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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

On the Belated Education of John Durham

In a filing on September 2 in the Igor Danchenko case, John Durham confirmed that Danchenko had been a paid FBI source from March 2017 through October 2020.

In March 2017, the FBI signed the defendant up as a paid confidential human source of the FBI. The FBI terminated its source relationship with the defendant in October 2020.

I had heard this — though not with the sourcing such that I could publish. Apparently it was news to the frothers, who’ve been wailing about it ever since. Here’s Margot at the Federalist Faceplant, Jonathan Turley, and Chuck Ross at his new digs at the outlet that first hired Christopher Steele. Here’s the former President during an obsequious Hugh Hewitt interview.

Danchenko’s status was implicit in a lot of what is public. Even absent the frothers doing any kind of journalism, or even critical thinking, what did they think this reference in Danchenko’s motion to dismiss meant?

The government had unfettered access to Mr. Danchenko for approximately four years following his first interview in January 2017, and not once did any agent ever raise concerns about the now purportedly contradictory post-call emails.

As I hope to show in a follow-up, it actually makes a lot of sense.

Meanwhile, in Danchenko’s response to that filing, he revealed that information he provided to the FBI was used in a memorandum supporting the opening of an investigation into Charles Dolan, one of Durham’s star witnesses against Danchenko. (Note, this reference stops short of saying that the FBI did open an investigation into Dolan, just that someone proposed doing so.)

[T]he Special Counsel ignores, and conceals from this Court, that Mr. Danchenko was interviewed dozens of times and during the course of those interviews, particularly when asked specific questions about Dolan (which was not often), Mr. Danchenko (1) told the FBI about the Moscow trips with Dolan, (2) told the FBI that Steele knew of Dolan, (3) told the FBI that not only was Dolan doing work with Olga Galkina but that Mr. Danchenko himself had introduced them, and (4) told the FBI that Dolan had connections and relationships with high-level Kremlin officials, including President Putin’s personal spokesperson, Dmitry Peskov. Indeed, when agents drafted a December 2017 communication in support of opening an investigation into Dolan, they included the information Mr. Danchenko provided them as support for opening the investigation. 3 [emphasis original]

This may not be the last surprise investigation we hear about. Back in the original filing on September 2, Durham argued he should be able to talk about the 2008 allegation that led to a counterintelligence investigation into Danchenko, in part, because (Durham predicted bitterly) Danchenko will likely raise investigations into others, plural, who will “feature prominently at trial.”

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

Effectively, Durham is arguing that if Danchenko points out that Durham’s witnesses should not be considered reliable based on suspicions they were working for Russia’s interests, then he should be able to point out that Danchenko was once similarly suspected as well. Durham also wants to point out that Dolan twice asserted that Danchenko might be a Russian spook, but also allegedly always knew of his role at Orbis — assertions that, in tandem, could actually hurt Durham’s case, given the subsequent disclosure that Dolan was investigated himself. Durham may not understand that, yet.

One of these people whose investigation Danchenko will raise at trial is undoubtedly Sergei Millian, whose cultivation of George Papadopoulos in exactly the same time period Danchenko claims to have believed he spoke to Millian was one of a number of things the FBI investigated starting in 2016.

Danchenko’s response to Durham’s demand that he be allowed to raise the 11-year old counterintelligence investigation into Danchenko (besides providing a somewhat different timeline) was basically to say, “Bring it!” He intends to raise that counterintelligence investigation himself, he claims. Note: Durham doesn’t note, but it is clear from the January interviews of Danchenko, that FBI interviewers probed Danchenko about that prior investigation in their very first interviews in 2017.

As noted, I hope to return to all this dizzying spy-versus-spy shit in a follow-up. By then we’re likely to have several more disclosures, plus some details about the known investigation into Millian.

This all shows there was not a shred of prosecutorial discretion exercised before charging Danchenko. Even if Danchenko had done grievous harm to the US, no sane prosecutor would have charged this case with such easily impeached witnesses. Even Durham now seems to understand his materiality claims are flimsy. And yet, to prove a five year old false statements allegation, he has forced the government to declassify a whole range of sensitive material, including this detail about Dolan.

And that process apparently continues to be a struggle for Durham (as I predicted it would be).

Consider the timeline implied by Danchenko’s footnote about the Dolan revelation. Danchenko claims that he only just learned about the Dolan investigation opening memo.

3 The December communication is highly exculpatory with regard to the essential element of materiality and it is not clear why it was only produced 30 days from the start of trial. It was produced as Jencks material (also late by the terms of the Court’s Order requiring all Jencks to be produced by September 1) but is obviously Brady evidence. The defendant understands that the CIPA procedures may have slowed the production of certain categories of discovery but given the Indictment’s allegations about the materiality of Mr. Danchenko’s failure to attribute public information to Dolan, the production of this specific document should have been a priority for declassification.

When Danchenko says that Counterintelligence Information Procedures Act may have slowed the production of this, he’s suggesting (charitably) that someone at DOJ took a long time to release this information to Durham and that Durham had no control over that process. That’s another thing I predicted in this post about how CIPA would affect this case: “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.”

The trial starts on October 11. This footnote suggests that Danchenko only received this information 30 days before trial, so around September 11, in the week before he filed this. Whenever it was disclosed, if he received it after the September 1 deadline, that would make it too late for the September 2 deadline for Danchenko’s own motion to dismiss. It would put it after Durham’s September 2 filing — the one bitching about how much of the trial Danchenko will use to focus on the investigations into witnesses, plural, against him — which means the plural reference may not have incorporated Dolan. Danchenko would have learned about this over a month after his own deadline to lay out what classified information he intended to use at trial, and at least a week after the August 30 CIPA conference, at which the two sides debated about what classified information Danchenko should be allowed to use at trial.

It also comes after a series of delays in Durham’s classified discovery. In May, I described what was publicly billed as the last one.

It’s that record that makes me so interested in Durham’s second bid to extend deadlines for classified discovery in the Igor Danchenko case.

After Danchenko argued he couldn’t be ready for an April 18 trial date, Durham proposed a March 29 deadline for prosecutors to meet classified discovery; that means Durham originally imagined he’d be done with classified discovery over six weeks ago. A week before that deadline, Durham asked for a six week delay — to what would have been Friday. Danchenko consented to the change and Judge Anthony Trenga granted it. Then on Monday, Durham asked for another extension, this time for another month.

When Durham asked for the first delay, he boasted they had provided Danchenko 60,000 unclassified documents and promised “a large volume” of classified discovery that week (that is, before the original deadline).

To date, the government has produced over 60,000 documents in unclassified discovery. A portion of these documents were originally marked “classified” and the government has worked with the appropriate declassification authorities to produce the documents in an unclassified format.

[snip]

Nevertheless, the government will produce a large volume of classified discovery this week

This more recent filing boasts of having provided just one thousand more unclassified documents and a mere 5,000 classified documents — for a case implicating two known FISA orders and several past and current counterintelligence investigations.

To date, the Government has produced to the defense over 5,000 documents in classified discovery and nearly 61,000 documents in unclassified discovery. The Government believes that the 5,000 classified documents produced to date represent the bulk of the classified discovery in this matter.

Danchenko waited six weeks and got almost nothing new.

But then on August 16, Durham filed a supplemental CIPA filing, suggesting there were more substitutions of classified information he wanted Judge Anthony Trenga to approve (a supplemental filing is not, by itself, unusual).

The point is, for months, Durham kept saying he’d have all the secrets delivered to Danchenko by his new deadline in June, promise, and then he dropped this bombshell on Danchenko just weeks before trial.

In the August 29 hearing on all this, Judge Trenga deferred most CIPA decisions until after Danchenko files a new CIPA filing on September 22 — so if any of this remains classified, Danchenko still has a chance, with just days notice, to argue he needs it at trial. They’ll fight about these issues again on September 29.

But given Durham’s performance in the Sussmann case, it’s not entirely clear these missed classified deadlines are DOJ’s fault. After all, Durham never even asked DOJ IG for relevant discovery in Sussmann’s (and therefore, we should assume, this) case until after Sussmann was charged. He didn’t investigate Rodney Joffe’s true relationship with the FBI and other agencies until Sussmann asked him to. He didn’t ask Jim Baker for his own iCloud content until early this year, after belatedly rediscovering Baker phones he had been told about years ago.

It’s not just his belated request for information from DOJ IG that we know to have affected this case too. Durham also has never interviewed George Papadopoulos — not before he went on a junket to Italy chasing Papadopoulos’ conspiracy theories, and not since. Thus, Durham never tested whether Millian’s cultivation of Papadopoulos undermines his evidence against Danchenko — and it does, obviously and materially.

Because of Durham’s obvious failures to take the most basic investigative steps before charging wild conspiracy theories, there are several possible explanations why he’s only providing Danchenko news of this Dolan memo a month before trial:

  1. Someone tried to hide this from Danchenko and ultimately was overridden. If that’s the explanation, it makes Andrew DeFilippis’ August departure from the team and, according to the NYT, DOJ, all the more interesting.
  2. DOJ delayed the time until they let Durham disclose this because of some sensitivity about the investigation. Recall that Dolan has ties to Putin spox Dmitri Peskov, who was sanctioned earlier this year, followed by his family.
  3. Durham didn’t know.

The last possibility — that Durham had no fucking clue that one of his star witnesses had been (at least considered) for investigation — is entirely plausible. It’s entirely consistent with what we saw in the Sussmann case, though worse even than that case in terms of timing.

Durham came into this investigation treating the conspiracy theories of Papadopoulos and Trump as credible. He seems to have believed, all along, that Sergei Millian was a genuinely aggrieved victim and not someone playing him, for at least a year, for a fool. He seems to have decided that he knew better than FBI’s experts about who had credibility about Russia and who didn’t. Along the way he forced the FBI to cut its ties with Joffe and — given the October 2020 cut-off of Danchenko’s ties to the FBI, probably Danchenko as well. He did all this with a lead prosecutor who believed it was problematic for DARPA to investigate the Guccifer 2.0 persona used by the GRU.

Durham walked into this investigation believing and parroting, without first testing, Trump’s claims that the Russian investigation was abusive. Based on those beliefs, he chased all manner of conspiracy theory in an attempt to allege pre-meditation and malice on the part of Hillary and everyone else involved with the dossier. His Sussmann prosecution ended in humiliating failure. This prosecution, win or lose, may do worse for Durham’s project: it may reveal unknown details about Russian efforts to tamper in 2016, efforts that harmed both Republicans and Democrats alike.

The Durham prosecutions have been shitshows and undoubtedly a disaster for those targeted. It’s not yet clear what will happen with the Danchenko trial (or even whether it will go to trial; given that CIPA issues still have to be resolved, there’s still a chance Durham will have to dismiss it rather than going to trial). Durham will still write a report that may try to resuscitate his conspiracy theories that were disproven in the Sussmann trial.

But thus far, the actual record of the Durham investigation shows that when actually bound by the rules of evidence, when actually obligated to dig through DOJ’s coffers to discover what DOJ learned as it tried to understand Russia’s intervention in 2016, reality looks nothing like the conspiracy theories Durham has chased for three years.

John Durham’s education process has been a painful process for all personally involved (except maybe Sergei Millian, gleefully dicking around from afar). But along the way he’s debunking many of the conspiracy theories he was hired to sustain.

Update: Chuck Ross is outraged that I suggested his boss had paid for Steele (and lying that I said Paul Singer paid for the dossier, which I pointedly did not say). It is true that the payment for Fusion GPS’ Trump project had shifted to Perkins Coie before Steele first sent Danchenko to Russia.

It’s also true that, based on length of project, Ross’ current boss paid for much of Nellie Ohr’s work on Trump’s ties to Russia, which includes some of Fusion’s early work on Paul Manafort and Felix Sater, and possibly early work on Millian (she continued to work on Millian until she left Fusion).

And since Chuck is so upset, I should point out that his former co-columnist, Oleg Deripaska, also reportedly paid for Steele’s work (in that case, research on Paul Manafort), though also through the cut-out of a law firm.

John Durham’s Igor Danchenko Case May Be More Problematic than His Michael Sussmann Case

Legal commentators who ignored the run-up to the Michael Sussmann trial and still have not reported on the evidence of abuse and incompetence are writing posts claiming it was always clear that the jury in that case would return an acquittal. The same people, however, are suggesting there might be more to the Igor Danchenko charges.

I wrote a whole series of posts laying out why that’s wrong — the last one, with links to the others, is here. In addition, I’ve been tracking Durham’s difficulties obtaining classified discovery from other parts of DOJ here. This post pulls together the problems Durham faces in his second trial, which is currently scheduled to start on October 11.

As a reminder, the Danchenko indictment charges the former Christopher Steele source with telling five lies to the FBI in interviews in which they tried to vet the Steele dossier:

  • One alleged lie on June 15, 2017  about whether he had spoken with Chuck Dolan “about any material contained in the” dossier.
  • Four alleged lies, told in interviews on March 16, May 18, October 24, and November 16, 2017, that he spoke to Sergei Millian in late July 2016 when Danchenko knew (variably in 2016 or in the interviews in 2017) that he had never spoken with him; one charged lie accuses Danchenko of wittingly lying about speaking to Millian more than once.

Durham will have to prove that these five statements were intentional lies and that they were material to the FBI’s operations.

Danchenko could get his former lawyer to testify

Before looking at the problems with each of those claimed lies and their materiality, consider that shortly after being charged, Danchenko replaced Mark Schamel, who represented Danchenko in his 2017 interviews with the FBI, with a team led by Lowenstein Sandler’s Stuart Sears. This makes it possible for Danchenko to do something risky but in this case potentially warranted: have his former attorney testify.

The interview report from his initial series of interviews in January 2017 shows that Danchenko was uncertain about the answer to some questions, but over the course of three days, checked his own records and corrected himself when he realized he had made an error in answering an affirmative question from the FBI. In at least one case, Danchenko also provided proof to back one of his claims. Schamel could explain how diligently he and Danchenko prepared for these interviews, how Danchenko corrected himself when he realized he was wrong, and the perceived focus — by all appearances, on Danchenko’s Russian sources — of the FBI interviews.

In short, Schamel’s testimony could go a long way to demonstrating that where Danchenko made an error, it was not willful.

The FBI didn’t ask the question about Chuck Dolan that Durham claims they did

Then there are the charges themselves. There are two potentially fatal problems with the single charge built around Chuck Dolan, which Durham has used to insinuate, with no evidence, that the minor Hillary supporter was the source of the pee tape allegation. The alleged lie Durham has accused Danchenko of, though, pertains to a more general question: whether Danchenko had “denied … that he had spoken to [Dolan] about any material” in the dossier.

Except, as happened repeatedly in his indictment of Danchenko, that’s neither what Danchenko was asked nor what he answered.

As I laid out in this post, it appears that Danchenko was asked whether Dolan was a source for Steele, not whether he was a source for Danchenko.

FBI AGENT-1: Um, because obviously I don’t think you’re the only …

DANCHENKO: Mm-hmm.

FBI AGENT-1: Person that has been contributing. You may have said one – and this is the other thing we are trying to figure out.

[ … ]

FBI AGENT-1: Do you know a [PR Executive-1]?

DANCHENKO: Do I know [PR Executive-1]? Yeah.

FBI AGENT-1: How long have you known him? [laughing] [pause]

DANCHENKO: I’ve known [PR-Executive-1] for [pause] I don’t know, a couple years maybe.

FBI AGENT-1: Couple years?

DANCHENKO: But but but but but but but I’ve known of him for like 12 years.

[ … ]

DANCHENKO: Yeah. Yeah he likes Russia. I don’t think he is, uh, – would be any way be involved. But-but-uh-b-but he’s uh [UI] what I would think would be easily played. Maybe. Uh, he’s a bit naive in his, um liking of Russia. [emphasis Durham’s]

The question was premised on Steele having other primary subsources other than Danchenko and his response was a denial of the possibility that Dolan was one of them. All of Danchenko’s responses could be framed with that understanding of the question.

Durham’s alleged false statement appears to stem from a follow-up question. But there, Durham has completely misrepresented Danchenko’s answer.

FBI AGENT-1: Okay, so you’ve had … was there any … but you had never talked to [PR Executive-1] about anything that showed up in the dossier [Company Reports] right?

DANCHENKO: No.

FBI AGENT-1: You don’t think so?

DANCHENKO: No. We talked about, you know, related issues perhaps but no, no, no, nothing specific. [emphasis Durham’s]

Danchenko explicitly told the FBI that he talked to Dolan about “related issues.” Particularly as regards the pee tape, Danchenko might consider using information from Dolan for further investigation a “related issue” but not the core issue that the FBI was interested in.

As to the report for which Durham presents compelling evidence that Dolan was the source, Durham presents no evidence of specific questioning about it, and there’s abundant evidence that Danchenko was never sure which reports came from him and which (he assumed) came from others.

Durham did not present any evidence that Danchenko denied, in response to specific questions about whether Dolan was involved in identified reports, that Dolan played a role in the dossier. He has evidence that Danchenko answered a question about something else, and then, in a follow-up, gave a much more equivocal response than Durham claims he gave.

Another Durham materiality claim fizzles after he actually investigates

Plus, it is virtually certain that Danchenko will be able to prove that his equivocal response could not have been material.

That’s because — as a declassified footnote of the DOJ IG Report makes clear — the reason the FBI asked these questions about Dolan on June 15, 2017 was because FBI had recently obtained Section 702 material showing conversations between Danchenko’s source, Olga Galkina, and Dolan.

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]

That is, the reason the FBI was asking these questions in the first place is because they were trying to understand the communications they had just discovered between Dolan and Danchenko.

As the indictment lays out, Danchenko didn’t hide the key details about Dolan — that he was doing business in Russia, had ties with Dmitry Peskov, and had developed a business relationship with Galkina.

In a later part of the conversation, DANCHENKO stated, in substance and in part, that PR Executive-1 had traveled on the October “delegation” to Moscow; that PR Executive-1 conducted business with Business-1 and Russian Sub-source-1; and that PR Executive-1 had a professional relationship with Russian Press Secretary-1.

Durham claimed that Danchenko’s imagined lie was material because it deprived the FBI from obtaining information on 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-1 that would have, among other things, assisted them in evaluating the credibility, reliability, and veracity of the Company Reports, including DANCHENKO’s sub-sources.

We now know that, at the time Durham made this claim, he had barely begun the process of obtaining relevant evidence from DOJ IG. Even in the Michael Sussmann case, Durham first made a formal discovery request of Michael Horowitz’s office on October 13, 2021, almost a month after charging Sussmann (and just three weeks before indicting Danchenko). Durham didn’t receive materials that completely undermined his case against Sussmann until March.

From that, it’s fairly safe to assume that Durham (again) didn’t bother to test whether there was any basis for his materiality claims before building a long speaking indictment around them.

The FBI didn’t need Danchenko to tell them about Dolan’s Russian ties. They had discovered that already from 702 collection targeting Galkina. That’s precisely why they asked Danchenko whether Dolan could be another Steele source. And when asked for more details, Dahchenko offered up the details that FBI would have been looking for.

Durham’s due diligence problems on the Sergei Millian charges

There are several kinds of problems with the remaining four counts. As noted, four of the charges against Danchenko accuse him of hiding what Durham claims is affirmative knowledge (arguably in real time) that Sergei Millian never called him in late July 2016.

As a threshold matter, there’s no language in the Danchenko indictment suggesting Durham has affirmative proof that such a call didn’t happen — whether from Millian or anyone else. In his FBI interview, Danchenko suggested the call may have happened on a secure app and he said he had replaced the phone he used at the time. So it’s not clear that Durham can rule out a call on Signal or similar encrypted app. When Durham first rolled out this indictment, I thought such a claim would be reckless, but we now know Durham built his entire Sussmann indictment around billing records even though Durham had affirmative proof (in his taxi reimbursement) that Sussmann did not bill Hillary for his meeting with the FBI.

Worse still, even in the transcripts that Durham miscites in the indictment, Danchenko included a bunch of caveats that Durham does not include in his charging language: “I don’t know,” “at the time I was under the impression it was him,” “at least someone I thought was him.”

That creates a temporal problem with the way Durham has charged this. Even if Danchenko came to believe later in 2016 or in 2017 that he never spoke with Millian, in his interviews, Danchenko was answering about what he believed to be the case in July 2016, when he shared this report with Christopher Steele. All Danchenko was claiming was that he talked to some journalists at a Russian outlet, someone called Danchenko shortly thereafter (at a time, it should be said, when Oleg Deripaska likely already knew of the dossier project), and Danchenko assumed it was Millian because it was the most logical explanation. From the start, Danchenko always admitted his uncertainty about that call.

Durham is relying on a Twitter feed he has already said makes false claims about the Durham investigation

Then there’s the fact that Durham is relying on Sergei Millian as a witness against Danchenko.

As I noted last year, in his indictment, Durham claimed to prove that such a call had not happened based on Millian’s say-so. But not actual testimony. Rather, at that point, Durham was relying on Sergei Millian’s Twitter feed.

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 was batshit insane then, not least because over the years journalists and others have raised real questions about the authenticity of Millian’s Twitter account. And since charging Danchenko, Millian has repeatedly made claims on Twitter that utterly demolishes the credibility of Millian’s Twitter feed.

Millian has played a key role in the “sleuths corner” that has ginned up all sorts of false claims about Durham’s investigation.

This explicit affiliation will entitle Danchenko to subpoena the activity of the group, and even if Millian were entirely credible, there are a number of people associated with the corner who are not.

Then, as part of his role in generating froth about the Durham investigation, Millian played a central role in misrepresenting a claim Durham had made in a filing in the Sussmann case, suggesting that Durham had proven that researchers had spied on the Trump White House.

This led Durham to formally state that those who made such claims were “misrepresent[ing] facts contained in the Government’s Motion.” So Durham has publicly accused his star witness — Sergei Millian’s Twitter feed — of making false claims about matters pertaining to Durham’s investigation.

Worse still, in the same time period, Millian claimed that he had called the White House and told them “who was working against them.”

That reflects the kind of knowledge that could only come from a concerted effort, in real time (seemingly in 2016), to fuck with the Fusion investigation, followed by a subsequent effort (at such time when Trump was in the White House), to exact a cost for the investigation. Effectively, with this tweet, Millian confessed to being part of the effort to undermine the Russian investigation. That makes Millian’s contact with Deripaska in 2016 all the more problematic, since Deripaska has seemingly carried out a sustained campaign to attack the Russian investigation. But it also suggests that Millian’s claims to have entirely blown off Danchenko’s quetions were false.

Millian has since claimed that Durham’s office was trying to keep him off Twitter, but that he refused because he wants to attack his enemies.

This is all just stuff that Millian has done since the indictment, and to the extent earlier Millian tweets are preserved showing professed knowledge of the 2016 Russian operation (as some are), Danchenko would be able to use those at trial as well.

Which may be why — at least according to Millian’s unreliable Twitter feed — Durham is now trying to get Millian to come testify at trial. But Millian suggests that testifying under oath to the claims he has been making on Twitter for years would amount to “using him.”

Durham’s star witness refuses to return to the US without some kind of “gentleman’s agreement” regarding his “safe return.” That’s not going to be a very credible witness on the stand, if he even shows up to testify.

The counterintelligence investigation against Millian was real in 2016 and may be realer now

Which leads us, again, to Durham’s failures to do basic investigation before charging these indictments.

We know Durham didn’t reach out to Michael Horowitz until weeks before charging Danchenko. The Sussmann case made it clear Durham had not received centrally relevant evidence in the Sussmann case until March.

That means Durham may not have been aware of the public evidence — in both the DOJ IG Report and declassified footnotes — describing the counterintelligence investigation opened on Millian in October 2016, which was opened in NY (where Millian lived at the time), not DC (where Fusion and others were also raising concerns).

In addition, we learned that [Millian] was at the time the subject of an open FBI counterintelligence investigation. 302 We also were concerned that the FISA application did not disclose to the court the FBI’s belief that this sub-source was, at the time of the application, the subject of such an investigation. We were told that the Department will usually share with the FISC the fact that a source is a subject in an open case. The OI Attorney told us he did not recall knowing this information at the time of the first application, even though NYFO opened the case after consulting with and notifying Case Agent 1 and SSA 1 prior to October 12, 2016, nine days before the FISA application was filed. Case Agent 1 said that he may have mentioned the case to the OI Attorney “in passing,” but he did not specifically recall doing so. 303

301 As discussed in Chapter Four, [Millian] [redacted]

302 According to a document circulated among Crossfire Hurricane team members and supervisors in early October 2016, [Millian] had historical contact with persons and entities suspected of being linked to RIS. The document described reporting [redacted] that [Millian] “was rumored to be a former KGB/SVR officer.” In addition, in late December 2016, Department Attorney Bruce Ohr told SSA 1 that he had met with Glenn Simpson and that Simpson had assessed that [Millian] was a RIS officer who was central in connecting Trump to Russia.

We know Durham has little familiarity with the Mueller Report, much less the underlying investigation. Which means he similarly may not have considered the evidence that Millian was cultivating George Papadopoulos during precisely the same weeks when Danchenko was contacting Millian for information on Trump.

Papadopoulos first connected with Millian via LinkedIn 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

More recently, as part of charges against a different Russian-American who fled because of a counterintelligence investigation, DOJ made clear that Millian’s organization knew at least by 2013 they should have registered as agents of Russia.

a. On or about January 30, 2013, BRANSON received an email from an individual using an email address ending in “mail.ru.” Based on my review of publicly available information, I have learned that this individual was a Senior Vice President of the Russian American Chamber of Commerce in the USA. This email had the subject line “Problem.” and the text of the email included, among other things, a portion of the FARA Unit’s website with background on FARA. In response, BRANSON wrote, in part, “I am interested in the number of the law, its text in English[.]” The sender then responded with “Lena, read …” and copied into the email background on FARA and portions of the statute.

All of which to say that Durham likely cannot make any “gentleman’s agreement” on DOJ’s behalf with Millian about coming to the US to testify against Danchenko, because other parts of DOJ have equities that significantly precede Durham’s, equities that pertain more directly to harm to the United States and current national security priorities.

Plus, even if Durham did succeed in bringing his star witness against Danchenko to EDVA to testify against him, even if Millian weren’t arrested on sealed charges when he landed, the trial would end up being a circus in which the evidence against Millian and the false claims Millian has made about the Durham investigation playing a more central role than the evidence against Danchenko.

There are few things Durham could do that would make it more clear how his witch hunt has served Russia’s interests, and not those of the US.

I mean, I’m all for it. But at some point Durham may come to recognize that’s not a winning case.

There is affirmative evidence that any alleged lies Danchenko told were not material

It’s not clear whether Sussmann jurors ever got as far as considering the materiality problems in the case against Sussmann. But, even on top of the specific problem arising from the Section 702 directive targeting Galkina, described above, Durham may have bigger materiality problems with Danchenko.

That’s because — as explained in the DOJ IG Report Durham didn’t read closely — FBI repeatedly made decisions that affirmatively reflect finding claims in the dossier and Danchenko’s interviews were not material to their decision to keep surveilling Carter Page.

That’s true, first of all, because the initial FISA targeting Page obtained useful information. Notes from Tashina Gaushar that Durham belatedly discovered in the Sussmann case described the FISAs against Page this way:

So before the FBI ever spoke to Danchenko, they had independent reason (on top of the counterintelligence concerns NYFO had used in March 2016 to open an investigation on Page) to target Page.

Moreover, the FBI started identifying problems with the Millian allegations before the first FISA, but never integrated those or Danchenko’s own interviews into their FISA applications.

Regarding the information in the first bullet above, in early October 2016, the FBI learned the true name of Person 1 (described in Report 95 as “Source E”). As described in Chapter Six, the Primary Sub-source told the FBI that he/she had one 10- to 15-minute telephone call with someone he/she believed to be Person 1, but who did not identify him/herself on the call. We found that, during his/her interview with the FBI, the Primary Sub-source did not describe a “conspiracy” between Russia and individuals associated with the Trump campaign or state that Carter Page served as an “intermediary” between Manafort and the Russian government. In addition, the FBl’s summary of the Primary Sub-source’s interview did not describe any discussions between the parties concerning the disclosure of DNC emails to Wikileaks in exchange for a campaign platform change on the Ukrainian issue. To the contrary, according to the interview summary, the Primary Sub-source told the FBI that Person 1 told him/her that there was “nothing bad” about the communications between the Kremlin and Trump, and that he/she did not recall any mention of Wikileaks. Further, although Steele informed the FBI that he had received all of the information in Report 95 from the Primary Sub-source, and Steele told the OIG the same thing when we interviewed him, the Primary Subsource told the FBI that he/she did not know where some of the information attributed to Source E in Report 95 came from. 388 Despite the inconsistencies between Steele’s reporting and the information his Primary Sub-source provided to the FBI, the subsequent FISA renewal applications continued to rely on the Steele information, without any revisions or notice to the court that the Primary Sub-source had contradicted the Steele reporting on key issues described in the renewal applications. Instead, as described previously, FISA Renewal Application Nos. 2 and 3 advised the court:

In an effort to further corroborate [Steele’s] reporting, the FBI has met with [Steele’s] [redacted] sub-source [Primary Sub-source] described immediately above. During these interviews, the FBI found the [redacted] subsource to be truthful and cooperative [redacted]. The FBI is undertaking additional investigative steps to further corroborate the information provide [sic] by [Steele] and [redacted]

It cannot be the case that FBI at once ignored everything Danchenko said that should have raised concerns, but also that Danchenko’s repetition of the things he said in his first interview would be material to later parts of the investigation. There’s a 478-page report laying out why that’s not the case.

As to the Dolan tie, the FBI obtained intelligence that the reports that most mattered to the ongoing Russian investigation — the sketchy Cohen-in-Prague stories sourced to Olga Galkina, stories that may well have arisen because Dolan vouched for Galkina with Peskov — were disinformation a week before first speaking to Danchenko.

A January 12, 2017, report relayed information from [redacted] outlining an inaccuracy in a limited subset of Steele’s reporting about the activities of Michael Cohen. The [redacted] stated that it did not have high confidence in this subset of Steele’s reporting and assessed that the referenced subset was part of a Russian disinformation campaign to denigrate U.S. foreign relations. A second report from the same [redacted] five days later stated that a person named in the limited subset of Steele’s reporting had denied representations in the reporting and the [redacted] assessed that the person’s denials were truthful.

As I have shown, Mueller did not use the Cohen reports at all in predicating the investigation against Trump’s lawyer.

Finally, the DOJ IG Report strongly suggests that the FBI was not going to get a fourth FISA targeting Page until they discovered two new facilities — probably one or more encrypted app and some financial accounts — they thought might answer some of their outstanding questions about Page.

[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]

This is yet another reason why nothing Danchenko could have said in his interviews would have changed the FBI’s actions.

That leaves the purported lies — the same alleged lies about Millian — told in October and November 2017 that Durham claims Danchenko had been telling all along. By that point, though, Mueller already had George Papadopoulos refusing to provide details pertaining to Millian that would have raised further questions about Millian’s activities in 2016.

Honestly, this post barely scratches the surface of problems with Durham’s Igor Danchenko case. Things get worse when you consider Oleg Deripaska’s role in the dossier and the very active investigation into him and more recent sanctions into Dmitry Peskov.

And, this time, Durham may realize that. Just weeks before the Sussmann trial, Durham made a frenzied effort to include details about the dossier and Millian in Sussmann’s case. For example, he got approved as exhibits and “accidentally” released Fusion GPS files entirely unrelated to the Sussmann case. He attempted, but failed, to make Christopher Steele a central issue at the Sussmann trial. And during the testimony of Jared Novick, he attempted to introduce the names of dossier subjects that were unrelated to the core Sussmann charge. That is, Durham expanded the scope of his already unhinged conspiracy theory to incorporate topics — most notably, the dossier — that he might otherwise present at the Danchenko trial.

In the next two weeks, Durham will — after over ten weeks of delay — have to face the challenges of obtaining the classified discovery that Danchenko can demand to prove this is the case. In light of those challenges, we’ll see whether Durham wants to barrel forward towards yet another humiliating loss at trial.

The Guy Investigating the Claimed Politicized Hiring of a Special Counsel Insists that the Hiring of a Special Counsel Cannot Be Political

On Monday, both John Durham and Michael Sussmann submitted their motions in limine, which are filings to argue about what can be admitted at trial. They address a range of issues that I’ll cover in several posts:

Sussmann:

Durham wants to:

  • Admit witnesses’ contemporaneous notes of conversations with the FBI General Counsel
  • Admit emails referenced in the Indictment and other, similar emails (see this post)
  • Admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b)
  • Exclude evidence and preclude argument concerning allegations of political bias on the part of the Special Counsel (addressed in this post)
  • Admit an October 31, 2016 tweet by the Clinton Campaign

I will link my discussions in serial fashion.


Here’s how John Durham moved to exclude any evidence that his team was ordered to produce results in time for the 2020 election, bullied witnesses, or treated Hillary Clinton as a more dangerous adversary than Russia.

The Government expects that defense counsel may seek to present evidence at trial and make arguments that depict the Special Counsel as politically motived or biased based on his appointment by the prior administration. Notwithstanding the patently untrue nature of those allegations, such matters are irrelevant to this case and would create a substantial danger of unfair prejudice, confusion, and delay. In particular, the government seeks to preclude the defendant from introducing any evidence or making any argument concerning the circumstances surrounding the appointment of the Special Counsel and alleged political bias on the part of the Special Counsel’s Office. Indeed, the defendant has foreshadowed some of these arguments in correspondence with the Special Counsel and others, and their assertions lack any valid basis.

Only relevant evidence is admissible at trial. Fed. R. Evid. 402. The definition of relevance is inclusive, see Fed. R. Evid. 401(a), but depends on the possibility of establishing a fact that “is of consequence in determining the action,” Fed. R. Evid. 401(b). Evidence is therefore relevant only if it logically relates to matters that are at issue in the case. E.g., United States v. O’Neal, 844 F. 3d 271, 278 (D.C. Cir. 2016); see Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 387 (2008). The party seeking to introduce evidence bears the burden of establishing relevancy. Dowling v. United States, 493 U.S. 342, 351 n.3 (1990).

Here, the defendant is charged with making a false statement to the FBI General Counsel in violation of 18 U.S.C. § 1001. A jury will have to decide only whether the defendant knowingly and willfully made a materially false statement to the FBI General Counsel. Nothing more, nothing less. Baseless political allegations are irrelevant to the crime charged. See, e.g., United States v. Regan, 103 F. 3d 1072, 1082 (2d Cir. 1997) (claims of Government misconduct are “ultimately separate from the issue of [a defendant’s] factual guilt”); United States v. Washington, 705 F. 2d 489, 495 (D.C. Cir. 1983) (similar). Evidence or argument concerning these issues should therefore be excluded. See Fed. R. Evid. 402; see, e.g., O’Neal, 844 F,3d at 278; United States v. Stone, 19 CR 18 (D.D.C. Sept. 26, 2019) ECF Minute Order (granting the government’s motion in limine to exclude evidence or argument regarding alleged misconduct in the government’s investigation or prosecution of Roger Stone).

The only purpose in advancing these arguments would be to stir the pot of political polarization, garner public attention, and, most inappropriately, confuse jurors or encourage jury nullification. Put bluntly, the defense wishes to make the Special Counsel out to be a political actor when, in fact, nothing could be further from the truth.11 Injecting politics into the trial proceedings is in no way relevant and completely unjustified. See United States v. Gorham, 523 F. 2d 1088, 1097-1098 (D.C. Cir. 1975) (upholding trial court’s decision to preclude evidence relevant only to jury nullification); see also United States v. Rushin, 844 F. 3d 933, 942 (11th Cir. 2016) (same); United States v. Castro, 411 Fed. App’x 415, 420 (2d Cir. 2011) (same); United States v. Funches, 135 F.3d 1405, 1408-1409 (11th Cir. 1998) (same); United States v. Cropp, 127 F.3d 354, 358-359 (4th Cir. 1997). With respect to concerns about jury nullification, this Circuit has opined:

[Defendant’s] argument is tantamount to the assertion that traditional principles concerning the admissibility of evidence should be disregarded, and that extraneous factors should be introduced at trial to become part of the jury’s deliberations. Of course a jury can render a verdict at odds with the evidence and the law in a given case, but it undermines the very basis of our legal system when it does so. The right to equal justice under law inures to the public as well as to individual parties to specific litigation, and that right is debased when juries at their caprice ignore the dictates of established precedent and procedure.

Gorham, 523 F.2d at 1098. Even if evidence related to the defendant’s anticipated allegations had “marginal relevance” to this case (which it does not), the “likely (and presumably intended) effect” would be “to shift the focus away from the relevant evidence of [the defendant’s] wrongdoing” to matters that are, at most, “tangentially related.” United States v. Malpeso, 115 F. 3d 155, 163 (2d Cir. 1997) (upholding exclusion of evidence of alleged misconduct by FBI agent). For the foregoing reasons, the defendant should not be permitted to introduce evidence or make arguments to the jury about the circumstances surrounding the appointment of the Special Counsel and alleged political bias on the part of the Special Counsel.

11 By point of fact, the Special Counsel has been appointed by both Democratic and Republican appointed Attorneys General to conduct investigations of highly-sensitive matters, including Attorneys General Janet Reno, Michael Mukasey, Eric Holder, Jeff Sessions and William Barr. [my emphasis]

Durham stuck the section between an extended section arguing that Judge Christopher Cooper should treat the interlinked investigations — by those working for the Hillary campaign and those, working independently of the campaign, who believed Donald Trump presented a grave risk to national security — into Trump’s ties to Russia as a unified conspiracy and another section asking that Clinton Campaign tweets magnifying the Alfa Bank allegations be admitted, even though the argument to include them is closely related.

Even ignoring how Durham pitches this issue, the placement of this argument — smack dab in the middle of an effort to treat protected political speech he admits is not criminal like a criminal conspiracy — seems like a deliberate joke. All the more so coming from prosecutors who, with their conflicts motion,

stir[red] the pot of political polarization, garner[ed] public attention, and, most inappropriately, confuse[d potential] jurors

It’s pure projection, presented in the middle of just that kind of deliberately polarizing argument. From the moment the Durham team — which relied heavily on an FBI Agent who reportedly sent pro-Trump texts on his FBI phone — tried to enhance Kevin Clinesmith’s punishment for altering documents because he sent anti-Trump texts on his FBI phone, Durham has criminalized opposition to Trump.

And Durham himself made his hiring an issue by claiming that the guy who misrepresented his conflicts motion by using it to suggest that Sussmann and Rodney Joffe should be executed, Donald Trump, is a mere third party and not the guy who made him a US Attorney.

But it’s also misleading, for multiple reasons.

The initial bias in question pertains to covering up for Russia, not helping Republicans

Sussmann’s likely complaints at trial have little to do with the fact that Durham was appointed by a Republican. Rather, a key complaint will likely have to do with the fact that Durham was appointed as part of a sustained campaign to misrepresent the entire set of events leading up to the appointment of his predecessor as Special Counsel, Robert Mueller, by a guy who auditioned for the job of Attorney General based on his claims — reflecting his warped Fox News understanding of the investigation — that the confirmed outcome of that investigation was false.

You cannot separate Durham’s appointment from Billy Barr’s primary goal in returning as Attorney General to undermine the evidence of improper Trump ties to Russia. You cannot separate Durham’s appointment, in the same days as Mueller acquired key evidence in two investigations (the Egyptian bank donation and Roger Stone) that Barr subsequently shut down, from Barr’s attempt to undermine the past and ongoing investigation. You cannot separate Durham’s appointment from what several other DC District judges (Reggie Walton, Emmet Sullivan, and Amy Berman Jacksonthe latter, twice) have said was Barr’s improper tampering in the Russian investigation.

That is, Durham was appointed to cover-up Trump’s confirmed relationship with Russia, not to attack Democrats. But in order to cover up for Russia, Durham will, and has, attacked the Democrats who were first victimized by Russia for viewing Russia as a threat (though I believe that Republicans were victimized, too).

That bias has exhibited in the following ways, among others:

  • Treating concern about Trump’s solicitation of further hacks by Russia and his confirmed ties to Russian money laundering as a partisan issue, and not a national security issue (something Durham continues with this filing)
  • Treatment, in the Danchenko case, of Charles Dolan’s involvement in the most accurate report in the Steele dossier as more damning that the likely involvement of Dmitri Peskov in the most inflammatory reports that paralleled the secret communications with Dmitry Peskov that Trump and Michael Cohen lied to cover up
  • Insinuations from Andrew DeFilippis to Manos Antonakakis that it was inappropriate for DARPA to ask researchers to investigate ongoing Russian hacks during an election
  • A prosecutorial decision that risks making sensitive FISA information available to Russia that will, at the same time, signal that the FBI won’t protect informants against Russia

There are other indications that Durham has taken probable Russian disinformation that implicates Roger Stone as instead reliable evidence against Hillary.

Durham’s investigation into an investigation during an election was a key prop during an investigation

Another thing Durham may be trying to stave off is Sussmann calling Nora Dannehy as a witness to explain why she quit the investigation just before the election. Even assuming Durham could spin concerns about pressure to bring charges before an election, that pressure again goes to Billy Barr’s project.

When Durham didn’t bring charges, some of the same documents Durham was reviewing got shared with Jeffrey Jensen, whose team then altered several of them, at least one of them misleadingly, to present a false narrative about Trump’s opponent’s role in the investigation. Suspected fraudster Sidney Powell seems to have shared that false narrative with Donald Trump, who then used it in a packaged attack in the first debate.

This is one of the reasons why Durham’s submission of Bill Priestap’s notes in such a way as to obscure whether those notes have some of the same indices of unreliability as the altered filings in the Mike Flynn case matters.

In other words, Durham is claiming that scrutinizing the same kind of questions that Durham himself has been scrutinizing for years is improper.

The bullying

I find it interesting that Durham claims that, “the defendant has foreshadowed some of these arguments in correspondence with the Special Counsel and others,” without citing any. That’s because the only thing in the record is that Sussmann asked for evidence of Durham bullying witnesses to alter their testimony — in response to which Durham provided communications with April Lorenzen’s attorneys.

On December 10, 2021, the defense requested, among other things, all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others” about the conduct of the Special Counsel’s Office.” Although communications with other counsel are rarely discoverable, especially this far in advance of trial, the Government expects to produce certain materials responsive to this request later this week. The Government notes that it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation. For example, certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as “threats” or “intimidation.”

And this set of filings reveals that Durham is still trying to force Rodney Joffe to testify against Sussmann, even though Joffe says his testimony will actually help Sussmann.

In other words, this may be a bid by Durham to prevent evidence of prosecutorial misconduct under the guise of maintaining a monopoly on the right to politicize the case.

Normally, arguments like this have great merit and are upheld.

But by making the argument, Durham is effectively arguing that the entire premise of his own investigation — an inquiry into imagined biases behind an investigation and later appointment of a Special Counsel — is illegitimate.

As we’ll see, what Judge Christopher Cooper is left with is nothing more than competing claims of conspiracy.

Hot and Cold Running John Durham Conspiracy Conspiracies

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

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

The filing is entirely reasonable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Deep in a CNN report purporting to “reckon” with the Steele dossier, Marshall Cohen claims that “The Mueller report said there wasn’t evidence of a criminal conspiracy to collude.”

This thirteen word sentence has a number of errors. Mueller explicitly noted that “collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law,” so it would be impossible to engage in a criminal conspiracy to collude. The Mueller Report further noted that, “A statement that the investigation did not establish particular facts” — such as the finding that, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities” — “does not mean there was no evidence of those facts.” The actual crimes for which there was evidence, but insufficient to prove beyond a reasonable doubt, were:

  • Serving as an unregistered foreign agent of Russia
  • Criminal campaign finance violation
  • Conspiring in the hack-and-leak operation
  • Conspiring to obstruct a lawful government function

In fact, a footnote declassified days before the 2020 election revealed that, “some of the factual uncertainties,” about whether Roger Stone participated in the hacking conspiracy, “are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office,” meaning that the investigation into whether Stone conspired with Russia in 2016 remained ongoing after Mueller finished work.

Additionally, the declinations section specifically says that multiple individuals told lies that obstructed the investigation into whether the contacts between the campaign and Russia violated criminal law. If George Papadopoulos hadn’t lied about telling the campaign about the Russian help, if Michael Cohen hadn’t lied about an impossibly lucrative real estate deal in Moscow, if Roger Stone hadn’t lied about how he optimized the email release (and how many times he spoke to Trump about it), if Paul Manafort hadn’t lied about swapping campaign strategy for $19 million in debt relief, and if Mike Flynn hadn’t lied about undermining sanctions, Mueller might have obtained evidence to prove a conspiracy beyond a reasonable doubt.

Mistaking not having enough evidence to prove a conspiracy beyond a reasonable doubt and not having evidence at all is a common error, though more typical coming from those who publish fawning interviews with Konstantin Kilimnik repeating his assurances he’s not a Russian spy.

But it matters in this piece for the way Cohen airs insinuations that John Durham made for which Durham doesn’t, apparently, have enough evidence to prove something beyond a reasonable doubt (and which probably wouldn’t even be crimes).

Cohen starts by asserting, as fact, that “Democratic involvement in Steele’s work was much deeper than previously known,” in the same paragraph where he notes that Charles Dolan has been accused of no crime.

But Democratic involvement in Steele’s work was much deeper than previously known. Court filings from the Durham inquiry recently revealed that some information in the dossier originated from Charles Dolan, 71, a public relations executive with expertise in Russian affairs who had a decades-long political relationship with the Clinton family. He has not been accused of any crimes. [my emphasis]

Cohen continues to describe Dolan’s involvement in four more ways that don’t involve any crime by Dolan: That Dolan was in regular contact with Danchenko (which Danchenko didn’t deny), that Dolan was “indirectly connected” to the pee tape, and that “Dolan was also indirectly linked” to a claim about a Russian diplomat being reassigned, and that Dolan lied to Danchenko — about his source for a true report — at a time Dolan knew nothing of the specifics of the Steele project.

Federal prosecutors said Dolan was in regular contact in 2016 with Steele’s primary source Igor Danchenko, 49, a Russian citizen and foreign policy analyst who lives in Virginia. Danchenko was indicted on November 4 for allegedly lying to the FBI about his dealings with Dolan and a fellow Soviet-born expat that he claimed was one of his sources.

Danchenko pleaded not guilty last week. In a statement to CNN, his defense attorney Mark Schamel said Durham is pushing a “false narrative designed to humiliate and slander a renowned expert in business intelligence for political gain.” Schamel also accused Durham of including legally unnecessary information in the 39-page indictment to smear Danchenko.

“For the past five years, those with an agenda have sought to expose Mr. Danchenko’s identity and tarnish his reputation while undermining U.S. National Security,” Schamel said. “…This latest injustice will not stand. We will expose how Mr. Danchenko has been unfairly maligned by these false allegations.”

The indictment indirectly connected Dolan to the infamous claim that Russia possessed a compromising tape of Trump with prostitutes in Moscow, which became known as the “pee tape.” (Trump and Russia both denied the allegations.) According to the Danchenko indictment, in June 2016, Dolan toured the Ritz-Carlton suite where the alleged liaison occurred, and discussed Trump’s 2013 visit with hotel staff, but wasn’t told about any sexual escapades. It’s still unclear where those salacious details that ended up in the dossier came from.

Dolan was also indirectly linked in the indictment to still-unverified claims about Russian officials who were allegedly part of the election meddling. The indictment also suggested that Steele’s memos exaggerated what Dolan had passed along to Danchenko.

The indictment also says the dossier contained a relatively mundane item about Trump campaign infighting that Dolan later told the FBI he actually gleaned from news articles. Prosecutors say Dolan even lied to Danchenko about where he got the gossip, by attributing it to a “GOP friend” who was “a close associate of Trump.” [my emphasis]

Importantly, for only the last of these dossier reports is Dolan specifically alleged to be a source in the dossier (and, again, Dolan credibly claimed not to know why Danchenko was asking for dirt on Trump). The rest are introduced into the indictment in part by claiming Danchenko — who admitted he and Dolan “talked about … related issues” — lied in part to hide that Dolan, “was otherwise involved in the events and information described in the reports.”

But the two examples that Cohen treats as news — the pee tape and the reassigned diplomat (there’s a third included involving Sergei Ivanov’s removal) — are laid out in the indictment as materiality arguments, not accused crimes that Durham thinks he can prove beyond a reasonable doubt. They’re the things Durham claims Danchenko hid by purportedly lying about whether he had done more than speak to Dolan about related topics. There’s no reason to believe that FBI — which had 702 collection showing extensive ties between Dolan and Danchenko’s Russian source Olga Galkina, undoubtedly including some of the communications Durham relies on in the indictment — ever asked Danchenko whether Dolan was the source for the one report Durham claims Dolan was the source for, much less the three where Durham imagines he had some other kind of role in. (I have noted that Durham appears to have misrepresented the question that led into this answer; it seems to have been whether Dolan served as a source for Steele, not Danchenko.) Durham presents the damage from Danchenko’s claimed lie in terms of questions that the FBI, even sitting on those communications, might have asked, but did not.

Here’s how it looks on the pee tape.

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.

As I’ve noted, one likely, and damning, scenario (Durham presents no evidence that he knows what actually did happen) is that Danchenko used the details Dolan told him about the Ritz tour to flesh out the pee tape rumor he attributed to Sergey Abyshev, with whom he met and drank on the same day, using the names of the Ritz staffers without interviewing them. But even if that’s what happened, there’s no hint that Dolan provided this information wittingly as part of an effort to hurt Trump (and even if it was gossip about Trump, it would not be a crime).

Effectively, Durham is arguing it is more important for the FBI to find out if unwitting Democrats provided information for the dossier — and Durham’s fleshed out his claims that Dolan played a role in several of the other reports precisely based on the accuracy of what Dolan had learned from high ranking Russians, not on any claim he was making rumors up — than Russians with ties to the intelligence services feeding deliberate disinformation. If Dolan’s involvement was unwitting, there could be no conspiracy to defraud the government, not even if Danchenko knew his reports were being shared with the FBI, which Durham doesn’t claim he did.

Again, this entire indictment treats unwitting Democrats as more dangerous adversaries than Russians deliberately trying to intervene in America’s election.

By presenting his other Dolan claims as materiality arguments, then, Durham manages to insinuate things — things that aren’t even crimes — without having solid evidence behind them. And he does so in an indictment that doesn’t cut-and-paste quotations faithfully and relies on Sergei Millian’s Twitter feed for a key claim of fact.

And Cohen allows himself — in a piece talking about how foolish it was for the press to repeat the sloppy insinuations from the dossier — to serve as a mouthpiece for Durham’s unsubstantiated insinuations.

There are other errors in this piece. One that bears notice — because it’s another case where Cohen got fooled — is where he claims that Galkina disclaimed being a source for a claim that was attributed to her.

Another Russian who Danchenko told the FBI was one of his sources said in a sworn affidavit in a civil case that she wasn’t the source for at least one claim that was attributed to her. The woman, publicist Olga Galkina, said she believes Danchenko told the FBI she was his source “to create more authoritativeness for his work,” according to court filings.

That’s false. The only thing that Galkina disclaimed being a source for in her declaration was the Alfa Bank story. As I laid out here, in his public interview report, Danchenko associates that report, but does not attribute it, to his drinking buddy, Sergey Abyshev. The declarations from Danchenko’s other sources in that docket, including Galkina’s, were just legal smoke and mirrors (and a way to get those names before Durham and frothy right wingers). The fact that Galkina stated that, “Mr. Danchenko and I did not discuss anything related to the Dossier or its contents during,” a March 2016 meeting in the US where Danchenko introduced her to Dolan, a meeting which preceded the dossier project by months, is a glaring sign that this declaration is a non-denial denial. So, too, is her suggestion that she could only have shared information face to face when Danchenko told the FBI he sourced his stories to her over phone calls.

The dossier has been shown to be full of unsubstantiated insinuations. And Marshall Cohen’s approach to reckoning with CNN’s past magnification of those unsubstantiated insinuations was to treat ones Durham included in the Danchenko indictment just as credulously.

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

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

As Josh Gerstein reports, one of the Russians who has used the Steele dossier way as a way to engage in protracted, embarrassing lawfare, Aleksej Gubarev, has dropped his lawsuit.

A Russian internet entrepreneur has dropped a four-year legal battle against BuzzFeed over its publication of the so-called Steele dossier, a politically charged compendium produced during the 2016 presidential campaign that contained allegations about ties between then-candidate Donald Trump and Russia.

BuzzFeed put the document online in unedited form in January 2017, citing the interest in informing the public of the dossier’s role in Congressional and FBI investigations. The posting prompted a lawsuit from Russian Aleksej Gubarev, who contended that he was libeled by the dossier’s claims about his involvement in the hacking of Democratic Party officials in 2016.

BuzzFeed later redacted Gubarev’s name from the version of the dossier posted on the news outlet’s website and apologized for leaving it in at the outset.

A federal judge in Miami tossed out the lawsuit in late 2018, ruling that BuzzFeed’s publication of the dossier was legally privileged because of the role the compilation played in ongoing federal investigations, even though the dossier was never formally released by the government.

Gubarev appealed that decision to the Atlanta-based 11th Circuit Court of Appeals, but on Wednesday the Russian businessman and BuzzFeed announced that the appeal was being dropped.

“Mr. Gubarev has decided to end his litigation against BuzzFeed over its publication of the dossier in January 2017. The federal court ruled that BuzzFeed had a right to publish the dossier because it was part of a government investigation, and Mr. Gubarev accepts that judgment,“ Gubarev and BuzzFeed said in a joint statement.

The move comes in the wake of the Igor Danchenko indictment that describes that both Gubarev’s PR person, Olga Galkina, and his US PR consultant, Charles Dolan, were sources in the dossier (though the latter claim remains only an allegation). In an FBI interview report released last year, Danchenko had named Galkina as his source for the December 2016 report that Gubarev sued over.

Galkina had described her position at XBT in a filing submitted in an Alfa Bank lawsuit, the parallel lawfare to Gubarev’s. She also described being introduced to Dolan (though her denial of discussing subjects in the dossier, both generally and with Dolan, amount to non-denial denials sharply limited in time and subject).

My background is in journalism and public relations. I now work as a communications advisor. Previously, I held a number of positions in public relations and government, including head of the Governor’s Press Service in the Saratov Region (2005–2006); deputy head of the city administration in Saratov (2006–2007); and public relations advisor at Servers.com, a part of the XBT Holding group of companies that includes Webzilla (2015–2016).

[snip]

Mr. Danchenko and I met once in 2016. In connection with my job at Servers.com, I traveled to the United States in the spring of 2016 to participate in the Game Developers Conference event and investigate the prospects of running a public relations campaign for the company in the United States. I asked Mr. Danchenko to assist those efforts, and he introduced me to a third party, Charles Dolan, whom he thought could help. Mr. Danchenko and I did not discuss anything related to the Dossier or its contents during this meeting.

Indeed, Durham notes that Galkina’s employer appears in the dossier.

In or about early 2016, Russian Sub-Source-I began working at a business based in Country-I (“Business-I”) that was owned by a Russian national and would later appear in the Company Reports. Russian Sub-Source-I conducted public relations and communications work for Business-I .

Durham further describes that Danchenko let Dolan know that Galkina was looking for a PR firm, which led to Dolan being hired by Gubarev’s company.

In or about March 2016, and prior to the June 2016 Planning Trip, DANCHENKO learned from Russian Sub-Source-I that Business-I was interested in retaining a U.S.-based public relations firm to assist with Business-1 ‘sentry into the U.S. market. DANCHENKO brokered a meeting between PR Executive-I and Russian Sub-Source-I to discuss a potential business relationship. Thereafter, PR Firm-I and Business-I entered a contractual relationship.

Durham even quoted Dolan making all these connections.

[] I’ve been interviewed by the Washington Post and the London Times – three times over the last two days over the [Foreign Intelligence Service-I] Dossier on Trump and I know the Russian agent who made the report (He used to work for me). My client in [Country-I] [Business-I] has been accused of being the party that organized the hacking. Presently speaking with the barrister in London who is filing a brief against Former British [Government Employee] [U.K. Person-1] has been unmasked as the man behind an explosive dossier about US president-elect Donald Trump. Also in conversation with former British Ambassador who knows [U.K. Person-I]. Quite right – Oh what a boring life. [underline Dolan’s, bold Durham’s]

Had this lawsuit continued, BuzzFeed might have had the opportunity to turn the tables on Gubarev, to inquire whether he had a role in the report he was suing over, or perhaps had asked Galkina to give Danchenko a collection tasking after the dossier came out. It might have invited further scrutiny into how Galkina hired Dolan in the first place.

Indeed, had the lawsuit continued, BuzzFeed might have had the opportunity to do some new reporting on the extent to which the dossier — Galkina’s reports were the most quickly debunked Michael Cohen reports — was intentional disinformation.

Before such an opportunity presented, it seems, Gubarev has decided the suit has achieved its goals.

Update: This settlement has been in the works for some time–though it is not clear whether those discussions precede the Galkina declaration that would have IDed her ties to Gubarev and Dolan.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is a single charge related to Dolan in the Danchenko indictment. It claims that Danchenko, “denied to the FBI that he had spoken with [Dolan] about any material contained in the Company Reports.”

On or about June 15, 2017, within the Eastern District of Virginia, IGOR DANCHENKO, the defendant, did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the jurisdiction of the executive branch of the Government of the United States, to wit, on or about June 15, 2017, the defendant denied to agents of the FBI that he had spoken with PR Executive-1 about any material contained in the Company Reports, when in truth and in fact, and as the defendant well knew, PR Executive-1 was the source for an allegation contained in a Company Report dated August 22, 2016 and was otherwise involved in the events and information described in the reports. [my emphasis]

But Durham only claims that Dolan was the source for one report in the dossier, a claim that Manafort was forced to resign not just because of the revelations of his Ukrainian corruption, but also because Corey Lewandowski had it in for him.

Close associate of TRUMP explains reasoning behind [Manafort’s] recent resignation. Ukraine revelations played part but others wanted [Manafort] out for various reasons, especially [Lewandowski] who remains influential

[snip]

Speaking separately, also in late August 2016, an American political figure associated with Donald TRUMP and his campaign outlined the reasons behind [Manafort’s] recent demise. S/he said it was true that the Ukraine corruption revelations had played a part in this, but also, several senior players close to TRUMP had wanted [Manafort] out, primarily to loosen his control on strategy and policy formulation. Of particular importance in this regard was [Manafort’s] predecessor as campaign manager, [Lewandowski], who hated [Manafort] personally and remained close to TRUMP with whom he discussed the presidential campaign on a regular basis.

This may be the most provably accurate claim in the dossier. And for good reason: that’s because, as Dolan told the FBI, he didn’t get it from a friend of his, but instead from public news sources.

PR Executive-1 later acknowledged to the FBI that he never met with a “GOP friend” in relation to this information that he passed to DANCHENKO, but, rather, fabricated the fact of the meeting in his communications with DANCHENKO. PR Executive-1 instead obtained the information about Campaign Manager-1 from public news sources. According to PR Executive-1, he (PR Executive-1) was not aware at the time of the specifics of DANCHENKO’s “project against Trump,” or that DANCHENKO’s reporting would be provided to the FBI.

Durham makes no claim that Danchenko knew that Dolan had a make-believe GOP friend. And, as noted, Dolan told the FBI (it’s unclear whether this was Durham’s team or Mueller’s, which is actually critical to the viability of this charge) that at this point in August 2016, two months after the pee tape report, he did not know the specifics of the dossier project.

I don’t doubt that Dolan was the source for the (accurate) Lewandowski claim. And if Durham can also prove that Danchenko considered himself the source for this report (Danchenko seems not to have recognized some reports that Christopher Steele based on his reporting) and that he remembered this particular report when he was asked this question, then Durham might well make this charge stick.

As for the pee tape, Durham insinuates that Dolan had some role in it (and, given Durham’s focus on Dolan’s Democratic ties, suggests it was willful) based on the accusation that Danchenko denied that Dolan, “was otherwise involved in the events and information described in the reports,” which is so vague it’s not clear whether Durham actually knows what actually happened with this and the other allegation relating to Dolan in question. Indeed, given that both Danchenko and Steele injected inaccuracies into the process and neither has records of what occurred between them, it would be hard to know for sure.

In his explanation for that report in his first interviews, Danchenko definitely seems to have either borrowed the events Dolan participated in at the Ritz Hotel (Dolan was there in June 2016 to plan a conference that took place in October 2016, and Danchenko visited at the hotel during his own June 2016 trip to Moscow) or independently asked questions of staffers while he was visiting Dolan. That’s because Danchenko’s description suggests “he had a meeting with the managers” in June 2016 that Durham notes, he didn’t attend.

[H]e had a meeting with the managers [redacted]. During a free minute, he asked about “this stuff about Trump at the hotel.” His interlocutors laughed it off, stating that “all kinds of things happen at the hotel” and with celebrities, “one never knows what they’re doing.” [Danchenko] said that it wasn’t a denial. And asking the hotel staff who were assisting with the [redacted] arrangements, one girl commented that “anything goes at the hotel, and added that, “officially, we don’t have prostitutes.”

I’m agnostic; Danchenko might have been deliberately lying here or forgetful — he definitely corrected misimpressions between his first and second day of interviews without prompting from FBI. But he cleaned this claim up in one of his later interviews (Durham does not describe how long it took FBI to clarify this, and it actually matters to several aspects of his case).

During the Interviews in or about 201 7 in which he was asked about this Company Report, DANCHENKO initially claimed to have stayed at the Moscow Hotel in June 2016. DANCHENKO later acknowledged in a subsequent interview, however, that he did not stay at the Moscow Hotel until the October Conference.

He also, in a March 2017 interview, claimed the staff member of the hotel had not confirmed the pee tape allegation, only that there was chatter about such claims (though this claim, too, may have involved Danchenko borrowing the experience of Dolan to claim he had met with a hotel staffer).

he/she spoke with at least one staff member at the Ritz Carlton hotel in Moscow who said that there were stories concerning Trump’s alleged sexual activities, not that the activities themselves had been confirmed by the staff member

If Danchenko knowingly lied, it seems to have involved borrowing details from the events Dolan attended to make his own account sound more credible, effectively to explain away why he had such ready access to Ritz staffers. That would require no involvement from Dolan aside from sharing details of his own itinerary with Danchenko at lunch and having them unknowingly used to lend credibility to rumors Danchenko was already sharing. Yet the WaPo nevertheless reported as fact that, “The indictment suggests that story came from Dolan.”

I’m not saying Danchenko didn’t either lie or shade his testimony or simply work from memory because he, by design, had almost no records of his work. But that doesn’t mean the charge — to say nothing of Durham’s gratuitous effort to link it to Hillary — is sound.

That’s because the FBI appears to have asked Danchenko not whether Dolan had been a source of Danchenko’s, but instead whether Dolan had been a source for Steele.

Here are the transcript excerpts Durham includes from the June 15, 2017 interview which — as a declassified footnote from the DOJ IG Report has made clear, occurred almost immediately after FBI obtained materials under Section 702 that would have revealed Danchenko’s role in introducing Dolan to Olga Galkina and the extensive follow-up communications between Galkina and Dolan.

FBI AGENT-1: Um, because obviously I don’t think you’re the only …

DANCHENKO: Mm-hmm.

FBI AGENT-1: Person that has been contributing. You may have said one – and this is the other thing we are trying to figure out.

[ … ]

FBI AGENT-1: Do you know a [PR Executive-1]?

DANCHENKO: Do I know [PR Executive-1]? Yeah.

FBI AGENT-1: How long have you known him? [laughing] [pause]

DANCHENKO: I’ve known [PR-Executive-1] for [pause] I don’t know, a couple years maybe.

FBI AGENT-1: Couple years?

DANCHENKO: But but but but but but but I’ve known of him for like 12 years.

[ … ]

DANCHENKO: Yeah. Yeah he likes Russia. I don’t think he is, uh, – would be any way be involved. But-but-uh-b-but he’s uh [UI] what I would think would be easily played. Maybe. Uh, he’s a bit naive in his, um liking of Russia.

FBI AGENT-1: Okay, so you’ve had … was there any … but you had never talked to [PR Executive-1] about anything that showed up in the dossier [Company Reports] right?

DANCHENKO: No.

FBI AGENT-1: You don’t think so?

DANCHENKO: No. We talked about, you know, related issues perhaps but no, no, no, nothing specific. [emphasis Durham’s]

The exchange starts with the FBI Agent saying, “I don’t think you’re the only … person that has been contributing,” presumably to the dossier. This is consistent with Steele’s (weak) claims to have had other  reporting sources besides Danchenko. And it’s consistent with repeated comments from Danchenko that he didn’t know whether or not he was the only subsource collecting for Steele.

Of particular note, on January 25, 2017, Danchenko said this about one of the three reports that Durham insinuates came second-hand from Dolan, one describing the replacement of a staffer at the Russian Embassy in DC.

Looking at Report 2016/111, [Danchenko] was asked about the report’s use of the descriptor, “a trusted compatriot.” — as in paragraph one, “Speaking in confidence to a trusted compatriot in mid-September 2016…” [Danchenko] said that it might be him, but that it could also be others. [Danchenko’s] attorney then jumped in, stating that the “literary device” used by Steele in the dossier was not consistent and not clear, so he wanted to be careful about matching that descriptor to his client. [Danchenko said that, to the best of his knowledge, he is not sure if he was the only one working on this issue for Orbis [and therefore he is not clear if he is always the “trusted compatriot” mentioned in the document.]

Interviewers drew [Danchenko’s] attention to paragraph 5 of the same report, where Mikhail Kalugin [written as Kulagin] is mentioned. [Danchenko] is not clear how this paragraph was put together. [Danchenko] indicated that no MFA official told him [redacted] because of the election issue. About [redacted], [Danchenko] knows that [redacted]. Danchenko knows that [redacted] [Danchenko] that [redacted] was his replacement [redacted] Kalugin had described Bondarev as “a bright young guy.” Danchenko has no idea where the language in this paragraph regarding [redacted] being “clean in this regard” (with respect to knowledge and involvement in US election matters [redacted]).

Danchenko had offered up the explanation that Durham now claims was him taking credit for the report as part of a rambling explanation for why he had the business card for the Russian source in question (the FBI analyst put it under a heading with the report number, but by description that’s not how it was first broached).

Whether Steele had other reporting sources in addition to Danchenko or not, the FBI Agent started this line of questioning based on the assumption Steele did, stating that he was trying to figure out who else was “contributing” to the dossier in the same way Danchenko was. Given the messages between Galkina and Dolan that FBI would have just obtained via Section 702, it would be unsurprising if the FBI suspected Dolan was a source for Steele, not least because he had better personal access than Danchenko did, he and Galkina were talking about things that showed up in the dossier, and Steele and Dolan had been in touch since the spring.

Depending on how quickly after that question the FBI raised Dolan (note the ellipsis), then, Danchenko may well have fairly understood this entire line of questioning to pertain to whether Dolan was not his own, Danchenko’s, source, but Steele’s. If so, then the question of whether Danchenko spoke to Dolan about stuff that showed up in the dossier might be viewed in a variety of different ways, including whether Dolan admitted he was a source for Steele. And while Danchenko’s denial that he and Dolan ever spoke of anything specific that showed up in the dossier would be a clearly knowing lie if, when he was asked it, he understood himself to be the source of the Paul Manafort report, remembered the report, and hadn’t gotten a second source for the claim, Danchenko did not deny outright that he and Dolan spoke about matters “related” to the dossier, just “nothing specific.”

That’s all the more true given something else Danchenko said in his first interviews, describing how he worked. “He used his existing contacts and daisy-chained from them to try to identify others with relevant information.” If, for example, Danchenko got the names of the Ritz personnel from Dolan, “daisy-chaining” from his existing contact (Dolan) to people Dolan met with at the hotel, either to talk with them directly or to fluff up the report to Steele, he might regard those as “related” to the subject of the report, but not the specific detail — the pee tape allegation — in it.

He may well have answered inaccurately to an FBI question or outright lied, but it’s not clear that the FBI was asking him the question that Durham now treats the answer as. And there’s no evidence that, in the remainder of the June 2017 interview or the two later interviews with Danchenko in 2017 (both of which took place after Steele was interviewed) the FBI ever asked about the three specific reports that Durham now believes have some tie to Dolan, which is what it would take to have a solid false statements charge. By comparison, George Papadopoulos wrote the FBI claiming to have checked his record on timing of his contacts with Joseph Mifsud and reiterated his false timeline with the FBI and FBI Agents repeatedly cued Mike Flynn with language he used in his conversations with Sergei Kislyak to make sure he was really lying.

The crazier thing about all this comes from Durham’s materiality claim.

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-1 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-1 maintained historical and ongoing involvement in Democratic politics, which bore upon PR Executive-1’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-1 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-1, and which appeared in the Company

Danchenko revealed the import of the Dolan-organized events in the first interviews — that’s literally part of the “proof” Durham offers that Danchenko lied about it. FBI learned of Dolan’s close ties to Galkina via Section 702 collection before this alleged lie, and when Danchenko was asked in that same June 2017 interview, he explained the key details, effectively confirming what FBI would have learned from its FISA collection (and thereby seemingly passing one test of his candor).

In a later part of the conversation, DANCHENKO stated, in substance and in part, that PR Executive-1 had traveled on the October “delegation” to Moscow; that PR Executive-1 conducted business with Business-1 and Russian Sub-source-1; and that PR Executive-1 had a professional relationship with Russian Press Secretary-1.

That leaves, for the question of materiality, Dolan’s “historical and ongoing involvement in Democratic politics, which bore upon PR Executive-1’s reliability, motivations, and potential bias as a source of information for the Company Reports.”

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

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

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 Igor Danchenko Indictment: Structure

I’m going to do a series of posts on John Durham’s indictment of Igor Danchenko. Because the indictment is an organizational shit-show and because the order Durham adopts obscures real problems with the indictment, I’m going to do the posts out of order. But I want to start by laying out the organization he uses, which will serve as a means to link the series I will do and explain the import. (I’ll do running updates on this post.)

Here’s the organization; I’ve bolded the parts of the indictment that pertain to actually charged crimes, I’ve italicized those that don’t relate to the charges, and underlined one that includes other dodgy claims:

I. Introduction and Overview

A. Igor Danchenko

B. Orbis and Its Role in the 2016 Presidential Election Campaign

C. Charles Dolan

D. Danchenko’s Relationship with Dolan

E. Olga Galkina

F. Danchenko Introduces Galkina to Dolan

G. Sergei Millian

H. Danchenko’s US Election Reporting

II. Danchenko’s False Statements Involving Dolan

A. Dolan Provides Information Regarding Paul Manafort

B. Danchenko’s Statements to the FBI Regarding Dolan

III. The Materiality of Danchenko’s [Alleged] Lies Regarding Dolan

A. Danchenko’s Allegations Regarding Salacious Sexual Activity

    1. Dolan and Organizer-1 Receive a Tour of the Ritz Presidential Suite
    2. Danchenko’s Statements to the FBI Regarding the Ritz

B. Danchenko’s Allegations Regarding Russian Diplomat-1

    1. Danchenko’s Statements to the FBI Regarding Russian Diplomat-1

C. Danchenko’s Allegation Regarding Russian Chief of Staff-1

    1. Danchenko’s Statements to the FBI Regarding Chief of Staff-1

IV. Danchenko’s False Statement Regarding Disclosure of His Relationship with Steele and Orbis

V. Danchenko’s False Statements Regarding Allegations Sourced to Sergei Millian

A. Danchenko’s Alleged Phone Call with Millian

B. Danchenko’s False Statement Regarding His Alleged Phone Call with Millian

VI. The Materiality of Danchenko’s [Alleged] Lies Regarding Millian

Charges

  • On or about June 15, 2017, Danchenko denied to agents of the FBI that he had spoken with Dolan about any material contained in the Company Reports, when in truth and in fact, Dolan was the source for an allegation contained in a Company Report dated August 22, 2016 and was otherwise involved in the events and information described in the reports. [my emphasis]
  • On or about March 16, 2017, Danchenko stated to agents of the FBI that he received a late July 2016 telephone call from an individual who DANCHENKO believed was “probably” Chamber President-1, when in truth and in fact, and as the defendant well knew. Chamber President-1 never called DANCHENKO.
  • On or about May 18, 2017, Danchenko stated to agents of the FBI that he “was under the impression” that a late July 2016 telephone call that he received was from Chamber President-1, when in truth and in fact, and as the defendant well knew. Chamber President-1 never called DANCHENKO.
  • On or about October 24, 2017, Danchenko stated to agents of the FBI that he believed that he spoke to Chamber President-1 on the telephone on more than one occasion, when in truth and in fact, and as the defendant well knew, DANCHENKO never spoke to Chamber President-1.
  • On or about November 16, 2017, Danchenko stated to agents of the FBI that he believed that he had spoken to Chamber President-1 on the telephone, when in truth and in fact, DANCHENKO never spoke to Chamber President-I.

The reason I’m starting by laying out this structure is to show that two entire sections of this indictment (both italicized), Section III (Materiality of Danchenko’s alleged lies regarding Dolan) and Section IV (Danchenko’s False Statement regarding disclosure of his relationship with Steele and Orbis), are not charged at all. When Durham did something analogous in the Michael Sussmann indictment, Sussmann accused him of improperly including 404b information in the indictment.

In this case, however, it’s even worse. Section III insinuates that Dolan is the source for dossier allegations that Durham doesn’t even try to prove. He introduces them by making a provably bullshit materiality claim. Worse still, the evidence Durham presents totally undermines those allegations. Nevertheless, having included those insinuations, propagandists like Kim Strassel and purportedly serious reporters like Jonathan Swan have treated those allegations as if they’ve actually been charged. So this section was a very successful way that Durham used credulous hacks to repeat claims he’s not even trying to prove are true.

Section IV, as I will argue, is an outright misrepresentation, a claim that Danchenko lied about a topic when in fact Durham misrepresented the public record (which may be why it’s not charged). On paper, this section mostly attempts to corroborate Charge 1, that Danchenko lied about what Dolan said. But it’s more cynical both for the materiality claim Durham invents (that FBI couldn’t have known that Russia was feeding disinformation to Danchenko and Steele) and because Durham treats Hillary Clinton, not Russia, as the hostile adversary to the US.

Finally, in the underlined section on Olga Galkina, Durham attempts to insinuate that Galkina and Dolan had some conspiracy going. This section is another uncharged allegation. It’s made all the worse because all the available evidence (including that Galkina is credibly alleged to be the source for the most discredited claims in the dossier, that Michael Cohen was in Prague) suggests something more nefarious was going on. In this section, then, Durham runs interference for Russian intelligence.

The point of this structure is that Durham has used both the two italicized sections and the underlined one to make wild (and in some cases, provably false) insinuations without even intending to prove them.

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