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Durham Admits He Has No Real Evidence on Four Millian Counts against Igor Danchenko

In the middle of a motion in limine arguing, in part, that the Durham prosecutors should be able to introduce two sets of emails from Sergei Millian to one of the journalists who gave Igor Danchenko Millian’s contact information, John Durham admits that those emails are the most probative evidence he’s got that Millian never met or spoke with Danchenko.

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

Mind you, whether Millian ever spoke to Danchenko or not is irrelevant to whether Danchenko believed that he had.

But Durham appears not to understand that.

If you don’t mind, I think I’ll punctuate this post with stupid Millian Tweets — like some Greek chorus — while I take breaks to wrap my brain around how Durham got his ass so badly handed to him by Sergei Millian.

Durham appears not to understand that if Danchenko got a phone call from someone else in July 2016, but believed at the time that the call was from Millian, then his four charged statements that he believed the call was from Millian would still be entirely true — an argument I made last year and one Danchenko made in his Motion to Dismiss (Danchenko’s MTD was filed after the government motion, but submitted unsealed from the start).

[T]he indictment does not allege that Mr. Danchenko did not receive an anonymous phone call in or about late July 2016. Instead, the indictment alleges only that Mr. Danchenko “never received such a phone call or information from any person he believed to be Chamber President-1[.]” The alleged false statement is that Danchenko did not truly believe that the anonymous caller was Chamber President-1. The indictment also alleges that Mr. Danchenko “never made any arrangements to meet Chamber President-1.” However, Mr. Danchenko never stated that he made such arrangements. Rather, he told the FBI that he arranged to meet the anonymous caller, but the anonymous caller never showed up for the meeting.

But Durham believes his job is to prove that Millian never spoke with Danchenko, and so spent a third of his filing making humiliating admissions about how weak his case is.

One of the dire problems Durham has with his Millian case is that … as I predicted … he has no witness.

As I noted last year, when he originally charged Danchenko, he relied on Millian’s Twitter feed, not an interview with Millian, to substantiate Millian’s claim that he never spoke with Danchenko. Here’s how Sergei responded last year when I pointed out that his testimony, under oath, would be necessary to convict Danchenko.

 

 

Turns out I wasn’t nuts. All of the sources against Danchenko were willing to testify under oath, it appears, but Millian. Well, and Christopher Steele, too, but that’s for another post.

To Durham’s … um … credit, he did at some point (he tellingly hides the date) get Millian to participate in a “virtual interview” (which may or may not be the same as a “video interview”?). In that interview, Millian claimed that rather than fleeing the US because of the criminal investigation into him and Mueller’s interest in interviewing him, he fled the country because of the Steele dossier.

The Government has conducted a virtual interview of Millian. Based on representations from counsel, the Government believes that Millian was located in Dubai at the time of the interview. During the interview, Millian stated, in sum and substance, that he has never met with or spoken with the defendant, Millian informed investigators that he left the United States in March 2017 and he has not returned. Millian stated, in sum, that he left the United States due to threats on his and his family’s personal safety because of his alleged role in the Steele Reports. On multiple occasions, the Government has inquired about Millian’s availability to testify at the defendant’s trial. Millian has repeatedly informed the Government that he has concerns for his and his family’s safety (who reside abroad) should he testify. Millian also informed the Government that he does not trust the FBI and fears being arrested if he returns to the United States. The Government has repeatedly informed Millian that it will work to ensure his security during his time in the United States, as it does with all witnesses. The Government has also been in contact with Millian’s counsel about the possibility of his testimony at trial. Nonetheless, despite its best efforts, the Government’s attempts to secure Millian’s voluntary testimony have been unsuccessful. Moreover, counsel for Millian would not accept service of a trial subpoena and advised that he does not know Millian’s address in order to effect service abroad.

Durham was unable to subpoena Millian to require him to testify under oath to his claim that he never spoke with Danchenko, because Sergei’s lawyer doesn’t know where he lives, not even to bill him. I guess he bills him “virtually,” just like the interviews.

But don’t worry. Durham promises he has other evidence that Sergei could not have called Danchenko in July 2016.

That evidence is that Millian was traveling in Asia during the period between July 21 and July 26, 2016, when such a call to Danchenko would have taken place.

Millian was traveling in Asia at the time the defendant sent this email and did not return to New York until late on the night of July 27, 2016. Notably, Millian had suspended his cellular phone service effective July 14, 2016 (prior to his travel) and his service was reconnected effective August 8, 2016. The defendant did travel to New York from July 26, 2016 through July 28, 2016 with his young daughter and spent much of his time sight-seeing, including a trip to the Bronx Zoo on July 28, 2016. The defendant would later claim to the FBI that it was during this trip to New York that the defendant attempted to meet Sergei Millian (after having received the alleged anonymous phone call from a person he purportedly believed to be Millian). [my emphasis]

The implication, says the Special Counsel who flew to Italy to get the multiple phones of Joseph Mifsud but who never walked across DOJ to get the multiple phones of his key witness Jim Baker, is that Millian could not have called Danchenko because the only possible SIM card he would have used while traveling in Asia, which generally used the GSM standard, would be the phone he used in the US, where CDMA was still widely used.

Millian couldn’t have called Danchenko during the period, Durham says, because his US-based phone was shut down while he was traveling in Asia.

That would be a shocking claim to make about any fairly sophisticated traveler in 2016, much less one who made the effort to shut off his location tracker cell coverage while he traveled overseas and for twelve days after he returned.

It’s an especially remarkable claim to make about someone that — DOJ has proof! — was arranging in-person meetings in NYC in precisely the same period, via text messages sent during the period when Millian’s US phone service was shut down.

Papadopoulos first connected with Millian via Linkedln 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.

500 7/15/16 Linkedln Message, Millian to Papadopoulos.

501 7 /15/16 Linkedln Message, Millian to Papadopoulos.

502 7/22/16 Facebook Message, Papadopoulos to Timofeev (7:40:23 p.m.); 7/26/16 Facebook Message, Papadopoulos to Timofeev (3:08:57 p.m.).

503 7/23/16 Facebook Message, Timofeev to Papadopoulos (4:31:37 a.m.); 7/26/16 Facebook Message, Timofeev to Papadopoulos (3:37: 16 p.m.).

504 7/16/16 Text Messages, Papadopoulos & Millian (7:55:43 p.m.).

505 7/30/16 Text Messages, Papadopoulos & Millian (5:38 & 6:05 p.m.); 7/31/16 Text Messages, Millian & Papadopoulos (3:48 & 4:18 p.m.); 8/ 1/16 Text Message, Millian to Papadopoulos (8:19 p.m.).

506 8/2/16 Text Messages, Millian & Papadopoulos (3 :04 & 3 :05 p.m.); 8/3/16 Facebook Messages, Papadopoulos & Millian (4:07:37 a.m. & 1:11:58 p.m.).

Anyway, that’s the background to why, Durham says, the best evidence he’s got that Millian never called Danchenko are some emails.

One of those emails is inconsistent with Durham’s story, which says that Millian returned late on July 27, which was a Wednesday. On July 26, Millian sent this to one of the RIA Novosti journalists, Dimitry Zlodorev:

Dimitry, on Friday I’m returning from Asia. An email came from Igor. Who is that? What sort of person?

Durham says one of his best pieces of evidence that Millian didn’t call Danchenko is an email that had him returning two days later than he actually returned. Something led Millian to come back early, at least according to Durham’s record.

Early enough to be in NYC when Danchenko was there.

Durham also wants to introduce some emails Millian sent Zlodorev in 2020, three years after Danchenko’s alleged lie and four years into a manufactured outrage over the Steele dossier. One of those emails suggests that Millian believed Steele blamed Danchenko for problems with the dossier, which is probably true, but Durham thinks it helps him anyway.

I’ve been informed that Bogdanovsky travelled to New York with Danchenko at the end of July 2016; Danchenko, supposedly to meet with me (but the meeting didn’t take place). Can you inquire with Bogdanovsky whether he remembers something from that trip and whether they touched upon my name in conversation, as well as for what reason Danchenko was travelling to NY? Steele, it seems, made Danchenko the fall guy, but Danchenko himself made several statements that were difficult to understand, for example, about the call with me. Did he tell Bogdanovsky that he communicated with me by phone and on what topic? Thank you! This will clarify a lot for me personally. It’s a convoluted story! [my emphasis]

That’s how desperate he is for evidence to prove his four Millian charges.

Now, as Durham did when he tried to introduce totally unrelated emails in the Michael Sussmann case, Durham says he’s not introducing these (as what he calls “the most probative evidence” that Millian didn’t call Danchenko) for the truth.

He’s just asking questions — but not, apparently, why Millian said he was coming back Friday when he ended up coming back on Wednesday instead, early enough to be in NY when Danchenko was there.

As an initial matter, all three emails to Zlodorev are admissible non-hearsay because each email consists of a series of questions, i.e., (1) “Who is that? What sort of person?” (July 26, 2016), (2) “Do you remember such a person? Igor Danchenko?” (July 19, 2020), and (3) (a) “Can you inquire with Bogdanovsky whether he remembers something from that trip and whether they touched upon my name in conversation, as well as for what reason Danchenko was travelling to NY? (b) “Did he tell Bogdanovsky that he communicated with me by phone and on what topic?” (July 20, 2020). See Sinclair, F. App’x at 253. To the extent the remaining sentences in those emails are statements, they are not being offered to prove the truth of the matter asserted. Indeed, with respect to the July 26, 2016 email, the Government is not seeking to prove that (1) Millian was returning from Asia on Friday or (2) that an email came from the defendant.

And if his just asking questions ploy doesn’t work, then he’ll raise the point that he charged this indictment without ever talking to Sergei Millian first!!!

First, the unavailability of the declarant. A declarant is “unavailable” at a hearing or trial when he “is absent from the hearing and the proponent of a statement has not been able, by process or other reasonable means, to procure the declarant’s attendance or testimony. Fed. R. Evid. 804(a)(5)(B). “Courts have consistently held that hearsay exceptions premised on the unavailability of a witness require the proponent of a statement to show a good faith, genuine, and bona fide effort to procure a witness’s attendance.” United States v. Wrenn, 170 F. Supp. 2d 604, 607 (E.D. Va. 2001) (citing Barber v. Page., 390 U.S. 719,724 (1968)). Courts considering whether a prosecutor, as the proponent of a statement, “has made such a good faith effort have focused on the reasonableness of the prosecutor’s efforts.” Id. \ Ohio v. Roberts, 448 U.S. 56, 74 (1980) (“The lengths to which the prosecutor must go to produce a witness … is a question of reasonableness. The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present the witness.”). In the case of a U.S. national residing in a foreign country, 28 U.S.C. § 1783 allows for the service of a subpoena on a U.S. national residing abroad. Here, the Government has made substantial and repeated efforts to secure Millian’s voluntary testimony. When those efforts failed, the Government attempted to serve a subpoena on Millian’s counsel who advised that he was not authorized to accept service on behalf of Mr. Millian. The Government, not being aware of Millian’s exact location or address, asked counsel to provide Millian’s address so that service of a subpoena could be effectuated pursuant to 28 U.S.C. § 1783. Counsel stated that he does not know Millian’s address. In any event, even if the Government had been able to locate Millian, it appears unlikely that Millian would comply with the subpoena and travel to the United States to testify. Indeed, as discussed above, Millian has shown a reluctance to travel to the United States for fear of his personal safety and his family’s safety. Accordingly, the Government has demonstrated good faith efforts to secure Millian’s appearance at trial.

What’s interesting is that Durham not only claims that Millian had no motive to lie to Zlodorev in 2016, but he asserts that “the existence of the Steele Reports were not public.”

The Government is not aware of any evidence that Millian was aware of who the defendant was in July of 2016. Millian also had no motive to lie about his knowledge of the defendant in July 2016. Indeed, at that time of the July 2016 email the existence of the Steele Reports were not public. Further, Millian had no apparent motive to lie to Zlodorev, an individual he appears to consider a friend.

They were to this guy.

According to the IG Report that Durham had never read before charging Sussmann, an Oleg Deripaska associate likely knew of the dossier by early July 2016, weeks after Millian met with one of the key architects of the 2016 operation in St. Petersburg and weeks before Danchenko emailed Millian and then Millian grilled Zlodorev about who Danchenko was.

Oleg Deripaska had a motive to lie about the dossier — and he appears to have been lying, to both sides.

Similarly, Durham claims that Millian had no motive to lie in 2020 when he grilled Zlodorev again about the circumstances of his meeting with Danchenko.

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

Which is really nutty, because the Twitter account that Durham relied on to charge this thing claimed that — years earlier and therefore presumably well before 2020 — he had personally called the White House and told them the identities of the people behind the dossier.

He would have called from Asia or some other undisclosed location, though, so in Durham’s mind such a call would not exist.

And that’s how it came about that we’re a month away from trial, and John Durham is begging Anthony Trenga to admit emails from 2020 as his best evidence in four charges against Danchenko because he decided to rely on a Twitter account rather than securing witnesses in his case first.

 

For months and years, John Durham has treated Sergei Millian — a man who fled the country to avoid a counterintelligence investigation and questions from Mueller, but whom Durham claims fled the country because of the dossier — as an aggrieved victim. And in the same filing admitting that he has no solid evidence to prove that he is a victim, Durham also talked about how important it is to consider whether you’re getting played by Russian disinformation.

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.

“SCO Durham, think of your legacy please❗❗”

Update: Replaced “in real time” based on Just Some Guy’s observations.

Earlier emptywheel coverage of the Danchenko case

The Igor Danchenko Indictment: Structure

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

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

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

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

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

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

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

On CIPA and Sequestration: Durham’s Discovery Deadends

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

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

“Desperate at Best:” Igor Danchenko Starts Dismantling John Durham’s Case against Him

Junkets In Lieu of Investigation: John Durham Charged Ivan Danchenko without Ever Interviewing George Papdopoulos about Sergei Millian

Recently, Roger Stone invited George Papadopoulos onto his show to talk about how, even though Michael Sussmann was acquitted, it’s still proof of a grand conspiracy involving Hillary Clinton.

Stone invited Papadopulos to talk about how Durham and Billy Barr chased Papadopoulos’ conspiracy theories to Italy, which both the Rat-Fucker and the Coffee Boy seemed to take as proof that those conspiracies were true, even though Barr has publicly stated there was no there there.

The biggest news from Mr. Durham’s probe is what he has ruled out. Mr. Barr was initially suspicious that agents had been spying on the Trump campaign before the official July 2016 start date of Crossfire Hurricane, and that the Central Intelligence Agency or foreign intelligence had played a role. But even prior to naming Mr. Durham special counsel, Mr. Barr had come to the conclusion that he didn’t “see any sign of improper CIA activity” or “foreign government activity before July 2016,” he says. “The CIA stayed in its lane.”

Seemingly in hopes of finding details that Durham was ignoring, Stone asked Papadopoulos whether Durham had ever spoken to the Coffee Boy. Papadopoulos babbled for some time about his House testimony, then Stone followed up to get him to state that, no, Durham had never spoken to him.

Never.

Stone: You make a very good point. The fact that the Attorney General was on the trip means that he knows the origins of the Russian collusion fraud far earlier than other people realize. George, have you specifically met with either John Durham or representatives of his office to tell them what you know?

Papadopoulos: So, that’s a good question. In 2018, I was one of five witnesses who was invited by–under oath, behind closed doors–in front of the House Oversight Committee. And the other four witnesses, besides myself, were Rod Rosenstein, Sally Yates, uh, Jim Comey, and Loretta Lynch. Now, back in 2018, and there’s a Washington Post article, I think it’s called “Papadopoulos and Rosenstein about to testify behind closed doors,” back in 2018, people were scratching their heads, why on earth is George Papadopoulos one of four, one of five witnesses who is going to testify to both John Ratcliffe and Mark Meadows. Back then, obviously, before Mark Meadows was Chief of Staff at the White House and Ratcliffe was the head of DNI, they were Congressmen. They were in charge of the House Oversight Committee. During that testimony back then, both of those individuals who later served in senior White House, uh, Administrative capacities were asking me questions about wiretaps. They were asking me if I was being monitored while I was in Europe. They were asking me whether my lawyers were ever given so-called exculpatory information about any of, about Joseph Mifsud, any of these other type of operatives, both domestic and foreign. And I basically let them know, under oath, that I’m telling you. How I met him, what my background was, why I believe there was this target on my back, why I think it followed me all the way from the beginning, all the way until the summer of 2017, where they were, the FBI was trying to set me up while I was in Israel with this other bizarre exchange that I had, that I talk about in my book. So that testimony, I believe, was used with the Durham team, to help get this entire thing started, that’s how Durham and Barr flew to both to Rome, to talk to Italian intelligence services — not the FBI — to learn about Mifsud, and I believe — that’s why NBC has also been quoted as saying that Western intelligence officials have gone on the record and stated that it’s Papadopoulos’ breadcrumbs, if you want to call it that, that have led to Durham’s real conspiracy case that he’s trying to uh–

Stone: So, but to go to my direct question, have you had any direct contact with Durham or his office, or your attorneys?

Papadopoulos: No, I haven’t. No no no, no I haven’t. But my understanding is that that testimony, 2018, was used by the Durham, that’s my understanding.

This is fairly shocking — and damning news.

Papadopoulos’ testimony was not only not under oath (though committee staffers admonished the sworn liar not to do it to them), but it was a shitshow.

I’ve cataloged all the ways it was a shitshow below. But the fact that Billy Barr and Johnny D jumped on a plane together for their junket to Rome based off such a shitshow matters for two reasons.

First, it shows that they did no vetting of the conspiracy theories the Coffee Boy repeated in the hearing — which as I show below were really just rewarmed conspiracy theories parroted by John Solomon and Chuck Ross — before hopping on a plane for their junket. Importantly, one of those conspiracy theories was spread by Joseph Mifsud attorney Stephen Roh, who himself is suspected of sketchy ties to Russia.

The other reason it matters is because Durham’s Igor Danchenko prosecution treats Danchenko, whom the FBI found credible in 2017 and afterwards, as less credible than Sergei Millian. But George Papadopoulos, whose testimony Durham considered sufficiently credible to hop on a flight to Rome for, described Millian — in the context of details about his offer to hire him so long as he also worked in the Administration — as “a very shady kind of person.”

Q I guess there’s just one follow-up, because you said some kind of consultancy work for some — someone that Sergei Millian knew in Russia. What would have been the nature of that work? Like, what topic would the work have been on?

A My current understanding — and this is what I think it is, because this is a very shady kind of person — was that it was a former minister of some sort who had money and wanted to do PR work. But then, of course, we met in Chicago, and I felt that, you know, he was — I don’t know. I just felt that when he proposed this deal to me face-to-face that he might have been wearing some sort of wire. And he was acting very bizarre. And I don’t know what that was. Maybe I’m a paranoid person. But there were certain other events regarding Sergei Millian that made — that make me believe that he might have actually been working with the FBI.

Durham shouldn’t be able to have it both ways. If Papadopoulos’ testimony was deemed sufficiently credible, without any more vetting, to justify a taxpayer-paid trip to Rome, then his judgment that Millian is a “very shady person” the likes of whom might lie about a call with Igor Danchenko, then Durham should not rely on Millian’s unsworn Twitter ramblings for four charges against Danchenko.

In short, the fact that Durham hasn’t interviewed Papadopoulos at all, either before or after the junket, is yet more proof that Durham is hesitant to test any of his conspiracy theories with actual investigative work.


Catalog of Coffee Boy Testimony Shitshowery

One key piece of proof that Papadopoulos’ testimony before the Oversight Committee was a shitshow designed to elicit conspiracy theories about Mueller’s investigation rather than useful information is that the committee didn’t ask him for any emails or other records in advance — emails that Papadopoulos had earlier withheld from SSCI, with which request he only partly complied in 2019. Papadopoulos told the committee on at least 18 occasions he had emails or other records that would allow him to answer their questions — about when he joined the campaign, his communications with Olga Polanskaya, Joseph Mifsud, and Ivan Timofeev, his communications with Steve Bannon, Stephen Miller, Mike Flynn, KT McFarland, and Walid Phares, his communications with Sergei Millian, his meetings with Stefan Halper, his interactions with suspect Israelis — accurately, but that he couldn’t without those records. [Note the last several of these are out of order because I just kept finding more examples.]

1. Mr. Breitenbach. Is there any paperwork that you might have indicating when you actually began on the Trump campaign?

Mr. Papadopoulos. I believe we might have, we might have those emails.

Ms. Polisi. We have emails. We don’t have any official documentation.

Mr. Papadopoulos. I mean, if the emails would suffice, I think we have emails suggesting that I would be joining the campaign on this day, or Sam Clovis was telling me you’re on board, good job, or something like that.

[snip]

2. And I remember I even — where I’m going at is I don’t think I was talking to the same person [Olga Polanskaya]. That’s what I’m trying to say.

Q When you say talking?

A I mean writing back and forth.

Q By email? By text?

A Email. Email. And I remember there was even a point I messaged this person on Skype. And I said, are you the same person that I met a couple months ago or so? You know, it was just very odd. I think I, you know, I wrote that to her on Skype. Nevertheless, I think we could provide these emails of my interactions with this individual and Joseph Mifsud. What it seems was going on was that Mifsud was using her as some sort of Russian face or person.

[snip]

3. I could get into the details about what was going on with [Ivan Timofeev] or however —

Q Sure. A So I saw him as potentially the person that could, you know, introduce not only me, but the campaign to the people in the Russian Ministry of Foreign Affairs and then act as the key point man for this potential Trump-Putin submit. We exchanged emails. We could provide those emails to you.

[snip]

4. Q Did you arrange for anyone else to travel to Russia? Let’s just keep it specifically —

A Yeah.

Q — based on your contacts with Mifsud at this point.

A Yes. I reached out directly to Paul Manafort, you know, and Corey Lewandowski and the top — the heads of the campaign, and openly told them I’m trying to arrange this. I mean, they were fully aware of what I was doing. This is all in emails. I’m not sure if you have those emails. I’m happy to provide them to you. That I’m trying to set up this meeting. Are we interested or are we not interested.

[snip]

5. Mr. Meadows. Are you indicating that there are some things that were reported that are not accurate?

Mr. Papadopoulos. That’s a kind way to say it. Okay. Let’s go back to April. I can’t remember exact dates in April, but April, and maybe we can send emails and when could corroborate certain things. I’m in talks with an Israeli diplomat named Christian Cantor, who was introduced to me through, I guess a friend at the Israeli embassy in D.C. named Dore Shapiro, who was an economic counselor. And you have to remember I was very connected to Israel and what was going on. So that was my network.

[snip]

6. Q So how often was that, would you say? Like how often would you be sending an email? I mean, I know it’s a rough estimate, but —

A It depends on the timing. I mean, there was a point where it was very frequent, and then I took a pause, then started up again. I can’t give a number. I really can’t. But there’s a lot of emails, and those are all documented.

Q Okay. So when the transition started, you said that you became introduced to Michael Flynn and K.T. McFarland.

A Over email.

Q Over email.

[snip]

7. Q And what was that project that you were discussing with Sergei Millian?

A Well, this — I never properly understood exactly what we were talking about. I believe I was asking him for a contract. And I have to go back, and I could share notes later on, but I — just giving off my current memory, that he wanted to do some sort of PR or consultancy for a friend of his or somebody that he knew in Russia. And I believe the terms of the agreement would have been $30,000 a month and some sort of office space and in New York. But then I felt that he wasn’t who he seemed to be and that he was working on behalf of somebody else when he was proposing this to me. And — I mean, we could get into that.

[snip]

8. Q With regard to Olga, you mentioned that she discussed sanctions with you in your correspondence. Does that ring a bell?

A I believe she did over email.

Q And what was the position on sanctions that she expressed over email?

A I can’t remember exactly, but we are happy to share them with — we have those emails in case you don’t. And are more than happy to share them with you.

[snip]

9. Q Did [Timofeev] correspond with you about any geopolitical issues in email?

A We certainly exchanged some emails. I can’t remember exactly what’s in those emails, but I’m more than happy to provide them to the committee.

[snip]

10 and 11. Q I’d also like to ask you about some of the communications that you referenced earlier with Trump campaign officials. You said earlier that you provided notes on President Trump’s — then candidate Trump’s big foreign policy speech to Stephen Miller?

A Yes.

Q What was the substance of those comments?

A I can’t remember but I’m more than happy to share them, because it is all in an email form.

Q And you said that you communicated with Steve Bannon by email as well. Is that right?

A Yes.

Q Would you be —

A Email and a couple of phone calls. What was that?

Q Would you be willing to share those emails with Steve Bannon with us as well?

A I’m more than happy to share whatever emails I have with the campaign with the committee.

[snip]

12. Q You mentioned a number of emails where both of you would have been copied. Did you and Mr. Phares have any direct communication just the two of you?

A We met face to face at the TAG Summit. And then we obviously met at the March 31st meeting. And I can’t remember if we met another time in person or not. But we certainly were in correspondence for months over email.

Q Did you discuss your efforts to set up the Putin-Trump meeting with Mr. Phares?

A I’m not sure he was copied on those particular emails, but I could send whatever emails I have with him to the committee. It’s fine with me.

[snip]

13. Q Did you reach out to anyone on the Trump campaign that day?

A That particular day? Like, I think, Steve Bannon, you know, just to say we did it or something like that. I can’t — like I said, I could provide all these emails, I just don’t know. I really can’t remember exactly what I did on that specific day.

[snip]

14. A Sergei Millian reached out to me out of the blue on LinkedIn around sometime in late July 2016. I can’t remember exactly how he presented himself, but he basically stated that he’s an American of Belarusian origin who worked for Trump or his organization, and he could be helpful in understanding the U.S.-Russia relationship, and he might be a good person to get to know. So I thought this was probably one of Trump’s people and he’s reaching out to me. That’s a good sign. I have the message somewhere. I could always present it to the committee here. And then we met shortly after that in New York.

[snip]

Mr. Meadows. Do you know when in July of 2016, what the date was?

Mr. Papadopoulos. I’m not 100 percent sure, but I think it was around July 22nd. Mr. Meadows. And do you recall the date that you actually met with him?

Mr. Papadopoulos. I’m not even 100 percent sure of exactly the day in July. I could always go back in my records and provide that.

Mr. Meadows. That would be helpful. Those dates would be helpful, but when did you meet with him, in July or in August?

[snip]

15. You explained previously that Mr. — that Professor Mifsud had a connection to and introduced you to Ivan Timofeev. Is that right? A Via email, yes.

Q And did he explain at the time what the purpose of that introduction was?

A I assume he did. I just can’t remember exactly the language, the specific language of the introduction. But I have those emails and am more than happy to share that — those interactions with the committee.

[snip]

16. A I — as I’ve stated, I never met Timofeev in my life face-to-face, so I’m just trying to go back in my memory to see if he actually copied any Russian nationals on an email. I don’t recall that. But as I stated, I’m more than happy to share all communication I have with this person.

Q Great. Thank you.

A Yes.

Q Do you recall him introducing you to any other people in the emails or when you spoke to him by phone?

A I — I don’t recall. But they — but the emails should be in our possession, and we’re more than happy to provide them.

[snip]

17. Q Real quick, just following up on Congressman Ratcliffe’s questions in terms of timing with your conversation with Mr. Halper. You had mentioned it was sometime between September 13th through the 15th. But then you said that you had left London by flight, I suppose. So you might have a record on the day that you left?

A Yes.

Q And you think you met with him the day before you left.

A Yes.

Q Is that something you could provide to us?

A I believe so, yes. It shouldn’t be too hard.

[snip]

18. Mr. Meadows. So I want to follow up on one item from the previous hour, where you had talked about Mr. Tawil. I guess you had not heard from him about the $10,000. And then all of a sudden, you get an email, I assume an email out of the blue saying he wants his $10,000 back. Is that correct?

Mr. Papadopoulos. My memory of the past year, and any interactions I had with this individual — I’m more than happy to share his emails with the committee — was that he would reach out to me indirectly through contacts of mine, and ask how was George doing, what’s his news, even though I was all over the global media at that time. And I don’t remember him ever asking for his money back, even though I had offered to give him his money back, shortly after I left him in — wherever I left him. And going back into my records, I just looked at my email, and we can provide this to you, I think 2 days after I was sentenced, I think — so, September 9th of last month, he sends me an email and he says, not only am I thinking about suing you, but I want my money, and let’s act like we never met. Something along those lines.

Without these emails, the testimony was guaranteed to be useless with respect to 2016, but it gave Papadopoulos the opportunity to engage in wild conspiracy theorizing. The Coffee Boy didn’t much remember the events of 2016, but he did remember what he read in the Daily Caller, the Hill, and the NYT in the weeks before his testimony, which is what he spent much of his testimony telling Congress about.

A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from [Joseph Mifsud’s] own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

[snip]

But I guess the overwhelming evidence, from what I’ve read, just in reports, nothing classified, of course, because I’m not privy to anything like that, and considering his own lawyer is saying it, Stephan Roh, that Mifsud is a western intelligence source. And, I guess, according to reports yesterday, he was working with the FBI. I don’t know if that’s true or not. I’m just here to, you know, maybe, you know, let you — direct you in certain directions of what I’ve read and maybe, in case you haven’t read it.

[snip]

Mr. Meadows. Are you aware of any potential exculpatory evidence that would exist that you just have not seen or your counsel have not seen?

Mr. Papadopoulos. I read John Solomon’s report, like I think probably everyone in this room did from The Hill a couple days ago, about Stefan Halper, which is another person. But in regarding Downer, no, I haven’t seen anything like that.

[snip]

Q Were you — are you aware of any other transcripts or recordings or exculpatory materials as Mr. Meadows referenced?

A This is what I currently understand. I read the John Solomon report about the Stefan Halper, I guess, tapes or recordings of some nature. And so — my old lawyer or — all I — my understanding is that they had a — that they gave me, my old lawyers, a passing reference to something about — I said about treason, and I am — no, about the exculpatory.

[snip]

A My current memory makes me believe that he was stating it as a fact, and I took it as well.

Q And did you believe him at the time?

A At the time, yeah.

Q And so —

A But at the time, also, I thought he was validating rumors. So that was really my impression of him. I mean, you have to understand this is a person who sold himself as the key to Moscow but then really couldn’t deliver on any one of real substance except Putin’s fake niece and the think tank analyst, and then now he’s drooping this information on me. It was very confusing. You can understand how confusing this process was over the month.

Q Do you not believe him now, given what you’ve learned, or do you — you know, do you continue to believe that he was given information that the Russians had Hillary Clinton’s emails?

A I’m not a conspiracy theorist. Everything I’ve ever tweeted or — probably, if that’s what you’re referring to, it’s just backed by things I’ve read in the media. And it’s not my job to dig into this person, because I really don’t care about this person. And legally, I’m not even allowed to talk to him directly or indirectly. So all I can do is read reports, read what his lawyer is saying, and take it with a grain of salt and just share that information with you that his lawyer, yesterday, said that he was working with the FBI. Was he? Is his lawyer a crazy person who’s slandering his client, or was he really working with the FBI and this was some sort of operation? I don’t have the answer to that, and I’m not sitting here telling you I do have the answer to that.

[snip]

Mr. Papadopoulos. Just who I am, my background in the energy business, because everyone was curious about my background in the energy business in Israel. And that’s another thing we’ll get to about what I think why I had a FISA on me, but I don’t know. She then apparently — I don’t remember it, I’m just reading The New York Times. She starts asking me about hacking. I don’t remember her actually asking me that, I just read it in The New York Times. Nevertheless, she introduces me the next time to Stefan Halper.

Mr. Meadows. She asked you about hacking?

Mr. Papadopoulos. I don’t remember it. I just — I think I read that particular —

Mr. Meadows. You’ve read that?

Mr. Papadopoulos. Yes, that’s what I — I think I read it in The New York Times.

[snip]

Mr. Meadows. You say a transcript exists. A transcript exists of that conversation?

Mr. Papadopoulos. That’s I guess what John Solomon reported a couple days ago.

Mr. Meadows. So are you aware of a transcript existing? I mean — Mr. Papadopoulos. I wasn’t aware of a transcript existing personally.

Mr. Meadows. So you have no personal knowledge of it?

Mr. Papadopoulos. I had no personal knowledge, no.

Mr. Meadows. But you think that he could have been recording you is what you’re suggesting?

Mr. Papadopoulos. Yes.

Having used the stories of Stephen Roh and John Solomon — key players in Russian influence operations — to float conspiracy theories about the Coffee Boy being set up, both Mark Meadows and John Ratcliffe then cued Papadopoulos to attack the Mueller investigation.

For example, Meadows suggested that the FBI had not read Papadopoulos his Miranda rights and had improperly searched his bags.

Mr. Meadows. They told you — I guess, they gave your Miranda rights?

Mr. Papadopoulos. I don’t remember that. I don’t remember that. I’m sure there might be the video or a transcript of what was going on. You have to understand, I had just come off a trans-Atlantic flight.

In fact, when Papadopoulos told agents he was still represented by an attorney, they told him they would ask no further questions, read his rights and marked the Miranda form as waived. But even after being warned not to say anything without his lawyer present, he kept offering unsolicited comments. And in spite of Meadows’ insinuations, while in FBI custody Papadopoulos thanked the FBI agents for treating him well.

Meadows also found it deeply suspicious that the FBI would ask Papadopoulos to wear a wire to record Joseph Mifsud.

Mr. Meadows. Now, this is the same agent that said that he knew that you had said something. Is that the same person?

Mr. Papadopoulos. Same guy.

Mr. Meadows. And so, he was the one that said you had definitely — I want to make sure that we’re accurate with this. If you’ll — because the name keeps coming back. When you said you didn’t know what you had said to Mr. Downer, it’s the same agent that said, Oh, yes, you said it. Is that correct?

Mr. Papadopoulos. That’s how I remember it, yes.

Mr. Meadows. Okay. So go ahead.

Mr. Papadopoulos. So I told him, I’m not interested in wearing a wire.

Mr. Meadows. So on your second meeting with the FBI, they asked you to wear a wire?

Mr. Papadopoulos. Against Mifsud.

Mr. Meadows. Against Mifsud, who they believed at that time was doing what?

Mr. Papadopoulos. Well, I guess —

Mr. Meadows. Why did they want you to wear a wire for Mifsud?

The reason Meadows is so bothered that the FBI tried to investigate a suspected Russian agent is that he wanted proof that that Papadopoulos himself was taped. He was looking for something specific: transcripts.

Mr. Meadows. So as we look at this, I think getting our head around all of this is just — it’s hard to believe that it happened in the United States of America. And I think that that’s the trouble that I have with it. And I’ve seen nothing in the classified setting. I want to — for the record, I purposely have not gone into a classified setting to see things so that I can try to put this piece of the puzzle together. It is my belief that you were taped at some point or another by one of these officials, whether it be Mifsud or whether it be Downer or whether it be Halper. I don’t know which one of them did it, but I believe that certainly it is my strong belief that you were taped. Has anyone in the Department of Justice indicated to you that they may have a tape of a private conversation that you had with anyone of those three individuals?

The goal of Meadows and John Ratcliffe — probably the entire point of the hearing, which took place in the wake of a John Solomon article reporting on the topic — was to suggest that George Papadopoulos was deprived of exculpatory evidence, transcripts from his interactions with Halper, before he pled guilty and that he wouldn’t have pled guilty had he received it. Coached by Meadows and influenced by things he read at the Daily Beast, Papadopoulos says maybe the whole thing was a set-up.

Mr. Meadows. I guess if they had that, wouldn’t, before you pleaded guilty, wouldn’t that be something that they should have provided to you or let you know that there was exculpatory evidence out there?

Mr. Papadopoulos. Absolutely. And that would have changed my calculus 100 percent.

Mr. Meadows. Okay. So you, perhaps, would not have pleaded guilty if you knew that there was this tape of a private conversation with one of the three individuals that I just mentioned?

Mr. Papadopoulos. That’s correct. I guess, my thought process at the time —

Mr. Meadows. Because it could potentially have been a setup.

Mr. Papadopoulos. Absolutely could have been. And just going back in my memory, I guess the logic behind my guilty plea was that I thought I was really in the middle of a real Russia conspiracy, that this was all real, and that I had to plead out or face life in prison, the way they were making it seem. And after this conversation and after much information that’s come out, it’s clear that my — I was completely off on my calculus?

Here’s how former US Attorney Ratcliffe quizzes Papadopoulos about whether he was asked about his conversations with a confidential informant.

Mr. Ratcliffe. Again, to be real clear, the special counsel investigating collusion, potential collusion, or links between the Trump campaign and the Russian Government never asked you, the person around which this investigation was opened and centered, about any communications you had with an individual where you expressed that there was no collusion between the Trump campaign and the Russian Government?

Mr. Papadopoulos. That’s what I remember, yes.

Mr. Ratcliffe. The reason I’m asking these questions, Mr. Papadopoulos, is your credibility is at issue, and will be at issue, because you have pled guilty to an 18 U.S.C. 1001 charge of lying to the FBI. And so there will be those that will call into question the truthfulness of your testimony. If you’ve lied to the FBI before, how do we know that you’re telling us the truth? But if there is a transcript of a conversation that you had where you expressed that you had no knowledge about collusion, that might corroborate your testimony. It might also raise obligations, obligations to you as a defendant, to your lawyers as defense counsel, and to various judges as arbiters of material facts.

Here’s how Meadows asked the same question.

Mr. Meadows. Both. I mean, obviously if the special prosecutor is trying to get to the truth and you’re having substantial conversations with Stefan Halper and they don’t ask any questions about it, I find that curious. Do you find that curious?

Mr. Papadopoulos. Now I do.

There are a few problems with Meadows and Ratcliffe’s story. First, Papadopoulos made clear that his lawyers did get the substance of the transcript in question, where Papadopoulos likened what Roger Stone did to treason.

Mr. Meadows. About recordings or transcripts of Mr. Halper?

Mr. Papadopoulos. I never saw anything, but my lawyers, to be clear, they had made a passing remark about something that I said about treason —

Worse still, when Meadows asked Papdopoulos about his conversation with Halper, the Coffee Boy tried to claim his purported disavowal of “collusion” was made to someone he never imagined could be investigating him.

Mr. Meadows. So when you pushed back with Stefan Halpern [sic], and you said, Listen, this is, you know, I’m not going to do that and colluding with the Russians would not be something that I would do. It would be against the law — I don’t want to put words in your mouth — you had no knowledge of being under an investigation at that particular time, is that correct?

Mr. Papadopoulos. So, that’s absolutely correct, and if I had even a scintilla of proof or belief that Stefan Halper was an FBI agent, there’s no way I would have be going and talking to him — I just wouldn’t, I don’t think I would. I don’t think anybody would be running into some sort of operation against themselves.

That’s false. According to the DOJ IG Report, he told another informant he thought Halper would tell the CIA what he said.

Papadopoulos said he believed Source 2 was going to go

and tell the CIA or something if I’d have told him something else. I assume that’s why he was asking. And I told him, absolutely not …. it’s illegal, you know, to do that.. .. [my emphasis]

That is, Papadopoulos admitted to a second FBI informant that he said what he had to Halper precisely because he believed Halper might share what he said with the IC.

Which is among the reasons the FBI believed his answer was a rehearsed cover story in real time.

Now, Papadopoulos’ claim that he never imagined Halper might tell the FBI what he said when in fact he said the nearly the opposite in real time is not the only false claim he made to Congress before Billy Barr and Johnny D went on their junket chasing his conspiracy theories.

This answer, for example, is mostly word salad. But it hides that Papadopoulos continued to pursue a meeting with Russia until September 2016, months after he reached out to Paul Manafort. The word salad obscures a topic — his later effort to set up a meeting with Russian — that Papaodpoulos refused to explain to Mueller.

And to the best of my understanding, that’s when, you know, I really stopped engaging about this Trump-Putin potential meeting.

[snip]

Q Were there other interactions with Mifsud about, I think I read about possibly setting up a trip to Russia about campaign officials? Is there other things you worked on with him aside from the Putin summit? A Yeah, I think what we were trying to do is bring — I was trying to bring the campaign, I think Sam Clovis and Walid Phares and I, we were talking about potentially going to Europe and meeting officials together. And I was trying to see who Mifsud potentially knew in the U.K., or in other parts of Europe that could facilitate that meeting. Of course, we never did it. I think Sam Clovis ended up telling me I can’t make it, I’m too busy, but if you and Walid want to go to this, whatever you’re trying to put together, go ahead. That’s what I remember.

Q And did that trip ever happen?

A I never traveled with Walid Phares, no.

Q Did you arrange for anyone else?

A What was that?

Q Did you arrange for anyone else to travel to Russia? Let’s just keep it specifically —

A Yeah.

Q — based on your contacts with Mifsud at this point.

A Yes. I reached out directly to Paul Manafort, you know, and Corey Lewandowski and the top — the heads of the campaign, and openly told them I’m trying to arrange this. I mean, they were fully aware of what I was doing. This is all in emails. I’m not sure if you have those emails. I’m happy to provide them to you. That I’m trying to set up this meeting. Are we interested or are we not interested. So Corey Lewandowski was informed, Paul Manafort was informed, Sam Clovis was informed about what I was doing and what my progress, I guess, if you want to call it that, was.

“It is a lot of risk,” the notes that Papadopoulos refused to explain appear to have said about a September meeting with Russia, originally scheduled for the same dates as he met Halper.

And when Democratic staffers tried to get back to the gist of the issue — away from the transcripts capturing coached answers Papadopoulos told because he thought the answer might get back to the CIA and to the charged conduct — Papadopoulos’ lawyer refused to let him answer.

Q Is it your position here today that you did not lie to the FBI during your first interview?

Ms. Polisi. I’m just going to advise my client not to answer that.

In several such interactions, the Democratic staffers identified material discrepancies between what Papadopoulos said to a Committee of Congress and what he had sworn to in his guilty plea.

So Mr. Papadopoulos, why did you lie to the FBI and claim that your interactions with Professor Misfud occurred before you became a foreign policy adviser to the Trump campaign?

Ms. Polisi. I’m going to object to this line of questioning.

Ms. Shen. What’s the objection based upon?

Ms. Polisi. We are here on a voluntary basis. We have answered all of your questions thus far. It is my advice to him that he not talk specifically about the offense conduct.

[snip]

Q Can you please turn to page 4. Mr. Papadopoulos, I believe earlier in this round, we were asking about your interviews with the FBI, and I believe that you said that you had brought up to the FBI the — the professor and your conversation with him. Is that correct?

A That is what I remember.

Q So if you could take a look at footnote 2 on this page, page 4, in the second paragraph, it reads, “To the contrary, the defendant identified the professor only after being prompted by a series of specific questions about when the defendant first learned about Russia’s disclosure of information related to the campaign, and whether defendant had ever, quote, ‘received any information or anything like that from a Russian government official’ unquote. In response, while denying he received any information from a Russian Government official that further identified the professor by name, while also falsely claiming he interacted with the professor ‘before I was with Trump though.'” Mr. Papadopoulos, what you just said earlier today during this interview doesn’t seem to jive with the information in this footnote. Can you explain the discrepancy?

Ms. Polisi. I’m still going to object to this line of questioning. I disagree with your characterization of his previous testimony. What’s written is written, you read it into the record.

Ms. Shen. Well, he just agreed with my characterization.

Ms. Polisi. No, he did not. He did not. He did not agree with your characterization.

Ms. Shen. I asked him if what we talked about earlier was correct — on the record.

Ms. Polisi. That is correct.

Ms. Shen. And then I read the paragraph from his sentencing memorandum, and you are not allowing him to respond to that.

Ms. Polisi. Correct, I’m not allowing him to respond to that.

I guess it makes sense that Durham would not interview Papadopoulos after this performance. It’s not actually clear whether he could tell the truth, and if he did, the truth — that the Coffee Boy was still pursuing a risky back channel to Russia even after the investigation into him was opened — would utterly destroy the objective of the Durham investigation.

So in the same way that Durham never subpoenaed Jim Baker before basing an entire indictment on his testimony, Durham never spoke to Papadopoulos, who would testify that in the same weeks when — Durham claims — Danchenko believed he had a sketchy call with Millian, Papadopoulos started having similar calls with the “very shady person” that Durham has made the centerpiece of his case against Danchenko.

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.

There Was No Crime Predicating the Durham Investigation

Deep in a NYT piece that suggests but does not conclude that John Durham’s purpose is to feed conspiracy theories, Charlie Savage writes,

Mr. Barr’s mandate to Mr. Durham appears to have been to investigate a series of conspiracy theories.

That’s as close as any traditional media outlet has come to looking at the flimsy predication for Durham’s initial appointment.

Billy Barr, however, has never hidden his goal. In his memoir, he describes returning to government — with an understanding about the Russian investigation gleaned from the propaganda bubble of Fox News, not any firsthand access to the evidence — with a primary purpose of undermining the Russian investigation. He describes having to appoint Durham to investigate what he believed, again based off Fox propaganda, to be a bogus scandal.

I would soon make the difficult decision to go back into government in large part because I saw the way the President’s adversaries had enmeshed the Department of Justice in this phony scandal and were using it to hobble his administration. Once in office, it occupied much of my time for the first six months of my tenure. It was at the heart of my most controversial decisions. Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal.

In his shameless excuses for bypassing MLAT to grill foreigners about their role in the investigation, Barr describes “ha[ving] to run down” whether there was anything nefarious about the intelligence allies shared with the US — a rather glorified description for “chasing George Papadopoulos’ conspiracy theories around the globe.”

Durham’s investigation was up and running by the late spring. Pending IG Horowitz’s completion of his review of Crossfire Hurricane, I asked Durham to focus initially on any relevant activities by the CIA, NSA, or friendly foreign intelligence services. One of the more asinine aspects of media coverage about Durham’s investigation was all the heavy breathing during the summer as news seeped out that I had contacts with foreign governments on Durham’s behalf. Various journalists and commentators claimed this indicated that I was personally conducting the investigation and suggested there was something nefarious about my communicating with allied governments about Russiagate. [sic] This coverage was a good example of the kind of partisan nonsense that passes as journalism these days.

One of the questions that had to be run down was whether allied intelligence services had any role in Russiagate [sic] or had any relevant information. One question was whether US officials had asked foreign intelligence services to spy on Americans. Various theories of potential involvement by British, Australian, or Italian intelligence agencies had been raised over the preceding two years. Talking to our allies about these matters was an essential part of the investigation. It should not surprise anyone that a prosecutor cannot just show up on the door- step of a foreign intelligence agency and start asking questions. An introduction and explanation at more senior levels is required. So— gasp!—I contacted the relevant foreign ambassadors, who in turn put me in touch with an appropriate senior official in their country with authority to deal with such matters. These officials quite naturally wanted to hear from me directly about the contours of the investigation and how their information would be protected.

Much later, when Barr claimed that Durham would not lower DOJ standards just to obtain results, Barr again described an investigation launched to “try to get to the bottom of what happened” rather than investigate a potential crime.

I acknowledged that what had happened to President Trump in 2016 was abhorrent and should not happen again. I said that the Durham investigation was trying to get to the bottom of what happened but “cannot be, and it will not be, a tit-for-tat exercise.” I pledged that Durham would adhere to the department’s standards and would not lower them just to get results. I then added a point, meant to temper any expectation that the investigation would necessarily produce any further indictments:

[W]e have to bear in mind [what] the Supreme Court recently re- minded [us] in the “Bridgegate” case—there is a difference between an abuse of power and a federal crime. Not every abuse of power, no matter how outrageous, is necessarily a federal crime.

And then Durham lowered DOJ standards and charged two false statement cases for which he had (and has, in the case of Igor Danchenko) flimsy proof and for which, in the case of Michael Sussmann, he had not tested the defendant’s sworn explanation before charging. Durham further lowered DOJ standards by turning false statement cases into uncharged conspiracies he used to make wild unsubstantiated allegations about a broad network of others.

This entire three year process was launched with no evidence that a crime was committed, and it seems likely that only the Kevin Clinesmith prosecution, which DOJ Inspector General Michael Horowitz handed Durham months after he was appointed as a fait accompli and which could easily have been prosecuted by the DC US Attorney’s Office, provided an excuse to convene a grand jury to start digging in the coffers of Fusion GPS and Perkins Coie.

There was no crime. Durham was never investigating a suspected crime and then, as statutes of limitation started expiring, he hung a conspiracy theory on a claimed false statement for which he had no solid proof. Eight months into Durham repeating those conspiracy theories at every turn — conspiracy theories that Durham admitted would not amount to a crime in any case! — a jury told Durham he had inadequate proof a crime was committed and that the entire thing had been a waste of time and resources.

“The government had the job of proving beyond a reasonable doubt,” she said, declining to give her name. “We broke it down…as a jury. It didn’t pan out in the government’s favor.”

Asked if she thought the prosecution was worthwhile, the foreperson said: “Personally, I don’t think it should have been prosecuted because I think we have better time or resources to use or spend to other things that affect the nation as a whole than a possible lie to the FBI. We could spend that time more wisely.”

Compare that to the Russian investigation, which was started to figure out which Trump associate had advance knowledge of Russia’s criminal hack-and-leak operation and whether they had any criminal exposure in it. Here’s how Peter Strzok described it in his book:

[A]gents often don’t even know the subject of a counterintelligence investigation. They have a term for that: an unknown subject, or UNSUB, which they use when an activity is known but the specific person conducting that activity is not — for instance, when they are aware that Russia is working to undermine our electoral system in concert with a presidential campaign but don’t know exactly who at that campaign Russia might be coordinating with or how many people might be involved.

To understand the challenges of an UNSUB case, consider the following three hypothetical scenarios. In one, a Russian source tells his American handler that, while out drinking at an SVR reunion, he learned that a colleague had just been promoted after a breakthrough recruitment of an American intelligence officer in Bangkok. We don’t know the identity of the recruited American — he or she is an UNSUB. A second scenario: a man and a woman out for a morning run in Washington see a figure toss a package over the fence of the Russian embassy and speed off in a four-door maroon sedan. An UNSUB.

Or consider this third scenario: a young foreign policy adviser to an American presidential campaign boasts to one of our allies that the Russians have offered to help his candidate by releasing damaging information about that candidate’s chief political rival. Who actually received the offer of assistance from the Russians? An UNSUB.

[snip]

The FFG information about Papadopoulos presented us with a textbook UNSUB case. Who received the alleged offer of assistance from the Russians? Was it Papadopoulos? Perhaps, but not necessarily. We didn’t know about his contacts with Mifsud at the time — all we knew was that he had told the allied government that the Russians had dirt on Clinton and Obama and that they wanted to release it in a way that would help Trump.

The answer, by the way, was that at least two Trump associates had advance knowledge, George Papadopoulos and Roger Stone, and Stone shared his advance knowledge with Rick Gates, Paul Manafort, Steve Bannon, and Donald Trump, among others. By all appearances, DOJ was still investigating whether Stone had criminal exposure tied to his advance knowledge when Barr interfered in that investigation in February 2020, a fact that Barr hid until the day before the 2020 election.

With the Russian investigation, there was a crime: a hack by a hostile nation-state of a Presidential candidate, along with evidence that her opponent at least knew about the related leak campaign in advance. With the Durham investigation, there were only Fox News conspiracy theories and the certainty that Donald Trump shouldn’t be held accountable for encouraging Russia to hack his opponent.

The fact that this entire three year wild goose hunt was started without any predicating crime is all the more ridiculous given Durham’s repeated focus both on the predication of Crossfire Hurricane (in criticizing Horowitz’s report on Carter Page) and the Alfa Bank inquiry (during the Sussmann trial). John Durham, appointed to investigate conspiracy theories, deigns to lecture others about appropriate predication.

And that’s undoubtedly why, in the face of this humiliating result for Durham, Billy Barr is outright lying about what Durham’s uncharged conspiracy theories revealed about the predication of the Russian investigation.

He and his team did an exceptionally able job, both digging out very important facts and presenting a compelling case to the jury. And the fact that he … well, he did not succeed in getting a conviction from the DC jury, I think he accomplished something far more important, which is he brought out the truth in two important areas. First, I think he crystalized the central role played by the Hillary campaign in launching — as a dirty trick — the whole RussiaGate [sic] collusion [sic] narrative and fanning the flames of it, and second, I think, he exposed really dreadful behavior by the supervisors in the FBI, the senior ranks of the FBI, who knowingly used this information to start an investigation of Trump and then duped their own agents by lying to them and refusing to tell them what the real source of that information was.

That’s not what the trial showed, of course. Every witness who was asked about the centrality of the Alfa Bank allegations responded that there were so many other ties between Trump and Russia that the Alfa Bank allegations didn’t much stick out. Here’s how Robby Mook described it in questioning by Michael Bosworth.

[I]t was one of many pieces of information we had. And, in fact, every day, you know, Donald Trump was saying things about Putin and saying things about Russia. So this was a constituent piece of information among many pieces of information, and I don’t think we saw it as this silver bullet that was going to conclude the campaign and, you know, determine the outcome, no.

Q. There were a lot of Trump/Russia issues you were focused on?

A. Correct.

Q. And this was one of many?

A. Correct.

In response to questioning by Sean Berkowitz, Marc Elias traced the increased focus on Russia to Trump’s own request for Russia to hack Hillary.

Q. Let’s take a look — let me ask a different question. At some point in the summer of 2016, did Candidate Trump make any statements publicly about the hack?

A. Yes.

Q. What do you recall him saying and when?

A. There was a publication of emails, of DNC emails, in the days leading up to the Democratic National Convention. And it was in my opinion at the time clearly an effort by Russia to ruin what is the one clean shot that candidates get to talk to the American public. Right? The networks give you free coverage for your convention. And in the days before the convention, there was a major leak. And rather than doing what any decent human being might do and condemn it, Donald Trump said: I hope Russia is listening and, if so, will find the 30,000 Hillary Clinton emails that he believed existed and release them. That’s what I remember.

Q. Did you feel the campaign was under attack, sir?

A. We absolutely were under attack.

Q. And in connection with that, were there suggestions or possibilities at least in your mind and in the campaign’s mind that there could be a connection between Russia and Trump?

A. Again, this is, you know — this was public — Donald Trump — you know, the Republican Party historically has been very anti-Russia. Ronald Reagan was like the most anti-communist, the most anti-Soviet Union president.

And all of a sudden you had this guy who becomes the nominee; and they change the Russian National Committee platform to become pro-Russian and he has all these kind things to say about Putin. And then he makes this statement.

And in the meantime, he has hired, you know, Paul Manafort, who is, you know, I think had some ties to — I don’t recall anymore, but it was some pro-Russia thing in Ukraine.

So yeah. I thought that there were — I thought it was plausible. I didn’t know, but I thought it was an unusual set of circumstances and I thought it was plausible that Donald Trump had relations with — through his company with Russia.

Democrats didn’t gin up the focus on Trump’s ties to Russia, Trump’s own begging for more hacking did.

The trial also showed that this wasn’t an investigation into Trump. Rather, it was opened as an investigation into Kirkland & Ellis client Alfa Bank, which FBI believed had ties to Russian intelligence.

The investigation even considered whether Alfa Bank was victimizing Trump Organization.

Barr is similarly lying about whether supervisors revealed the source(s) of this information and what it was.

The source for the allegations was not Hillary, but researchers. And the trial presented repeated testimony that David Dagon’s role as one source of the allegations being shared with investigative agents. That detail was not hidden, but agents nevertheless never interviewed Dagon.

And even the purported tie to the Democrats was not well hidden. Indeed, the trial evidence shows that the FBI believed the DNC to be the source of the allegations, and that detail leaked down to various agents — including the two cyber agents, Nate Batty and Scott Hellman, whose shoddy analysis encouraged all other agents to dismiss the allegations — via various means.

Andrew DeFilippis made great efforts (efforts that lowered DOJ standards) to claim differently, but the evidence that key investigators assumed this was a DNC tip was fairly strong.

Three years after launching an investigation into conspiracy theories, Barr is left lying, claiming he found the result he set out to find three years ago. But the evidence — and the jury’s verdict — proves him wrong.

For years, Durham has been seeking proof that the predication of the Russian investigation was faulty. The only crime he has proven in the interim is that his own investigation was predicated on Fox News conspiracy theories.

John Durham Flew to Italy to Get Joseph Mifsud’s Blackberries But Never Walked Across DOJ to Obtain James Baker’s Phones He Forgot He Knew Were There

Back in 2019, when John Durham undercut DOJ Inspector General Michael Horowitz’s conclusion that, for all the problems in the Carter Page FISA, the investigation itself was properly predicated and there was no evidence that the investigation into Trump’s associates had been politicized, Durham pointed to what he claimed was the broader scope of his own investigation that gave him reason to believe the predication was not clearcut.

I have the utmost respect for the mission of the Office of Inspector General and the comprehensive work that went into the report prepared by Mr. Horowitz and his staff.  However, our investigation is not limited to developing information from within component parts of the Justice Department.  Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S.  Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.

Durham pointed both to his review of other agencies — such as the CIA review he has now completed without results — and the boondoggles he took with Billy Barr overseas as the basis (he claimed) to know more than Michael Horowitz.

Durham’s statement came shortly after he obtained two Blackberriesone dating to 2011 and the other to 2014 — that once belonged to Joseph Mifsud. By all reports, the George Papadopoulos conspiracy theories that Barr and Durham were chasing on the trip to Italy where they got those phones amounted to nothing. Taxpayers paid for Durham to fly overseas to collect information that predates the Russian operation by years, all because a sworn liar invented excuses for his crime after the fact.

It’s not that Horowitz ignored the Coffee Boy’s conspiracy theories. Rather than taking a junket to Italy to rule out Papadopoulos’ fevered speculation, Horowitz just looked in the FBI’s informant database and called the CIA.

164 During October 25, 2018 testimony before the House Judiciary and House Committee on Government Reform and Oversight, Papadopoulos stated that the source of the information he shared with the FFG official was a professor from London, Joseph Mifsud. Papadopoulos testified that Mifsud provided him with information about the Russians possessing “dirt” on Hilary Clinton. Papadopoulos raised the possibility during his Congressional testimony that Mifsud might have been “working with the FBI and this was some sort of operation” to entrap Papadopoulos. As discussed in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHS), and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. In Chapter Ten, we also note that the FBI requested information on Mifsud from another U.S. government agency, and received a response from the agency indicating that Mifsud had no relationship with the agency and the agency had no derogatory information on Mifsud.

[snip]

484 Papadopoulos has stated that the source of the information he shared with the FFG was a professor from London, Joseph Mifsud, and has raised the possibility that Mifsud may have been working with the FBI. As described in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHSs) and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. The FBI also requested information on Mifsud from another U.S. government agency and received no information indicating that Mifsud had a relationship with that agency or that the agency had any derogatory information concerning Mifsud.

This comparison is one reason it is so damning that Durham just admitted that he never sought to obtain (and falsely claims he never knew about) two phones formerly used by James Baker that were in the custody of DOJ IG all that time.

[I]n early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones. Since learning of the OIG’s possession of these cellphones, the Government has been working diligently to review their contents for discoverable materials. The Government expects to make those materials available to the defense later this week.

The John Durham investigation made a big effort to obtain two dated phones based on a conspiracy theory, but didn’t even seek to obtain phones he should have known were in DOJ possession before indicting someone based off the single witness testimony of that person. Crazier still, in an update to the Court, Durham admitted that he learned but then forgot that Horowitz had obtained one of them during his prior investigation of Baker for a suspected leak.

This is not the only damning admission of investigative negligence in John Durham’s request for an extension of the deadline — which turns out to be a request for the deadline he originally requested — for what he calls discovery (but what is actually basic investigative steps he should have taken long before indicting Sussmann).

For example, in his indictment of Michael Sussmann, Durham gives the impression that Rodney Joffe only obtained data from the US in 2016 to hunt down damning data about Donald Trump. But in response to a Sussmann request, Durham conducted a review of all the 17,000 unclassified emails involving the email domain from one of Joffe’s companies, finding 226 from 2016 alone that pertain to this issue. As Sussmann has argued, lying to hide Joffe’s involvement in this would be counterproductive given how closely he works with FBI.

[T]o the extent the Indictment alleges that the FBI General Counsel and FBI might have done various things like ask “further questions,” taken additional or more incremental steps,” “allocated its resources differently or more efficiently,” or “uncovered more complete information” but for Mr. Sussmann’s purported false statement, the Special Counsel should be required to particularlize those potential questions, additional steps, resource allocations, or more complete information. Id. This is particularly necessary because [Joffe] — far from being a stranger to the FBI — was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI. The notion that the FBI would have been more skeptical of the information had it known of Tech Executive-1’s involvement is, in a word, preposterous.

Similarly, the indictment makes much of the fact that Sussmann shared information with the NYT that ultimately led to an infamous October 31 story. It suggests without evidence that Sussmann — or even the Congressional sources who obviously played a role in the story — were the only ones pushing the Alfa Bank story to the NYT. It further suggests, falsely, that all the material NYT obtained on Alfa Bank came from Joffe’s effort. Crazier still, until Sussmann asked, Durham hadn’t pulled the details from a meeting the FBI (one that included James Baker and Bill Priestap, almost certain to be witnesses at Sussmann’s trial) had with the NYT.

On September 27, November 22, and November 30, 2021, the defense requested, in substance, “any and all documents including the FBI’s communications with The New York Times regarding any of [the Russian Bank-1] allegations in the fall of 2016.” In a subsequent January 10, 2022 letter, the defense also asked for information relating to a meeting attended by reporters from the New York Times, the then-FBI General Counsel, the then-FBI Assistant Director for Counterintelligence, and the then-FBI Assistant Director for Public Affairs. In response to these requests, the Special Counsel’s Office, among other things, (i) applied a series of search terms to its existing holdings and (ii) gathered all of the emails of the aforementioned Assistant Director for Public Affairs for a two-month time period, yielding a total of approximately 8,900 potentially responsive documents. The Special Team then reviewed each of those emails for relevant materials and produced approximately 37 potentially relevant results to the defense.

Pulling these records would have been just the first step Durham should have taken to figure out what other entities might have been pushing this story to the NYT and what specific allegations those entities were pushing to test some of the insinuations Durham makes in the indictment. Yet Durham never thought to look for these records before he indicted Sussmann.

Still, Durham’s failure to do anything to understand what DOJ IG had done in its parallel investigation is the most remarkable.

Before Durham was formally appointed, Billy Barr’s top aide Seth DuCharme seemed to be attempting to deconflict the investigation by bringing the two men together to talk about scope.

Perhaps Durham’s public rebuke of Horowitz undermined any cooperation since then (though Durham was certainly happy to take the Kevin Clinesmith case that Horowitz had wrapped up in a bow and claim it as his only visible sign of life for years).

But according to Durham’s filing, he didn’t reach out to Horowitz’s office until three weeks after indicting Sussmann (and perhaps more importantly, less than four weeks before indicting Igor Danchenko, in whose prosecution the DOJ IG investigation plays a central role). Durham presents his team reaching out to another unit at DOJ that he knew to have relevant material as some great feat of diligence rather than something he should have done years earlier.

On October 7, 2021, at the initiative of the Special Counsel’s Office, the prosecution team met with the DOJ Inspector General and other OIG personnel to discuss discoverable materials that may be in the OIG’s possession. The Special Counsel’s office subsequently submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records, and information in the OIG’s possession regarding the defendant and/or the Russian Bank-1 allegations. The Special Counsel also requested any transcripts or other documents within the OIG’s possession containing certain search terms. In response, the OIG provided, and the Government has produced to the defense in redacted form, relevant transcripts of interviews conducted by the OIG during its review of the FBI’s Crossfire Hurricane investigation.

That’s what led Durham to discover, for the first time, the anonymous tip of the same sort — weird forensic data discovered by Joffe — that Sussmann shared with DOJ IG in the same time period Durham was investigating.

It wasn’t until Durham asked the FBI Inspection Division for call data associated with Baker’s phone this month that they told him — because Durham had apparently never asked, not even given the endless focus on Peter Strzok and Lisa Page texts Horowitz obtained way back in 2017 — that DOJ IG had two phones that Baker had used. After Durham publicly claimed not to have known about the phones, DOJ IG then informed him that he learned DOJ IG obtained one of them in 2018 during a different investigation of Baker.

Durham’s belated outreach to DOJ IG may in fact be what first led Durham to discover the interview DOJ IG did with Baker on July 15, 2019 — shortly after deconfliction meetings in advance of Durham’s appointment — in which Baker said something that materially conflicts with the statements Baker has made to Durham, statements that in fact confirm Sussmann’s story.

Durham also obtained a transcript — the only one he provided to Sussmann in unredacted form — about some other investigation that Horowitz is currently conducting.

the transcript of an interview conducted by the DOJ Office of Inspector General in connection with an administrative inquiry that is currently ongoing;

And now, part of the reason Durham is asking for a delay in his existing deadline is that requests of Horowitz he should have made at the beginning of any investigation into whether Sussmann falsely set up Trump are proving too onerous for DOJ IG (which is working on a slew of reports on events that aren’t five years past) to do on their own.

Third, in January 2022, the OIG informed the Special Counsel’s Office for the first time that it would be extremely burdensome, if not impossible, for the OIG to apply the search terms contained in the prosecution team’s October 13, 2021 discovery request to certain of the OIG’s holdings – namely, emails and other documents collected as part of the OIG’s investigation. The OIG therefore requested that the Special Counsel’s Office assist in searching these materials. The Government is attempting to resolve this technical issue as quickly as possible and will keep the defense (and the Court as appropriate) updated regarding its status.

At this point, four months after indicting Michael Sussmann and two years after claiming he knew better than Michael Horowitz, Durham doesn’t know whether he even consulted the same records that Horowitz did.

As noted, if the same is true with respect to the Danchenko case, it is potentially lethal to Durham’s case, because his investigative theory (which is that Danchenko is responsible for FBI’s failure to act on problems with the dossier) is fundamentally incompatible with Horowitz’s (which is that it was FBI’s fault for not acting).

Durham does know, however, that he didn’t consult something that Horowitz did: Baker’s actual phones.

And that may have a real impact at trial.

At a status conference, Durham’s prosecutors dismissed the possibility that they had bullied Baker into telling the story they wanted him to tell on threat of prosecution: that Sussmann affirmatively lied about having a client, which conflicts with several other claims he had previously made under oath. They said (in a scheduling motion), instead, that once Durham’s prosecutors refreshed Baker’s memory with notes from Bill Priestap and someone else he spoke with after the Sussmann meeting, Baker remembered that Sussmann had actually affirmatively lied.

Mr. Baker made these statements before he had the opportunity to refresh his recollection with contemporaneous or near-contemporaneous notes that have been provided to the defense in discovery. Indeed, the defendant’s motion entirely ignores law enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement.

Effectively, they claimed they had better information when questioning Baker than anyone previously had.

Durham is going to have to present that to the jury, probably through the testimony of one of the FBI agents involved.

But that claim only works if Durham’s team had a more complete record than Horowitz’s team did when they asked the same questions. Durham doesn’t know whether that’s true or not yet, because he never bothered to figure out what Horowitz had. The delay Durham wants to do investigative work he should have done years ago is a delay, in part, to see whether that claim has any basis in fact. (And at least in December, Durham had only provided a heavily redacted transcript of what went on between Baker and the IG.)

All parties know one thing, however: That when Horowitz conducted questioning of Baker in 2019 about this topic, unlike Durham, he had consulted with Baker’s own phone. Durham can no longer claim to have been more thorough than Horowitz, because he just admitted he didn’t even bother consulting Baker’s phones and is only now getting around to checking what else Horowitz might have consulted that he did not.

John Durham indicted Michael Sussmann on the last possible day he could have under the statutes of limitation. And now, he’s asking for a delay in discovery deadlines (if not a delay in Sussmann’s trial), so he can do basic investigative work he should have done before the statutes of limitation tolled.

Update: Judge Cooper has granted Durham’s extension.

Update: Holy shit it gets better! Durham just had to admit that, in an earlier investigation of Baker, he learned DOJ IG had obtained this phone.

After reviewing the Special Counsel’s Office’s public filing, the DOJ Office of Inspector General (“OIG”) brought to our attention based on a review of its own records that, approximately four years ago, on February 9, 2018, in connection with another criminal investigation being led by then-Acting U.S. Attorney Durham, an OIG Special Agent who was providing some support to that investigation informed an Assistant United [sic] Attorney working with Mr. Durham that the OIG had requested custody of a number of FBI cellphones. OIG records reflect that among the phones requested was one of the two aforementioned cellphones of the then-FBI General Counsel. OIG records further reflect that on February 12, 2018, the OIG Special Agent had a conference call with members of the investigative team, including Mr. Durham, during which the cellphones likely were discussed. OIG records also reflect that the OIG subsequently obtained the then-FBI General Counsel’s cellphone on or about February 15, 2018. Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durham currently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022.

This post has been updated to reflect how Durham learned he already knew of the phones.

Timeline of Sussmann discovery

September 16, 2021: Michael Sussmann indictment

September 27: Sussmann asks for:

  • All evidence from wiretaps or eavesdropping (there appears to be none)
  • All communications regarding Sussmann’s security clearance reviews (900 pages)
  • Any documents pertaining to FBI treatment of anonymous tips (with repeated follow-ups)
  • All FBI communications with the NYT regarding Alfa Bank allegations in 2016 (with repeated follow-ups)
  • Materials regarding relationship between Joffe’s companies and government agencies; FBI results for 2016 result in 226 emails

October 7: Durham team meets with DOJ IG to discuss discoverable material in DOJ IG possession

October 13: Durham issues a formal discovery request to DOJ IG

October 13: Sussmann asks for Priestap’s notes

October 20: Sussmann reviews Priestap’s notes

October 25: Sussmann reply memo reveals he still hasn’t received taxi billing records and other identifiable Brady material, including an “unclassified grand jury testimony of an immunized witness, that either exculpate[s] Mr. Sussmann or conflict[s] with the core allegations that the Special Counsel has made against him”

October 29: Sussmann’s team obtains clearance

November 3: Igor Danchenko indictment

Week of November 15: Durham turns over some, but not all, of Baker’s statements, including conflicting DOJ IG fragment

November 22: Sussmann follow-up on request for FBI communications with NYT; after previously accepting June trial date, Durham proposes July 25

November 30: Sussmann follow-up on request for FBI communications with NYT; says Durham is missing some of the CIA employees in February 9, 2017 meeting

December 6: Sussmann moves for trial date, describing that Durham needs four more months for discovery

December 7: Durham response; Sussmann first gets Baker grand jury transcripts; just three grand jury transcripts provided by that point

December 8: Status conference at which Sussmann attorney reveals they’ve just seen Baker grand jury transcript

December 10: Sussmann asks for records “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”

December 14: Scheduling order

December 17: DOJ IG gives Durham forensic report arising from previous Sussmann tip

December 23: Durham gives Sussmann forensic report from DOJ IG tip

Early January 2022: OIG says it can’t get through the discovery on Crossfire Hurricane investigation by itself

January 5: Durham asks FBI Inspection Division about call log data for Baker’s phone

January 6:  FBI Inspection Division tells Durham that DOJ IG has Baker’s phones

January 7: Durham asks DOJ IG about the phones

January 10: DOJ IG provides the information on Baker’s phones; Sussmann asks for information regarding meeting with NYT, James Baker, Bill Priestap, and Michael Kortan (result did not come up on searches, so Durham had to search through 8,900 pages of Kortan’s records, resulting in 37 results)

January 20: Durham asks to have until “the end of March” for discovery (effectively, his originally requested deadline); Sussmann tells Durham he met with DOJ IG in person in March 2017 about anonymous tip

January 21: Sussmann response agreeing to February 11; DOJ IG confirms they did meet with Sussmann

January 25: Durham submits filing claiming he never knew DOJ IG had Baker’s phones (in response DOJ IG reminds Durham he already knew of one of the phones)

January 26: DOJ IG provides second forensic reports on the phones to Durham

January 28: Unclassified discovery originally due; Cooper grants extension to March 18 in the morning; Durham provides initial forensic reports to Sussmann and then (at 11:52PM) informs court he had previously been informed of Baker’s phone years ago

February 11: Classified discovery due

February 18: Motion to Dismiss due

March 18: 404(b) and remaining Jencks and Giglio due

March 25: Durham’s initial and second requested discovery deadline

May 16: Existing trial date

 

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

On CIPA and Sequestration: Durham’s Discovery Deadends

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

That list includes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Danchenko posts

The Igor Danchenko Indictment: Structure

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

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

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

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

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

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

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

On CIPA and Sequestration: Durham’s Discovery Deadends

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

John Durham: Destroying the Purported Victims to Save Them

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

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

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

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

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

Consider the following moves Durham made in his indictment:

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

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

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

Durham’s Matryoshka Materiality Claims

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

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

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

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

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

The Section 702 directive targeting Olga Galkina

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

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

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

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

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

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

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

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

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

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

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

The Sergei Millian counterintelligence investigation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Oleg Deripaska counterintelligence and sanctions investigations

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

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

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

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

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

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

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

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

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

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

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

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

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

The Carter Page FISA Collection

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

[snip]

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

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


Durham’s Materiality Claims

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

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

Sources

DOJ IG Report on Carter Page

Mueller Report

October 2016 Page FISA Application

January 2017 Page FISA Application

April 2017 Page FISA Application

June 2017 Page FISA Application

Dossier vetting spreadsheet

Danchenko posts

The Igor Danchenko Indictment: Structure

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

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

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

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

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

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

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

On CIPA and Sequestration: Durham’s Discovery Deadends

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

 

Michael Sussmann Attempts to Bill [of Particulars] Durham for His Sloppy Indictment Language

“Without prejudice to any other pretrial motions”

Michael Sussmann’s lawyers reserve their right to challenge the Durham indictment of Sussmann via other pretrial motions in their motion for a Bill of Particulars six different times. The motion does so three different times when noting that Durham used squishy language to paraphrase Sussmann’s alleged lie and couldn’t seem to decide whether he affirmatively lied or lied by omission.

Mr. Sussmann is entitled to understand which particular crime he must defend himself against. Without prejudice to any other pretrial motions Mr. Sussmann may bring on the matter, Mr. Sussmann is also entitled to additional particulars regarding the alleged omissions in the Indictment, including regarding the legal duty, if any, that required him to disclose the allegedly omitted information the Indictment suggests he should have disclosed.

[snip]

The Special Counsel should be required to clarify which crime he believes Mr. Sussmann committed and, to the extent the Special Counsel is proceeding on an omissions theory, he should be required to provide additional particulars (without prejudice to any motions Mr. Sussmann may make later).

[snip]

To the extent that the Special Counsel believes the Indictment is alleging a material omission under Section 1001(a)(1), and without prejudicing any other motions Mr. Sussmann may make on this issue, the Special Counsel should be required to clarify: (1) what specific information Mr. Sussmann failed to disclose; (2) to whom he failed to disclose it; (3) what legal duty required Mr. Sussmann to make the required disclosure; and (4) why the omission was material. See United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008). [my emphasis]

It does so twice when asking that Durham address problems with his claims that Sussmann’s alleged lie was material.

The Indictment does make several allegations regarding materiality, and yet these allegations are vague, imprecise, and inconsistent. Suggesting the FBI might have asked more questions, taken other steps, or allocated resources differently, without specifying how or why it would have done so, leaves Mr. Sussmann having to guess about the meaning of the allegations that the Special Counsel has leveled against him. Accordingly, without prejudice to any pretrial motions Mr. Sussmann may make regarding materiality, Mr. Sussmann requests that the Court order the Special Counsel to provide more detail about why the purported false statement was material.

[snip]

Accordingly, without prejudice to any pretrial motions Mr. Sussmann may make regarding materiality, Mr. Sussmann requests that the Special Counsel be ordered to provide more detail about why the purported false statement was material. See Fed. R. Crim. P. 7(c)(1). [my emphasis]

And the motion does so again when pointing out that Durham hasn’t included specifics about another alleged lie, to just two of an unidentified number of people who attended a meeting at CIA, which Sussmann elsewhere describes as improper inclusion of 404(b) material in an indictment.

Without prejudicing any other motions Mr. Sussmann may make on this issue, the Special Counsel should first be required to clarify the false statement alleged to have been made to the two anonymous Agency-2 employees, and any other individuals present at the meeting, in February 2017. [my emphasis]

A list of things John Durham didn’t provide in his Michael Sussmann indictment

It’s only after making it clear that this is just his opening move before filing a motion to dismiss and other legal challenges to the indictment…

The Indictment is seriously vulnerable to challenge as a matter of law, and Mr. Sussmann will make relevant pretrial motions at the appropriate time. For now, Mr. Sussmann moves for a bill of particulars.

…that Sussmann lays out a list of things he claims he can’t figure out from Durham’s sloppy indictment:

For the foregoing reasons, this Motion for a Bill of Particulars should be granted, and the Court should order the Special Counsel to promptly:

A. Provide particulars regarding the specific false statement the Special Counsel alleges Mr. Sussmann made to Mr. Baker, namely:

1. The exact words of Mr. Sussmann’s alleged false statement;

2. The specific context in which the statement was made so that the meaning of the words is clear;

3. What part of the statement is allegedly false, i.e., whether the statement was false because Mr. Sussmann allegedly stated he was not “acting on behalf of any client in conveying particular allegations concerning a Presidential Candidate” as alleged in Paragraph 46, or if he falsely stated that he was not doing any “work” on behalf of a client more generally, as alleged in Paragraphs 4, 27(a), 28;

4. What is meant by “his work,” as referenced in Paragraph 4;

5. What is meant by “acting [or acted] on behalf of any client” as alleged in Paragraphs 27(a) and 30; and

6. What “this” refers to in the Assistant Director’s notes referenced in Paragraph 28.

B. Provide particulars regarding the statutory violation charged and, if applicable any alleged omissions, namely:

1. Which crime the Special Counsel believes Mr. Sussmann has committed; and

2. To the extent the Special Counsel alleges that Mr. Sussmann made a material omission in violation of 18 U.S.C. § 1001(a)(1), as suggested by Paragraph 30 of the Indictment –

a. the specific information Mr. Sussmann allegedly failed to disclose;

b. to whom he allegedly failed to make that disclosure;

c. what legal duty required Mr. Sussmann to disclose such information; and

d. why the allegedly omitted information was material.

C. Provide particulars regarding how the alleged false statement to Mr. Baker was material, specifically:

1. The “other reasons” Mr. Sussmann’s false statement was material, as alleged in Paragraphs 5 and 32;

2. What “his work” refers to as referenced in Paragraph 5, what about such work was unknown to the FBI, and how the “political nature of his work” was material to the FBI’s investigation;

3. How Mr. Sussmann’s alleged false statement was material to the FBI’s ability to “assess and uncover the origins of the relevant data and technical analysis,” as alleged in Paragraph 5, when Mr. Sussmann disclosed the origins of the data and technical analysis;

4. How Mr. Sussmann’s role as a paid advocate was materially “relevant” to the FBI’s investigation, as alleged in Paragraph 32, given that the information itself raised serious national security concerns and the FBI otherwise enables civilians to provide anonymous tips; and

5. What potential questions, additional steps, resource allocations, or more complete information the FBI would have gathered absent Mr. Sussmann’s false statement, as alleged in Paragraph 32.

D. Provide particulars regarding the alleged false statement Mr. Sussmann made to all Agency-2 employees and representatives, as alleged in Paragraphs 39 and 42, namely:

1. The exact words of Mr. Sussmann’s alleged false statement;

2. The specific context in which the statement was made so that the meaning of the words is clear;

3. What portion of the statement is allegedly false;

4. The identities of all individuals to whom the statement was made, including:

a. both Employee-1 and Employee-2 as referenced in Paragraph 42; and

b. anyone else present who also heard the false statement.

E. Provide particulars regarding the identities of the “representatives and agents of the Clinton Campaign” referenced in Paragraph 6.

Motions for a Bill of Particular rarely work

Make no mistake, most demands for a Bill of Particulars like this fail. The prosecution will argue that everything Sussmann needs is in the indictment and, if Judge Christopher Cooper agrees, Sussmann will just submit his motion to dismiss and other challenges like he’s clearly planning to do anyway.

That’s almost certainly what will happen for several of these requests, such as the names of Clinton Campaign personnel Durham accuses Sussmann of coordinating with on the Alfa Bank materials. But Sussmann likely doesn’t really need these names because he likely knows that Durham has nothing to substantiate this claim. If he did, Durham would have described such evidence in his speaking indictment. Sussmann may well know there are no names — of campaign personnel with whom he personally coordinated in advance of the James Baker meeting, at least — to give, because he didn’t coordinate with anyone from the campaign (Durham probably wants to substantiate this claim by charging Marc Elias in a conspiracy with Sussmann, but that all depends on being able to prove that anyone was lying about all this).

Similarly, Sussmann seems to know — and Durham may not — that there were more than just two people at a February 9, 2017 meeting at which Sussmann tried to bring new concerns to the attention of the government. This request seems to suggest there was at least one and possibly other witnesses who were at this meeting that Durham should know of who didn’t corroborate a claim that Sussmann lied, witnesses Durham didn’t mention in his indictment.

Likewise, Sussmann is unlikely to get very far asking for more details about Durham’s materiality claim, in particular, Durham’s repeated allegation that what he presented were just some, “among other reasons,” why Sussmann’s alleged lie was material. Prosecutors will argue that materiality is a matter for the jury to decide. But if Sussmann can force Durham to admit he has a theory of prosecution he hasn’t included in his indictment — that Durham believes that, rather than raising a real anomaly to the FBI’s attention because it was a real anomaly, lawyers who were paid by Hillary were trying to start a witch hunt against Donald Trump (never mind that the actual investigation that would prove at least three Trump officials, and probably Trump himself, got advance warning of a Russian attack on Hillary started three weeks before the meeting at which Sussmann is alleged to have lied) — then it will make it far easier for Sussmann to attack the indictment down the road.

What a false statement charge is supposed to look like

But Sussmann may succeed on his key complaint, that Durham has built a 27-page indictment around a false claim allegation without any means to clearly lay out what was the specific lie Sussmann told.

To understand what Sussmann means when he says,

It is simply not enough for the Indictment to make allegations generally about the substance of the purported false statement. Rather, the law requires that the Special Counsel identify the specific false statement made, i.e., the precise words that were allegedly used.

We can look at the false statements that Trump’s associates made to cover up the Trump campaign’s ties to Russia. For example, for each of six charged lies in the Roger Stone indictment, Mueller’s prosecutors quoted the precise questions he was asked as well as his response, then laid out specific evidence that each lie was a lie.

22. During his HPSCI testimony, STONE was asked, “So you have no emails to anyone concerning the allegations of hacked documents . . . or any discussions you have had with third parties about [the head of Organization 1]? You have no emails, no texts, no documents whatsoever, any kind of that nature?” STONE falsely and misleadingly answered, “That is correct. Not to my knowledge.”

23. In truth and in fact, STONE had sent and received numerous emails and text messages during the 2016 campaign in which he discussed Organization 1, its head, and its possession of hacked emails. At the time of his false testimony, STONE was still in possession of many of these emails and text messages, including:

a. The email from STONE to Person 1 on or about July 25, 2016 that read in part, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.”;

b. The email from STONE to Person 1 on or about July 31, 2016 that said an associate of Person 1 “should see [the head of Organization 1].”;

c. The email from Person 1 to STONE on or about August 2, 2016 that stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.”;

d. Dozens of text messages and emails, beginning on or about August 19, 2016 and continuing through the election, between STONE and Person 2 in which they discussed Organization 1 and the head of Organization 1;

e. The email from STONE on or about October 3, 2016 to the supporter involved with the Trump Campaign, which read in part, “Spoke to my friend in London last night. The payload is still coming.”; and

f. The emails on or about October 4, 2016 between STONE and the high-ranking member of the Trump Campaign, including STONE’s statement that Organization 1 would release “a load every week going forward.”

For some of Stone’s charged lies, prosecutors even had communications with Jerome Corsi or Randy Credico or one of his lawyers showing Stone planned in advance to lie.

In George Papadopoulos’ statement of offense, for each of several lies outlined, prosecutors laid out specifically what he told the FBI and then laid out how Papadopoulos’ own communications records and his later testimony proved those statements to be false.

c. Defendant PAPADOPOULOS claimed he met a certain female Russian national before he joined the Campaign and that their communications consisted of emails such as, ‘”Hi , how are you?”‘ In truth and in fact, however, defendant PAPADOPOULOS met the female Russian national on or about March 24, 2016, after he had become an adviser to the Campaign; he believed that she had connections to Russian government officials; and he sought to use her Russian connections over a period of months in an effort to arrange a meeting between the Campaign and Russian government officials.

The most recent Mueller backup liberated by Jason Leopold reveals that, in addition to Papaodpoulos’ communications and later testimony that prove this particular claim to be an intentional lie, Papadopoulos also emailed the FBI on January 27 after consulting his records, laying out his claim that he met Olga before he joined the Trump campaign and never met her after that.

As promised, wanted to send you the name of the individual that Joseph Mifsud introduced me to over lunch in February or early March (while I was working with the London Center of International Law Practice and did not even know at that time whether or not I would even have moved back to the U.S. or especially worked on another presidential campaign).

He introduced her as his student, but was looking to impress her by meeting with me fresh off my Ben Carson gig. That is all I know. Never met her again.

I could go on for each of the false statements charged against Trump’s flunkies (and also show how, when Andrew Weissmann fell short of this kind of evidence, Amy Berman Jackson ruled against prosecutors on two of five claimed lies alleged in Paul Manafort’s plea breach determination).

Even Mike Flynn’s statement of offense, substantiating a charge that Trump loyalists have spent years wailing about, laid out clearly the two charged lies.

During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FL YNN’s request.

[snip]

During the January 24 voluntary interview, FLYNN made additional false statements about calls he made to Russia and several other countries regarding a resolution submitted by Egypt to the United Nations Security Council on December 21, 2016. Specifically FLYNN falsely stated that he only asked the countries’ positions on the vote, and that he did not request that any of the countries take any particular action on the resolution. FLYNN also falsely stated that the Russian Ambassador never described to him Russia’s response to FL YNN’s request regarding the resolution.

Not only did prosecutors describe what a transcript of these calls said, but they also had testimony from both Flynn himself and KT McFarland substantiating that these were lies. They even had a text that Flynn sent McFarland, before any of these intercepts had leaked, that Flynn later admitted he had deliberately written to cover up the content of his calls with Sergey Kislyak.

Then, after Sidney Powell spent six months trying to claim that one of Flynn’s lies wasn’t clearly laid out in his original 302, Judge Emmet Sullivan meticulously pointed out that the notes of both FBI interviewers matched every iteration of Flynn’s 302.

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.” Gov’t’s Surreply, ECF No. 132 at 4-5. The Court rejects Mr. Flynn’s request for additional information regarding the drafting process for the FD-302s and a search for the “original 302,” see Def.’s Sur-Surreply, ECF No. 135 at 8- 10, because the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD-302, and Mr. Flynn’s own admissions of his false statements make clear that Mr. Flynn made those false statements.

These are what false statements charges are supposed to look like. They’re backed by contemporaneous admissible evidence and laid out in specific detail in charging documents.

Trump and his supporters have wailed for years about these charges. Except prosecutors had evidence to substantiate them, the kind of evidence Durham makes no claim to have.

What few witnesses Durham has may not all agree on Sussmann’s alleged lies

Sussmann is more likely to succeed with his request to have his alleged false statement laid out in quote form and in context — and even if he doesn’t, he may back Durham into a corner he doesn’t want to be in — because Sussmann has presented several central questions about what the allegation really is. Is it that Sussmann didn’t offer up that he was working with (Sussmann claims) Rodney Joffe or  (Durham also alleges) Hillary on the Alfa Bank issues? Is it that Sussmann falsely claimed not to be billing the meeting with James Baker (evidence of which Durham has not presented)? Or does Durham have any shred of evidence that Baker affirmatively asked Sussmann, “are you sharing this on behalf of a client,” or even less supported in the indictment, “are you sharing this on behalf of Trump’s opponent, Hillary Clinton”? Similarly, Durham doesn’t explain whether when he claims that Sussmann lied about “this,” or “his work,” he means about the meetings that were actually billed to Hillary’s campaign internally at Perkins Coie (even if Hillary paid no money specifically tied to those meetings), or that the meeting with Baker was billed to one or another client (no evidence of which Durham presents). Those details will all be necessary for Durham to prove his case and for Sussmann to rebut it. And Sussmann needs to know whether he should focus his time on the absence of billing records substantiating that he met with Baker and then billed it to Hillary (something implicated by the meaning of “this” and “his work”), or whether he needs to focus on showing whether Priestap distinguished these allegations from the other claims about a Russian information operation undeniably targeting Hillary (something implicating whether this is supposed to be a crime of commission or omission).

It’s quite possible that Durham has presented these allegations using such squishy language because what little evidence he has doesn’t actually agree on the claimed lies. That is, it may be that Baker believes Sussmann simply didn’t bother explaining which client he was working for, but Bill Priestap, the next in line in a game of telephone, differently understood from Baker’s report that Sussmann affirmatively failed to provide Baker information that (Priestap’s own notes prove) the FBI already had anyway, that he was working with Hillary Clinton.

If, having had these weaknesses laid out by Sussmann’s attorneys, Durham can show that all his evidence actually substantiates the same false claim, he could get a superseding indictment making that clear. But once he does that, it may tie his hands at trial.

But it’s distinctly possible that Durham can’t prove that what little evidence he has backs the same interpretation of Sussmann’s alleged lie. That is, there may be a reason — on top of the fact that he has no contemporaneous transcript from a witness — that he avoided being more specific in his indictment, and that’s because it was the only way he could cobble together enough evidence to get a grand jury to indict.

So while much of the rest of this motion of a Bill of Particulars may serve only to call attention to gaping holes in the rest of the indictment, the request for specifics about what, specifically, Sussmann is alleged to have said when he lied may succeed. And even if it doesn’t, it may force Durham to commit to an interpretation that not all of his thin evidence would ultimately support.

John Durham Is the Jim Jordan of Ken Starrs

Last Thursday, John Durham indicted Michael Sussmann, the Perkins Coie lawyer who advised the DNC, DCCC, and Clinton Campaign about cybersecurity in 2016 as they struggled to deal with a hostile nation-state attack aiming — in part — to help elect their opponent. The indictment accuses Sussmann of lying to FBI General Counsel James Baker at a September 19, 2016 meeting at which Sussmann shared information about the curious DNS traffic between a server used by a Trump marketing contractor and Alfa Bank.

emptywheel’s long history of debunking the Alfa Bank story

Before I unpack the indictment, let me remind readers that when this story first publicly broke, I explained why the Spectrum Health (aka my boob hospital at the time) aspect of the allegations made no sense, criticized Hillary’s team (including Jake Sullivan) for jumping on the story, and echoed Rob Graham’s criticism of the researchers who accessed DNS data to conduct this research.

In addition to his technical debunking, Robert Graham made an equally important point: researchers shouldn’t be accessing this data for ad-lib investigations into presidential candidates, and it’s not even clear who would have access to it all except the NSA.

The big story isn’t the conspiracy theory about Trump, but that these malware researchers exploited their privileged access for some purpose other than malware research.

[snip]

In short, of all the sources of “DNS malware information” I’ve heard about, none of it would deliver the information these researchers claim to have (well, except the NSA with their transatlantic undersea taps, of course).

[snip]

[B]efore Tea Leaves started pushing this story to the press, the FBI had been investigating it for two months.

Which, to my mind, raises even more questions about the anonymous researchers’ identities, because (small world and all) the FBI likely knows them, in which case they may have known that the FBI wasn’t jumping on the story by the time they started pitching it.

Or the FBI doesn’t know them, which raises still more questions about the provenance of these files.

Ah well, if President Hillary starts a war with Russia based off Iraq-War style dodgy documents, at least I’ll have the satisfaction of knowing my boob clinic is right there on the front lines.

In March 2017, I observed that the weird Alfa Bank entry in the Steele dossier suggested a feedback loop between the Alfa Bank server story and the dossier project. Then days after that, I noted all the ways that the packaging of this story made it more suspect.

In 2018, I complained about the way Dexter Filkins had strained to sustain the story, while noting that people ought to look more closely at why Alfa Bank might be the focus here; the Mueller Report since confirmed that within weeks after the story broke publicly, Vladimir Putin pushed Oligarchs from Alfa Bank to fight harder against western sanctions, something that the alleged source for the Alfa Bank entry in the dossier seemed to parrot.

In short, I not only have consistently criticized this story, but done so in ways that anticipate the most justifiable parts of the indictment. It’s only the last bit — how the Alfa narrative echoes Putin’s interests — that this indictment doesn’t incorporate.

I guess with five more years Durham might get there…

So in unpacking this indictment, I’m in no way defending the Alfa Bank – Trump Tower story. It was a sketchy allegation, the packaging of it was suspect, and those who conducted the research arguably violated ethical guidelines.

I got to where Durham got in this indictment years and years ago. But that doesn’t make it a crime.

John Durham’s “narrative”

Moreover, that doesn’t mean Durham should tell as strained a “narrative” as those who packaged up this story. Central to Durham’s indictment is an assumption that if a victim of a crime who believed at the time that the crime had a — since confirmed — political goal reports suspicious, potentially related details, the victim must be motivated exclusively out of self-interest, not good citizenship or a concern about national security. That is, this entire indictment assumes that when Russia attacks a Presidential candidate, that is not itself a national security concern, but instead nothing more than a political dispute.

Effectively, John Durham has made it a crime for someone victimized by a Russian influence operation to try to chase down Russian influence operations.

Tech Executive-1 and Clinton both had retained Perkins Coie long before this, with Sussmann getting involved specifically for cybersecurity help in the wake of the Russian hack

The indictment, perhaps deliberately, obscures the timeline and facts leading up to the charged lie. But here’s the story it tells. First, all of Durham’s subjects established contracts with each other, even though all of those contracts (including Fusion GPS’) had scopes far larger than oppo research on Trump’s relationship with Russia.

  • In February 2015, Tech Executive-1 (whom I’ll call TE-1 for brevity) retained Sussmann to deal with a US government agency [Durham does not say whether this matter was resolved or continued in this period in 2016, which is central to the question of what kind of client of Sussmann’s TE-1 was].
  • In April 2015, the Clinton Campaign retained Perkins Coie and made Marc Elias the Campaign’s General Counsel.
  • In April 2016, the victim of a Russian government election-related attack, the DNC, retained Sussmann to help it deal with aftermath, which included meeting with the FBI. As the indictment describes this was not just legal support but cybersecurity.
  • [After a Republican retained them first and on a date that Durham doesn’t reveal,] Perkins Coie retained Fusion GPS to conduct oppo research on Trump pertaining to Russia [and other topics, though Durham doesn’t mention those other topics].

Durham only mentions in passing, later, that the researchers involved here similarly knew each other through relationships that focused on cybersecurity and predated these events.

Via means and on specific dates that Durham doesn’t always provide, Tea Leaves, TE-1, Sussmann, and two Researchers got the DNS data showing an anomaly

There are two sets of research here: that done in a university setting and that done at companies associated with TE-1, though TE-1 is the pivot to both. As depicted, Durham suggests the former are more legally exposed than the latter.

  • By some time in late July 2016 [the exact date Durham doesn’t provide], a guy who always operated under the pseudonym Tea Leaves but whom Durham heavy-handedly calls “Originator-1” instead had assembled “purported DNS data” reflecting apparent DNS lookups between Alfa Bank and “mail1.trump-email.com” that spanned from May 4 through July 29.
  • Tea Leaves was a business associate of TE-1 and via means Durham doesn’t describe, the data Tea Leaves gathered was shared with TE-1.
  • “In or about July 2016” [at a time that, because of the laws of physics, must post-date the late July date when Tea Leaves collected this data and the date when he shared them with TE-1], TE-1 alerted Sussmann to the data.
  • On July 31, Sussmann billed the Clinton Campaign for 24 minutes with the billing description, “communications with Marc Elias regarding server issue.”
  • At some point [Durham doesn’t provide even a month, but by context it was at least as early as July 2016 and could have been far, far earlier], TE-1’s company provided a university with data for a government contract ultimately not contracted until November 2016, including the DNS data from an Executive Branch office of the US government that Tech Exec-1’s company had gotten as a sub-contractor to the US government. [This date of this is critical because it would be the trigger for a Conspiracy to Defraud charge, if Durham goes there.]
  • In or about August 2016 [Durham doesn’t provide a date], a federal government was finalizing but had not yet signed a cybersecurity research contract with [presumably] that same university to receive and analyze large quantities of public and non-public data “to identify the perpetrators of malicious cyber-attacks and protect U.S. national security.” Tea Leaves was the founder of a company that the university was considering [Durham doesn’t provide the date of consideration, but generally these things precede finalization] for a subcontract with the government contract.

TE-1 directs employees of companies under his control to research this issue

Though Durham’s indictment is somewhat vague, at least one piece of research from companies associated with TE-1 was shared with the FBI; it appears that other threads of research were not shared.

  • In or about early August 2016 [the dates of which Durham doesn’t provide], TE-1 directed personnel at two companies in which he had an ownership interest to search for what the indictment calls, “any Internet data reflecting potential connections or communications between Trump or his associates and Russia,” which Durham describes to be “derogatory information on Trump.” In connection with this tasking, TE-1 later stated [on a date Durham doesn’t describe] he was working with someone who had close ties to the Democratic Party.
  • At some point, an individual tasked with this work described being “uncomfortable regarding this tasking,” [Durham doesn’t describe when he learned this or whether there is any contemporaneous proof].
  • At some point [Durham doesn’t describe the date], TE-1 provided one of his companies with personal (but publicly available) data from six Trump associates and one purported US-based lobbyist for Alfa Bank and directed these individuals should be the focus of that company’s data queries and analysis [Durham doesn’t say whether these six associates overlapped with the people Fusion had been tasked to research, nor does he allege they got included in the eventual reports to the FBI; both details are needed to assess his case].
  • On August 12, 2016, Sussmann, Elias, and TE-1 met in Elias’ office; Sussmann billed his time to the Clinton Campaign describing, “confidential meetings with Elias, others.”
  • On August 15, employees at one of the companies queried their holdings against a set of addresses that referred to Trump and/or Alfa Bank.
  • During the same time period [Durham doesn’t specify when], employees at Internet Company-3 drafted a written paper that included technical observations that Sussmann would later convey to the FBI.

Around the time this started, Sussmann met Fusion and a bunch of meetings happened that were billed to Hillary

  • On July 29, Sussmann and Marc Elias met with Fusion GPS [Durham doesn’t affirmatively claim this data pertained to the server issue], and Sussmann billed his time to the Hillary Campaign under “General Political Advice,” a different description than all the other Fusion meetings that Durham more credibly claims relate to the Alfa Bank allegation.
  • Around “the same [August] time period” [Durham doesn’t provide the date], Sussmann, Elias, and Fusion personnel began exchanging emails with the subject line, “Connecting you all by email;” [Durham doesn’t say who initiated the email, but it suggests that before this period, Sussmann and Fusion did not have direct contact].
  • On August 17, 2016, Sussmann, Elias, and TE-1 conducted an additional conference call, for which Sussmann billed his time to the Clinton campaign, noting “telephone conference with” TE-1 and Elias.
  • On August 19, 2016, Sussman and Elias had another in-person meeting that Sussmann described as a meeting with TE-1, which was billed as a “confidential meeting with Elias, others.”

Researchers 1 and 2 and Tea Leaves worked with TE-1 on a “storyline” and “narrative” with varying degrees of skepticism expressed

This is the stuff Durham–with some justification–will and has used to taint all this as a political project.

  • On July 29, Researcher-2 emailed Researcher-1 the data compiled by Tea Leaves [Durham provides no evidence that TE-1 was involved in this exchange].
  • On August 19, Researcher-1 queried Internet data maintained by TE-1’s company [it is not clear but this suggests it was not the data turned over to the University] for the aforementioned mail1.trump-email.com domain. Researcher-1 then emailed TE-1 with the list of domains that had communicated with it, saying the list, “does not make much sense with the storyline you have.”
  • On August 20, Tea Leaves emailed Tech Exec-1, Researcher-1, and Researcher 2, stating that, “even if we found what [TE-1] asks us to find in DNS, we don’t see the money flow, and we don’t see the content of some message saying, ‘send money here’.” Tea Leaves then explained that one could fill out sales forms and cause them, “to appear to communicate with each other in DNS.” Tea Leaves then noted that “it’s just not the case that you can rest assured that Hillary’s opposition research and whatever professional gov and investigative journalists are also digging come up with the same things.”
  • On August 20, TE-1 clarified that the task was “indeed broad,” and that,
    • Being able to provide evidence of *anything* that shows an attempt to behave badly in relation to this [Durham doesn’t describe what the antecedent of “this” is], the VIPs would be happy. They’re looking for a true story that could be used as the basis for closer examination.
  • Still on August 20, seemingly distinguishing between that task and the Alfa Bank allegations, TE-1 said, “the prior hypothesis was all that they needed: mailserver dedicated or related to trump … and with traffic almost exclusively with Alfa was sufficient to do the job. … Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.” [Ellipses original]
  • On August 21, TE-1 emailed the recipients [but not, apparently, Sussmann], urging them to do further research on Trump which would “given the base of a very useful narrative.” He added that he didn’t believe the trump-email.com domain was a secret communications channel but a “red herring,” because the host was “a legitimate valid company,” stating they could “ignore it, together with others that seem to be part of the marketing world.”
  • On August 22, Researcher-1 raised doubts about whether, using only the tools they were currently using, they could prove their hypothesis. Among the concerns raised is that they couldn’t prove that “this is not spoofed [] traffic.” [brackets original; bolded in the original]
  • Later in or about August 2016 [on dates Durham doesn’t provide], TE-1 exchanged emails with personnel from Fusion.

Sussmann drafts a white paper and (via unstated means) TE-1 gets Researchers 1 and 2 and Tea Leaves to review it

  • Between September 5 and September 14, Sussmann drafted a white paper, generally billing his time to the Clinton Campaign, but on September 14, billing time to both Clinton and TE-1.
  • On September 14, TE-1 [not Sussmann] sent the white paper he had drafted to Researcher 1, Researcher 2, and Tea Leaves to ask them if a review of less than an hour would show this to be plausible. Though some of them noted how limited the standard of “plausibility” was, they agreed it was plausible, and Researcher 2 said [Durham does not quote the specific language here] “the paper should be shared with government officials.”

Sussmann shares this and other information with James Baker and–Durham claims–affirmatively lies about whether he is representing someone

  • Both before the September 19 meeting and after it (notably in a September 12 meeting involving the NYTimes, in which Marc Elias also participated), Sussmann spoke to the press about what Durham credibly suggests was the Alfa Bank white paper. Sussmann billed this to Clinton.
  • On September 19, Sussmann met with Baker and provided him with three white papers and a thumb drive with data. Durham doesn’t actually make clear where all three of these came from.
  • On September 19, Sussmann met with James Baker. Durham claims that “he stated falsely that he was not acting on behalf of any client” [which Durham cannot quote because there’s no contemporaneous record], that he had been approached by multiple cyber experts [Durham doesn’t say whether the three he named were Researcher 1, Researcher 2, and Tea Leaves or other people, as seems to be the case], three white papers [which I may return to because this is another problematic spot in his story], and some of the data, which Durham calls “purported.”
  • Immediately after the September 19 meeting, Baker met with Bill Priestap whose notes read:
    • Michael Sussman[n] — Atty: Perkins Coie — said not doing this for any client
      • Represents DNC, Clinton Foundation, etc. []
      • Been approached by Prominent Cyber People (Academic or Corp. POCs), People like: [three names redacted]
  • Durham substantiates a claim that Sussmann billed the meeting itself to Hillary to a description, “work and communications regarding confidential project,” that does not, at least as he quotes it, mention a meeting with the FBI General Counsel at all.

Some of this — the reference to crafting a narrative and a storyline — is damning and validates my discomfort with the political nature of this project five years ago. Other parts of this emphasize the researchers’ insistence on truth from at least parts of this effort. Still others (such as the recognition that this could be spoofed data) will almost certainly end up being presented as exculpatory if this ever goes to trial, but Durham seems to think is inculpatory.

In one place, Durham describes “aforementioned views,” plural, that the Alfa Bank data was a “red herring,” something only attributed to TE-1 in the indictment, seemingly presenting TE-1’s stated view on August 21 to everyone involved, including Sussmann, who does not appear to have been on that email chain. He claims Sussmann, Researcher 1 and 2, TE-1, and Tea Leaves drafted the white paper(s) shared with the FBI, but all he substantiates is a less than one hour review by everyone but Sussmann. He leaves out a great deal of detail about what Jean Camp and someone using the moniker Tea Leaves did and said, publicly, after the FBI meeting, which may totally undercut Durham’s “narrative.”

But other parts, even of the story that Durham tells, are problematic for his narrative. First, there is not (yet) the least hint that Tea Leaves — whom he calls “The Originator” — fabricated this data (or even packaged it up misleadingly, though I think there is evidence he did). Nor is there the least hint that TE-1 asked Tea Leaves to come up with the data. That part of the story is fundamentally important and Durham simply ignores it with that legally unnecessary — particularly given that Durham clearly labels this person as Tea Leaves — moniker “Originator,” giving the anomalous forensic data a kind of virgin birth. And while two of the four tech experts described herein (there appear to be at least three others not described) expressed some doubt about the meaning of it, none of them seems to have doubted that there was an anomaly in the Trump marketing server and Alfa Bank.

Based on this story, though, Durham insinuates Sussmann fed information that he, Sussmann, knew to be bullshit to the FBI on behalf of both Hillary and TE-1, and in so doing affirmatively hid that the bullshit “storyline” was designed to help Hillary which (he claims) would have led the FBI to treat it differently.

In spite of a lot of thus far extraneous details, that’s the only crime he has alleged.

The existing case is remarkably weak

As a number of people have noted, as charged this is a remarkably weak case. Ben Wittes dedicates a section of his post on this indictment to those weaknesses. They are, succinctly:

  • The evidence regarding the core allegation in the indictment pits Sussmann’s word against James Baker’s; there are no other witnesses.
  • After the meeting with Baker, Sussmann repeatedly admitted under oath he was representing a client, a detail which could be exculpatory or inculpatory.
  • Baker testified to Congress he did believe Sussmann was representing a client (meaning Baker will be used to discredit Baker, the one witness to Sussmann’s alleged lie).
  • Even in Bill Priestap’s nearly-contemporaneous notes which are the only documentation of Sussmann’s comments, he describes Sussmann as Hillary’s lawyer (including for the Clinton Foundation, which may be incorrect), so FBI knew full well that Sussmann represented Hillary.
  • Priestap’s notes may be inadmissible hearsay at trial.

The NYT article predicting these charges also claim Durham is conflating Sussmann’s tracking of his hourly work with the actual money charged to the Hillary campaign.

Moreover, internal billing records Mr. Durham is said to have obtained from Perkins Coie are said to show that when Mr. Sussmann logged certain hours as working on the Alfa Bank matter — though not the meeting with Mr. Baker — he billed the time to Mrs. Clinton’s 2016 campaign.

[snip]

They are also said to have argued that the billing records are misleading because Mr. Sussmann was not charging his client for work on the Alfa Bank matter, but needed to show internally that he was working on something. He was discussing the matter with Mr. Elias and the campaign paid a flat monthly retainer to the firm, so Mr. Sussmann’s hours did not result in any additional charges, they said.

There are a number of other ways that Sussmann’s presumably well-funded defense will combat these charges. But as to the allegation buried amid all these details, Durham’s evidence is weak.

Durham’s materiality broadcasts his bid for a ConFraudUS conspiracy

But that’s not what this is about.

Durham is not just alleging that Sussmann was hiding that he was working for Hillary. He is also claiming that Sussmann was at the same time representing TE-1 at that meeting. In the indictment, I think that’s based on a single data point — that Sussmann billed TE-1’s company for “communications regarding confidential project” on September 14. I’m not sure whether that makes the false statements case still weaker or stronger.

But it’s a key part of where Durham obviously wants to go.

Not only are many of the details Durham included in the indictment irrelevant to the false statements charge, but if they were crimes by themselves, they would have been tolled under any five year statute of limitations already. There are only two conceivable purposes for including them in this indictment. First, to give the Alfa Bank Oligarchs more cause to sue more people, effectively a US prosecutor assisting Russians in cynical lawfare. Durham’s investigation incorporates stuff the Oligarchs have already liberated, so is itself derivative of Russian lawfare. Effectively, that means that a prosecutor working for Bill Barr’s DOJ pursued a prosecution that was complementary to an intelligence-related effort by foreigners who pay Kirkland & Ellis a lot of money. Sussmann will have real cause to question whether Brian Benczkowski (who recused from matters involving this aspect of Alfa Bank) or any other Kirkland & Ellis lawyer had a role in this strand of the investigation.

Then there’s the most obvious way to extend the statute of limitations on the events that happened in July and August 2016: to include them in a conspiracy that continued after those dates (and indeed, Durham refers to Elias, Researcher 1 and 2, and Tea Leaves in the way DOJ often uses to refer to charged or uncharged co-conspirators).

Given the extended statement Durham includes to explain why Sussmann’s alleged lie is material under the charged statute, that’s undoubtedly where Durham wants to head with his investigation.

SUSSMANN’s lie was material because, among other reasons, SUSSMANN’s false statement misled the FBI General Counsel and other FBI personnel concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis, including the identities and motivations of SUSSMANN’s clients.

Had the FBI uncovered the origins of the relevant data and analysis and as alleged below, it might have learned, among other things that (i) in compiling and analyzing the Russian Bank-1 allegations, Tech Executive-1 had exploited his access to non-public data at multiple Internet companies to conduct opposition research concerning Trump; (ii) in furtherance of these efforts, Tech Executive-1 had enlisted, and was continuing to enlist, the assistance of researchers at a U.S.-based university who were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract; and (iii) SUSSMAN, Tech Executive-1, and Law Firm-1 had coordinated, and were continuing to coordinate, with representatives and agents of the Clinton Campaign with regard to the data and written materials that Sussmann gave to the FBI and the media.

Don’t get me wrong. This will clearly pass the incredibly low standard for materiality under existing precedent. Though Sussmann will surely make much of citing the invented standard Billy Barr used to try to dismiss the Mike Flynn prosecution, which first requires the investigation in question to be legitimate.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

If DOJ had no interest in figuring out whether Trump was undermining sanctions to pay off a quid pro quo, they sure as hell have no interest in launching a 3-year investigation to figure out the tie between these allegations and Hillary that was obvious to Priestap in real time, particularly given how quickly the FBI dismissed the allegations in 2017 and given that the allegations are not publicly known to have had a tie to their larger Russian investigation.

Still, while Durham will have no trouble proving Sussmann’s claimed lie meets the standards of materiality, Durham’s claims for it are ridiculous.

It’s a load of horseshit that FBI would have treated this tip any differently — which amounted to investigating it, alerting the press there was nothing to it, then dismissing it pretty quickly, as far as is public — if they knew that Sussmann was formally being paid at that meeting by Hillary, if he in fact was. Priestap knew Sussmann was representing Hillary and said as much in the best evidence Durham has! In fact, FBI’s warning to the NYT about this story in October could be presented as evidence that FBI already incorporated an assumption this came from Hillary.

Likewise, it’s a load of horseshit that FBI couldn’t know that the Bureau needed to ID the researchers behind the project. If I was able to figure that was important out before the 2016 election, and I did, then the experts at the FBI surely figured that out.

But what Durham’s materiality statement emphasizes — what Durham claims Sussmann intended to hide with his claimed lie — is that, “researchers at a U.S.-based university … were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract.” That’s the significance of ¶¶23a through e of the indictment, which describe how TE-1 provided data that included some from an Executive Branch office of the U.S. government, which his company had obtained “as a sub-contractor in a sensitive relationship between the U.S. government and another company,” to the university at which Researcher 1 and 2 were working, and both with his university researcher allies and employees of his own company, he tasked people to research Donald Trump. Durham is suggesting that subset of data taints the whole pool that TE-1 shared, making it a Federal interest.

It’s not just that Durham is working on a theory that Sussmann deliberately dealt garbage to the FBI (which GOP sources also did on the Clinton Foundation) while trying to hide that fact. It’s that data originally sourced from the government was used in doing that research.

It’s actually the kind of argument that DOJ prosecutors typically succeed with. Except it’s all premised on proving that Sussman was trying to hide all this in his meeting with Baker. Even if the evidence surrounding the meeting weren’t so flimsy, this is another degree of motive that Durham is straining mightily to make.

Durham needs Sussmann to have lied, because a deliberate attempt to obscure the rest is necessary for his “storyline.” His evidence that Sussmann lied — much less, deliberately — is shoddy. But if he can’t get that, then his hopes for a larger “narrative” collapse.

The parts of the story Durham doesn’t tell

That becomes more clear when you consider some details that Durham doesn’t include in his indictment.

Two details that were public to everyone involved make it clear why Durham’s silence about the exact dates in July when this operation started is so corrupt.

On July 22, WikiLeaks published emails that were at the time believed and since have been confirmed by the FBI to have been hacked by Russia. Durham hides the dates in July when many of these events transpired, but everything he includes suggests this activity post-dated the time when WikiLeaks published stolen emails and the entire security community in the US, surely including every researcher mentioned in this story, coalesced on the belief that Russia was the culprit. Durham refers to Russia’s attack on Hillary (and therefore on the US) inaccurately as, “the hacking of its email servers by the Russian government” and “a hack” (the hack went well beyond just email and continued through the period of Sussmann’s meeting with Baker). But, amazingly, Durham’s “narrative” doesn’t account for the fact that Hillary was targeted not just with an attack but with an information operation. And the timeline he presents here affirmatively hides that these events took place after the entire security community understood that there was an information operation aspect to the attack.

Then, on July 27, Trump gave a press conference in Florida where he said numerous things that make all the actions of Sussmann and others justifiable on national security grounds. First, Trump raised doubts about the Russian attribution of the DNC hack that, by that point in July, was the consensus among national security experts, undoubtedly including every tech expert mentioned in this indictment.

I watched this guy Mook and he talked about we think it was Russia that hacked. Now, first of all was what was said on those that’s so bad but he said I watched it. I think he was live. But he said we think it was Russia that hacked.

And then he said — and this is in person sitting and watching television as I’ve been doing — and then he said could be Trump, yeah, yeah. Trump, Trump, oh yeah, Trump. He reminded me of John Lovitz for “Saturday Night Live” in the liar (ph) where he’d go yes, yes, I went to Harvard, Harvard, yes, yes. This is the guy, you have to see it. Yes, it could be Trump, yes, yes. So it is so farfetched. It’s so ridiculous. Honestly I wish I had that power. I’d love to have that power but Russia has no respect for our country.

And that’s why — if it is Russia, nobody even knows this, it’s probably China, or it could be somebody sitting in his bed. But it shows how weak we are, it shows how disrespected we are. Total — assuming it’s Russia or China or one of the major countries and competitors, it’s a total sign of disrespect for our country. Putin and the leaders throughout the world have no respect for our country anymore and they certainly have no respect for our leader. So I know nothing about it.

Trump then offered his bullshit explanation for why he wouldn’t release his tax returns, framing it in terms of whether he had business ties to Russia.

TRUMP: Because it’s under order. And I’ll release them when the audits completed. Nobody would release when it’s under — I’ve had audits for 15 or 16 years. Every year I have a routine audit. I’m under audit, when the audits complete I’ll release them. But zero, I mean I will tell you right now, zero, I have nothing to do with Russia, yes?

Trump then said the nation-state hack of his opponent wasn’t the important thing, the content of the emails that were released was, thereby encouraging the press to participate in the information operation aspect of this attack.

He already did something today where he said don’t blame them, essentially, for your incompetence. Let me tell you, it’s not even about Russia or China or whoever it is that’s doing the hacking. It was about the things that were said in those e-mails. They were terrible things, talking about Jewish, talking about race, talking about atheist, trying to pin labels on people — what was said was a disgrace, and it was Debbie Wasserman Schultz, and believe me, as sure as you’re sitting there, Hillary Clinton knew about it. She knew everything.

Trump then asked Russia to further hack his opponent.

Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing.

Trump then doubled down on the comment he made about his taxes, assuring the press that he had “zero” business ties with Russia.

TRUMP: No, I have nothing to do with Russia, John (ph). How many times do I have say that? Are you a smart man? I have nothing to with Russia, I have nothing to do with Russia.

And even — for anything. What do I have to do with Russia? You know the closest I came to Russia, I bought a house a number of years ago in Palm Beach, Florida.

Palm Beach is a very expensive place. There was a man who went bankrupt and I bought the house for $40 million and I sold it to a Russian for $100 million including brokerage commissions. So I sold it. So I bought it for 40, I told it for 100 to a Russian. That was a number of years ago. I guess probably I sell condos to Russians, OK?

QUESTION: (OFF-MIKE)

TRUMP: Of course I can. I told you, other than normal stuff — I buy a house if I sold it to a Russian. I have nothing to do with Russia. I said that Putin has much better leadership qualities than Obama, but who doesn’t know that?

QUESTION: (OFF-MIKE)

TRUMP: Of course not. I own the Trump organization. Zero, zero. Go ahead.

Trump then reiterated his claim that no one could attribute the DNC hack to Russia.

TRUMP: No, but they seem to be, if it’s Russians. I have no idea. It’s probably not Russia. Nobody knows if it’s Russia. You know the sad thing is? That with the technology and the genius we have in this country, not in government unfortunately, but with the genius we have in government, we don’t even know who took the Democratic National Committee e-mails. We don’t even know who it is.

I heard this morning, one report said they don’t think it’s Russia, they think it might be China. Another report said it might be just a hacker, some guy with a 200 I.Q. that can’t get up in the morning, OK? Nobody knows. Honestly they have no idea if it’s Russia. Might be Russia. But if it’s any foreign country, it shows how little respect they have for the United States. Yes, ma’am.

Finally, Trump also stated that he would consider lifting sanctions on Russia.

QUESTION: I would like to know if you became president, would you recognize (inaudible) Crimea as Russian territory? And also if the U.S. would lift sanctions that are (inaudible)?

TRUMP: We’ll be looking at that. Yeah, we’ll be looking.

Each of these comments, individually, would have raised eyebrows. The same comments, made by an American citizen, would equally have raised alarms among those committed to cybersecurity.

But for a presidential candidate to encourage the hostile nation-state information operation targeting his opponent, then ask the hostile nation-state to further target her, in conjunction with the repeated denials of any business ties to Russia raised real, legitimate questions about whether Trump was putting his own interests above the national security of the country.

You might excuse Durham for excluding this from his indictment because after all he was busy indicting a ham sandwich based on hearsay evidence he might be able to exclude these facts at trial. Except that an August 20 comment from TE-1 that Durham quotes in his indictment may be a direct reference to (and at the least incorporates knowledge of) this press conference.

Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.

That is, Durham included what appears to be a reference to the July 27 press conference. It appears (though Durham obscures this point) that all the actions laid out in this indictment post-date the press conference. Virtually everyone in the US committed to ensuring America’s national security was alarmed by Trump’s comments in this press conference. Yet Durham doesn’t acknowledge that all these actions took place in the wake of public comments that made it reasonable for those committed to cybersecurity to treat Donald Trump as a national security threat, irrespective of partisan affiliation.

Durham will work hard to exclude detail of Trump’s press conference from trial. But I assume that if any of the named subjects of this investigation were to take the stand at trial, they would point out that it was objectively reasonable after July 27 to have national security concerns based on Trump’s encouragement of Russia’s attack on Hillary Clinton and his defensive denials of any business ties. Any of the named subjects of the indictment would be able to make a strong case that there was reason to want to, as a matter of national security, test Trump’s claim to have no financial ties to Russia. Indeed, the bipartisan SSCI Report concluded that Trump posed multiple counterintelligence concerns, and therefore has concluded that Durham’s portrayal of politics as the only potential motive here to be false.

Central to Durham’s theory of prosecution is that there was no sound national security basis to respond to anomalous forensic data suggesting a possible financial tie between Trump and Russia. Except that, after that July 27 speech — and all of these events appear to post-date it — that theory is unsustainable.

The parts of the story Durham doesn’t tell

And not only was it objectively reasonable to test whether Trump’s claims to have “zero” business ties to Russia were false, but those suspecting that Trump was hiding such ties were, in fact, correct.

According to Michael Cohen, when Trump walked off the stage from that July 27 press conference, Cohen asked Trump why he had claimed that he had zero business ties with Russia when he had in fact been pursuing an impossibly lucrative deal to brand a Trump Tower in Moscow. And we now know that within hours of Trump’s request, GRU hackers made a renewed assault on Hillary’s own servers. By the time security researchers pursued anomalous data suggesting covert communications with a Russian bank, Cohen had already participated in discussions about working with two sanctioned Russian banks to fund the Trump Tower deal, had agreed to work with a former GRU officer to broker it, had spoken to an aide of Dmitry Peskov, and had been told that Putin was personally involved in making the deal happen. Just on the Trump Tower basis alone, Trump had publicly lied in such a way that posed a counterintelligence risk to America.

But that was not the only thing that Trump had done by the date when a bunch of security researchers responded to anomalous forensic data to test whether Trump was hiding further ties to Russia’s attack on Hillary Clinton.

In March, Trump hired Paul Manafort, a financially desperate political operative with close ties to a Russian intelligence officer, Konstantin Kilimnik, who (SSCI provided three redacted examples of) may have been involved in the hack-and-leak operation. In April, Manafort started leveraging his relationship with Trump to try to make money. In May, Manafort started regularly sending Kilimnik the campaign’s internal polling data. All that happened before researchers started testing Trump’s claims to have had no tie to Russia. On July 28, Kilimnik emailed Manafort to set up a meeting to talk about the future of Ukraine. Just days after the researchers started the inquiry, on August 2, Manafort met with Kilimnik to discuss carving up Ukraine in the same meeting where he described his strategy to win the election.

In April, an academic with close ties to Russia, Joseph Mifsud, told an unqualified braggart whom Trump had added to his team to pretend he had a foreign policy plan, George Papadopoulos, that Russia had thousands of Hillary’s emails that they intended to release to help Trump.

In May, according to Rick Gates’ testimony, Roger Stone started claiming he had advance knowledge of what would become the WikiLeaks releases. On or about June 15, per Gates, Stone told him that “he had contact with Guccifer 2.” According to a warrant affidavit targeting Stone, he searched Google on “Guccifer” before the Guccifer website went up that day. On June 23, Manafort called Stone and then the two old friends met for 30 minutes in the Trump cafeteria. On June 30, Stone spoke to Trump. According to multiple sources (including Michael Cohen), Stone knew of the DNC drop before it happened.

In June, Don Jr accepted a meeting with Natalia Veselnitskaya at which he believed he would get dirt on Hillary Clinton. At the meeting, Veselnitskaya asked Don Jr to end sanctions on Russia, and the candidate’s son said his dad would reconsider it if he won.

In short, the researchers who, in the wake of Trump’s damning comments, were testing whether Trump had lied about having ties to Russia, not only had objectively reasonable reasons to do that research. But their suspicions were proven correct, over and over again.

Durham describes the outcome of the FBI investigation into the allegations this way:

The FBI’s investigation of these allegations nevertheless concluded that there was insufficient evidence to support the allegations of a secret communications channel with Russian Bank-1. In particular, and among other things, the FBI’s investigation revealed that the email server at issue was not owned or operated by the Trump Organization but, rather, had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients.

Nothing here suggests the FBI disproved that this was an anomaly.

And there’s one more detail that Durham didn’t include in the Sussmann indictment: on July 26, Australia first shared their report about what George Papadopoulos told Alexander Downer in May. The next day, July 27, the FBI Legat in the UK got the tip. On July 31 — before the substantive research into the Alfa Bank allegation began — the FBI opened an UNSUB investigation into who got advance warning about the Russian operation and shared it with George Papadopoulos. In other words, by hiding the dates when Tea Leaves first discovered the anomalous data, Durham is hiding not just the damning things that publicly happened before the Alfa Bank operation got started, but probably details about the tip that turned into the Crossfire Hurricane investigation.

In the wake of the Sussmann indictment, the usual Russian denialists have claimed that this proves that what they call “Russiagate” was all a fraud.

Such claims defy the rules of physics, suggesting that events that happened after the FBI opened an investigation to learn how and why the Trump campaign (via three channels, as it turns out) learned of the Russian attack in advance were in fact the cause of it.

It is likely that Durham will be able to exclude all these details from a Michael Sussmann trial, at least if it remains just a false statements case. He will be able to convince Judge Christopher Cooper, who is presiding over the case, that this information — that the researchers not only had reason to believe Trump presented a cybersecurity risk to the country, but that the researchers turned out to be right, and that FBI had itself determined there was reason to carry out the same kinds of investigations that the researchers did, possibly before any one of them took a single step — is irrelevant to the case against Sussmann. But if Durham charges ConFraudUS based on a claim that it was illegitimate to look into why Donald Trump was inviting Russia to hack his opponent, it will become centrally important that, before these researchers started conducting their investigation, the FBI had likewise decided such an investigation had merit.

The Alfa Bank story was sleazy and unethical. But it was still, nevertheless, an instance where someone representing the victim of a nation-state attack attempted to chase down information that may have pertained to that nation-state attack.

John Durham will go down in history as the guy who decided that torturing detainees, even in excess of legal guidance, was not a crime, but a victim sharing concerns about nation-state hacking is.

Update: It’s likely that Richard Burt was one of the people investigated as part of this effort. Per the Mueller Report, he was the person Petr Aven asked to establish a tie with Trump’s transition in 2016.

After the December 2016 all-hands meeting, A ven tried to establish a connection to the Trump team. A ven instructed Richard Burt to make contact with the incoming Trump Administration. Burt was on the board of directors for LetterOne (L 1 ), another company headed by Aven, and had done work for Alfa-Bank. 1169 Burt had previously served as U.S. ambassador to Germany and Assistant Secretary of State for European and Canadian Affairs, and one of his primary roles with Alfa-Bank and Ll was to facilitate introductions to business contacts in the United States and other Western countries. 1170

While at a L1 board meeting held in Luxembourg in late December 2016, Aven pulled Burt aside and told him that he had spoken to someone high in the Russian government who expressed interest in establishing a communications channel between the Kremlin and the Trump Transition Team. 1171 Aven asked for Burt’s help in contacting members of the Transition Team. 1172 Although Burt had been responsible for helping Aven build connections in the past, Burt viewed Aven’s request as unusual and outside the normal realm of his dealings with Aven. 1173

Burt, who is a member of the board of CNI (discussed at Volume I, Section IV.A.4, supra), 1174 decided to approach CNI president Dimitri Simes for help facilitating A ven’ s request, recalling that Simes had some relationship with Kushner. 1175 At the time, Simes was lobbying the Trump Transition Team, on Burt’s behalf, to appoint Burt U.S. ambassador to Russia.1176

Burt contacted Simes by telephone and asked if he could arrange a meeting with Kushner to discuss setting up a high-level communications channel between Putin and the incoming Administration. 1177 Simes told the Office that he declined and stated to Burt that setting up such a channel was not a good idea in light of the media attention surrounding Russian influence in the U.S. presidential election. 1178 According to Simes, he understood that Burt was seeking a secret channel, and Simes did not want CNI to be seen as an intermediary between the Russian government and the incoming Administration. 1179 Based on what Simes had read in the media, he stated that he already had concerns that Trump’s business connections could be exploited by Russia, and Simes said that he did not want CNI to have any involvement or apparent involvement in facilitating any connection. 118

Update: Corrected scope of Benczkowski’s recusal. His should cover the server issue (and Alfa Bank issues for the first two years he was CRM).

Update: Brian Krebs wrote a post laying out all the people who still believe there’s something going on technically. I don’t think that’s inconsistent, at all, with this one. As noted, everyone who looked at this believes it’s an anomaly. What I keep pointing to is the aftermath of that anomaly got Alfa Bank to act in a certain way that is consistent with Putin’s interests. Krebs notes that it has also led to a lot of scrutiny of security researchers in the US, not unlike the way the aftermath of the Steele dossier discredited most top Russian experts in the US government.

Update: This transcript of Preet Bharara and Joyce Vance discussing the many weaknesses of the Durham indictment largely replicates what I’ve laid out here but is worth a review.