CDC accuracy reviews of the 29 FISA applications that the OIG had reviewed and in which we had identified numerous potential errors. 12 In total, the Department notified the FISC about 209 instances of unsupported or inaccurate statements, as well as omissions of fact, that it had identified in 27 of the 29 FISA applications. The Department and FBI further informed the FISC that 2 of the 29 FISA applications reviewed did not contain any inaccurate statements.13 Of the total 209 errors reported to the FISC, 162 related to initial concerns identified in the OIG’s review. The additional errors reported were identified by the FBI in its subsequent CDC accuracy reviews in response to the FISC’s order.

[snip]

The Department and FBI determined that 4 of the 209 identified errors were material errors. FBI policy and the 2009 Accuracy Memorandum define material facts as “those facts that are relevant to the outcome of the probable cause determination” and states that NSD OI determines whether a misstatement or omission is capable of influencing the FISC’s probable cause determination. The Department further assessed that none of these 209 errors undermined or otherwise impacted the FISC’s probable cause determinations. The four reported material errors or omissions occurred in three different applications related to different targets. The material errors were:

  • Failing to include context to inform the reader of the application that certain remarks the target made about a particular organization were made, according to evidentiary support, to provoke a response from law enforcement personnel. Instead, the application simply stated that the target expressed support of the referenced organization.
  • Describing the target’s support for a specific group, where the evidence in the Woods File instead indicated the target supported a specific cause.
  • Describing that the target used a financial account as of a certain date. NSD OI stated that it was not evident from the supporting documentation how recently the government had confirmed the target’s use of the financial account, and certain evidence on the target’s use of the financial account was several years prior to the date included in the application.
  • Failing to include the required reliability statement for one of two CHSs referenced in the application.

It’s not just that FBI treated a comment made by someone trying to “provoke a response from law enforcement personnel” as sincere. It’s that having already reviewed all these errors and publicly boasted about how minimal they were (even while ignoring that none of the worst problems in the Carter Page applications were found using this methodology), DOJ somehow went back and discovered there were additional problems, one of which they had dismissed as “subjective.”

Don’t get me wrong. The headline findings — that FBI simply didn’t have Woods files for a number of applications — are concerning.

Out of the FBI’s stated universe of over 7,000 FISA applications for which Woods Files appeared to be required, we identified at least 179 instances (in addition to the 4 that the OIG previously identified) across 21 field offices where the respective field office reported the Woods File as missing or incomplete and requiring whole or partial reassembly.17

But they’re frankly not the real concern. The real concern is that the Woods file is not designed to fix the problems identified in the Carter Page applications (and this report doesn’t describe whether an effort to elicit information that might otherwise be omitted is working). And somewhere along the way, Billy Barr’s DOJ admitted to the FISC that their self-congratulatory press boasts turned out to be inaccurate without revealing that publicly.

Update, 11/14/21: I just realized that the Woods File violation pertaining to Clapper involved the FBI paraphrasing a Clapper interview otherwise quoted before and after the violative language.

CLAPPER: In the U.S., the United States. And of course there is a history there of — there is a tradition in Russia of interfering with the elections, their own and others’. So it shouldn’t come as a big shock to people. I think it’s more dramatic maybe because now they have the cyber tools that they can bring to bear in the same effort. This is still going on, but I will say that it’s probably not real, real clear whether there is influence in terms of outcome. What I worry about more, frankly, is just sowing seeds of doubt, where doubt is cast on the whole process. So what are we doing about it? Well, apart from what you talked about, certainly DHS, Secretary Jeh Johnson has been very active with state election officials, offering, you know, our services and best practices and that sort of thing to secure, where appropriate, particularly if there is any dependence on the Internet in the course of the conduct of an election in voter registration, databases or the actual conduct of the election. We have a strength here in that we don’t have a centralized electoral system. It’s very decentralized among the states and local officials, and that actually works our advantage to be really a real monumental undertaking to try to affect the election nationally. But again, I think probably the more likely — and I am just surmising here — the more likely objective to would be to try to just sow seeds of doubt about the efficacy and viability and the sanctity — if I could use that word — of the whole system. _________IGNATIUS: You mentioned that there had been past instances where Russia — in this case I assume the Soviet Union — had tried to interfere in our election process. I probably should know what those are but I don’t. What comes to mind in terms of the past history of this? _________CLAPPER: Well, where they have fed money to opposition candidates, or tried to feed disinformation. Again, the way it was done during the Cold War, which of course preceded what we now know as the cyber era. And of course the record is replete with cases of influencing elections in East Europe and that sort of thing by, by today’s standards, more primitive methods. They have a history of that

The Viral Twitter Thread in Which Darrell Cooper Confesses Republicans Were Pawns of Russian Disinformation

For some reason, this Twitter thread by a guy named Darrell Cooper, purporting to explain why Trumpsters came to attack the US Capitol, went viral.

I resisted several requests to fact check it. Now, after it has gone even more viral (including on Tucker Carlson’s show), Phil Bump has done a good fact check. As Bump notes, while Cooper accurately lays out that Trump supporters have lost confidence in institutions, Cooper offers an explanation that relies on a series of false claims so as to put the blame on Democrats.

It is indisputably the case that Trump supporters accept claims about election fraud in part because of their diminished confidence in institutions such as government and the media. What is subject to dispute, though, is the cause of that lack of confidence. While Cooper suggests that it’s emergent, it isn’t. While Cooper argues that it’s a function of investigations into Trump, it’s actually a function of partisan responses — largely but not entirely on the right — driven by Trump himself. And, most important, what Cooper presents as the indisputable facts undergirding his argument are often misleading or false and a function of partisan defenses of Trump that are common in conservative media.

Bump then debunks Cooper’s claims that:

  • The FBI spied on the Trump campaign using evidence manufactured by the Clinton campaign
  • We now know that all involved knew it was fake from Day 1 (see: Brennan’s July 2016 memo, etc)
  • The Steele dossier was the sole evidence used to justify spying on the Trump campaign
  • The entire Russian investigation stemmed from the Page investigation and not George Papadopoulos and Paul Manafort
  • Protests planned in case Trump overturned the election were a plan for violence
  • There were legitimate concerns about the election

Bump is absolutely right that Cooper makes false claims to be able to blame Democrats and Bump’s fact checks are sound (and really exhausting that they’re still required). Bump is likewise correct that a false claim about the Steele dossier is central to Cooper’s story.

I’d add that Cooper doesn’t mention that his claims about the problems with the Steele dossier matter primarily to the third and fourth FISA orders against Carter Page, and so happened under the Trump Administration and in three cases, were signed by people Trump either kept (in the case of Jim Comey) or put in place (in the case of Dana Boente and Rod Rosenstein).

But according to Cooper’s logic, if the dossier hadn’t existed, a series of events that followed wouldn’t have happened, and so Republicans wouldn’t have attacked their own government. Thus far it’s a typical right wing attempt to disclaim responsibility for their own actions.

What Bump doesn’t mention, though, is that it is now almost universally agreed upon on among Trumpsters that the dossier was the product of Russian disinformation. Lindsey Graham — who conducted an investigation into the circumstances of the Carter Page FISA — thinks it is. Chuck Grassley — who led the investigation into the dossier — thinks it is. Ron Johnson — who also made a show of investigating these things — thinks it is. Chuck Ross — the chief scribe of the dossier on the right — thinks it is. The high gaslighter Catherine Herridge thinks it is. Fox News and all their favorite sources think it is. WSJ’s editorial page thinks it is. None of these people have thought through the implications of that, but they do all appear to believe that the Russians fed disinformation through the Democratic-funded dossier to the FBI.

So, even setting aside the implications of the possibility that the dossier was Russian disinformation, according to Cooper’s narrative, Trump’s supporters wouldn’t have attacked their own government if it weren’t for Russian disinformation that set off a chain of events that led them to lose confidence in American institutions.

But consider the implications of the dossier as disinformation, implications that are evident largely thanks to sources that right wing figures have made great effort to liberate.

In response to a Trey Gowdy question at an interview by a GOP-led investigation into the dossier, Bruce Ohr explained that on July 30, 2016, Christopher Steele shared three pieces of information with him (later in his interview he would add a fourth, Russian doping): Two details from what we now know to be the dossier, as well as a third — that Oleg Deripaska’s attorney had information about Paul Manafort stealing money from Deripaska.

And then the third item he mentioned was that Paul Hauser, who was an attorney working for Oleg Deripaska, had information about Paul Manafort, that Paul Manafort had entered into some kind of business deal with Oleg Deripaska, had stolen a large amount of money from Oleg Deripaska, and that Paul Hauser was trying to gather information that would show that, you know, or give more detail about what Paul Manafort had done with respect to Deripaska.

Byron York provided more background on Steele’s efforts to share information from Deripaska with Bruce Ohr. The IG Report done in response to GOP requests provided still more. For example, the IG Report revealed that Steele had set up a meeting between Ohr and Oligarch 1, whom we know to be Deripaska, in September 2015 (these claims are consistent with the heavily redacted Ohr 302s liberated by Judicial Watch).

Handling Agent 1 told the OIG that Steele facilitated meetings in a European city that included Handling Agent 1, Ohr, an attorney of Russian Oligarch 1, and a representative of another Russian oligarch. 209 Russian Oligarch 1 subsequently met with Ohr as well as other representatives of the U.S. government at a different location.

[snip]

Ohr and Steele also communicated frequently over the years regarding Russian Oligarch 1, including in 2016 during the time period before and after Steele was closed as an FBI CHS.409 Steele told us his communications with Ohr concerning Russian Oligarch 1 were the result of an outreach effort started in 2014 with Ohr and Handling Agent 1, to approach oligarchs about cooperating with the U.S. government. Ohr confirmed that he and Handling Agent 1 asked Steele to contact Russian oligarchs for this purpose. This effort resulted in Ohr meeting with Russian Oligarch 1 and an FBI agent in September 2015.

The IG Report also revealed that in September 23 (around the same time Deripaska was interviewed by the FBI), Steele passed on a claim that Deripaska wanted to share information about Manafort.

On September 23, 2016, at Steele’s request, Steele met with Ohr in Washington, D.C. Ohr told us they spoke about various topics related to Russia, including information regarding Russian Oligarch 1 ‘s willingness to talk with the U.S. government about Manafort.

Far more consistently than using Ohr as a channel for dossier reports (and for a longer period of time), Steele used his ties with Ohr to advance Oleg Deripaska’s interests. And for the entirety of the time that Steele was feeding the FBI dossier reports, that meant Steele was feeding Ohr claims that not only presented Deripaska as a trustworthy actor, but did so in part by promising Deripaska’s cooperation in a criminal investigation of Paul Manafort. The FBI (and Mueller after that) didn’t investigate Manafort primarily for the stuff Deripaska was trying to feed the FBI, but Deripaska was making great efforts to ensure that the FBI would investigate Manafort. In the aftermath of all this, Trump and Manafort blamed Democrats for all this, but in fact, Deripaska was at least as responsible.

According to footnotes that Graham, Grassley, and Johnson had declassified, before Deripaska first started offering to help DOJ criminally investigate Manafort — before that July 30, 2016 meeting between Steele and Ohr — a Deripaska associate likely learned about the dossier project (the same declassification revealed that two Russian intelligence officers had learned of the project before that meeting which, given the belief that several of Deripaska’s associates were Russian intelligence officers, may be the same report).

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 2016.

In fact, the IG Report completed in response to Republicans’ requests makes it clear: if the dossier was disinformation, that disinformation most likely involved Oleg Deripaska, with whom Manafort was using his position on the Trump campaign in an attempt to patch up financial and legal relations.

Priestap told us that the FBI “didn’t have any indication whatsoever” by May 2017 that the Russians were running a disinformation campaign through the Steele election reporting. Priestap explained, however, that if the Russians, in fact, were attempting to funnel disinformation through Steele to the FBI using Russian Oligarch 1, he did not understand the goal. Priestap told us that

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

Of course, for months before Deripaska first started offering (through Steele) to cooperate with the FBI against Manafort, Manafort had been trying to exploit his position on Trump’s campaign to ingratiate himself with (among others) Deripaska, in part in hopes to paper over precisely the financial dispute that Deripaska was, through Steele, trying to use to increase Manafort’s legal exposure. Weeks before the July 30 Steele-Ohr meeting, for example, Manafort had offered to brief Deripaska on the Trump campaign.

Immediately upon joining the Campaign, Manafort directed Gates to prepare for his review separate memoranda addressed to Deripaska, Akhmetov, Serhiy Lyovochkin, and Boris Kolesnikov,879 the last three being Ukrainian oligarchs who were senior Opposition Bloc officials. 880 The memoranda described Manafort’ s appointment to the Trump Campaign and indicated his willingness to consult on Ukrainian politics in the future. On March 30, 2016, Gates emailed the memoranda and a press release announcing Manafort’ s appointment to Kilimnik for translation and dissemination.881 Manafort later followed up with Kilimnik to ensure his messages had been delivered, emailing on April 11, 2016 to ask whether Kilimnik had shown “our friends” the media coverage of his new role. 882 Kilimnik replied, “Absolutely. Every article.” Manafort further asked: “How do we use to get whole. Has Ovd [Oleg Vladimirovich Deripaska] operation seen?” Kilimnik wrote back the same day, “Yes, I have been sending everything to Victor [Boyarkin, Deripaska’s deputy], who has been forwarding the coverage directly to OVD.”883

[snip]

The Office also obtained contemporaneous emails that shed light on the purpose of the communications with Deripaska and that are consistent with Gates’s account. For example, in response to a July 7, 20 I 6, email from a Ukrainian reporter about Manafort’ s failed Deripaskabacked investment, Manafort asked Kilimnik whether there had been any movement on “this issue with our friend.”897 Gates stated that “our friend” likely referred to Deripaska,898 and Manafort told the Office that the “issue” (and “our biggest interest,” as stated below) was a solution to the Deripaska-Pericles issue.899 Kilimnik replied:

I am carefully optimistic on the question of our biggest interest. Our friend [Boyarkin] said there is lately significantly more attention to the campaign in his boss’ [Deripaska’s] mind, and he will be most likely looking for ways to reach out to you pretty soon, understanding all the time sensitivity. I am more than sure that it will be resolved and we will get back to the original relationship with V. ‘s boss [Deripaska].900

Eight minutes later, Manafort replied that Kilimnik should tell Boyarkin’s “boss,” a reference to Deripaska, “that if he needs private briefings we can accommodate.”901

That is, per both Rick Gates and Manafort himself, how Manafort came to meet with Deripaska aide Konstantin Kilimnik on August 2, just three days after Deripaska tried to increase Manafort’s legal exposure via Steele. That’s how — and why! — he provided a briefing on campaign strategy amid a discussion of resolving the debt to Deripaska (as well as a plan to carve up Ukraine), as described by the SSCI Report completed under Chairs Richard Burr and Marco Rubio.

(U) At the meeting, Manafort walked Kilimnik through the internal polling data from Fabrizio in detail.453 According to Gates, Kilimnik wanted to know how Trump could win.454 Manafort explained his strategy in the battleground states and told Kilimnik about polls that identified voter bases in blue-collar, democratic-leaning states which Trump could swing.455 Manafort said these voters could be reached by Trump on issues like economics, but the Campaign needed to implement a ground game.456 Gates recalled that Manafort further discussed the “battleground” states of Michigan, Wisconsin, Pennsylvania, and Minnesota.457 (U) The Committee sought to determine with specificity what information Kilimnik actually gleaned from Manafort on August 2, 2016. Information suggests Kilimnik understood that some of the polling data showed that Clinton’s negatives were particularly high; that Manafort’s plan for victory called for focusing on Clinton’s negatives as much as possible; and that given Clinton’s high negatives, there was a chance that Trump could win. (U) Patten’s debriefing with the SCO provides the most granular account of what information Kilimnik obtained at the August 2, 2016 meeting:

Kilimnik told Patten that at the New York cigar bar meeting, Manafort stated that they have a plan to beat Hillary Clinton which included Manafort bringing discipline and an organized strategy to the campaign. Moreover, because Clinton’s negatives were so low [sic]-if they could focus on her negatives they could win the election. Manafort discussed the Fabrizio internal Trump polling data with Kilimnik, and explained that Fabrizio ‘s polling numbers showed that the Clinton negatives, referred to as a ‘therm poll,’ were high. Thus, based on this polling there was a chance Trump could win. 458

(U) Patten relayed similar information to the Committee. In particular, he told the Committee that Kilimnik mentioned Manafort’s belief that “because or Clinton’s high negatives, there was a chance, only because her negatives were so astronomically high, that it was possible . to win.”459

[snip]

(U) In addition to Campaign strategy involving polling data and the Ukraine plan, Manafort and Kilimnik also discussed two financial disputes and debts at the meeting. (U) The first dispute involved Deripaska and Pericles.477 Gates recalled that Kilimnik relayed at the meeting that Deripaska’s lawsuit ha’d been dismissed.478 Gates also recalled that Kilimnik was trying to obtain documentation showing the dismissal.479

In short, even without confirmation the dossier was disinformation, it’s clear that Deripaska was playing a vicious double game, using Steele as a channel to increase Manafort’s legal exposure even while using that legal exposure as a way to get an inside track to Trump’s campaign. But if the dossier is disinformation (as Trumpsters seem to universally agree now), it might help explain the dodgy content of the dossier in ways that aren’t important to this post (for example, it might explain why Steele’s sources falsely claimed that Carter Page was Manafort’s liaison with Russia in the same days when Kilimnik flew to the US to offer a pitch to Manafort on Ukraine involving senior Russians).

Now consider one more detail, given that Trumpsters seem to universally agree the dossier was disinformation and the IG Report’s suggestion that the most likely architect of that disinformation was Oleg Deripaska.

On January 8, 2017, Manafort flew to Madrid to meet with a different Deripaska deputy, Georgiy Oganov. As the SSCI Report explained, while Manafort told investigators they discussed the Pericles lawsuit — the same lawsuit Deripaska was using to make Manafort legally insecure — they also discussed stuff that remains almost entirely redacted, but stuff that includes recreating their “old friendship” which (also per the SSCI Report) involved Manafort conducting influence campaigns for Deripaska.

On January 8, 2017, hours after returning to the United States from a trip to ~ to Madrid, Spain.598 Manafort met with Oganov in Madrid during what he claimed was a one-hour breakfast meeting.599 Manafort told the FBI that, at the meeting, Oganov told him that he needed to meet with Deripaska in person to resolve the Pericles matter.600 Manafort agreed but said he would not travel to Ukraine or Russia for the meeting.601

(U) Manafort provided false and misleading information about the purpose, content, and follow-up to the meeting with Oganov to both the Committee and the SCO. In particular, Manafort told the Committee in a written response through counsel that he attended a meeting on or around January 17, 2017, in Madrid with “Georgy Organov.”602 The written response claimed that the meeting was “regarding a private litigation matter involving Oleg Deripaska.”603 Despite admitting his attendance at the meeting to the Committee in May 2017, Manafort initially denied attending the meeting in his interviews with the SCO in the fall of 2018.604 He eventually admitted to attending the meeting with Oganov, and then repeated what he described in his letter to the Committee-that the meeting had been arranged by his lawyers and concerned only the Pericles lawsuit.605

Manafort’s claims about the meeting were false. As the above messages show, the meeting was not designed to be about Pericles, but was also about recreating the “old friendship” and “global politics.”

Manafort returned to the US on January 12 and, three days later, tried to set up an in-person meeting with KT McFarland.

She checked with Mike Flynn, who told her that the “perception” of meeting with Manafort, “especially now” (this was after Flynn’s own back channels with Russia were beginning to become public) would not be good, so to hold off until they were in the hot seats.

Manafort didn’t meet with Trump’s national security team, but around the same time, per reporting from Ken Vogel, he reached out to Reince Priebus and suggested the errors in the dossier not only discredited it, but also the FBI investigation.

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a person close to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative. [my emphasis]

According to Rick Gates, at some point Manafort asked Kilimnik to obtain more information from his sources about it, including from Deripaska.

Since that suggestion to Priebus — which he made days after his return from a meeting with Deripaska’s associate — Trump has pursued precisely the strategy laid out by Manafort, using the errors in the dossier — the dossier that all Trumpsters now seem to believe was filled with errors by Russian intelligence and possibly by Deripaska associates — to discredit it and with it, the Russian investigation.

That’s the strategy that led Tucker Carlson’s Daily Caller to report on the dossier full time — including forcing the opinion editor at the time to publish a Deripaska column attacking the dossier.

Fusion GPS’s Simpson, in a New York Times op-ed describing his own Judiciary Committee testimony, claimed a neoconservative website “and the Clinton campaign” were “the Republican and Democratic funders of our Trump research.” The Judiciary Committee’s Sen. Dianne Feinstein (D-Calif.) then unilaterally released, over the objection of committee chairman Sen. Chuck Grassley (R-Iowa), Simpson’s testimony to “set the record straight.” Fusion GPS “commended Senator Feinstein for her courage.”

Yet on March 16, 2017, Daniel Jones — himself a team member of Fusion GPS, self-described former FBI agent and, as we now know from the media, an ex-Feinstein staffer — met with my lawyer, Adam Waldman, and described Fusion as a “shadow media organization helping the government,” funded by a “group of Silicon Valley billionaires and George Soros.” My lawyer testified these facts to the Senate Intelligence Committee on Nov. 3. Mr. Soros is, not coincidentally, also the funder of two “ethics watchdog” NGOs (Democracy 21 and CREW) attacking Rep. Nunes’ committee memo.

A former Obama State Department official, Nuland, has been recently outed as another shadow player, reviewing and disseminating Fusion’s dossier, and reportedly, hundreds of other dossiers over a period of years. “Deep State-proud loyalists” apparently was a Freudian slip, not a joke.

Invented narratives — not “of the people, by the people, for the people,” but rather just from a couple of people, cloaked in the very same hypocritical rhetoric of “freedom” and “democracy” that those are actively undermining — impede internationally shared efforts on the world’s most pressing, real issues, like global health, climate change and the future of energy. My own “Mother Russia” has many problems and challenges, and my country is still in transition from the Soviet regime — a transition some clearly wish us to remain in indefinitely.

And that’s the strategy that led Chuck Grassley, Lindsey Graham, and Ron Johnson to spend their time discrediting the dossier rather than conducting oversight of Donald Trump.

That’s the strategy that led Darrell Cooper to believe (or claim to believe) several false claims about the dossier and then use those false claims to excuse the way Trumpsters lost faith in institutions and so attacked the Capitol. In short, the likelihood that the dossier is disinformation — indeed, the likelihood that the guy twisting the nuts of Trump’s campaign manager fed the dossier full of disinformation even while using that pressure to obtain his cooperation — means that (at least if you believe Cooper’s narrative) that disinformation led, through a series of steps, Americans to attack the American Capitol.

Trumpsters appear to love Cooper’s narrative, I guess because it doesn’t hold them responsible for their own gullibility or betrayal of the country. There are other problems with it (including the replication of other claims that Republicans have agreed is Russian disinformation). But ultimately, even with Cooper’s errors, what his narrative amounts to (at least for all the Trumpsters who believe the dossier was disinformation) is a claim that Russia’s 2016 disinformation campaign led Trump supporters to attack the US Capitol.

Update: After I posted some folks in the thread questioned what the point of the disinformation would be. This post lays out a possible logic to it all.