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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

On the Belated Education of John Durham

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When Danchenko says that Counterintelligence Information Procedures Act may have slowed the production of this, he’s suggesting (charitably) that someone at DOJ took a long time to release this information to Durham and that Durham had no control over that process. That’s another thing I predicted in this post about how CIPA would affect this case: “it can end up postponing the time when the defendant actually gets the evidence he will use at trial. So it generally sucks for defendants.”

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

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

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

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

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

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

[snip]

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

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

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

Danchenko waited six weeks and got almost nothing new.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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

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

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Since he was charged on November 3 last year, Igor Danchenko and his legal team have been virtually silent, mostly watching as John Durham’s team repeatedly failed to meet classified discovery dates.

But as we draw closer to the October 11 trial date, there has been more activity.

On August 1, there was a hilariously short status conference, all of four minutes, where Durham himself showed up. On August 21, Andrew DeFilippis — the most abusive of Durham’s prosecutors — dropped off the docket. Last week, Durham’s team asked for and got permission to file their motions in limine under seal — perhaps in an effort to avoid the inflammatory claims they made during the Michael Sussmann trial. Even the Classified Information Procedures Act (CIPA) conference, at which the two sides argued over how much classified information Danchenko needs at trial and whether the government can substitute information to make it less sensitive, seems to have ended inconclusively. Afterwards, Judge Anthony Trenga deferred decision until September 29, in part because the two sides are seemingly still trying to work things out amicably.

Before the hearing, the parties had successfully resolved all issues as to many of the listed documents and during that hearing, the parties agreed to engage in further discussions and efforts with respect to the remaining documents at issue, including Defendant’s willingness to withdraw his notice as to certain listed documents and the Government’s willingness to review the classified nature of certain listed documents and provide summaries with respect to other listed documents, following which Defendant will advise the Court concerning what further interest, if any, he has in using the listed documents at trial in light of the totality of the information provided to him by the Government.

In short, it has lacked all the pre-trial drama of the Sussmann case (perhaps because DeFilippis so badly overstepped, and still lost, in the Sussmann case).

But things may about to get interesting.

In a motion to dismiss the indictment filed Friday, Danchenko calls one of the government’s arguments (pertaining to the four Sergei Millian-related charges) “desperate at best.” The bases Danchenko challenges the indictment against him largely map some of the problems I laid out here: The questions FBI asked are not ones about the topics Durham has charged and Danchenko’s answers — he convincingly argues — were true.

For nearly a year, from January 2017 through November 2017, Mr. Danchenko sat through numerous voluntary FBI interviews and provided hours of truthful information to the government. Four years later, Special Counsel John Durham returned an indictment that alleges Mr. Danchenko knowingly made false statements about two matters when he: (1) acknowledged to the FBI that he talked with PR Executive-1 about issues “related” to the content of the Company Reports but stated that he did not talk about “specific” allegations contained in one of the reports; and (2) made four consistent statements to the FBI about his equivocal “belief” that an anonymous man who called him may have been Chamber President-1. These equivocal and ambiguous answers were prompted by fundamentally ambiguous questions, are literally true, and are immaterial as a matter of law.

Further, the government’s attempt here to stretch § 1001(a)(2) to a defendant’s equivocal and speculative statements about his subjective belief appears to be a first. And it would be a first for good reason. In order to meet its burden of proof in a case predicated on a subjective belief the government would need to prove not whether something did or did not happen but that the defendant did not truly subjectively believe what he said happened or did not happen. That would be a heavy burden in any case and it is an insurmountable one here.

Danchenko also argues (as Sussmann did) his claimed lies could not be material, in this case because Durham’s materiality claim is based in the influence of the Steele dossier, which (as Danchenko notes) he didn’t even know about, much less write.

Significantly, the indictment does not allege that Mr. Danchenko’s allegedly false statements themselves were material, but instead alleges only that the Company Reports, and the information contained in those reports, some of which allegedly came from Mr. Danchenko, were material.

In my series of posts on Danchenko’s case, I even missed some problems with the indictment. I had noted, for example, that Durham entirely misrepresented the question Danchenko was asked about Chuck Dolan on which Durham built one of the false statement charges. Durham claimed the FBI asked Danchenko if Dolan was a source for Danchenko. As I noted and as Danchenko does in this MTD, the question was actually whether Dolan was another sub-source directly for Christopher Steele.

But Danchenko notes two more problems with the charge.

First, he was asked whether Dolan and he “spoken” about the matters in the dossier; and to prove they did, Durham provides an email. 

Count One alleges that Mr. Danchenko made a false statement when “he denied to agents of the FBI that he had spoken with PR Executive-1 about any [specific] material contained in the Company Reports, when in truth and in fact, and as the defendant well knew, PR Executive-1 was the source for an allegation contained in a Company Report dated August 22, 2016 and was otherwise involved in the events and information described in the reports.”

[snip]

For “proof” of the alleged false statement under this charge, the indictment relies on an email exchange between PR Executive-1 and Mr. Danchenko on or about August 19-20, 2016.

More problematic still, in context, the question was about whether Danchenko and Dolan had spoken about allegations that remained in the dossier after Steele wrote them up, a conversation that (because neither had seen Steele’s reports in real time) could only have taken place after January 11, when BuzzFeed published the dossier.

Next, when asked whether Mr. Danchenko and PR Executive-1 ever “talked . . . about anything that showed up in the dossier [Company Reports],” Mr. Danchenko responded, “No. We talked about, you know, related issues perhaps but no, no, no, nothing specific.” Indictment at 18 (emphasis added). The most reasonable reading of this question is whether Mr. Danchenko and PR Executive-1 talked about the Company Reports themselves after they were published. Mr. Danchenko’s answer to this question was literally true because he never talked to PR Executive-1 about the specific allegations contained in the Company Reports themselves, but they did talk about issues “related” to the allegations later published in those reports. Moreover, the specific question posed to Mr. Danchenko was whether Mr. Danchenko and PR Executive-1 “talked” about anything in the dossier. That part of the question was not ambiguous and, importantly, FBI Agent1 never asked whether Mr. Danchenko and PR Executive-1 had ever exchanged emails about information that showed up in the dossier. For that reason alone, evidence that PR Executive-1 allegedly emailed Mr. Danchenko about information contained in the Reports does not make Mr. Danchenko’s answer false

In arguing that his comments about Dolan weren’t material, Danchenko later confirms something I suspected: the FBI wasn’t much interested in the dossier report at the heart of Durham’s purported smoking gun evidence.

[T]he government apparently never even asked Mr. Danchenko about the specific information regarding Campaign Manager-1 that was contained in the relevant Company Report.

Remember: Durham tried to make this exchange stand in for the pee tape report (it worked with the press, too!!). But he didn’t actually charge anything pertaining to the pee tape.

Danchenko similarly notes that the government never asked Danchenko about something else Durham treated as a smoking gun: Emails from after the time, in July 2016, when Danchenko failed to meet someone he believed to be Sergei Millian, one of which Danchenko turned over himself in his first meeting with the FBI.

Danchenko was never asked about that email because it did nothing to clarify whether Chamber President-1 had been the anonymous caller and because it was, in truth and in fact, ultimately immaterial to the FBI’s investigation.

And with regards the Millian questions, Danchenko notes that Durham doesn’t even argue his responses were material. He instead argues the dossier was (though I think Durham will rebut this one).

As an initial matter, the indictment itself fails to even allege that Mr. Danchenko’s statements to the FBI were material. Instead, the indictment argues that the Company Reports created by U.K. Person-1 prior to Mr. Danchenko’s statements to the FBI were material:

(1) the FBI’s investigation of the Trump Campaign relied in large part on the Company Reports to obtain FISA warrants on Advisor-1, (2) 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; and (3) 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. Indictment at 4.

The materiality of the Company Reports, if any, is irrelevant to the materiality of the statements that Mr. Danchenko later made to the FBI and cannot provide a basis for a false statement charge against Mr. Danchenko. 7

He notes, as I did, that his answers in interviews after the first two Carter Page applications could not have been material to those applications.

Motions to dismiss rarely work, and this one is unlikely to either (though I think Danchenko’s argument with respect to the Dolan charge is particularly strong).

But if Durham adheres to the same sloppiness they did in the Sussmann case, the MTD may be useful to Danchenko for other reasons, besides framing the case for Judge Trenga. MTDs are supposed to rely entirely on what is charged in the indictment. But in addition to the observations that Danchenko was asked neither about the Dolan email Durham has made central to the indictment nor Danchenko’s own emails after the failed July 2016 meeting in NYC, Danchenko’s argument is also premised on there not being further evidence to substantiate what appears on the face of the indictment. For example, if Durham had testimony from Dolan about conversations with Danchenko about the pee tape, Danchenko might not have argued as he has. And Danchenko explicitly states that the indictment does not claim a July 2016 phone call Danchenko believed to be from Millian did not happen — a weakness in the indictment I raised several times.

Notably, the 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.

Nine months into discovery, Danchenko would know for a fact if Durham had conclusive proof that he didn’t get a call. He’d probably know the substance of Dolan’s testimony against him.

But in response to an attack on the shoddiness of this indictment, Durham may well — as he did with Sussmann — talk about what they would prove at trial, not what was in the indictment. If Durham has proof the call didn’t happen or thinks he can argue it, he may well reveal it in response. In the Sussmann case, anyway, Durham didn’t have the goods.

And along the way, Danchenko has nodded to where this will go if the indictment is not dismissed. Most notably, Danchenko asserts, as fact, that the FBI investigation into Millian long preceded his interviews.

Indeed, the FBI was already investigating Chamber President-1’s potential involvement with Russian interference efforts long before it had ever interviewed or even identified Mr. Danchenko.

The scope and results of the investigation into Millian is presumably one of the classified details that Danchenko has argued (correctly) he needs at trial, and if he has, then Trenga will be quite familiar with the substance of the evidence. If Danchenko does make an argument about the folly of relying on Millian as a key witness, then Danchenko’s trial may be even more of an indictment of the Durham investigation than Sussmann’s was.

In fact, early in this motion, Danchenko makes the contrast I keep making: between Mueller’s substantive results and Durham’s failure thus far to undermine that substance with shoddy false statements indictments.

Between January and November 2017, Mr. Danchenko not only answered every question to the best of his ability, even when asked to speculate, but also provided emails and contact information for other potential sources of information in the Reports. The investigation into the Reports was ultimately completed by Special Counsel Robert S. Mueller, III, in or about November 2017 and the Special Counsel’s office closed its entire investigation into possible Trump/Russia collusion in March 2019. Approximately thirty-four individuals were charged by Mueller’s office, including several for providing false statements to investigators. Mr. Danchenko was not among them. To the contrary, not only did investigators and government officials repeatedly represent that Mr. Danchenko had been honest and forthcoming in his interviews, but also resolved discrepancies between his recollection of events and that of others in Mr. Danchenko’s favor.

In or about April 2019, and just one month after Mueller had concluded his investigation, then President Trump’s Attorney General, William Barr, tapped John Durham, the U.S. Attorney for the District of Connecticut, to review the origins of the Russia investigation and efforts by law enforcement to investigate the Trump campaign. Just prior to the end of former President Trump’s term, Barr appointed Mr. Durham Special Counsel to carry out his investigation. Through the instant indictment, the Durham Special Counsel’s Office now claims to have uncovered false statements made by Mr. Danchenko that the previous special counsel did not, despite relying substantially on the same evidence, the same statements, and the same agents involved in the Mueller investigation.

While he doesn’t say it explicitly, in several places Danchenko makes clear that both Mueller and Michael Horowitz will affirm that, for years, Danchenko was consistently viewed as candid and his candid views were material to both those investigations.

And because Durham is now claiming otherwise, based off issues that weren’t even of interest to investigators, Durham risks putting himself on trial in October.

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

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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

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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.

Will KleptoCapture Catch John Durham, Along with the Russian Spies and Oligarchs?

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I’ve been right about a lot of things regarding John Durham’s investigation (though not, apparently, that he would supersede the indictment against Michael Sussmann — maybe he was afraid of getting no-billed if he corrected the things in the indictment he has since discovered to be false?).

Perhaps the most prescient observation I’ve made, though, was that Durham had no fucking clue where to look for evidence related to his already-charged allegations.

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.

I said that in November. Since that time in the Sussmann case, Durham has had to publicly confess he had not:

Effectively, Durham spent most of three years speaking to those who would confirm his conspiracy theories, and not consulting the actual evidence. It took until six months after Durham charged Sussmann before Durham tested Sussmann’s sworn explanation for his Baker meeting — and when he checked, he found the evidence backed Sussmann’s explanation.

Six months after indicting Igor Danchenko, Durham asked to extend discovery another month

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

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

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

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

[snip]

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

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

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

Danchenko waited six weeks and got almost nothing new.

See this post for an explanation of all the classified information that Danchenko should be able to demand and the onerous process that using it requires, called Classified Information Procedures Act. Even in November, I showed that Danchenko could likely make a case that he should get discovery from the FBI and NSA, and probably CIA and Treasury. There is no way Durham is getting through this case with just 5,000 classified documents.

As he noted in his opposition to this latest request for an extension, with each request, Durham’s proposed schedule was shrinking the time afforded Danchenko to review classified discovery before providing a list of the classified information he wanted to use at trial (called a CIPA 5 notice), first from 60 days to 40, and then from 40 days to 22.

On March 22, 2022, the Special Counsel filed a Consent Motion to Adjourn the Classified Discovery and CIPA Schedule. Dkt. 44. In his Motion, the Special Counsel sought to extend the deadline to produce classified discovery from March 29, 2022, to May 13, 2022. Id. at 2. The Special Counsel’s motion also sought to extend the dates for various CIPA filings and hearings. Id. Importantly, the Special Counsel’s proposed schedule reduced the amount of time within which Mr. Danchenko had to file his Section 5(a) written notice from approximately 60 days after the close of classified discovery to approximately 40 days.

[snip]

On May 9, 2022, the Special Counsel filed his Second Motion to Adjourn the Classified Discovery and CIPA Schedule. Dkt. 48. In his motion, the Special Counsel now tells the Court that he can provide the outstanding classified discovery by “no later than” June 13, 2022. See id. at 2. He also proposes a June 29, 2022, deadline for Defendant’s Section 5(a) written notice. Id. Therefore, the Special Counsel has essentially asked this Court to enter an Order that will now decrease Mr. Danchenko’s time within which to file his Section 5(a) written notice from approximately 40 days after the close of classified discovery to approximately 22 days.

[snip]

Mr. Danchenko would be substantially prejudiced by the Special Counsel’s proposed schedule because it significantly shortens the time period within which Mr. Danchenko can review any final classified productions and file his CIPA Section 5(a) notice. That is of particular concern to Mr. Danchenko because the Special Counsel has not provided sufficient notice of how much additional classified discovery may be forthcoming other than his “belie[f]” that the “bulk” of the classified discovery has already been produced.

Shrinking Danchenko’s deadlines would make the additional discovery that is still outstanding far less useful. In the Sussmann case, for example, it took over a month for Sussmann’s team to find the documents that disprove Durham’s case buried among 22,000 other documents provided on his extended deadline. So while Durham might be trying to comply with discovery obligations, arguing that the proper solution to his struggles fulfilling discovery is to shrink Danchenko’s own time to review the evidence suggests he’s not doing so in good faith.

Judge Trenga must have agreed. While he granted the government’s request for an extension, he gave Danchenko 42 days to submit his CIPA 5 notice.

A Russian dog named Putin ate Durham’s classified homework

I’ve noted how the post-invasion sanctions on Alfa Bank deprived John Durham of a second investigative team, Alfa Bank’s Skadden Arps lawyers, whose filings a judge observed seemed to be “written by the same people” as Durham’s.

But the aftermath of Putin’s attempt to overthrow Ukraine may be causing Durham even bigger problems in the Danchenko case.

When Durham asked for an extension of his CIPA deadline in the Sussmann case days after Russia extended its invasion of Ukraine, he explained that the people who had to write declarations in support of CIPA (usually agency heads like CIA Director William Burns or NSA Director Paul Nakasone) were busy dealing with the response to Ukraine.

However, the Government’s submission includes not only the Government’s memorandum but also one or more supporting declarations from officials of the U.S. intelligence community. The Government’s review of potentially discoverable material is ongoing, and these officials cannot finalize their declarations until that review is complete.

Moreover, recent world events in Ukraine have further delayed the Government’s review and the officials’ preparation of the supporting declaration(s). As a result, the Government respectfully submits that a modest two-week adjournment request to its CIPA Section 4 filing deadline is appropriate and would not impact any other deadlines, to include the currently scheduled trial date

Effectively, this request moved the CIPA deadline from a week before Durham’s classified discovery deadline to a week after; yet Durham just committed, once again, to finalizing his CIPA 4 submission almost a week before his classified discovery deadline in the Danchenko case.

That’s important because Durham overpromised when he said he could finish a CIPA filing before the discovery deadline. Durham filed a supplement to his CIPA 4 notice on May 7 (nine days before trial) that, unless Judge Cooper ruled orally at a closed hearing last week, remains outstanding. That’s not entirely unusual in a case that relies on classified information, but if Cooper were to rule this classified information was necessary for Sussmann’s defense, it would give Sussmann no time to actually prepare to use it.

Durham cited the Ukraine response again on March 22, a month after Russia launched its failed attempt to take Kyiv, when he asked for an extension on his classified discovery deadline.

However, recent world events in Ukraine have contributed to delays in the production of classified discovery. The officials preparing and reviewing the documents at the FBI and intelligence agencies are heavily engaged in matters related to Ukraine.

Importantly, these people focusing on keeping us safe from Russian aggression rather than, as Durham is, making us safe for Russian aggression, are different than the people cited in the Sussmann case. These aren’t senior officials, but instead those “preparing and reviewing the documents at the FBI and intelligence agencies.” That’s not William Burns, that’s FBI counterintelligence agents, among others.

In last week’s request for an extension, Durham didn’t mention Ukraine, but his reference to “overseas activities” suggests the response to Ukraine remains the problem.

However, recent world events continue to contribute to delays in the processing and production of classified discovery. In particular, some of the officials preparing and reviewing the documents at the FBI and intelligence agencies continue to be heavily engaged in matters related to overseas activities.

Unsurprisingly, Danchenko asked Trenga to require Durham to provide some kind of explanation for why “overseas activities,” probably Ukraine, continue to delay classified discovery in a case criminalizing an attempt to fight Russia’s attack on democracy in 2016.

Moreover, the Special Counsel has failed to adequately explain how “recent world events” (Dkt. 48 at 2) have specifically made it impossible for him to meet his discovery obligations. While it seems unlikely that the same government officials charged with declassifying discovery are also responding to events overseas, it certainly is possible. But, even if that is the case, the Special Counsel must offer more explanation than he has, especially in light of the fact that his prior motion to extend the discovery deadline was based on the events in Ukraine, and the ongoing nature of that conflict must or should have been considered when he requested the May 13 deadline.

Sadly, Trenga didn’t order up an explanation for why this delay, probably Ukraine-related, is causing so many difficulties for Durham’s prosecution of Danchenko.

KleptoCapture threatens at least one and possibly up to three key Durham figures

One reason I would have liked Trenga to force Durham to explain how a dog named Putin ate his classified homework is because the public response to Russia’s attempt to conquer Ukraine has already implicated three figures who are key to Durham’s case. While I need to update it, this post attempts to capture everything that the US government and some partners have done since the expanded invasion.

Dmitry Peskov

Perhaps the response least damaging to Durham’s case — but one that will affect discovery — involves Dmitry Peskov. As I explained in this post, Durham made Peskov’s relationship with Chuck Dolan and Olga Galkina a key part of his indictment against Danchenko.

In his role as a public relations professional, [Dolan] spent much of his career interacting with Eurasian clients with a particular focus on Russia. For example, from in or about 2006 through in or about 2014, the Russian Federation retained [Dolan] and his then-employer to handle global public relations for the Russian government and a state-owned energy company. [Dolan] served as a lead consultant during that project and frequently interacted with senior Russian Federation leadership whose names would later appear in the Company Reports, including the Press Secretary of the Russian Presidential Administration (“Russian Press Secretary-I”), the Deputy Press Secretary (“Russian Deputy Press Secretary-I”), and others in the Russian Presidential Press Department.

[snip]

In anticipation of the June 2016 Planning Trip to Moscow, [Dolan] also communicated with [Peskov] and Russian Deputy Press Secretary-I, both of whom worked in the Kremlin and, as noted above, also appeared in the Company Reports.

[snip]

Additionally, on or about July 13, 2016, [Galkina] sent a message to a Russia-based associate and stated that [Dolan] had written a letter to Russian Press Secretary-1 in support of [Galkina]’s candidacy for a position in the Russian Presidential Administration.

On March 3, the State Department added Peskov to the sanctions list under a 2021 Executive Order President Biden signed, in part, to target those who (among other things), “undermine the conduct of free and fair democratic elections and democratic institutions in the United States and its allies and partners.” On March 11, Treasury added Peskov’s family members to the sanctions list. The package used to sanction Peskov would have been the product of intelligence reports circulated within the US government.

While the legal reason Peskov was sanctioned pertained to his official role in the Russian government (and the lavish lifestyles his family enjoys even with his civil service salary), State also described Peskov as “the chief propagandist of the Russian Federation.” That, by itself, would be unremarkable. But if — as even Durham alludes — Peskov had a role in feeding Galkina disinformation for the Steele dossier, particularly if he crafted disinformation to maximally exploit Michael Cohen’s secret call with Peskov’s office in January 2016, that could be a part of the sanctions package against Peskov. If it were, then it would be centrally important discovery for Danchenko.

Oleg Deripaska

Then there’s Oleg Deripaska. This post lays out in depth the reasons why Danchenko would have reason to demand information on Deripaska’s role in the dossier, including:

  • 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

Given his blissful ignorance of the actual results of the Mueller investigation and the DOJ IG Carter Page investigation, Durham was always going to have a nasty discovery surprise in complying with such requests. Plus, a search last October of two Deripaska-related properties made clear that the most likely source of disinformation in the dossier was under aggressive criminal investigation for sanctions violations.

A recent Bloomberg story reported that that criminal investigation has now been moved under and given the prioritization of the KleptoCapture initiative started in response to the Ukraine war.

Deripaska has been sanctioned since 2018 for his ties to Vladimir Putin, and the seizures at a Washington mansion and New York townhouse linked to him predate the invasion of Ukraine. But the investigation of Deripaska’s assets is now part of an escalating U.S. crackdown on ultra-rich Russians suspected of laundering money and hiding assets to help finance Putin’s regime.

The raids were key steps to unearth information that may determine whether — and how — Deripaska moved money around. Among the mishmash of items taken from the New York and Washington properties were half a dozen works of fine art, sunglasses, hiking boots, housewares, financial records, telephone bills and other documents, according to the people, who asked not to be identified because the investigation hasn’t been made public.

The Deripaska inquiry is now part of a special U.S. Department of Justice task force dubbed “KleptoCapture,” according to New York federal prosecutor Andrew Adams, who is heading up the group.

“As Russia and its aggression continues, we have our eyes on every piece of art and real estate purchased with dirty money,” Deputy Attorney General Lisa Monaco said at a recent news conference.

If DOJ plans on indicting Deripaska — for sanctions violations and anything else on which the statute of limitations has not expired — they might delay discovery cooperation with Durham until they do so. And if such a hypothetical indictment mentioned Deripaska’s role in facilitating the 2016 election interference and/or successful efforts to exploit the dossier to undermine the Russian investigation, it might make Durham’s charges against Danchenko unsustainable, even if he is able to otherwise fulfill his discovery requirements. Durham’s theory of prosecution is that Danchenko is the big villain that led to FBI confusion over the dossier, but Deripaska seems to have had a far bigger role in that.

Sergei Millian

Finally, there’s Sergei Millian, who happened to meet with Deripaska in 2016 at an event, the St. Petersburg International Economic Forum, that played a key role in the election operation.

In the same week Millian met Deripaska, a bunch of cybersecurity experts first started looking for evidence of Russian hacking in DNS data and Igor Danchenko was in Moscow meeting with Chuck Dolan and his other named Steele dossier sources.

As the DOJ IG Report and declassified footnotes make clear, FBI opened a counterintelligence investigation into Millian in October 2016. All the evidence indicates that the investigation did not arise from Crossfire Hurricane and, given that Millian’s ID was hidden in the dossier reports shared with NYFO on their way to HQ, and given that other information on Millian was fed into DC, not NY, was probably predicated completely independent of Crossfire Hurricane.

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.

303 Although an email indicates that the OI Attorney learned in March 2017 that the FBI had an open case on [Millian], the subsequent renewal applications did not include this fact. According to the OI Attorney, and as reflected in Renewal Application Nos. 2 and 3, the FBI expressed uncertainty about whether this sub‐source was Person 1. However, other FBI documents in the same time period reflect that the ongoing assumption by the Crossfire Hurricane team was that this sub‐source was [Millian].

Plus, Mueller found plenty on Millian to raise separate issues of concern.

Given several other counterintelligence cases developed in NYFO, the predication likely had more to do with Russia’s effort to use cultural and other diaspora groups as a way to covertly extend Russian influence.

And in fact, Millian’s group — the Russian American Chamber of Commerce — has already made a cameo appearance in one such prosecution, that against Elena Branson, a complaint that was rolled out in the same week as the sanctions against Peskov.

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.

This awareness and flouting of registration requirements is the kind of thing that often features in prosecutions for 18 USC 951 violations. And, at least in the case of Branson, the statute of limitations can extend so long as the person in question continues to play a role in US politics, though in Branson’s case, she only fled the country 18 months ago.

If the FBI believed Millian was an unregistered foreign agent who fled to avoid an investigation in 2017, his ongoing involvement in efforts to gin up an investigation into the investigation — particularly claims that, even according to Durham, misinterpreted facts his own prosecutors filed and thereby contributed to death threats against witnesses in the investigation — then it wouldn’t rule out an investigation into Millian himself, an investigation that would have preceded Durham’s reckless reliance on him (or rather, Millian’s unvetted Twitter feed) as a star witness against Danchenko.

Even Millian’s public claim (albeit one offered by someone the FBI considers an embellisher) that he called the White House directly to elicit this investigation could be of interest.

We can now say with great certainty that Durham didn’t check the most obvious sources of evidence against key players involved in the Steele dossier, such as DOJ IG’s backup files in the Carter Page investigation that is the primary focus of Durham’s Danchenko indictment. That makes it highly likely he never bothered to see whether other parts of DOJ considered key players in the Steele dossier to be actual threats to democracy.

One of those key players is undoubtedly Oleg Deripaska. And the renewed focus on Russian influence operations may expand beyond that.

Wall Street Journal: Bigger Dupes of John Durham or Alexsej Gubarev?

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The Wall Street Journal claims they’ve cracked the Steele dossier!

In a 4,300-word romantic comedy, they claim that, “many of the dossier’s key details originated with a few people gossiping after they had been brought together over a minor corporate publicity contract.” There are several incorrect aspects of this fairy tale.

First, WSJ claims that, “the [Igor Danchenko] indictment pointed to Mr. Dolan as an important source for the dossier.” Even assuming the allegations in the indictment were accurate (some are not), that’s not what the indictment claims. It alleges that Dolan was the source for the perhaps most verifiably true claim in the dossier (which is not surprising given that Dolan told the FBI he simply repeated a news story). It suggests, as part of uncharged materiality claims, that Dolan may have played a part in but does not charge that he was the direct source for three other reports. That doesn’t make him “an important source” (though I’m sure Durham is happy he duped some reporters into making that claim).

Here’s how WSJ credulously takes the most spectacular of those materiality claims and repeats it, all without explaining that in the FBI interviews they otherwise cite repeatedly, Danchenko attributed the kompromat claim to Sergey Abyshev, who confirmed that he and Ivan Vorontsov met with Danchenko on that trip to Moscow.

One of Mr. Danchenko’s chats with Mr. Dolan appeared to figure in the dossier’s most inflammatory entry.

Mr. Dolan was helping to organize a fall 2016 conference in Moscow to drum up foreign investment. While in Moscow in June to lay the groundwork, he stayed at the Ritz-Carlton, a few hundred yards from the Kremlin. He met with the hotel’s general manager and got a tour of the hotel, including the presidential suite, according to the indictment of Mr. Danchenko. It says he also met with Mr. Danchenko, who was in town.

Less than a week later, Mr. Steele’s first dossier chapter alleged that a “Source D,” described as a close associate of Mr. Trump, had said Mr. Trump once hired prostitutes to urinate on the bed when he stayed in the Ritz-Carlton’s presidential suite, because former President Barack Obama, whom the dossier said Mr. Trump detested, had stayed there.

The dossier said the Kremlin had video and was holding it as kompromat, or compromising material. It said the episode had been confirmed by a senior member of the hotel staff and a female hotel staffer.

Prosecutors noted that the dossier reflected some details Mr. Dolan had learned on the hotel tour, such as that Mr. Trump had stayed at the hotel’s presidential suite.

Telling Danchenko that Trump had stayed at the Ritz — if that is where Danchenko learned that detail — is not serving as the key source here. Maybe Danchenko did make more of what Dolan told him, maybe Danchenko or Steele turned Dolan into Source D, but Durham has neither alleged nor charged it.

I’m sure he loves when reporters insinuate that he did, though.

Meanwhile, by claiming they’ve cracked the dossier with its “minor corporate publicity contract” story, WSJ misrepresents the relationship between Danchenko and someone who is an important source of the dossier, Olga Galkina. She played a part in more claims in the dossier than Dolan and those claims were far more important. Those include the most important one used in the Carter Page FISA application, the discredited Michael Cohen in Prague stories, as well as one of the claims that Durham suggests Dolan was involved with. WSJ suggests Danchenko only started obtaining information from her in the context of her relationship with Dolan.

What brought Mr. Danchenko, Mr. Dolan and Ms. Galkina together was a marketing campaign—funded by the Dolan PR client whose company was cited in the dossier.

He was Aleksej Gubarev, a Russian internet entrepreneur living in Cyprus, who decided in early 2016 to launch a U.S. marketing campaign to burnish the image of his cloud server company.

That’s affirmatively misleading, because Danchenko was using Galkina as a source before he ever formally met Dolan. In Danchenko’s interview, for example, he describes using Galkina as a source for other projects. “[Danchenko] has been able to collect information for Orbis across a wide range of topics — major Russian firms; Russian state entities, including the Kremlin.” Importantly, Galkina knew that Danchenko worked in business intelligence and even tried to task him in the period after the dossier became public.

Having therefore misrepresented the relationship between Danchenko and Galkina, WSJ repeats a second time that many of the claims in the dossier came from “this route,” meaning the PR relationship.

Mr. Danchenko told the FBI of other people he also spoke to in gathering information for Mr. Steele. Many of his details, however, came through this route, the Journal’s review shows.

The spreadsheet the FBI used to vet the dossier identified well over a hundred discrete claims in the dossier. Durham alleges that Chuck Dolan was the source for one claim and involved with part of the sourcing for three others. That’s not “many” out of a hundred. So once you correct for WSJ’s false claims about the Galkina relationship, that claim too falls apart.

Crazier still, WSJ makes no mention of the reason the newly formed relationship between Galkina and Dolan was important — and important to at least one of the central false claims in the dossier. As the indictment describes, that relationship allowed Galkina to use Dolan’s access to the Kremlin for her own benefit.

b. Additionally, on or about July 13, 2016, [Galkina] sent a message to a Russia-based associate and stated that [Dolan] had written a letter to Russian Press Secretary-1 in support of [Galkina]’s candidacy for a position in the Russian Presidential Administration.

Dolan used his ties to Dmitry Peskov to help Galkina. That’s the import of the relationship! But if you acknowledge that, then a key premise of the story, most notably its claim that, “much of the dossier’s information came from [] anything but Kremlin insiders,” falls apart because it presents the possibility that the Cohen in Prague story came from Peskov.

Dmitry Peskov is the quintessential Kremlin insider. He also knew firsthand that Donald Trump was lying on the campaign trail to hide a secret conversation Michael Cohen had had with Peskov’s own office in January 2016. Dolan helped Galkina get closer to Peskov. And after that happened, when Danchenko asked Galkina for information on a number of Trump flunkies, Cohen’s name is the one that Galkina “almost immediately” recognized. If Peskov was involved in all that, then it explains a great deal about the most damning claim in the dossier.

Peskov’s name doesn’t appear in the WSJ story.

Another name that doesn’t appear in the WSJ is Oleg Deripaska’s, even while WSJ puzzles over whether the dossier was intentionally filled with disinformation.

One remaining riddle is whether the dossier’s misinformation was purely careless or might have included disinformation sown by the Kremlin itself.

WSJ cites the DOJ IG Report on Carter Page repeatedly, so they know all the references to Deripaska in it (though perhaps not the declassified footnotes reporting that Deripaska, whose associate Konstantin Kilimnik played a key role in the election interference operation, may have learned of the dossier project by early July). But they’re silent on Danchenko’s earlier tasking to collect on Paul Manafort for Deripaska, which is at least as central to understanding the dossier as the ties between Dolan and Galkina.

Mr. Danchenko’s work for Mr. Steele, which had mostly involved business intelligence, also took a turn toward politics. Mr. Steele, a former agent in Russia for the British intelligence agency MI-6, asked Mr. Danchenko to work on a new assignment Mr. Steele had accepted: to look for compromising material on Mr. Trump in Russia.

It’s like WSJ made a conscious decision not to name any of the sanctioned Russians who played a role in the dossier.

Perhaps it is unsurprising, then, that the WSJ journalists who claim to have cracked the dossier make several false claims about the Mueller investigation.

But Mr. Mueller reported no evidence that the campaign conspired with Russia’s military intelligence apparatus as it hacked into the email of the Democratic National Committee. The dossier took real events, such as the visit of a Trump adviser to Moscow, and expounded on them by describing meetings with high-level Kremlin officials for which no corroborating evidence surfaced.

It’s actually false that there was no corroboration for the Igor Sechin claim. The son of the guy who hosted Carter Page in Moscow described hearing the rumor too (and also described that they couldn’t account for all of Page’s time in Moscow).

Crazier still, it takes a special kind of incompetence to assert, as fact, that, “Mueller reported no evidence that the campaign conspired” with GRU, basing that claim on a report on Bill Barr’s letter to Congress that a judge subsequently ruled lacked candor. Mueller found evidence that the campaign conspired with Russia, just not enough to charge. He also got verdicts or rulings that Michael Cohen lied about his secret communications with Peskov (in which Cohen said he’d be happy to chase a real estate deal relying on a former GRU officer as broker), the Coffee Boy lied about getting advance notice of Russia’s plans, Manafort lied about passing polling data and campaign strategy to Kilimnik, and Mike Flynn lied about his attempt to undermine sanctions on Russia. The Mueller Report also revealed that “a Section 1030 conspiracy charge against Stone,” and the GRU was, “the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office” (though Barr buried this detail in the 2020 election); a referral for further investigation of a hacking conspiracy is the opposite of finding no evidence of a conspiracy. And a jury found that Stone had lied to cover up what his real ties to the Russian operation were.

I mean, seriously, it’s 2022. No legitimate journalist has an excuse for sounding like a Seth Rich truther, as WSJ’s two journalists do.

So the WSJ doesn’t mention Peskov and doesn’t mention Deripaska. It does, however, mention Aleksej Gubarev, who seems to have enthusiastically participated in a misleading story claiming that his contractor, Dolan, and his employee, Galkina, were singularly responsible for the dossier.

Mr. Gubarev’s company flew Mr. Dolan and two KGlobal colleagues to Cyprus in July 2016 and put them up at the Four Seasons hotel so they could deliver a sales pitch, Mr. Gubarev said. With Mr. Trump clinching the Republican nomination in the U.S., the talk in Cyprus wandered into politics.

[snip]

Mr. Gubarev said he learned about the report when a friend sent him a link to the BuzzFeed article. Mr. Gubarev said that at first he didn’t take it seriously, writing an email to Mr. Dolan with a smiling emoticon in the subject line and saying “need to found out who is make this stupid report.”

Mr. Dolan told him he thought the report might get traction in public. “It will have some legs with the sex allegations,” he wrote

Mr. Gubarev had declined to renew the publicity campaign for which he hired Mr. Dolan, saying he expected more for the $75,000 his company spent. But after the dossier’s publication, Mr. Gubarev hired Mr. Dolan again, this time to fight off the bad press, as Western banks were moving to cut his credit lines.

Mr. Gubarev said Mr. Dolan told him that Mr. Danchenko likely had compiled the dossier for Mr. Steele.

Mr. Gubarev sued BuzzFeed and Mr. Steele, lodging defamation claims in Florida and at the High Court in London.

[snip]

Mr. Gubarev said he was shocked that the indictment pointed to Mr. Dolan as an important source for the dossier. He said Mr. Dolan did a good job helping him fight to clear his name. “He is a nice guy, he did his best,” Mr. Gubarev said. “Washington is a strange place that I don’t understand.”

WSJ repeats all these Gubarev claims without noting that his lawfare was just one part of an extended campaign of lawfare, one that involves people like Petr Aven and Yevgeniy Prigozhin with known direct ties to and taskings from Putin.

In a story that openly wonders about instruments of disinformation, you’d think they’d be a bit more curious about why Gubarev would participate so enthusiastically. But then, a story that claims to explain, “how the Steele dossier was created,” by ignoring Deripaska’s pre-existing relationship with Steele and four of the most important sources for it is itself a vehicle of disinformation.

Update: In related news, Durham wants another month extension on classified discovery; the people they need help from are too busy indicting Russian foreign agents, including one who discussed that FARA was a “problem” with an employe of one of Durham’s star witness, Sergei Millian. Danchenko objects to the delay.

However, recent world events continue to contribute to delays in the processing and production of classified discovery. In particular, some of the officials preparing and reviewing the documents at the FBI and intelligence agencies continue to be heavily engaged in matters related to overseas activities. Nevertheless, the Government is continuing to press the relevant authorities to produce documents in classified discovery as quickly as possible and on a rolling basis, and no later than the proposed deadline set forth below.

Durham claims there are only 5,000 still-classified pages in discovery.

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

For the reasons laid out in this post, I find that spectacularly unbelievable.

The original deadline was March 29. They want the deadline extended to June 13, which would be a 76-day extension.

Fun with Bates Stamps, Part One: John Durham Confuses His Two Defendants to Rile Up the Frothers

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Before I look at what newly disclosed notes from March 6, 2017 (written by Tashina Gaushar, Mary McCord, and Scott Schools) reveal about the Crossfire Hurricane investigation, including that Carter Page’s FISA was “fruitful,” which will pose Durham some difficulties in the Igor Danchenko investigation, I want to do two posts having some fun with Bates stamps.

Bates stamps are the way that lawyers track the documents they shuffle around in discovery. Every page of a document should be stamped sequentially to show the document’s chain of custody; the numbers also make referring to such documents in court filings easier. Just as one not-at-all random example of how it is supposed to work, this January 31, 2017 document John Durham obtained from the CIA shows three Bates stamps.

We can’t really be entirely sure what chain of custody this shows. Perhaps CIA stamped the outgoing files with  “CIA-0000019” and DOJ stamped the incoming CIA file, “DOJ_REQ_0242039.” We know, however, that Durham’s stamp is “SC-00081634.” Because Bates stamps are sequential, they help us to understand the order in which certain documents are handled.

One thing Bates stamps show us is that John Durham got approval to use a bunch of mostly-irrelevant Fusion GPS exhibits and did not get approval for the ones he actually wants to use at Michael Sussmann’s trial.

Because his team is made up of professionals, along with his objections to Durham’s exhibits, Michael Sussmann included a list that tied the exhibit numbers Durham assigned to the Bates stamps of the documents in question. That allows us to compare what exhibits Durham used to get Judge Christopher Cooper to buy off on submitting Fusion GPS documents with the jury with the Bates numbers of the Fusion GPS documents he really wants to introduce (thanks to William Ockham for doing a lot of this work).

A comparison of what Durham accidentally-on-purpose published to the docket with what Durham actually wants to introduce at trial shows that, of 62 pages of exhibits, he has identified just the following as exhibits at trial:

  • SC-00082558[-559]: July 31, 2015 email between Jake Berkowitz, Tom Hamburger, and Glenn Simpson re: Carter Page and Walid Phares
  • SC-00100359[-361]: September 24 through 27, 2016 email thread including Eric Lichtblau, Glenn Simpson, and Peter Fritsch on open source claim regarding Sergei Millian having a tie to Alfa Bank
  • SC-00027527[-541]: October 5, 2016 email from Fritsch to Isikoff sharing Alfa Group overview
  • SC-00027501: October 5, 2016 email from Fritsch to Lichtblau sharing link sent by Mark Hosenball claiming, “found this published on the web”
  • SC-00027483: October 5, 2016 email from Fritsch to Lichtblau claiming he had “no idea” where the link had come from
  • SC-00027475[-76]: October 5, 2016 exchange between Hosenball and Fritsch about how to respond to Trump statement on Tea Leaves’ allegations
  • SC-00027309: October 18, 2016 Fritsch email suggesting that Hosenball “call David Dagon at Georgia Tech”
  • SC-00027283: October 31, 2016 exchange between Isikoff and Fritsch about “big story on trump Alfa server moving early pm”
  • SC-00027233: November 3, 2016 blank response from Fritsch to Lichtblau regarding request about Sergei Millian

Just the last one, which I’ve bolded, has an assigned exhibit number in Durham’s list, suggesting either that he wants to use the documents with witnesses but not let the jury review the documents or that he’s not all that serious about using the documents as exhibits.

The list enables a tremendous amount of fuckery and more possible depending on how dishonest Durham wants to be.

For example, Durham has not obviously included the email where Mark Hosenball sent the link to the mediafire package to Fusion GPS, even though all the emails strongly support that’s what happened. Thus, as laid out, Durham seems intent to mislead the jury into believing that Fusion got that link via Tea Leaves or Michael Sussmann directly and not, as they’ve explained, via a journalist.

As noted, there are places where the list Sussmann included only the first page of a series. Given the way Durham is treating serial October 5, 2016 emails (most notably those involving Eric Lichtblau), it’s possible he does not intend to include follow-on pages in his exhibits. In several cases, that would leave out important context.

For example, in the October 5, 2016 thread between Fritsch and Hosenball, including just the first page of that exhibit would leave out where Fritsch said,

the DNS stuff? not us at all.

outside computer experts

we did up an alfa memo unrelated to all this

It would also leave out where Fritsch pointed Hosenball to the public tutanota email included at the link that Hosenball himself sent to Fritsch, another piece of evidence showing that this was not an internal operation.

That is, as described, Durham may plan to falsely suggest these efforts were more closely tied than the evidence shows (it might exclude, for example, a key piece of evidence that Judge Cooper pointed to that showed this wasn’t a grand conspiracy).

Similarly, if just the first page of these exhibits were to come in, it would mean the jury got to see that Fusion sent out their Alfa Bank report, but not read the Alfa Bank report itself. Certainly, Durham could credibly argue that including the report would be prejudicial and as such might distract the jury. But excluding the report would also deprive the jury of the only material shared with the FBI that non-experts would have the ability of assessing themselves, both for the quality of the research and the validity of concerns of alleged ties between Trump and Alfa Bank.

For example, the report describes Richard Burt’s publicly acknowledged role in Trump’s first speech (though not a later role discovered as part of the Mueller investigation).

Burt has acknowledged that he played a significant role in writing Trump’s first major foreign policy speech. “I was asked to provide a draft for that speech. And parts of that of my draft —- survived into the final,” he told NPR.”‘

In the April 27 “America First” speech, Trump laid out an isolationist foreign policy. He criticized NATO and promised he would pursue better relations with Russia– skipping over its invasions of its neighbors and human rights abuses?’

It describes several allegations of Alfa Bank’s involvement in spying on adversaries.

Diligence also investigated a reporter from The Vail Street ournal who had contacted the CPI regarding the Alfa libel case. Private investigators for Diligence conducted a trash-stealing operation against the personal residence of the journalist. The operation was eventually exposed by an insider at Diligence. The affair caused high-level consternation in Washington due to a bizarre snafu: Unknown to the Diligence investigators, the reporter had vacated his home and rented it to a top White House official. That led to a confidential national security investigation of possible espionage by Alfa.

It even notes Petr Aven’s close ties to Putin, ties that Putin would exploit within months of the report in an attempt to form a back channel with the Trump Administration (though I suspect Putin did this in part to fulfill these suspicions).

As the face of Alfa Bank, Peter Aven remains the group’s key interface with the Kremlin. It appears his importance has only grown. Alfa Group, and specifically Alfa Bank, have a longstanding presence in the US and the UK.

[snip]

It is clear that Aven remains the key political figure in Alfa Group, with multiple current links to the government and security services, as outlined above. He has also driven the development of international links through the expansion of Alfa Bank in the US and Europe. The bank has carried out careful outreach, running an international Alfa Fellows program and maintaining a high profile. Although not itself a target, the bank has suffered from sanctions however, and has a particular interest in lifting sanctions’.

There’s a lot of crap that came from Fusion GPS, but their straight Russian research held up pretty well, and this is an example why it was reasonable for Perkins Coie to hire Fusion. So while Durham might successfully argue that this would be prejudicial, it is also one of the best ways for the jury to assess the credibility of Perkins Coie’s basis for relying on Fusion. It’s also necessary to explain why Michael Sussmann and Rodney Joffe might believe sharing this material with the FBI pertained to national security, not political malice.

Perhaps the most alarming detail in what Durham included in his exhibit list is that last one, the only one that includes an actual exhibit number.

Durham has made much of the fact that Lichtblau sent an email to Peter Fritsch asking if he had told him (at an in-person meeting) that Sergei Millian had an Alfa email address. As included here as an exhibit, Durham would present this without context, insinuating that Fritsch learned of this via Joffe or someone.

But the actual email thread — exchanged in September, when Lichtblau was in the thick of trying to publish this story — makes it clear that Fusion formed this inference based off entirely public ip information, research entirely unrelated to the DNS allegations.

So as laid out here, Durham has allowed for a good deal of at least possible fuckery.

But then there’s the question of what emails he did present to Judge Cooper claiming he wanted to use as exhibits.

The vast majority of these emails are entirely unrelated to the case against Sussmann. Many of the emails, though, might be related to Igor Danchenko’s case. They pertain to publicly sourced concerns about Sergei Millian, concerns shared far outside of Fusion, as well as to open source research on Carter Page. They do seem to reflect knowledge of a single Christopher Steele report, but at a time before Rodney Joffe first met anyone at Fusion GPS.

Meanwhile, in addition to the emails over which the Democrats or Rodney Joffe have claimed privilege, there are around another 35 that aren’t privileged but which Durham didn’t include in his exhibit of the emails that, he claimed, he wanted to rely on at trial.

In other words, those emails were utterly useless as an exhibit to allow Judge Cooper a good way to assess the exhibits that Durham actually wants to use at trial. They were, however, really useful at riling up the frothers.

The fact that Durham included many emails he doesn’t want to use as exhibits, but didn’t include many emails (including unprivileged ones) that he wants to use as exhibits, including all but one of the ones to which he has assigned an exhibit number, makes it all the more curious that Durham “accidentally” posted these emails publicly to the docket and the unpublished them.

In any case, it’s still possible this fuckery will blow up at trial (assuming that Durham doesn’t find some reason to make an interlocutory appeal, which I think is likely). As Judge Cooper noted in his order regarding motions in limine, “The Court will reserve judgment as to the admissibility of any additional email it has not yet seen.”