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John Durham Fabricated His Basis to Criminalize Oppo Research

I’d like to talk about Durham’s treatment of what he calls the “Clinton Plan” in his report, an attempt to criminalize Hillary’s effort to hold Trump politically accountable for his coziness with Russia.

This part of the investigation was the core of Durham’s work. Charlie Savage noted that, after Durham found no evidence US intelligence targeted Trump by early 2020, he and Barr then turned to trying to blame Hillary for the FBI’s suspicions about Trump.

But by the spring of 2020, according to officials familiar with the inquiry, Mr. Durham’s effort to find intelligence abuses in the origins of the Russia investigation had come up empty.

Instead of wrapping up, Mr. Barr and Mr. Durham shifted to a different rationale, hunting for a basis to blame the Clinton campaign for suspicions surrounding myriad links Trump campaign associates had to Russia.

I’m going to variably refer to this as “Durham’s Clinton conspiracy theory,” because it’s what he imagines this might be: a criminal conspiracy to lie to the FBI, or “Russian intelligence,” which is what it is based on. Durham, however, names it the “Clinton Plan,” accepting as given that the Russian intelligence product he bases it on is truthful, even while admitting that the intelligence community believes it may not be. And as we’ll see, he omits part of the intelligence report to make it all about Hillary.

Durham’s Clinton conspiracy theory is the first mention of a potential crime in his description of the scope of his investigation (the first two bullets had significantly been covered by DOJ IG by the time Durham started his investigation and weren’t criminal at all).

Similarly, did the FBI properly consider other highly significant intelligence it received at virtually the same time as that used to predicate Crossfire Hurricane, but which related not to the Trump campaign, but rather to a purported Clinton campaign plan “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services,” which might have shed light on some of the Russia information the FBI was receiving from third parties, including the Steele Dossier, the Alfa Bank allegations and confidential human source (“CHS”) reporting? If not, were any provable federal crimes committed in failing to do so?

Only after that bullet does Durham list, in describing the scope of his criminal investigation, the possibility that people lied to the FBI, the only imagined crimes he discovered, and for which he got only acquittals.

The order of these bullets tracks the known timeline of the investigation, which I laid out here: Durham didn’t fully develop his now-debunked theory that Michael Sussmann and Igor Danchenko lied to the FBI and then — building off that theory — come to believe Clinton had conspired to lie to the FBI. Rather, he worked in the opposite direction, pursuing the Clinton conspiracy theory first, and only after Nora Dannehy thwarted Durham’s attempts to release an interim report focused on that conspiracy theory just before the 2020 election, did he do key interviews collecting much of his evidence in the Alfa Bank and Danchenko investigations. Worse still, in both investigations, he never took obvious steps (like checking Jim Baker’s iCloud, or interviewing the Clinton staffers Sussmann allegedly coordinated with, or interviewing Sergei Millian, to say nothing of interviewing George Papadopoulos, which he never did) until months after indicting the two men. Everything happened in reverse order than it should have if he were following the evidence.

The section describing his Clinton conspiracy theory makes up almost 18 pages of the report, about 5% of the total. Here’s a summary of that section:

While I won’t focus on it, note that about a third of this section consists of complaints about the Steele dossier and Fusion, some of which conflicts with his complaints about the Steele dossier elsewhere, some of which ignores evidence submitted at the Sussmann trial.

Even on its face, there are real problems with Durham’s Clinton conspiracy theory. As Phil Bump (one, two) and Dan Friedman already showed, Hillary’s concerns about Trump couldn’t have been the cause of the investigation into Trump. By the time (a Russian intelligence product claimed) that Hillary approved a plan to tie Trump to Russia on July 26, 2016, the events that would lead FBI to open an investigation were already in place. Here’s Friedman:

This isn’t just false. It would require time travel. Durham himself confirms that the FBI launched its investigation into Trump and Russia based on events that occurred months prior to Clinton’s alleged July 26 approval of the plan. In April 2016, George Papadopoulos, a foreign policy adviser to the Trump campaign, met with a professor with Kremlin ties, who informed him that Russia “had obtained ‘dirt’ on…Clinton in the form of thousands of emails,” as Robert Mueller’s final report noted.  A week later, according to Mueller, Papadopoulos “suggested to a representative of a foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release” of damaging material. When hacked Democratic emails were indeed published—by WikiLeaks on July 22—this foreign diplomat alerted US officials about what Papadopoulos had said. The FBI quickly launched an official investigation into the Trump campaign’s Russia ties in response to that tip, Durham notes, while arguing they should have begun only a “preliminary investigation.”

It was the same Russian hack, not Hillary Clinton, that drove media attention, even before the documents were leaked to the public.

Ultimately, Durham hangs potential criminality (at least with respect to the FBI) on the Carter Page FISA applications, a suggestion that by not alerting the FISA Court that (Russia claimed) Hillary had this plan, the FBI was withholding what he calls “exculpatory” information. But in doing that, Durham conflates a Russian intelligence report making claims about Hillary with Hillary herself, something else Friedman rightly mocks.

To figure out how an American presidential campaign supposedly went about attacking a rival campaign, Durham relied on information US intelligence gathered on claims made by Russian intelligence agents about what they supposedly found by spying on Americans. That’s a pretty roundabout way to learn the kind of information you’d expect to see in “Playbook.” And this game of spy telephone was actually even longer than Durham details. According to the New York Times, US spies obtained their “insight” into Russian intelligence thinking from Dutch intelligence, which was spying on the Russians as the Russians spied on Americans. Durham seems to have found no other confirmation for his “Clinton Plan intelligence.” That’s reason enough for skepticism.

But there is a bigger problem. Russian security services did hack Clinton’s campaign to help Trump, according to the entire US intelligence community and the Senate Intelligence Committee. Yet Durham relies on those Russian spies for insight into how Clinton reacted to the hack. That is like the cops citing a bank robber who says the bank framed him.

Given how selective Durham is about how he treats Russian disinformation, this is a grave problem for his project, which I’ll return to.

But there are far more problems with Durham’s conspiracy theory.

Durham invents out of thin air that Hillary’s plan included false information

First, it’s not just that Durham focused his entire investigation on potential Russian disinformation with little worry about doing so.

At least per what is in the unclassified report, Durham added something to the Russian intelligence product: That Hillary had a plan to spread “false” information. Durham’s first paragraph explaining why the Russian intelligence claim about a Hillary plan is important claims:

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia. [my emphasis]

Durham bases his entire pursuit of this piece of Russian intelligence on his judgment that the Russian intelligence “arguably suggested” Hillary’s people were going to pursue a “false or exaggerated” narrative to tie Trump to Russia. But the notion that this narrative would be — would have to be! — false is nowhere in any of the three formulations of the intelligence Durham describes in his unclassified report.

U.S Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee.

[snip]

CIA Director Brennan subsequently briefed President Obama and other senior national security officials on the intelligence, including the “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.”

[snip]

U.S. Presidential candidate Hillary Clinton’s approval of a plan concerning U.S. Presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server.

Even the Russians were only claiming that Hillary would tie Trump to the hacking targeting her. The Russians didn’t claim Hillary would lie to do so. Yet Durham justifies this prong of investigation by adding something to the Russian intelligence that wasn’t in it: that tying Trump to Russia would “arguably” require false information.

That’s an utterly critical addition to what was actually contained in the Russian intelligence, because — as Durham noted in a footnote to this paragraph — oppo research is not itself illegal. It only becomes illegal if you intentionally lie to the government about it.

393 To be clear, the Office did not and does not view the potential existence of a political plan by one campaign to spread negative claims about its opponent as illegal or criminal in any respect. As prosecutors and the Court reminded the jury in the Sussmann trial, opposition research is commonplace in Washington, D.C. and elsewhere, is conducted by actors of all political parties, and is not a basis in and of itself for criminal liability. Rather, only if the evidence supported the latter of the two conditions described above-i.e., if there was an intent by the Clinton campaign or its personnel to knowingly provide false information to the government-would such conduct potentially support criminal charges.

Never mind that Durham never developed evidence that the Hillary campaign wanted or intended to privately share either the Steele dossier or the Alfa Bank allegations with the FBI. In fact, his report provides affirmative evidence that the Hillary campaign wanted nothing to do with the FBI, because it had already so damaged her campaign.

Without Durham’s invention — something that he made up out of thin air! — that Hillary planned to spread false information, Durham had no business spending three years investigating this. And remember, much of his investigation on Danchenko and the Alfa Bank allegations happened a year after he started pursuing his Clinton conspiracy theory, and two juries ultimately rejected his accusations that even the people who did share information with the FBI intentionally shared false information.

That’s one of many reasons why it matters that Durham so assiduously ignores all the evidence that Trump really was tied to Russia — that Mueller really did find hundreds of such ties, including a slew that Trump and his closest associates lied to the FBI to hide.

By the time Hillary allegedly approved this plan, on July 26, Trump had publicly hired a campaign manager with close ties to Russia, his foreign policy advisor had publicly made pro-Russian comments while speaking in Moscow, and he himself had publicly attacked NATO. The next day (and the day before the CIA discovered this), Trump publicly called for Russia to help him and publicly floated recognizing Russia’s annexation of Crimea. Even just on what was public, Hillary wouldn’t have had to invent anything.

But Russia knew about far more that wasn’t public. In January, Michael Cohen contacted the Kremlin to pursue a real estate deal in Moscow, involving both GRU and a sanctioned bank, something Trump would lie publicly about on July 27. In April, George Papadopoulos got an early warning of this operation. In May, Paul Manafort started sending polling data via Konstantin Kilimnik to Oleg Deripaska. In June, Trump’s failson accepted a meeting from the son of a Russian Oligarch promising dirt on Hillary. If you believe Rick Gates, Roger Stone claimed he was in contact with Guccifer 2.0 before the persona went public in June, and on July 25 (the day before the Russians claimed Hillary approved this purported plan), Manafort asked Stone to reach out to WikiLeaks and find out what else they had. The only one of these details that Russia didn’t definitely know was that Stone was pursuing WikiLeaks. By the time it wrote up that intelligence report, Russia was involved in all the rest of it.

And as I noted, Durham hid most of these non-public details. He hid the abundant evidence that Hillary wouldn’t have needed to make false claims, because the public and private reality all confirmed what Russia claimed Hillary was going to claim: that Trump had ties to Russia, ties he was hiding from voters.

Durham invents something that wasn’t in the Russian intelligence report he relies on, even while hiding abundant evidence that Hillary would have no reason to make stuff up, because there was so much public that was already damning.

Durham uses Hillary’s focus on true events as proof of his false claims

After inventing the claim that Russia said Hillary would rely on false information to tie Trump to the Russian operation, Durham points to Clinton’s focus on true things as evidence that Clinton really did have such a plan. In section vi, which Durham describes as, “Other evidence obtained by the office that appears to be relevant to an analysis of the Clinton Plan intelligence,” Durham uses several entirely true things that Hillary’s foreign policy advisors did, two of which precede the date when (the Russian intelligence report claims) Hillary approved a plan to focus on Trump, to try to prove that such a plan existed.

The section is punctuated with one after another Hillary staffer, and Hillary herself, saying that no such plan existed, but in spite of that, Durham spins three pieces of documentary evidence to claim it supports his conspiracy theory. The documentary evidence cited starts with a July 27 letter-writing effort to condemn Trump’s attacks on NATO.

We are writing to enlist your support for the attached public statement. Both of us are Hillary Clinton supporters and advisors but hope that this statement could be signed by a bipartisan group[.] Donald Trump’s repeated denigration of the NATO Alliance, his refusal to support our Article 5 obligations to our European allies and his kid glove treatment of Russia and Vladimir Putin are among the most reckless statements made by a Presidential candidate in memory.

This letter wasn’t even oppo research: It was mainstream opinion about a true fact about Trump.

Durham’s focus on this is exactly analogous to GOP efforts to attack a completely true letter former spooks wrote expressing their opinion that the Hunter Biden laptop looked like a Russian information operation, which Republican Congressmen have falsely depicted as a claim about disinformation. It’s even worse though, because Durham points to the mere expression of an opinion as evidence of criminal intent. True (and solidly within mainstream) opinion equals false and criminal in Durham’s book.

Then Durham turns to a Hillary staffer’s early July effort to follow-up on Franklin Foer’s July 4, 2016 review of Trump’s very real Russian ties. The article itself is really inconvenient for Durham’s narrative, because it summarizes all the absolutely true reasons (in addition to the ones I listed above) why Trump’s Russian ties were suspect, including an accurate description of why Carter Page’s fawning praise for Russia was so alarming. The article effectively proves this was a press concern before Hillary allegedly approved a plan to make it one. Given Foer’s later ties to Fusion, this entirely accurate article likely also relies on Fusion research, but Durham puts it in this section rather than the 5-page Fusion subsection, perhaps to hide that Fusion’s open source research largely held up. Perhaps because this Foer article itself undermines Durham’s narrative in various ways, Durham claimed this follow-up pertained to this June 2020 Foer article rather than the one written in July 2016, which would require an even more time travel than what Friedman described. Did Durham read the real article here and realize how badly it undermined all his claims about Fusion and Hillary and so cite one written four years later?

Insanely, however, Durham claims that this July 5 attempted follow-up, “provide[s] some support for the notion that the Clinton campaign was engaged in an effort or plan in late July 2016 to encourage scrutiny of Trump’s potential ties to Russia.” Durham cites a Clinton staffer’s focus on Trump’s true ties to Russia as proof Hillary approved — three weeks later — a plan to invent such ties. Again, true equals false.

Perhaps the craziest of all, buried deep in his report, Durham claims that Hillary’s staffers’ interest in finding out whether the FBI was actually investigating the crime committed against her — without any tie to Trump — is proof that Hillary had a plan targeting Trump.

In addition, on July 25, 2016, Foreign Policy Advisor-1 had the following text message exchange with Foreign Policy Advisor-2:

[Foreign Policy Advisor-2]: Can you see if [Special Assistant to the President and National Security Council member] will tell you if there is a formal fbi or other investigation into the hack?

[Foreign Policy Advisor-1]: [She] won’t say anything more to me. Sorry. Told me [she] went as far as [she] could.

[Foreign Policy Advisor-2]: Ok. Do you have others who might?

[Foreign Policy Advisor-1]: Has [Individual-2] tried [her]? Curious if [she] would react differently to [Individual-2]? can also try OVP [Office of the Vice President]. They might say more.

[Foreign Policy Advisor-2]: I don’t know if he has but can ask. Would also be good to try ovp, and anyone in IC [intelligence community]

[Foreign Policy Advisor-1]: Left messages for OVP but politico just sent me a push notification stating that they are indeed investigating.

[Foreign Policy Advisor-2]: Fbi just put our [sic] statement. Thx454

Remember: Durham accuses the FBI of confirmation bias, but here he uses a victim’s attempt to find out whether the crime committed against her was being investigated as evidence that, instead, she was victimizing Trump.

More problematic for Durham’s conspiracy theory, emails the Special Counsel only sought out in response to Sussmann’s discovery requests show that Sussmann knew of the investigation (because he was helping the FBI conduct it), proving that he had no ties with the people Durham imagined were behind this conspiracy theory.

In fact, FBI’s Assistant Director would concede to Sussmann that he should have consulted with the campaign before making such a public statement.

First let me apologize for any perceived or actual disconnect on this matter. I agree fully that when making statements to the media and others, we need to be in lock step with victims and partners. In this case, it appears we were not.

The FBI admitted it fucked up by not being more forthcoming about the status of the investigation. But Durham takes an effort to learn about whether there even was an investigation and claims it is evidence that victim may have committed a crime. This is the digital equivalent of slut-shaming, criminally investigating Hillary because she was hacked.

Durham’s report takes true stuff, some of it unrelated to Trump and other parts of it before the purported plan, as evidence that Hillary wanted to make false claims. And remember, these true details that Durham adopts to support his invented claim that Hillary was pursuing a false narrative are things Durham relies on to justify adopting a Russian intelligence product as the backbone of his investigation.

Given how shoddy this stuff is, I can only imagine what additional stuff he pointed to in his classified summary.

What Durham calls “Clinton Plan” is actually the Hillary-and-Guccifer intelligence

Time for a detour about Guccifer 2.0.

Remember how Durham omitted, without an ellipsis, damning information about Sam Clovis?

He similarly omitted two redacted lines in his presentation of the CIA referral of the Russian intelligence about Hillary and Guccifer 2.0. Here’s what it looks like in his report, with Durham’s omission marked:

Here’s what the original looks like, with the redaction Durham omitted marked.

I don’t know what is behind the redaction. Given what Durham did with the Clovis information, it probably doesn’t help his narrative. And given that Durham barely mentions Roger Stone and definitely doesn’t mention the rat-fucker’s suspected advance discussions with Guccifer 2.0, and given that his lead prosecutor criticized DARPA investigators for trying to identify Guccifer 2.0, the redaction is suspect. At the very least though, he should be referring to this not as “Clinton Plan intelligence,” but as “Hillary-and-Guccifer intelligence,” because that’s how it got packaged up for the FBI.

And if he treated this as Hillary-and-Guccifer intelligence, Durham might consider why the FBI didn’t begin to look at Roger Stone’s ties to Guccifer until almost a year after opening Crossfire Hurricane — but that would provide proof that the FBI wasn’t aggressive enough in their investigation of Trump, not that they were too aggressive.

Durham conflates reporting on Russia’s attack on the US with intelligence about Hillary

Durham’s failure to note the two-line redaction about Guccifer 2.0 matters because of something else he does.

First, note that this intelligence, if true, seems to reflect the collection by Russian spy agencies of recent communications between Hillary’s close associates (which would be explained in the second redaction). So if the intelligence were true, it would reflect a Presidential candidate’s associates being wiretapped by foreign spies. But Durham isn’t interested in that part of it. He’s interested in the content that Russia allegedly intercepted, not the the claimed intercept itself.

Key to Durham’s claim that the content of what Russia claimed to have intercepted from Hillary associates, rather than the claimed interception itself, is important is that John Brennan briefed it, the content, “expeditiously” to President Obama. But throughout this section, Durham plays word games to suggest a larger collection of intelligence is the same thing as the intelligence pertaining to Hillary(-and-Guccifer). As you read this section, imagine how it would read if instead of “Clinton Plan,” it read, “the intercept of Hillary’s associates.”

The Intelligence Community received the Clinton Plan intelligence in late July 2016. 397 The official who initially received the information immediately recognized its importance including its relevance to the U.S. presidential election- and acted quickly to make CIA leadership aware of it. 398

[snip]

Immediately after communicating with the President, Comey, and DNI Clapper to discuss relevant intelligence, Director Brennan and other agency officials took steps to ensure that dissemination of intelligence related to Russia’s election interference efforts, including the Clinton Plan intelligence, would be limited to protect sensitive information and prevent leaks.404

[snip]

On August 3, 2016, within days of receiving the Clinton Plan intelligence, Director Brennan met with the President, Vice President and other senior Administration officials, including but not limited to the Attorney General (who participated remotely) and the FBI Director, in the White House Situation Room to discuss Russian election interference efforts. 406 According to Brennan’s handwritten notes and his recollections from the meeting, he briefed on relevant intelligence known to date on Russian election interference, including the Clinton Plan intelligence. 407 Specifically, Director Brennan’s declassified handwritten notes reflect that he briefed the meeting’s participants regarding the “alleged approval by Hillary Clinton on 26 July of a proposal from one of her [campaign] advisors to vilify Donald Trump by stirring up a scandal claiming interference by the Russian security services.”408

[snip]

In late September 2016, high-ranking U.S. national security officials, including Comey and Clapper, received an intelligence product on Russian interference in the 2016 presidential election that included the Clinton Plan intelligence. 421

[snip]

CIA Director Brennan and other intelligence officials recognized the significance of the intelligence by expeditiously briefing it to the President, Vice President, the Director of National Intelligence, the Attorney General, the Director of the FBI, and other senior administration officials. 491 [my emphasis]

Virtually all these references are to the wider body of intelligence the CIA was collecting on Russia’s targeting of Hillary, and the one that’s not — the reference to the discovery of the intelligence — almost certainly refers to the intelligence shared by the Dutch. Nevertheless, Durham uses the urgency of the intelligence about an ongoing attack to claim the importance of the Hillary-and-Guccifer intelligence.

The Hillary stuff — and whatever reference to Guccifer it included — was just one piece of intelligence among a bunch of intelligence. It probably wasn’t considered all that important a part of that intelligence, because it only appears on pages 5 and 6 of the notes taken from Brennan’s briefing of the intelligence.

In fact, Durham’s description of Brennan’s interview suggests that Brennan didn’t even consider this to be a piece of intelligence about Hillary. Indeed, he thought the intelligence was about Russia hacking Hillary, not Hillary making a plan to talk about being hacked by Russia.

When interviewed, Brennan generally recalled reviewing the materials but stated he did not recall focusing specifically on its assertions regarding the Clinton campaign’s purported plan. 400 Brennan recalled instead focusing on Russia’s role in hacking the DNC. 401

On July 28, 2016, Director Brennan met with President Obama and other White House personnel, during which Brennan and the President discussed intelligence relevant to the 2016 presidential election as well as the potential creation of an inter-agency Fusion Cell to synthesize and analyze intelligence about Russian malign influence on the 2016 presidential election. 402

Brennan’s impression that this intelligence was about Russia’s hack of the DNC would make sense if it were treated as a piece of intelligence about Russia intercepting communications of Hillary’s associates.

Durham’s conflation of the Hillary-and-Guccifer-specific intelligence with the wider body of intelligence continues as he describes how it got shared with the FBI. Again, imagine how this passage would read if you replaced “Clinton Plan” with “intercept of Hillary’s associates.”

It appears, however, that this occurred no later than August 22, 2016. On that date, an FBI cyber analyst (“Headquarters Analyst-2”) emailed a number of FBI employees, including Supervisory Intelligence Analyst Brian Auten and Section Chief Moffa, the most senior intelligence analysts on the Crossfire Hurricane team, to provide an update on Russian intelligence materials. 409 The email included a summary of the contents of the Clinton Plan intelligence. 410 The Office did not identify any replies or follow-up actions taken by FBI personnel as a result of this email.

When interviewed by the Office, Auten recalled that on September 2, 2016 – approximately ten days after Headquarters Analyst-2’s email – the official responsible for overseeing the Fusion Cell briefed Auten, Moffa, and other FBI personnel at FBI Headquarters regarding the Clinton Plan intelligence. 411

[snip]

FBI records reflect that by no later than that same date (September 2, 2016), then-FBI Assistant Director for Counterintelligence Bill Priestap was also aware of the specifics of the Clinton Plan intelligence as evidenced by his hand-written notes from an early morning meeting with Moffa, DAD Dina Corsi and Acting AD for Cyber Eric Sporre. 415

He falsely suggests that the entirety of an investigative referral memo regarded,

“U.S. Presidential candidate Hillary Clinton’s approval of a plan concerning U.S. Presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server.”

In fact, the memo in which this intelligence got formally packaged up for the FBI included three things, paragraph a, paragraph b, and paragraph c (though the Hillary-and-Guccifer intelligence was first), with the introduction that these were simply “examples of information the CROSSFIRE HURRICANE fusion cell has gleaned to date,” not that they were particularly important examples. Nevertheless, Durham pretends the Hillary-and-Guccifer intelligence was the entirety of the memo.

There’s no reason to believe any of these briefings were about the Hillary-and-Guccifer intelligence specifically. Durham pretends there was a buzz among the intelligence agencies about Hillary, when in reality there was a buzz about Russia hacking Hillary that he presents as if it were primarily about Hillary.

Durham failed to coach witnesses into claiming they had received the FBI memo

In the section where Durham considers whether to charge some FBI agents for not doing more with the the Russian Hillary-and-Guccifer intelligence, he repeats his ploy of conflating the Hillary-and-Guccifer intelligence with the wider body of evidence to even deign to make a prosecutorial decision, though in this instance, he provides no reminder that the Hillary-and-Guccifer intelligence was just one of the things Brennan briefed to Obama, after five pages of other items.

The FBI thus failed to act on what should have been – when combined with other, incontrovertible facts – a clear warning sign that the FBI might then be the target of an effort to manipulate or influence the law enforcement process for political purposes during the 2016 presidential election. Indeed, CIA Director Brennan and other intelligence officials recognized the significance of the intelligence by expeditiously briefing it to the President, Vice President, the Director of National Intelligence, the Attorney General, the Director of the FBI, and other senior administration officials. 491

He lets the urgent import of an ongoing Russian hack to stand in for the import of this Hillary-and-Guccifer intelligence.

And that’s important, because Durham makes a prosecutorial decision about whether to charge FBI agents for how they responded to the intelligence that Russia claimed to have intercepted communications of Hillary personnel without proof that most of them ever read it.

As he describes, the top analytical people on the campaign learned of the claimed intercept of Hillary associates almost a month after CIA first obtained it.

On that date, an FBI cyber analyst (“Headquarters Analyst-2”) emailed a number of FBI employees, including Supervisory Intelligence Analyst Brian Auten and Section Chief Moffa, the most senior intelligence analysts on the Crossfire Hurricane team, to provide an update on Russian intelligence materials. 409 The email included a summary of the contents of the Clinton Plan intelligence. 410

There were in-person briefings for the top analytical people and the cyber people ten days later.

When interviewed by the Office, Auten recalled that on September 2, 2016 – approximately ten days after Headquarters Analyst-2’s email – the official responsible for overseeing the Fusion Cell briefed Auten, Moffa, and other FBI personnel at FBI Headquarters regarding the Clinton Plan intelligence. 411 Auten did not recall any FBI “operational” personnel (i.e., Crossfire Hurricane Agents) being present at the meeting. 412 The official verbally briefed the individuals regarding information that the CIA planned to send to the FBI in a written investigative referral, including the Clinton Plan intelligence information. 413

[snip]

Separate and apart from this meeting, FBI records reflect that by no later than that same date (September 2, 2016), then-FBI Assistant Director for Counterintelligence Bill Priestap was also aware of the specifics of the Clinton Plan intelligence as evidenced by his hand-written notes from an early morning meeting with Moffa, DAD Dina Corsi and Acting AD for Cyber Eric Sporre. 415

Durham describes the CIA writing a memo about what the fusion intelligence team had found — but he curiously never describes how or when it was sent.

Five days later, on September 7, 2016, the CIA completed its Referral Memo in response to an FBI request for relevant information reviewed by the Fusion Cell. 417

That’s important because Durham describes witness after witness describing that they had never seen it.

None of the FBI personnel who agreed to be interviewed could specifically recall receiving this Referral Memo.

[snip]

The Office showed portions of the Clinton Plan intelligence to a number of individuals who were actively involved in the Crossfire Hurricane investigation. Most advised they had never seen the intelligence before. For example, the original Supervisory Special Agent on the Crossfire Hurricane investigation, Supervisory Special Agent-1, reviewed the intelligence during one of his interviews with the Office. 428 After reading it, Supervisory Special Agent-I became visibly upset and emotional, left the interview room with his counsel, and subsequently returned to state emphatically that he had never been apprised of the Clinton Plan intelligence and had never seen the aforementioned Referral Memo. 42

[snip]

Former FBI General Counsel Baker also reviewed the Clinton Plan intelligence during one of his interviews with the Office. 431 Baker stated that he had neither seen nor heard of the Clinton Plan intelligence or the resulting Referral Memo prior to his interview with the Office.

In lieu of proof that it ever got sent, Durham reveals that Brian Auten might have hand-carried the memo to the team, but had no memory of doing so.

Auten stated that it was possible he hand-delivered this Referral Memo to the FBI, as he had done with numerous other referral memos,419 and noted that he typically shared referral memos with the rest of the Crossfire Hurricane investigative team, although he did not recall if he did so in this instance. 420

Note that two of the interviews on which this passage relies — a June 18, 2020 interview of Jim Baker and a July 26, 2021 interview of Auten — were shown to be highly problematic at trial.

In the former case, Durham called Baker back a week after an earlier interview; it’s the interview where Baker’s memory started changing fairly dramatically, under coaching from Durham, to coincide with the story Durham needed to have told to support his conspiracy theory.

Q. Did Mr. DeFilippis or Mr. Durham ask you to go back and think harder about certain things?

A. I don’t remember that.

Q. Well, do you remember when you met with them on June 18th of 2020? Do you remember generally that date?

A. I’ll take your word for it. I don’t remember that date specifically.

[snip]

Q. And at that meeting for the first time, you told them, After thinking about it further, you recalled being briefed at some point on an unrecalled date about the investigation involving the intrusion of the DNC computers and possibly learning at that briefing that Sussmann, who you knew from previous contacts, was representing the DNC on that matter.

Do you remember that that was the meeting where you said, “After further thought, Mr. Sussmann was representing the DNC at least on the hack?”

A. Again, I don’t remember that it was at that particular meeting, but I remember at some point acknowledging that.

Sussmann attorney Sean Berkowitz got Baker to admit that at the meeting, Durham only showed Baker the notes that matched the story the Special Counsel needed to be told, not those that utterly contradicted the story (and were consistent with a bunch of other evidence that at least four people at the FBI believed that Sussmann was there on behalf of the Democrats).

Q. Now, the government did not show you other people’s notes in that June of 2021 time period, correct?

A. At that point in time I don’t think they showed me anybody else’s notes.

[snip]

MR. BERKOWITZ: And if you could blow up, “The attorney brought to” — Page 2, I believe. Page 6.

A. I’m sorry, these are the notes we looked at yesterday.

Q. Right. These are the notes — just to be clear for everybody — March 6th of 2017. Did the FBI or anybody from Special Counsel Durham’s team show you these notes in an attempt to refresh your recollection of what happened in your interactions with Mr. Sussmann in 2016?

A. No.

The interview with Auten is similar.

As Danchenko attorney Danny Onorato laid out at trial, before Auten’s July 26, 2021 interview, Durham told Auten he was being criminally investigated.

Q Does July 26 of 2021 sound fair?

A Yes, it does.

Q Okay. And when you met with them for the first time after you were meeting with people for 25 or 30 hours, did your status change from a witness to a subject of an investigation?

A Yes, it did.

Q Okay. And in your work for the FBI, has anyone ever told you that you are a subject of a criminal inquiry?

A No.

Q Was that scary?

A Yes.

In addition to showing that at trial, Durham coached Auten into making an inaccurate statement about how Danchenko claimed Millian had called him, Onorato also showed — as Berkowitz had months earlier — that Durham had withheld documents that undermined Durham’s story and corroborated Danchenko’s during these earlier witness interviews.

In other words, both these interviews were shown at trial to have reflected coaching of witnesses to tell the story Durham wanted told, not the story reflected by the evidence. (Unsurprisingly, Durham never cites the trial testimony that disproves his claims in his report, yet another thing he accused the FBI of doing that he himself did.)

And even in spite of proof that Durham was coaching witnesses in these interviews, he still presented no affirmative evidence that the FBI investigators ever received the Fusion Cell memo. In the same way that all of Hillary’s people disclaimed any plan, the FBI investigators disclaimed having seen this memo.

Yet in spite of having no evidence that these people ever saw this memo, Durham compares how they responded to the Steele dossier with how they didn’t respond to this memo, and then generously decides not to charge anyone for doing nothing in response to a memo he has no proof they ever saw.

That’s how his conspiracy theory ended, after four years of trying to create evidence to support it, with him making an extended declination decision about a document he has no proof the FBI ever saw. His prosecutorial decision weighs whether the FBI “intentionally furthered” a Clinton plan to “frame” Trump with improper ties to Russia, as if he had presented proof there was such a plan.

The aforementioned facts reflect a rather startling and inexplicable failure to adequately consider and incorporate the Clinton Plan intelligence into the FBI’ s investigative decision-making in the Crossfire Hurricane investigation. Indeed, had the FBI opened the Crossfire Hurricane investigation as an assessment and, in turn, gathered and analyzed data in concert with the information from the Clinton Plan intelligence, it is likely that the information received would have been examined, at a minimum, with a more critical eye. A more deliberative examination would have increased the likelihood of alternative analytical hypotheses and reduced the risk of reputational damage both to the targets of the investigation as well as, ultimately, to the FBI.

The FBI thus failed to act on what should have been -when combined with other, incontrovertible facts – a clear warning sign that the FBI might then be the target of an effort to manipulate or influence the law enforcement process for political purposes during the 2016 presidential election. Indeed, CIA Director Brennan and other intelligence officials recognized the significance of the intelligence by expeditiously briefing it to the President, Vice President, the Director ofNational Intelligence, the Attorney General, the Director of the FBI, and other senior administration officials. 491 Whether or not the Clinton Plan intelligence was based on reliable or unreliable information, or was ultimately true or false, it should have prompted FBI personnel to immediately undertake an analysis of the information and to act with far greater care and caution when receiving, analyzing, and relying upon materials of partisan origins, such as the Steele Reports and the Alfa Bank allegations. The FBI also should have disseminated the Clinton Plan intelligence more widely among those responsible for the Crossfire Hurricane investigation so that they could effectively incorporate it into their analysis and decision-making, and their representations to the OI attorneys and, ultimately, the FISC. 492

[snip]

Although the evidence we collected revealed a troubling disregard for the Clinton Plan intelligence and potential confirmation bias in favor of continued investigative scrutiny of Trump and his associates, it did not yield evidence sufficient to prove beyond a reasonable doubt that any FBI or CIA officials494 intentionally furthered a Clinton campaign plan to frame or falsely accuse Trump of improper ties to Russia.

Again, to get to the point where Durham is making a prosecutorial decision about whether the FBI helped Hillary frame Trump, Durham has,

  • Relied on proof that Hillary pointed to the true things that were damning enough
  • Presented affirmative evidence that Hillary wouldn’t have approved of sharing the Alfa Bank anomaly with the FBI
  • Been told, by two juries, that he couldn’t prove that anyone actually lied to the FBI
  • Presented no evidence that the FBI investigators saw this memo

And yet virtually every Republican claims that this is what the Durham Report did conclude, that Hillary did have such a plan.

He made it up.

For the more than three years, John Durham criminally investigated whether Hillary framed Donald Trump. And that entire investigation is based on a premise that even he describes was only “arguably suggested” by the evidence on which he builds it.

In fact, Durham fabricated that entire part of it. He made up, out of thin air, his claim that a Russian intelligence report “suggested” Hillary was going to make false claims about Donald Trump rather than simply repeating all the true things that were damning enough.

The entire Durham Report was built on this fabrication, a fabrication he used to claim that Hillary was framing someone, instead of doing so himself.

Update: Durham himself submitted this email thread between Fusion and Foer showing that Fusion was heavily involved in Foer’s article and that their focus on Carter Page significantly preceded Page’s July speech in Russia.

How CNN Inculpated John Durham While Purportedly Exonerating Trump

I want to look at how CNN became a willing dupe of John Durham’s propaganda (and not for the first time, either).

An isolated clip of Jake Tapper, claiming the Durham Report “exonerates Trump” has gone viral. In much the same way that short clips of Kaitlan Collins’ Trump Town Hall have made the propaganda impact of that event even worse than the event itself, that clip has served as the equivalent of Bill Barr’s false claims about the Mueller Report, a premature and grossly inaccurate conclusion that served to pre-empt a more nuanced understanding of a deep reading of the report itself.

The clip came the day of the release of the report, seemingly before even a team of seven people could (and it’s clear, had) digested the full report, and to that extent, it made grand conclusions without understanding how the report itself totally undermines those conclusions. It closely parallels (though except for Tapper’s comment about exonerating Trump, is not even as bad as) an affirmatively problematic story that made the following misleading or affirmatively false claims:

  • Special counsel John Durham concluded that the FBI should never have launched a full investigation into connections between Donald Trump’s campaign and Russia during the 2016 election, according to a report compiled over three years by the Trump-administration appointee and released on Monday.
  • Durham’s 300-plus page report also states that the FBI used “raw, unanalyzed, and uncorroborated intelligence,” to launch the “Crossfire Hurricane” investigation into Trump and Russia but used a different standard when weighing concerns about alleged election interference regarding Hillary Clinton’s campaign.
  • Durham notes that the FBI did not open an investigation into a purported plan by foreign operatives to target the Clinton campaign but rather took other steps in response to those concerns, which included providing defensive briefings for the then-Democratic presidential nominee and her staff.
  • Mueller found no evidence of a conspiracy between the Trump campaign and Russia, but investigators documented numerous contacts between Trump associates and Russians.

I’ll explain why each of these claims should be corrected. Before I do, I want to look at comments that Tapper and others made in the appearance from which the clip was taken: because they actually provided evidence that undermined Durham’s key claims and, with more substance, would demonstrate that Durham repeatedly engaged in exactly the kind of misconduct of which he accused the FBI.

These details are why CNN’s people surely believe their report was not as problematic as it has been treated. But it’s also precisely why CNN owes its viewers a follow-up that describes how Durham fails to meet the standard to which he held the FBI.

First, Tapper noted that the Senate Intelligence Committee Report, completed by a Committee led by Republicans, had concluded that FBI had ample cause for concern in 2016.

Rachel Cohen, who is a spokeswoman — communications director for Mark Warner who is the chairman of the Senate Select Committee on Intelligence, she notes — and this is important context — that the Senate intelligence committee spent 3- 1/2 years reviewing millions of documents and interviewing hundreds of witnesses, this is on Twitter, and concluded that the FBI had ample cause for concern in 2016.

She notes that the committee, the Senate intelligence committee at the time was led by Republicans. She’s referring to former North Carolina Senator Richard Burr.

Tapper then described some of those concerns: not just the June 9 Trump Tower meeting, but also Paul Manafort sharing polling information with Konstantin Kilimnik (the record actually shows he also briefed Kilimnik on the campaign’s strategy to win swing states).

It’s also true that there was a lot of smoke, right? I mean, there was that meeting between the Trump campaign, Kushner, Don Jr. and others, that whole thing about, if it’s what you say it is, I love it, especially later in the summer.

There is, you know, Manafort giving polling information to Konstantin Kilimnik. There is stuff as the Senate Intelligence Committee communications director points out that would raise alarms.

Finally, Sara Murray added another cause for concern: Trump’s public coziness with Putin.

MURRAY: Well, yeah. There’s also how sort of publicly cozy Donald Trump was when he talked about Putin, when he talked about Russia that sort of raised red flags for people throughout the campaign.

Tapper and Murray have, in raising Kilimnik and others, identified one of the gaping holes in Durham’s report (which I wrote about here): the way he minimized what the final results of the Mueller investigation were.

Durham mentioned the June 9 meeting. He did not mention Kilimnik’s name once. He mentioned Roger Stone only in suggesting that Fusion GPS had unfairly identified him as someone with potential ties to Russia, a suspicion utterly vindicated by the Mueller investigation. Durham mentioned Trump’s “Russia, are you listening” comment four times, including two references to people describing it as important background to the predication of the investigation, but he never once considers whether a presidential campaign asking a hostile foreign power for help is itself evidence of “collusion.” Durham did not mention that Michael Cohen had called the Kremlin during the campaign to chase a Trump Tower deal, something that Trump lied about publicly in the same presser where he made the “Russia are you listening” comment, and something Cohen lied about to Congress. Durham used an ellipsis to alter the meaning of a key passage of the Mueller Report (the kind of deceit for which Durham rightly prosecuted Kevin Clinesmith), then used a range of other dishonest tactics to hide the true results of the investigation into George Papadopoulos, where the investigation actually started.

Between them, Tapper and Murray identified one of the most fatal gaps in Durham’s report, one that completely undermines Durham’s complaint that there was insufficient predication to open the investigation because there was no evidence of “collusion” in Intelligence Community coffers at the time the FBI opened the investigation.

If the IC doesn’t know that the campaign manager on a presidential campaign has employed someone that — the investigation would ultimately conclude — was a Russian agent sharing information with several more Russian agents, is that proof that the FBI shouldn’t have investigated, or that the IC hadn’t investigated enough in previous years? If the President’s rat-fucker told people on the campaign he was in direct contact (per Rick Gates’ testimony) with a persona run by the GRU weeks before the GRU would release emails stolen from Hillary, is the FBI wrong for ultimately discovering that, or was the FBI instead remiss for not investigating that tie until almost a year after it first would have been identified?

And that’s why the way CNN headlines its reports is so problematic. The transcript itself uses a teaser that, “Special Counsel Durham Concludes FBI Never Should Have Launched Trump-Russia Probe.” The chyron erroneously claimed that Durham “conclude[d]” that the FBI should never have launched the investigation. The headline of the problematic report reads, “Special counsel John Durham concludes FBI never should have launched full Trump-Russia probe.” The lede of that report states that,

Special counsel John Durham concluded that the FBI should never have launched a full investigation into connections between Donald Trump’s campaign and Russia during the 2016 election, according to a report compiled over three years by the Trump-administration appointee and released on Monday.

All are misrepresentations of what the report said, which the problematic report doesn’t clarify until sixteen paragraphs later. As Perez explained on Tapper,

Durham says that he sees reason for the FBI to at least take a look at some of the initial tips that led to what became Crossfire Hurricane. He said the FBI had reason to investigate, at least preliminary. What he doesn’t see is the reason for a full-blown investigation according to this report.

Durham’s judgment about the level of investigation not only ignores evidence presented at both trials about these various decisions (effectively, leaving out exculpatory evidence just as the FBI left out exculpatory evidence in the Carter Page applications). But he also never weighs the balance between a Full Investigation, which would last long enough to get through the election, at which point the FBI could engage in overt steps, with opening a Preliminary Investigation that might close before such steps could be taken. Indeed, many of Durham’s recommendations, as well as his complaints about the slow speed at which FBI did obtain very damning information on Trump’s associates, don’t account to the degree to which the FBI successfully shielded Trump from the impact of the disclosure of the investigation during the campaign, something the FBI failed to do for two investigations into Hillary during the same period.

And that’s why another point that Perez made is important.

Jake, one of the interesting — one of the things that stood out to me, if you remember the former president kept saying he was going to find evidence of deep state spying. Well, there is a part here that talks about a confidential human source, essentially a spy, who was tasked with going to a Clinton campaign fund-raiser. Let me repeat that. A Clinton campaign fund-raiser because the FBI had gotten information that somebody was saying that perhaps a foreign government might be expecting some favors from a future Clinton presidency.

So there you have it. The FBI was spying on the Clinton campaign, according to John Durham’s report.

To be very clear: This is not a judgment Durham made. It’s Perez’s judgment, instead, that applies the standards that Bill Barr and Durham adopted to be able to claim that the FBI “spied on” Trump’s campaign to the claims laid out by Durham about his purported comparison of the investigations into Hillary with the investigation into Trump. This is Perez reading Durham’s allegations on their face rather than parroting Durham’s conclusions.

Perez doesn’t note that there was another instance of an informant targeting Hillary in the Clinton Foundation investigation, the handling agents for which (and at least one likely witness for Durham) were shown to be biased in the DOJ IG Investigation. That’s another detail that — I noted — Durham left out of his report. Durham suggests that people like Strzok were predisposed to open an investigation into Trump, but never acknowledges that at least two of the FBI Agents investigating Hillary (and one of the FBI Agents investigating Mike Flynn) expressed pro-Trump bias in their FBI texts.

The fact that Perez busted Durham for adopting a double standard for his claims about the Trump campaign as he does to the Hillary campaign — again, precisely one of the problems he identifies in the Crossfire Hurricane investigation — makes these two misstatements in the published CNN report all the more unfortunate.

Durham’s 300-plus page report also states that the FBI used “raw, unanalyzed, and uncorroborated intelligence,” to launch the “Crossfire Hurricane” investigation into Trump and Russia but used a different standard when weighing concerns about alleged election interference regarding Hillary Clinton’s campaign.

[snip]

Durham notes that the FBI did not open an investigation into a purported plan by foreign operatives to target the Clinton campaign but rather took other steps in response to those concerns, which included providing defensive briefings for the then-Democratic presidential nominee and her staff.

These descriptions appear to be muddled (again, this report was written in the day of the release of the report). They either confuse the several investigations into Hillary that Durham describes or don’t address the Clinton Foundation one.

As for the Clinton Foundation investigation, even ignoring Durham’s silence about biased Agents on that team, Durham acknowledged that one office at the FBI opened a preliminary investigation into Hillary based solely off Clinton Cash. Durham made absolutely no mention about the tie between that unsubstantiated report and Trump’s eventual campaign manager — again, Durham here commits precisely the professional lapse he accuses the FBI of on the Carter Page application, hiding a tie to the campaign. Even on top of that, though, his ultimate comparison has several problems.

As an initial matter, the NYFO and WFO investigations appear to have been opened as preliminary investigations due to the political sensitivity and their reliance on unvetted hearsay information (the Clinton Cash book) and CHS reporting. 388 By contrast, the Crossfire Hurricane investigation was immediately opened as a full investigation despite the fact that it was similarly predicated on unvetted hearsay information. Furthermore, while the Department appears to have had legitimate concerns about the Foundation investigation occurring so close to a presidential election, it does not appear that similar concerns were expressed by the Department or FBI regarding the Crossfire Hurricane investigation.

One of three investigations was opened as a Full Investigation based off a source report and unverified documentary claims; if that investigation was okay, then making Crossfire Hurricane a Full Investigation upon receipt of the Steele dossier, however problematic, would have adopted the same standard. Furthermore, in Durham’s comparisons, he always leaves out the fact there was undeniably a crime committed before the opening of Crossfire Hurricane, the hack against the DNC. The question was whether Trump’s associates had a tie to that undenied crime, not whether a crime had been committed. Yet, as Adam Goldman recently revealed, the FBI investigated Clinton Foundation for five years and never found a crime they could charge.

More importantly, it is rank nonsense for Durham to claim that the FBI didn’t have concerns about investigating Trump’s aides so close to an election with Crossfire Hurricane. The election is precisely why the FBI chose to use covert means like informants instead of sending out subpoenas. It is precisely why it was March before the FBI had obtained call records (using NSLs) on three of four subjects of the investigation. It is precisely why the FBI didn’t discover ties to Ivan Timofeev that George Papadopoulos hid during his early interviews with the FBI until later.

Many of Durham’s complaints in his report are that the FBI didn’t use overt means, like interviewing George Papadopoulos or obtaining his and Sergei Millian’s call records, during the election season, effectively a complaint that the FBI adhered to election season restrictions on investigative activity. That’s particularly notable given the NYT report that Durham tried — only to be thwarted by Nora Dannehy’s noisy resignation — to release a report during the pre-election time period. Durham basically complained that the FBI adhered to a rule he attempted to break.

As for the two foreign interference investigations that CNN seems to reference, the first was opened as a Full Investigation from the start, in late 2014. It’s unclear what the classified corroboration for this is, but as described by Durham, Hillary’s campaign explicitly rebuffed this offer.

Beginning in late 2014, before Clinton formally declared her presidential candidacy, the FBI learned from a well-placed CHS (“CHS-A”) that a foreign government (“Foreign Government-2”) was planning to send an individual (“Non-U.S. Person-I”) to contribute to Clinton’s anticipated presidential campaign, as a way to gain influence with Clinton should she win the presidency. 316 The FBI’s independent corroboration of this information is discussed in the Classified Appendix.

Upon receipt of this information and the predication it provided, Field Office-I sought to have one of two other better-positioned and higher-resourced field offices open a counterintelligence or public corruption investigation into these allegations, but Counterintelligence Division Executive Management directed Field Office-I to open a full counterintelligence investigation into the matter. 317

And Durham’s own report describes that it took 11 months before Hillary was briefed on this counterintelligence concern and Republicans got a defensive briefing over a month earlier than Hillary.

In line with the directive, the FBI ultimately provided defensive briefings to the officials or their representatives, though it took approximately 11 months from the receipt of the original allegations. 328

328 OSC Report(s) of Interview(s) of Field Office-1 Handling Agent-1 on April 23, 2020 and May 5, 2020; OSC Report of Interview of Headquarters Supervisory Special Agent-4 on May 28, 2020 at 5 – 7; OSC Report of Interview of David Archey on June 21, 2021 at 1 – 3 ( discussing the rationale for the debriefings regarding the threat from Foreign Govemment-2 and ECs documenting the September 1, 2015 briefing to a designated staffer on behalf of an elected official within the Republican party, and the October 15, 2015 defensive briefing Archey provided to Clinton’s personal attorneys).

Trump was briefed on the investigation into Mike Flynn in January 2017, six months after the opening of an investigation into his associates (and President Obama gave Trump a separate warning about Mike Flynn before that, in November).

So Durham’s complaint, effectively, is that Trump’s warnings came sooner than Hillary’s did, and he says that shows the FBI was biased against Trump! That’s confirmation bias, not evidence, yet another thing Durham accuses the FBI of while committing the same error.

There’s another problem with Durham’s complaint about the differential treatment of the defensive briefing (a concern that Durham chased after Chuck Grassley raised it, yet another case where Durham did — allowed Congress to influence an investigation — what he complained the FBI had done improperly with Crossfire Hurricane). The lead about the other country’s attempted influence campaign came from operatives of the country, not the campaign itself. The lead about the foreign influence into Hillary’s campaign was prospective, from someone outside the campaign; the lead from Papadopoulos was historical, from someone inside the campaign. That is, from the start, the FBI had reason to believe that Trump would accept help offered by Russia.

That, plus the results of the Mueller investigation, vindicate the logic behind the FBI delay on briefing Trump — that someone might have taken the Russians up on their offer. The Mueller investigation showed that:

  • Don Jr gleefully accepted an offer of help
  • Michael Cohen sought and received Dmitry Peskov’s assistance for a real estate deal during the campaign
  • George Papadopoulos did obtain advance notice of Russia’s interference and pursued a back channel with Russia at least until July 2016
  • On Manafort’s request, Stone did pursue advance access to the stolen Hillary emails (both Manafort and Gates testified Stone actually got advance notice of the Podesta drop, and Gates claimed to have gotten advance notice of the earlier DNC drop)
  • In pursuit of millions in debt relief, Manafort provided Konstantin Kilimnik campaign briefing

With the exception of the June 9 meeting, these are all the results of the investigation that Durham omits, effectively more exculpatory evidence that he left out, yet another instance where Durham commits precisely the errors he complains about.

As Perez rightly noted, if you take what Durham describes about the other investigations rather than conclusions he draws off misrepresentations of those descriptions, it’s clear that the decisions the FBI took arose from different circumstances. In two cases at least — the use of biased informants and the delay in defense briefings — the facts actually show Hillary was treated worse than Trump. And that’s before you get into the leaks and Comey violations of FBI procedures the FBI made during the election season with Hillary.

That’s why it matters that, in its written report, CNN appears to go beyond even what Durham claims about this differential treatment. I don’t think Durham shows the FBI used a different standard when opening the investigation into election interference (though he does show they delayed a FISA application). Likewise, the evidence shows that the FBI did open an investigation into the foreign election interference, and then expanded it to cover a second country.

Although this information pertained to a foreign influence threat from a different country, the handling agent for CHS-A continued to work this threat under the existing counterintelligence case for the threat CHS-A reported regarding Foreign Government-2

If anything, the Durham report shows that the informant the FBI was running was permitted to engage in illegal activities with Hillary even after the campaign asked a foreigner not to come to a campaign event (this may be the incident Perez refers to).

CHS-A, however, did attend a fundraiser in January 2016, after providing same-day notice and receiving the approval of his FBI handling agent. 345 CHS-A reported in an email that Insider-1 “got cold feet” and was not going to attend, but the source file report indicates Insider­-1 was told by a representative of Clinton not to attend. 346 When Insider- I decided not to attend, he/she asked CHS-A to deliver a message of support. CHS-A provided the draft message to the handling agent, who received same-day approval from FBI OGC for the CHS to deliver the message at the event scheduled for later that day. 347

However, without the knowledge or prior approval of the handling agent, CHS-A had made a $2700 campaign contribution (the maximum amount at the time for an individual contribution) prior to the event, which CHS-A indicated he/she “made on [his/her] [credit] card” on behalf of Insider-I. 348 If true, the campaign contribution on behalf of a foreign national would violate Title 52 USC Section 30121 (“Contributions and donations by foreign nationals”). However, despite CHS-A’s claim that the contribution was made in his/her personal name, the Federal Election Commission records reviewed did not reveal any contribution in CHS-A’s name. Rather, Commission records corroborate a contribution paid by a credit card in the name of a close associate (who was a U.S. person) of CHS-A. CHS-A also told the handling agent that “[t]hey [the campaign] were okay with it. […]yes they were fully aware from the start” ofthe contribution being made on behalf of a foreign interest and CHS-A offered to provide a copy of the credit card charges. 349 Despite this offer by CHS-A to provide a copy of the credit card charges, we did not find any indication that the handling agent asked for or otherwise secured a copy. [my emphasis]

This looks like a poorly handled FBI informant attempted to frame Hillary during the election year, yet Durham nevertheless concludes from that that the FBI was biased against Trump.

This larger discussion — including Tapper and Murray’s ready list of all the damning details that Mueller found — is why CNN continues to err when it makes this claim, which appears to be part of its boilerplate.

Mueller found no evidence of a conspiracy between the Trump campaign and Russia, but investigators documented numerous contacts between Trump associates and Russians.

Of course Mueller found some evidence of a conspiracy — Tapper laid out some of that himself in his piece. Trump’s campaign manager shared the campaign’s swing state strategy with someone involved in the interference operation, and did so with the expectation he might get paid out of it. Ultimately, Mueller referred evidence of a CFAA conspiracy between Russia and Stone to DC USAO for further investigation, and he laid out but didn’t charge  Manafort with conspiracy for his August 2 meeting, more clarity on which seems to have taken years to develop. Manafort did, notably, plead guilty to conspiring with Kilimnik, ultimately deemed to be a Russian agent, for attempting to cover up their full ties to Russian-backed Ukrainians, an effort that started during the campaign (and included the son-in-law of an Alfa Bank founder, precisely one of the concerns raised by one of the Alfa Bank researchers).

Just in that one Tapper appearance, CNN has shown that it knows better than to make these claims. CNN has shown awareness of two of the numerous instances of which Durham failed precisely the standards he tried to criminalize with the FBI.

And that’s why this early report — a report just as toxic as Bill Barr’s more deliberate effort to misrepresent the results of an investigation — should be revisited. Particularly given that, as the problematic report and Murray’s appearance with Tapper make clear, Jim Jordan and others are going to use this as a political football.

If Jim Jordan wants to talk about the weaponization of government, Durham’s own failures should be the focus, not the claims he sustains only by violating precisely the standards he tried to criminally enforce.

Update: Corrected that the Tapper appearance was the day of the report.

Doo-Doo Process: John Durham Claims to Know Better than Anthony Trenga and Two Juries

There’s something grotesque and unethical about John Durham’s conduct that has gotten little attention.

After getting his ass handed to him by two juries and one judge, in his report, Durham nevertheless repeated the allegations against Michael Sussmann and Igor Danchenko on which they have been acquitted. While in one discussion of his prosecutorial decisions, Durham described these as “allegations,” in his executive summary and elsewhere, he stated, as fact, that both men had made false or fabricated statements. Worse still, in his efforts to sustain his false statements allegations, Durham himself makes claims that were rebutted or undermined by the trial records.

John Durham lies about press contacts to cover up his failure to investigate exculpatory information

As a reminder, the researchers who found the Alfa Bank anomaly found it organically, and out of a suspicion — later validated by at least three Mueller prosecutions (Paul Manafort, Michael Cohen, and Alex Van der Zwaan) — that Trump and his associates were lying about their ties to Russia, Rodney Joffe shared the Alfa Bank anomaly with Michael Sussmann.

Sussmann definitely packaged up the allegations and asked Fusion GPS what they knew about Alfa Bank. He definitely billed that packaging-up process to Hillary. The campaign definitely approved sharing that information with the NYT.

But then, without the consent of the campaign, Sussmann blew their big story, by sharing the allegations with the FBI.

Sussmann claimed that he did so because, as a former cybersecurity prosecutor, he knew that if DOJ were going to have a chance to investigate these allegations, they would need to do so, covertly, before the allegations went public. He claimed to have done so because he had been in the position where a big allegation broke before law enforcement had an opportunity to investigate. As proof to support this claim, Sussmann noted — and over the course of months, forced Durham to collect the heretofore ignored evidence proving — that he helped the FBI kill the NYT story the campaign had approved, in the process making it clear that he had to ask someone (Joffe’s) consent to do so.

Because the FBI used overt means to investigate these allegations — a violation of DOJ pre-election guidelines that Durham doesn’t mention in his screed about the FBI — a seeming response to NYT’s efforts which was actually a response to the FBI bigfooting helped to fuel the story. The record shows, and Durham’s most aggressive prosecutor conceded at closing arguments, that the FBI fucked up this investigation in other ways, yet more FBI shortcomings that Durham doesn’t mention in his screed.

After the election, at a time when Sussmann no longer worked for Hillary, Joffe asked him to try to get the CIA to look at these anomalies. Before that meeting, Sussmann told one of his CIA interlocutors that he did have a client (something Sussmann also told to Congress), but described that his client wanted anonymity because of concerns about Russian retaliation. In the meeting where he passed off his thumb drives, he said he was not representing a client.

Those are the competing signals on which Durham obtained a criminal indictment and did so before having consulted significant swaths of directly relevant evidence: a question about how Sussmann intended those words, “represent” and “on behalf of,” a problem with the indictment that Sussmann identified immediately.

Here’s how Durham presented the Sussmann charges in the Executive Summary (all bold in this post my own).

The Office also investigated the actions of Perkins Coie attorney Michael Sussmann and others in connection with Sussmann’s provision of data and “white papers” to FBI General Counsel James Baker purporting to show that there existed a covert communications channel between the Trump Organization and a Russia-based bank called Alfa Bank. As set forth in Section IV.E.1.c.iii, in doing so he represented to Baker by text message and in person that he was acting on his own and was not representing any client or company in providing the information to the FBI. Our investigation showed that, in point of fact, these representations to Baker were false in that Sussmann was representing the Clinton campaign (as evidenced by, among other things, his law firm’s billing records and internal communications). 42 In addition, Sussmann was representing a second client, a technology executive named Rodney Joffe (as evidenced by various written communications, Sussmann’s subsequent congressional testimony, and other records).

Cyber experts from the FBI examined the materials given to Baker and concluded that they did not establish what Sussmann claimed they showed. At a later time, Sussmann made a separate presentation regarding the Alfa Bank allegations to another U.S. government agency and it too concluded that the materials did not show what Sussmann claimed. In connection with that second presentation, Sussmann made a similar false statement to that agency, claiming that he was not providing the information on behalf of any client.

[snip]

As explained in Section IV.E. l .c.i, the evidence collected by the Office also demonstrated that, prior to providing the unfounded Alfa bank claims to the FBI, Sussmann and Fusion GPS (the Clinton campaign’s opposition research firm) had provided the same information to various news organizations and were pressing reporters to write articles about the alleged secret communications channel. Moreover, during his September 2016 meeting at the FBI, Sussmann told Baker that an unnamed news outlet was in possession of the information and would soon publish a story about it. The disclosure of the media’s involvement caused the FBI to contact the news outlet whose name was eventually provided by Sussmann in the hope of delaying any public reporting on the subject. In doing so it confirmed for the New York Times that the FBI was looking into the matter. On October 31, 2016, less than two weeks before the election, the New York Times and others published articles on the Alfa Bank matter and the Clinton campaign issued tweets and public statements on the allegations of a secret channel of communications being used by the Trump Organization and a Russian bank – allegations that had been provided to the media and the FBI by Fusion GPS and Sussmann, both of whom were working for the Clinton campaign. [my emphasis; link]

And here’s how Durham presented his prosecutorial decision.

Accordingly, Sussmann’s conduct supports the inference that his representations to both the FBI and the CIA that he was not there on behalf of a client reflect attempts to conceal the role of certain clients, namely the Clinton campaign and Joffe, in Sussmann’s work. Such evidence also further supports the inference that Sussmann’s false statements to two different agencies were not a mistake or misunderstanding but, rather, a deliberate effort to conceal the involvement of specific clients in his delivery of data and documents to the FBI and CIA. [link]

[snip]

First, and as noted above, we identified certain statements that Sussmann made to the FBI and the CIA that the investigation revealed were false. Given the seriousness of the false statement and its effect on the FBI’s investigation, a federal Grand Jury found probable cause to believe that Sussmann had lied to the FBI and charged him with making a false statement to the Bureau, in violation of 18 U.S.C. § 1001. 1675 Ultimately, after a two-week trial, a jury acquitted Sussmann of the false statement charge.

We also considered whether any criminal actions were taken by other persons or entities in furtherance of Sussmann’s false statement to the FBI. The evidence gathered in the investigation did not establish that any such actions were taken. [link]

As noted above, just in these two passages Durham repeats, five times, that Sussmann made false statements, even though he never charged Sussmann with making false statements to the CIA and even though a jury found Sussmann not guilty of making false statements to the FBI (Durham also misrepresents that the billing evidence presented at trial, which didn’t show Sussmann billing Hillary for the meeting with Baker). This is a gross assault on due process, to accuse a man anew of the charges for which he has already been acquitted.

Durham claims, in explaining why he charged this flimsy case, that the [alleged] “false statement” was serious and had what he insinuates was a major effect on the FBI investigation. Remember: When Durham made this prosecutorial decision, he still had never bothered to check two Jim Baker phones in DOJ IG possession (one of which he had learned about years earlier), texts in Baker’s iCloud account that complicated his case, and documents in DOJ IG’s possession showing that the FBI understood — whether true or not — that the Alfa Bank allegation came from the DNC. Indeed, Durham obscures that while those Baker texts did show that Sussmann had conveyed such a claim by text, those belatedly discovered texts undermined Durham’s case at trial that Sussmann had repeated the claim in person (without providing any clarity about how Sussmann meant “on behalf of”). And one possible explanation for the acquittal is that the jury found that Sussmann didn’t repeat his claim that he was representing no client at the face-to-face meeting with Baker. Certainly, the record showed that whatever memory Baker had of that meeting had been selectively reconstructed with Durham’s help to match the story he needed to sustain a certain narrative, one that didn’t line up with the documentary evidence.

And evidence presented at trial completely undermined the claim that this was a material false claim, the reason Durham made the claim about seriousness in the first place. Sussmann’s attorneys showed that only the threat of prosecution altered FBI Agent Ryan Gaynor’s memory — backed by his contemporaneous notes — that, in fact, he always understood that the allegation came from a DNC attorney. Durham’s star FBI witness admitted on cross-examination that he developed his belief that a reference to the DNC in his colleague’s Lync texts was just a typo after prosecutor Andrew DeFilippis coached him on that point. There were other Lync texts recording a belief that the tip had come from the DNC. Several people at the FBI conducted this investigation as if they understood it to be an investigation of a DNC tip, which likely contributed to the errors the FBI made in their investigation. Durham claims the opposite.

Durham seems to hang his claim about seriousness on his own two inferences — one on top of another — that Sussmann had to have been deliberately hiding something, even though evidence presented at trial, most notably that Sussmann offered up information about having a client with both the FBI and CIA, undermined those inferences. As noted, Durham found April Lorenzen’s inferences as a private citizen to be potentially criminal, but he puts the weight of DOJ behind inferences that proved less robust than Lorenzen’s own.

Particularly given the fact that Durham only belatedly, months after indicting Sussmann, discovered evidence corroborating Sussmann’s explanation for reaching out to Baker — that he helped the FBI kill the NYT story the campaign very much wanted published — the Special Counsel’s misrepresentation of the timeline of press contacts is particularly dishonest. In response to an Eric Lichtblau email asking for more details about Russian hacking, Sussmann provided the tip. Durham’s claim that Sussmann “eventually provided” Lichtblau’s name falsely suggests it took more than a few days to make this happen. After that, Sussmann didn’t push the Alfa Bank story until it got published via other channels. For its part, Fusion was pushing this story weeks later, after April Lorenzen’s separately posted data had renewed questions about it. This muddled timeline repeats the outlandish claim Durham prosecutor Brittain Shaw made in opening arguments that an article most Democrats view as profoundly damaging was precisely the October Surprise Hillary wanted. But in this final report, it’s wildly dishonest spin to cover up the fact that Durham didn’t learn a key detail — that Sussmann helped kill the NYT story — until after charging him.

All the more so because telling the truth about Sussmann’s willingness to help the FBI kill the story suggests Sussmann’s version of the story is far more credible than Durham’s.

How Durham avoids admitting he charged a “literally true” statement as false

If you read nothing more than John Durham’s Executive Summary, you would never learn that John Durham falsely led the press to believe that Danchenko attributed the pee tape allegation to someone with distant ties to Hillary rather than the two Russians who admitted they went out drinking with Danchenko during the period in question. More importantly, you would never learn that Durham created that false pee tape panic out of what Judge Anthony Trenga ruled was a literally true statement.

This section of the Executive Summary, which doesn’t mention any prosecutorial decision regarding Dolan, is completely divorced from the prosecutorial decision it pertains to.

During the relevant time period, Danchenko maintained a relationship with Charles Dolan, a Virginia-based public relations professional who had previously held multiple positions and roles in the Democratic National Committee (“DNC”) and the Democratic Party. In his role as a public relations professional, Dolan focused much of his career interacting with Eurasian clients, with a particular focus on Russia. As described in Section IV.D. l.d.ii, Dolan previously conducted business with the Russian Federation and maintained relationships with several key Russian government officials, including Dimitry Peskov, the powerful Press Secretary of the Russian Presidential Administration. A number of these Russian government officials with whom Dolan maintained a relationship – and was in contact with at the time Danchenko was collecting information for Steele – would later appear in the Dossier.

In the summer and fall of 2016, at the time Danchenko was collecting information for Steele, Dolan traveled to Moscow, as did Danchenko, in connection with a business conference. As discussed in Section IV.D. l .d.iii, the business conference was held at the Ritz Carlton Moscow, which, according to the Steele Reports, was allegedly the site of salacious sexual conduct on the part of Trump. Danchenko would later inform the FBI that he learned of these allegations through Ritz Carlton staff members. Our investigation, however, revealed that it was Dolan, not Danchenko, who actually interacted with the hotel staff identified in the Steele Reports, so between the two, Dolan appears the more likely source of the allegations.

As discussed in Section IV.D. l .d.vi, our investigation also uncovered that Dolan was the definitive source for at least one allegation in the Steele Reports. This allegation, contained in Steele Report 2016/105, concerned the circumstances surrounding the resignation of Paul Manafort from the Trump campaign. When interviewed by the Office, Dolan admitted that he fabricated the allegation about Manafort that appeared in the Steele Report. Our investigation also revealed that, in some instances, Dolan independently received other information strikingly similar to allegations that would later appear in the Steele Reports. Nevertheless, when interviewed by the FBI, Danchenko denied that Dolan was a source for any information in the Steele Reports. [link]

When Durham gets around to describing his decision to charge Igor Danchenko in the Executive Summary, he makes no mention that one of those charges pertained to Dolan. Likewise, he makes no mention that Trenga threw out that charge before sending it to a jury.

Perhaps the most damning allegation in the Steele Dossier reports was Company Report 2016/95, which Steele attributed to “Source E,” one of Danchenko’s supposed sub-sources. This report, portions of which were included in each of the four Page FISA applications, contributed to the public narrative of Trump’s conspiring and colluding with Russian officials. As discussed in Section IV.D. l.f, Danchenko’s alleged source for the information (Source E) was an individual by the name of Sergei Millian who was the president of the Russian-American Chamber of Commerce in New York City and a public Trump supporter. The evidence uncovered by the Office showed that Danchenko never spoke with Sergei Millian and simply fabricated the allegations that he attributed to Millian.

When interviewed by Crossfire Hurricane investigators in late January 2017, Danchenko said that Source E in Report 2016/95 sounded as though it was Sergei Millian. As discussed in Section IV.D.1.f.i, Danchenko stated that he never actually met Millian. Instead, he said that in late-July 2016 he received an anonymous call from a person who did not identify himself, but who spoke with a Russian accent. Danchenko further explained that he thought it might have been Millian – someone Danchenko previously had emailed twice and received no response – after watching a YouTube video of Millian speaking. Thus, as detailed in Section IV.D. l .f.i, the total support for the Source E information contained in Steele Report 2016/95 is a purported anonymous call from someone Danchenko had never met or spoken to but who he believed might be Sergei Millian – a Trump supporter – based on his listening to a YouTube video of Millian. Unfortunately, the investigation revealed that, instead of taking even basic steps, such as securing telephone call records for either Danchenko or Millian to investigate Danchenko’ s hard-to-believe story about Millian, the Crossfire Hurricane investigators appear to have chosen to ignore this and other red flags concerning Danchenko’s credibility, as well as Steele’s.41

41 As noted in Section IV.D.2.f, a federal grand jury in the Eastern District of Virginia returned a five-count indictment against Danchenko charging him with making false statements. A trial jury, however, found that the evidence was not sufficient to prove his guilt beyond a reasonable doubt. See United States v. Igor Danchenko, 21-CR-245 (E.D. Va.). [link]

That’s what you’d learn from the Executive Summary.

It’s only in the body of his report where Durham reveals the Dolan-related charge and Judge Trenga’s finding that the statement he charged as a false statement was literally true. I’d like to congratulate Durham for here describing the false statements claims as “allegations” made by a grand jury, as distinct from the re-accusation of false statements made against Sussmann or his claim that Danchenko “fabricated the allegations” attributed to Millian. But even there he misrepresents the charges.

In November 2021, a grand jury sitting in the Eastern District of Virginia returned an indictment (“Indictment”) charging Igor Danchenko with five counts of making false statements to the FBI. The false statements, which were made during Danchenko’s time as an FBI CHS, related to his role as Steele’s primary sub-source for the Reports.

First, the Indictment alleged that Danchenko stated falsely that he had never communicated with Charles Dolan about any allegations contained in the Steele Reports. As discussed above, the documentary evidence clearly showed that Dolan was the source for at least one allegation in the Steele Reports. Specifically, that information concerned Manafort’s resignation as Trump’s campaign manager, an allegation Dolan told Danchenko that he sourced from a “GOP friend” but that he told our investigators was something he made up. 1384 The allegations regarding Dolan formed the basis of Count One of the Indictment.

Second, the Indictment alleged that Danchenko falsely stated that, in or about late July 2016, he received an anonymous phone call from an individual whom Danchenko believed to be Sergei Millian. Danchenko also falsely stated that, during this phone call, (i) the person he believed to be Millian informed him, in part, about information that the Steele Reports later described as demonstrating a well-developed “conspiracy of cooperation” between the Trump campaign and Russian officials, and (ii) Danchenko and Millian agreed to meet in New York. The available evidence was sufficient to prove beyond a reasonable doubt that Danchenko fabricated these facts regarding Millian. The allegations regarding Millian formed the bases for Counts Two through Five of the Indictment.

Following a one-week trial, and before the case went to the jury, the Court dismissed Count One of the Indictment pursuant to Federal Rule of Criminal Procedure 29. The Court held that Danchenko’s statement to the FBI regarding Dolan, i.e., that he [Danchenko] never “talked to [Dolan] about anything that showed up in the dossier” was “literally true” because, in fact, the information about Manafort was exchanged over email rather than in an actual verbal conversation. The Court denied Danchenko’s Rule 29 motion to dismiss related to the remaining counts of the Indictment. Following two days of deliberations, the jury concluded that the case had not been proven beyond a reasonable doubt.

In determining whether to bring criminal charges against Danchenko, the Office expected to be able to introduce additional evidence against Danchenko that supported the charged crimes. Thus, prior to trial, the Office moved in limine to introduce certain evidence as direct evidence of the charged crimes. Alternatively, the Office moved to admit the evidence as “other act” evidence pursuant to Federal Rule of Evidence 404(b) to prove Danchenko’ s motive, intent, plan and absence of mistake or accident. In particular, the Office sought permission to introduce evidence of:

(1) Danchenko’ s uncharged false statements to the FBI regarding his purported receipt of information reflecting Trump’s alleged salacious sexual activity at the Ritz Carlton Hotel in Moscow. In particular, the Office planned to call as a witness the German-national general manager of the Ritz Carlton, identified in the Steele Report 2016/080 as “Source E.” The Office expected the general manager would testify that he (i) had no recollection of speaking with Danchenko in June 2016 or at any time, (ii) had no knowledge of the allegations set forth in the Steele Report before their appearance in the media, and (iii) never discussed such allegations with Danchenko or any staff member at the hotel;

(2) Danchenko’s uncharged false statements to the FBI reflecting the fact that he never informed friends, associates, and/or sources that he worked for Orbis or Steele and that “you [the FBI] are the first people he’s told.” In fact, the evidence revealed that Danchenko on multiple occasions communicated and emailed with, among others, Dolan regarding his work for Steele and Orbis, thus potentially opening the door to the receipt and dissemination of Russian disinformation; and

(3) Danchenko’s email to a former employer in which Danchenko advised the employer, when necessary, to fabricate sources of information. Specifically, on February 24, 2016, just months before Danchenko began collecting information for the Steele Reports, the employer asked Danchenko to review a report that the employer’s company had prepared. Danchenko emailed the employer with certain recommendations to improve the report. One of those recommendations was the following:

Emphasize sources. Make them bold of CAPITALISED [sic]. The more sources the better. If you lack them, use oneself as a source ([Location redacted]-Washington-based businessman” or whatever) to save the situation and make it look a bit better. 1385

Danchenko’s advice that he attach multiple sources to information and obscure one’s own role as a source for information was consistent with Danchenko’s alleged false statements in which he denied or fabricated the roles of sources in the Steele Reports.

The Court ruled, however, that the evidence described above was inadmissible at trial. The prosecution was forced to then proceed without the benefit of what it believed in good faith was powerful, admissible evidence under Rule 404(6) of the Federal Rules of Evidence.

In reality, the question Danchenko answered about Dolan was an attempt to learn whether Dolan could have been a direct source to Steele, not to Danchenko. And Danchenko didn’t entirely deny talking to Dolan about such issues. He said they talked about “related issues perhaps but no, no, no, nothing specific.” One of the FBI Agents who tried to open an investigation into Dolan relied on the statements Danchenko did make, so it’s not like anything Danchenko said impeded that investigation.

Meanwhile, Durham’s description of the acquitted false statements against Millian conflates, as he repeatedly did during the prosecution, what Danchenko told the FBI he told Christopher Steele, and what showed up in the dossier, which Danchenko had no hand in writing. Danchenko said that some of the allegations in the dossier didn’t come from him — including the claim of conspiracy (and lots of FBI Agents have been disciplined because they didn’t pass on this detail to the FISA Court). What Danchenko told the FBI was that the caller had said there was an exchange of information with the Kremlin (which, in fact, Mueller’s investigation proved, there already had been!), but that there was, “nothing bad about it,” all of which (as Danchenko’s team made clear at trial) is utterly consistent with other things Millian was saying at the time. The alleged lie Danchenko told is that he believed at the time (in July 2016) that the caller was Millian. Also, Durham claims that Danchenko said he made plans to meet in New York; he doesn’t note that Danchenko said those were tentative plans. In other words, Durham here misrepresents what Danchenko actually said! Durham is the fabricator here, not Danchenko.

Having grossly overstated what the charge against Danchenko was, Durham claims that, “The available evidence was sufficient to prove beyond a reasonable doubt that Danchenko fabricated these facts regarding Millian.”

That’s why we have juries, buddy! No, there was not. Nuh uh.

For some reason, Durham feels the need to explain why he got his ass handed to him even though, he’s sure, he had enough evidence in hand to charge Danchenko.  He blames Judge Trenga’s exclusion of three pieces of evidence about uncharged conduct (here’s my post on that ruling and here’s Trenga’s order). Among the three pieces of evidence he claims he relied on when making a prosecutorial decision in November 2021 is an interview with the former General Manager of the Ritz that only happened in August 2022 (the indictment relies on Dolan and one of Dolan’s colleagues for that claim, not the Manager himself). At least as described, Durham would have needed a time machine for the GM’s testimony to have factored in his prosecutorial decision.

Plus, the claim that those three pieces of evidence — none of which directly pertain to Millian! — were what Durham relied on to make a prosecutorial decision in November 2021 conflicts with what his team said in a filing last September. Back then, they said certain emails from Millian were the most probative proof against 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.

Third, whether the statements relate to a material fact. The Government submits that this factor is not in dispute.

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.

Trenga decided those emails were inadmissible hearsay.

Durham probably points to three other pieces of evidence — one obtained nine months after the indictment and all unrelated to Millian — because to admit that his case relied on inadmissible hearsay would require Durham to admit something still more embarrassing. Those hearsay emails from Millian were only the most probative evidence because Durham insanely charged Danchenko relying on what Millian had said on his Twitter account.

Only three months after indicting Danchenko on November 3, 2021 did Durham get around to interviewing Millian.

1085 OSC Report of Interview of Sergei Millian on Feb. 5, 2022 at 1.

His team did that interview remotely; Durham didn’t even have direct proof that Millian was in Dubai when he did that interview.

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.

[snip]

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.

[snip]

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.

And a week after that interview, Durham accused Millian (though he didn’t name him) of “misrepresent[ing] facts” when he claimed “they” were spying on the White House on the very same Twitter account on which Durham relied to obtain the indictment.

One day later, Millian’s Twitter account revealed that Millian told the Trump White House who was “working against them” long before it was publicly known (Durham made no mention of these Tweets when he tried to claim that emails Millian sent in 2020 could be considered reliable).

In other words, abundant evidence suggests that Durham indicted Danchenko without doing the most basic step first, testing Millian’s reliability. By the time he got to trial, Millian — who like Danchenko, had been the subject of a counterintelligence investigation, and who unlike Danchenko had been frolicking in St. Petersburg during 2016 with Oleg Deripaska, someone who had a key role in Russia’s interference in 2016 — proved more than unreliable.

Durham makes no mention of that truly humiliating prosecutorial misstep, an embarrassment set in motion when he decided to indict a man based on claims made on Twitter, in his entire Report.

And yet not only does Durham refuse to state clearly, in his description of the prosecutorial decision, that Danchenko was acquitted of the charges against him, in his Executive Summary he falsely claims that he has proven Danchenko fabricated the claim. Worse still, Durham complains about investigative steps the Crossfire Hurricane investigators appear to have taken (which are different from the Mueller ones, who obtained abundant records about Millian’s communications), but he himself focused exclusively on disproving a telephony call between the two men, in spite of evidence (including of the contacts setting up a meeting between Millian and George Papadopoulos in precisely the same period) that any such call would have happened over the Internet.

Durham does this while making it clear that one reason he charged the Millian counts is because the allegation attributed to Millian, “contributed to the public narrative of Trump’s conspiring and colluding with Russian officials.” That’s only a crime if someone lied to the FBI about it, and Durham didn’t prove his case that Danchenko did.

It should not be left to me, almost a week after this report got released, to point out something grotesque. Durham is still claiming that these men lied, even though two juries told him he didn’t have the evidence to prove that case. That’s not just a grave abuse of Michael Sussmann and Igor Dancheko’s due process, but it exhibits profound disrespect to the service of the jurors.

After both his acquittals, Durham issued a statement claiming, “we respect the jury’s decision and thank them for their service.” And then he wrote a 300-page report telling them he knew better.

John Durham Committed the “Crime” of “Inferring” of Which He Accused Rodney Joffe

I’d like to look at 13 instances in which the word, “inference” appears in the Durham Report.

Almost half come in Durham’s discussion of Rodney Joffe’s work on the Alfa Bank anomalies. Durham states as fact that Joffe “tasked” a number of people to “mine … data to establish ‘an inference’ … tying then-candidate Trump to Russia.”

With respect to the Alfa Bank materials, our investigation established that Joffe had tasked a number of computer technology researchers who worked for companies he was affiliated with, and who had access to certain internet records, to mine the internet data to establish “an inference” and “narrative” tying then-candidate Trump to Russia.

[snip]

In particular, in late July and early August, Joffe commenced a project in coordination with Sussmann and Perkins Coie to support an “inference” and “narrative” tying Trump to Russia. For example, records show that on three days in August 2016, Joffe had meetings or conference calls with Sussmann and Elias. 1401 At about the same time, Joffe began tasking his own employees and associates to mine and assemble internet data that would support such an inference or narrative. 1402

[snip]

Regarding this whole project, my opinion is that from DNS all we could gain even in the best case is an *inference*. I have not the slightest doubt that illegal money and relationships exist between pro-Russian and pro-Trump, meaning actual people very close to Trump if not himself, [meaning actual people very close to Trump if not himself. And by Putin’s traditional style, people Putin controls, but not himself. He controls the oligarchs and they control massive fortunes and cross nearly all major industries in a vast number of countries.]

But even if we found what Rodney asks us to find in DNS we don’t see the money flow, and we don’t see the content of some message saying “send me the money here” etc.

I could fill out a sales form on two websites, faking the other company’s email address in each form, and cause them to appear to communicate with each other in DNS (And other ways I can think of and I feel sure [University-1 Researcher-2] can think of[.])

IF Rodney can take the *inference* we gain through this team exercise … and cause someone to apply more use.fit! tools of more useful observation or study or questioning … then work to develop even an inference may be worthwhile.

That is how I understood the task. Because Rodney didn’t tell me more context or specific things. What [Cyber Researcher- 1] has been digging up is going to wind up being significant. It’s just not the case that you can rest assured that Hil[l]ary’s opposition research and whatever professional govts and investigative journalists are also digging … they just don’t all come up with the same things or interpret them the same way. But if you find any benefit in what [he] has done or is doing, you need to say so, to encourage [him]. Because we are both killing ourselves here, every day for weeks.

[I’m on the verge of something interesting with hosts that talk to the list of Trump dirty advisor domain resources, and hosts that talk to [Russian Bank1]-* domains. Take even my start on this and you have Tehran and a set of Russian banks they talk to. I absolutely do not assume that money is passing thru Tehran to Trump. It’s just one of many *inferences* I’m looking at.

SAME IRANIAN IP THAT TALKS TO SOME TRUMP ADVISORS, also talks to:

[list of domains redacted]

(Capitals don’t mean SUPER SIGNIFICANT it was just a heading.)

Many of the IPs we have to work with are quite MIXED in purpose, meaning that a lot of work is needed to WINNOW down and then you will still only be left in most cases with an *inference* not a certainty.]

Trump/ advisor domains I’ve been using. These include ALL from Rodney’s PDF [the Trump Associates List] plus more from [Cyber Researcher-1]‘s work[:

Trump/ advisor domains I’ve been using. These include ALL from [Tech Executive-1’s] PDF [the Trump Associate’s List] plus more from [name redacted, probably also Cyber Researcher-1]’s work: [list of domains redacted] [RUSSIAN BANK-1] DOMAINS [list of domains redacted] More needs to be added to both lists.]1438 

The word “inference” here comes not from Joffe, but from April Lorenzen, who wrote the large block quote here, to which I’ve added — in the italicized brackets — language from the Durham motion to get it admitted at trial. Even without the Lorenzen language Durham excludes, his deceit is clear, because someone that Durham has never included in his feverish conspiracy theories — Cyber Researcher-1 — is described as doing his or her own work. With Lorenzen’s language included, Durham’s deceit is still more obvious, given how Lorenzen talks about forming her own inference. Not to mention the fact that (as I noted here), many of Lorenzen’s inferences — starting with the fact that Trump’s campaign manager was laundering money from Russia through Cyprus and that he had a tie with Alfa Bank founder’s son-in-law or that Trump was hiding business ties with Russia — turned out to be 100% correct.

But Durham’s deceit goes even further, because the effort to review DNS data for signs of Russian hacking started, organically, in June, not in July in response to Joffe.

Durham’s misrepresentation of the relationship between the various researchers is particularly rich given that a technical review he had done months after indicting Sussmann revealed that the data Sussmann shared with the FBI was referred to as Lorenzen’s data, not Joffe’s.

The 851 records of resolutions on the USB drive were an exact match for a file of resolutions sent from University-1 Researcher-2 to University-I Researcher- 1 on July 29, 2016, which was referred to as “[first name of Tech Company-2 Executive-l]’s data.”

As it happens, three more of the appearances of the word “inference” in the Durham Report come from the technical review.

The FBI DNS experts with whom we worked also identified certain data and information that cast doubt upon several assertions, inferences, and allegations contained in (i) the above-quoted white papers about the Yotaphone allegations, and (ii) the presentation and Yotaphone-related materials that Sussmann provided to the CIA in 2017.

[snip]

Data files obtained from Tech Company-I, Tech Company-2, and University-I reflect that Yotaphone-related lookups involving IP addresses assigned to the EOP began long before November or December 2016 and therefore seriously undermine the inference set forth in the white paper that such lookups likely reflected the presence of a Trump transition-team member who was using a Yotaphone in the EOP.

[snip]

In sum, as a result of our investigation, the FBI experts advised us that actual data and information on YotaPhone resolution requests directly undermined or refuted several conclusions and inferences included in the Yotaphone white paper. 1674

But that technical review only treats claims made about Yotaphone, not the Alfa Bank allegations, as “inferences.”

I’ll return to the way that Durham presents this technical review at some later time. It doesn’t help Durham in the way he thinks it does.

The point being, though, is that Durham claimed that Joffe was directing people to make inferences about Alfa Bank. He investigated private citizens who made such inferences as a crime.

Which is why I find it telling that the remaining three uses of the word “inference” in the Durham report are his own.

For example, Durham infers, first, that Sussmann’s statements that he was not at the FBI or CIA on behalf of any client is proof he was hiding who his client(s) were, and from that inference, he in turn infers that Sussmann was deliberately trying to hide Clinton and Joffe.

Accordingly, Sussmann’s conduct supports the inference that his representations to both the FBI and the CIA that he was not there on behalf of a client reflect attempts to conceal the role of certain clients, namely the Clinton campaign and Joffe, in Sussmann’s work. Such evidence also further supports the inference that Sussmann’s false statements to two different agencies were not a mistake or misunderstanding but, rather, a deliberate effort to conceal the involvement of specific clients in his delivery of data and documents to the FBI and CIA.

Both these inferences are nonsense — not least because Clinton no longer was a client of Sussmann’s when he went to the CIA in 2017 and both in the process of setting up the CIA meeting and helping the FBI to kill the NYT Alfa Bank story, Sussmann revealed that he did have a client he was working with.

Durham simply refuses to consider the possibility that DNS experts can see anomalous traffic and view it with alarm. And he grossly misrepresents the evidence regarding whether Sussmann pushed the Alfa Bank story after helping the FBI to kill it, probably because that evidence strongly supports Sussmann’s claimed motive: to give the FBI a chance to investigate before the public story alerted those behind the anomaly.

The final use of the word inference in the report is even more egregious.

As discussed above, Fusion GPS approached Steele in May 2016. Prior to his retention, Glenn Simpson met with Steele at Heathrow Airport in London and pitched Steele on the opposition research project. 1100 Approximately one week later, Danchenko contacted RIA Novosti journalists seeking Millian’s contact information. 1101 The timing of Danchenko’s request to RIA Novosti on the heels of Steele’s meeting with Simpson in London strongly supports the inference that Fusion GPS directed Steele to pursue Millian. 1102 Indeed, by the time of Steele’s meeting with Simpson, Nellie Ohr had already identified Millian’s alleged connections to Trump.

As with Carter Page (and Felix Sater, the focus on whom Durham continually downplayed over the course of this investigation), it didn’t take a research firm to identify Millian’s ties to Trump. Especially not with Millian bragging of those ties. Indeed, elsewhere Durham suggests Ohr learned of Millian from the RIA Novosti interviews he did in April. RIA Novosti was just as accessible to Danchenko as it was to Ohr.

But once you’ve traced the interest in Millian back to a Nellie Ohr report completed on April 22, 2016, then you’re tracking the research started no later than November 2015 under Paul Singer. You’re blaming Hillary for a project she took over from a right wing billionaire. You’re also tracking research that turned out to be reliable and accurate.

Again, these kinds of inferences are the stuff that Durham tried to criminalize when Lorenzen, a private citizen, made them.

But he nevertheless included them in a declination report provided to the Attorney General.

John Durham, High Priest of the Cult of the Coffee Boy

One of the most telling passages in the entire Durham Report is this one:

245 See supra§ IV.A.3.a (discussing the views of Papadopoulos held by the Australian diplomats and noting his strengths and weaknesses). Understandably, as noted below, when Crossfire Hurricane was opened, serious efforts were made to keep the investigation quiet so as not to interfere with the upcoming election. Ultimately, however, the Mueller investigation reported that:

When interviewed, Papadopoulos and the Campaign officials who interacted with him told the [Mueller] Office that they could not recall Papadopoulos’ sharing the information that Russia had obtained “dirt” on candidate Clinton in the form of emails or that Russia could assist the Campaign through the anonymous release of information about Clinton ….No documentary evidence, and nothing in the email accounts or other communications facilities reviewed by the [Mueller] Office, shows that Papadopoulos shared this information with the Campaign.

I Mueller Report at 93-94 [Ellipsis emphasis mine]

It appears in a section reviewing the Crossfire Hurricane investigation. There are no prosecutorial decisions tied to this section, meaning the section is — at least arguably — one of the 100 pages of extraneous material in this report outside the scope of “closing documentation” required by regulation.

In a section discussing whether the investigation should ever have been opened, preceding the discussion falsely claiming to have found a conflict between Alexander Downer’s version of George Papadopoulos’ statement about the Russian offer of help and Erika Thompson’s (which I laid out in this post), Durham footnotes a passage in which he discusses how little the FBI evaluated the Papadopoulos tip before opening an investigation by quoting what he claims is the Mueller Report conclusion on this matter.

Here’s what that passage from the Mueller Report actually looks like.

Durham omits with an ellipsis the part of the report that describes Papadopoulos, “wavered about whether he accurately remembered an incident in which Clovis had been upset after hearing Papadopoulos tell Clovis that Papadopoulos thought ‘they have her emails.'”

Durham purports to quote from the Mueller Report, but then leaves out language from it that utterly changes the entire meaning of the passage, showing that Papadopoulos did have some memory of telling Sam Clovis, “they have her emails,” rather than concluding definitively that he did not.

To sustain his narrative that the tip about Papadopoulos should not have been used to open an investigation, Durham distorts what the evidence about Papadopoulos actually shows.

This is not the only misrepresentation Durham makes with regards to the Papadopoulos investigation. Here’s how he describes Papadopoulos’ prosecution.

With regard to misleading and incomplete information being provided to the FBI, Papadopoulos was subsequently charged in a one-count Information with and convicted of making false statements in violation of 18 U.S.C. § 1001(a)(2). United States v. George Papadopoulos, Crim. No. 17-cr-182 (RMD) (D.D.C.), Document 8 (Information). Specifically, during his first interview with the Crossfire Hurricane Agents on January 27, 2017, Papadopoulos told the Agents about an individual associated with a London-based entity who had told him about the Russians having “dirt” on Clinton. Although Papadopoulos provided the FBI with the name of the individual and where he could be contacted, Papadopoulos lied to the Agents about when he had received the information (it was received after not before he was named as a foreign policy advisor to the Trump campaign) and he downplayed his understanding of the individual’s connections to Russian government officials. U.S. v. Papadopoulos Document 19 (Statement of the Offense) at 1-2. In addition, Papadopoulos misled the Agents about his attempts to use the individual and a female associated with that person to arrange a meeting between the Trump campaign and Russian government officials. Id. at 2-3. Ultimately, Papadopoulos pleaded guilty to making false statements. On multiple occasions he then met with, answered questions for, and provided information to the Government, id. at 13, and eventually was sentenced to 14 days incarceration. U.S. v. Papadopoulos Document 50.

He cites a few words in Papadopoulos’ Statement of Offense to suggest that Papadopoulos “provided information” to the government. He doesn’t quote the sentencing memo, which explains that Papadopoulos cooperated to the extent that DOJ had obtained a written record debunking the things he had earlier said to the FBI.

The defendant did not provide “substantial assistance,” and much of the information provided by the defendant came only after the government confronted him with his own emails, text messages, internet search history, and other information it had obtained via search warrants and subpoenas well after the defendant’s FBI interview as the government continued its investigation. The defendant also did not notify the government about a cellular phone he used in London during the course of the campaign – that had on it substantial communications between the defendant and the Professor – until his fourth and final proffer session.

And Durham definitely doesn’t cite the September 19 proffer in which Papadopoulos claimed to be unable to read his own notes, written around July 11, 2016 — so just weeks before the opening of Crossfire Hurricane — that appear to discuss plans for a September 2016 meeting with “Office of Putin” in London.

Just a few weeks before the FBI opened an investigation into Papadopoulos, he had discussed plans for a secret meeting with Putin’s office in London. Papadopoulos ultimately refused to explain that plan to the FBI.

And John Durham questions whether this investigation should ever have been opened.

This misrepresentation of the record on Papadopoulos is fairly significant. That’s because sixteen pages of Durham’s investigative review and two of his actual prosecutorial decisions pertain to whether the FBI committed a crime by having informants record conversations with Papadopoulos and Sam Clovis (again, remember that in his report Durham did not mention the informant, handled by pro-Trump agents, targeting the Clinton Foundation in the same period, a far clearer violation of what he complains about here), but not including everything that Durham believed helped Trump in Carter Page’s FISA application.

Durham goes to great lengths to conclude that there was not only exculpatory information in the recordings that didn’t make the Carter Page FISA applications (something about which DOJ IG agreed with him on), that Papadopoulos’ labeling of what Roger Stone ultimately did do — at Manafort’s request — to be treason as similarly exculpatory, but that Sam Clovis (who may have had advance notice about the emails) raising voter suppression in response to a question about Russia, or Papadopoulos, confessing he responded to Halper in the belief he might report back to the CIA were not inculpatory statements. These are all opinions. Significantly, some of the are opinions that Congress first floated in a hearing that served as the impetus for this very investigation, an investigation that concluded that investigations shouldn’t be driven by direction from Congress.

To prove the FBI wrong about this difference of opinion, though, Durham provides his own opinion about whether Papadopoulos had offered a scripted answer to the question that he later said he believed would be shared with the CIA. To attempt to criminalize the decision to leave out denials that the FBI believed to be scripted, Durham did his own review.

Things get weirder when Durham credits Papadopoulos’ statements — made to a friendly informant on March 31, 2017, after having already lied to the FBI and misrepresented to this particular informant his ties with Sergei Millian, though before FBI discovered the relationship with Ivan Timofeev that Papadopoulos had hidden in his initial interviews — that he had nothing to do with Russia.

14:03:45

CHS-2: Do you think the Russians would come and kill you if you said something? The Russian Mafia?

GP: I have nothing to do with the Russians.

14:14:30

CHS-2: If Russia [expletive] meddled in our elections, what else are they controlling about us? That just makes America look weak.

GP: I still don’t believe that [they did].

And we can be sure that Durham left out inculpatory statements.

For example, Durham makes no mention of the fact that Papadopoulos talked about monetizing his relationship with Trump specifically in context of a question about Russia, as described in the Horowitz Report.

When Source 3 asked Papadopoulos if he had ever met Putin, Papadopoulos said that he was invited “to go and thank God I didn’t go though.” Papadopoulos said that it was a “weird story” from when he “was working at … this law firm in London” that involved a guy who was “well connected to the Russian government.” Papadopoulos also said that he was introduced to “Putin’s niece” and the Russian Ambassador in London. 472 Papadopoulos did not elaborate on the story, but he added that he needed to figure out

how I’m going monetize it, but I have to be an idiot not to monetize it, get it? Even if [Trump] loses. If anything, I feel like if he loses probably could be better for my personal business because if he wins I’m going to be in some bureaucracy I can’t do jack … , you know?

This expressed enthusiasm to monetize his access to Trump and his relationship with “Putin’s niece” is a clear counterintelligence concern. Durham doesn’t mention it.

All this provides likely explanation for why Durham misrepresented the results of the investigation against Papadopoulos.

Immediately before the section, quoted above, where Durham describes Papadopoulos’ guilty plea and exaggerates his cooperation, Durham complains that a footnote in the Carter Page FISA applications referring to lies Papadopoulos later pled guilty to telling in interviews with FBI Agents “contained qualifying language regarding the denials.” Here’s the footnote from the last two Page FISA applications:

As of March 2017, the FBI has conducted several interviews with Papadopoulos. During these interviews, Papadopoulos confirmed that he met with officials form the above-referenced friendly foreign government, but he denied that he discussed anything related to the Russian Government during these meetings. Based on the FBI’s investigative efforts and some of the comments made by Papadopoulos, the FBI believes that Papadopoulos provided misleading or incomplete information to the FBI during the interviews.

Durham’s own interviews with Downer and Thompson confirm Papadopoulos’ statements about the Australians were incorrect. And yet Durham complains that the FBI correctly observed that Papadopoulos was misleading the FBI about statements that he himself proved to be inaccurate.

As noted above, certain denials made by Papadopoulos in FBI interviews were mentioned in a footnote, but the Crossfire Hurricane team reported that it believed Papadopoulos was misleading in those interviews. This denial from Papadopoulos in this conversation with CHS-2, which occurred prior to those two renewal applications being submitted to the FISC, was also omitted from any discussion in that referenced footnote.

I would write this all off as just Durham’s effort to parrot what people like Mark Meadows and Jim Jordan urged him to investigate, or desperation, or maybe just an old man seeing clouds in old informant recordings, except for a few more details about Durhams’ treatment of Papadopoulos.

First, as I noted here, as of June 2022, Durham had never interviewed Papadopoulos himself. In fact, if you can believe Papadopoulos, rather than interviewing him, Durham relied on Papadopoulos’ congressional testimony conducted without any of the underlying documents in question, in which Papadopoulos repeatedly laundered conspiracy theories told in right wing rags into the Congressional record. If you can believe Papadopoulos, Durham took those conspiracy theories, and ran off to Europe to chase them down.

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

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

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

Rather than corroborating Papadopoulos’ conspiracy theories, Durham instead learned of evidence implicating Trump in a crime, an investigation that has disappeared. Durham makes no mention of these junkets in his final report — he makes no mention that Papadopoulos, whose criminal investigation he misrepresents, sent him and the Attorney General on wild goose chases to Europe.

That’s one reason it matters that Durham made no mention of these junkets in his final report, because doing so would discredit the testimony Papadopoulos made to Congress, and in the process make it even more clear that the FBI was right to open an investigation into the Coffee Boy.

But there’s an even bigger reason that Durham’s failure to interview Papadopoulos matters: because he was the one person known to have undeniably relevant testimony about Sergei Millian’s communication practices during July 2016, someone who could provide direct insight onto whether it was possible that Igor Danchenko and Millian communicated in those very same weeks.

Durham’s failure to interview Papadopoulos on that topic is all the more telling given that in the 11-page section of the report in which Durham discusses the basis for four charges against Igor Danchenko that a jury acquitted on, he makes just three references to actual interviews his own team did:

1085 OSC Report of Interview of Sergei Millian on Feb. 5, 2022 at 1.

[snip]

1136 OSC Report of Interview of Brian Auten on July 26, 2021 at 21; OSC Report of Interview of Kevin Helson on July 27, 2021 at 3-4.

The Millian interview was conducted remotely; Millian refused to make the same comments under oath, in a venue in which he could be held accountable for lies.

The interviews with Auten and Helson were significantly debunked on the stand at Danchenko’s trial.

Under cross-examination by Danchenko attorney Stuart Sears, for example, Helson testified he never walked away from his meetings with Danchenko believing he had lied.

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

A. Yes.

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

A. Correct.

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

A. That’s fair.

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

A. Correct.

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

A. Yes.

Helson is likely the person whom Durham referred for further investigation for his handling of Danchenko. The report doesn’t provide the date of the referral, suggesting he may have retaliated against Helson for this testimony given under oath.

In cross-examination, Danchenko attorney Danny Onorato first got Auten to acknowledge that Danchenko himself had said the communication he had with someone he believed was Millian was “strange,” and Auten never followed to up clarify if they meant the same thing by “strange.”

Q. All right. So, first of all, I think your testimony yesterday was that you thought that the interaction was strange between Millian, the person he believed to be Millian, and Mr. Danchenko.

A. I thought that that interaction, as described, was peculiar and strange, yes.

Q. Right. And before you thought they were peculiar, Mr. Danchenko told you, on the 24th, is that he thought what happened was strange, right?

A. I do recall that, yes.

Q. Right. Because when you write a 302 or your memo, you write what the witness tells you, right?

A. Correct.

Q. Okay. And you would agree that his characterization was, “Guys, this is strange,” and that’s what you wrote in that report?

A. I believe that’s how I characterized it.

Q. Okay. So you agree with him when he said, “This was strange.” You said, “You know what, he’s right. This seems strange,” right?

A. He characterized it as strange. I think my characterization of strange might not be the same characterization of strange.

Q. Okay. But you used the same word?

A. Used the same word, yes.

Q. So you can use the same word, and sometimes people can interpret the word differently is what you’re telling me.

A. Yes.

Q. Okay. And the only way for you to know that is to ask a follow-up question and say, “Hey, when you say ‘strange,’ this is what I think and this is what you think,” right?

A. Right.

Q. But you never did that?

A. I don’t recall asking him to define what he meant by strange in that.

Q. Very well. But he told you that he got information from a person who did not identify himself, correct?

A. Correct.

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

A. Correct.

Then, Onorato demonstrated that Durham had gotten Auten to lie unwittingly on the stand by withholding the part of the Danchenko transcript where, in his first interviews with the FBI, he said the call he had with the person he believed was Millian could have been via app.

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

A. Okay.

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

A. Yes.

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

A. Yes.

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

A. Yes.

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

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

Q. Yeah.

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

Q. I’m sorry, what did you just say?

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

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

A. Yes.

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

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

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

A. No.

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

A. Correct.

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

A. Correct.

Q. So he did mention a mobile app?

A. That is correct.

Onorato then got Auten to testify to how Durham had withheld the Amtrak records that corroborated Danchenko’s version of what happened.

What happened next was more dramatic. Durham attempted to exclude just the metadata of communications between Papadopoulos and Millian in these very same weeks of July 2016 because — he said in a bench conference — the content of the communications “sound[ed] creepy.”

The defendant has provided what he has premarked as Defendant’s Exhibit 480, 4-8-0, which is an email, a LinkedIn message from Millian to George Papadopoulos. Unless the defendant is going to somehow explain to the jury what Millian and Papadopoulos were communicating about at this period of time, then the Court should not permit it. Papadopoulos and Millian, as I think the defense knows from the discovery in this case, were exchanging any number of emails or Facebook exchanges or LinkedIn all about real estate, potential real estate transactions.

And so what the defense would be asking the jury to do is to draw some adverse inference that there was something going on between Millian and Papadopoulos that they really don’t know about, but it certainly sounds creepy. Well, in fact, if you look at what the communications were, as I say, between Papadopoulos and Millian, they are all about real estate, potential real estate investments.

[snip]

MR. DURHAM: 486 is from Millian to Papadopoulos. Again, you know, its irrelevant to these proceedings, but for the same reason, in the government’s view, it would be inadmissible unless we want to get into evidence relating to what Papadopoulos and Millian were doing at or about the time these email exchanges were occurring. [my emphasis]

Then, when Durham made another attempt to prevent just this metadata from coming into evidence, he spent five minutes trying unsuccessfully to get Auten to rule out that these communications could be proof of Russian “collusion.”

Q. And do you remember what Papadopoulos and Millian were involved in that generated these numbers?

A. I don’t recall exactly what they were involved in, but it was —

Q. But was it pretty much they were involved in real estate or investment discussions over a long period of time?

A. That, I don’t recall exactly.

Q. Well, how about generally? Do you generally refer — recall that Papadopoulos and Millian were involved in discussions about real estate projects and the like?

A. In January of…

Q. Well, this whole period that’s reflected in Defendant’s Exhibit 403.

A. Yeah, again, I don’t know if I — I don’t know if I can speak to that at this point.

Q. Well, you — you were the analyst — that supervisory analyst, correct?

A. Yes.

Q. Did you recall, sir, what it was that Mr. Millian was involved in, the kind of investments?

A. Yes, he was involved in investments and the like.

Q. Right.

A. But I don’t know if I can speak to, at this point, these phone records being tied to any real estate deals or anything of that sort.

Q. Right. So all of these records have shown there was contact between the two of them, correct?

A. Correct.

Q. And did you know that Millian was involved in the energy sector as well?

A. Yes, correct.

Q. And did you know that Papadopoulos was talking about getting involved in the energy sector in the Middle East?

A. Yes, I did know that.

Q. Does that refresh any recollection as to whether or not the contact between Millian and Papadopoulos had to do with energy and other investments?

A. Again, I am familiar with both of those things. I don’t know if that is what this document was actually written for.

Q. Okay. And there’s nothing in this document that tells you what it is about, correct?

A. No. Gmail talks about — there are a couple of references on — it’s not — it’s Bates Number — last Bates number is 105262.

Q. Uh-huh.

A. And there are two paragraphs that talk about another individual involved with energy.

Q. Right. This is all about business, correct?

A. Again, I don’t know if all of this is about business. I know that there are paragraphs in here involving energy.

Q. Okay. So one can tell from this is that they were involved in exchanges of emails or the like, correct?

A. Correct.

Q. And it appears it has to do with energy, correct?

A. It might , yes. Again, there are a lot of — there are a lot of communications on here.

Q. Yes.

A. So I would not be able to state with any substance that these are all involving energy issues.

Q. You can’t say that because the document doesn’t tell the jury what it’s about, other than that it, at least it has partially to do with energy?

A. Correct.

Q. Between Millian and Papadopoulos, correct?

A. That’s what it appears, correct.

Q. So it would be unreasonable to conclude anything or draw any conclusions from this other than Papadopoulos and Millian were involved in investments in the energy sector, right?

A. I don’t know if I can say that it follows necessarily from this, that all of these things deal with that.

Q. That wasn’t my question, though.

A. Okay.

Q. My question was: It would be unreasonable to conclude from this document anything other than they were at least involved in talking about — the energy sector, correct?

A. I would say that from this document there may —

Q. Uh-huh.

A. — there are likely communications within this list of communications dealing with energy, though I cannot say, analytically speaking, that all of these deal with energy

Q. Fair enough. You know that Millian was involved in the energy sector and real estate?

A. I do recall that.

Q. And Papadopoulos is involved in the energy sector and real estate?

A. I recall that.

Q. And so this document doesn’t have anything to do, from looking at it on its particulars, anything to do with Russia and Russia collusion and the like, correct?

A. So the only thing that this has is — it has a list of — most of it is a list of communications between the two parties, dates, times.

Q. Okay. [my emphasis]

Durham, in open court, tried to prevent any mention of the relationship between Papadopoulos and his sole affirmative witness against Danchenko, Sergei Millian, because, in his own words, the communications between Millian and Papadopoulos “certainly sound[] creepy.”

And he made no mention of any of this in his report. He sure as hell made no mention of getting a prosecution witness to make a false claim on the stand by withholding information.

This is the witness, Papadopoulos, he never interviewed to learn about the nature of Millian’s communications at the time.

This is the witness he spent pages and pages of his report misrepresenting.

This is the witness, George Papadopoulos, whose Congressional testimony launched him onto multiple international junkets with the Attorney General, in search of conspiracy theories that yielded only some useless Blackberries and evidence of financial crimes involving Trump.

In his report to Merrick Garland, John Durham maintains that the FBI was overly hasty to open an investigation into Papadopoulos, the guy who weeks before the investigation was opened was planning a secret meeting with Putin.

But in open court, Durham admitted that in very weeks the FBI opened the investigation, the Coffee Boy was involved in “creepy” communications with Sergei Millian.

And he doesn’t mention those creepy communications in his report.

Eight Things Not Mentioned in the Durham Report

There are a whole lot of gaping holes in the Durham Report (my Twitter thread on the report is here; here’s a ThreadReader version). Here are eight of the most important things that Durham chose to leave out of his report on his four-year investigation.

1. All mention of the Italian referral on Trump. In January, NYT reported on the many problems with the Durham investigation, none of which shows up in his report. Most importantly, NYT reported that on a trip to Italy, the Italians gave Bill Barr and Durham a tip about crimes Trump may have committed.

On one of Mr. Barr and Mr. Durham’s trips to Europe, according to people familiar with the matter, Italian officials — while denying any role in setting off the Russia investigation — unexpectedly offered a potentially explosive tip linking Mr. Trump to certain suspected financial crimes.

Mr. Barr and Mr. Durham decided that the tip was too serious and credible to ignore. But rather than assign it to another prosecutor, Mr. Barr had Mr. Durham investigate the matter himself — giving him criminal prosecution powers for the first time — even though the possible wrongdoing by Mr. Trump did not fall squarely within Mr. Durham’s assignment to scrutinize the origins of the Russia inquiry, the people said.

Mr. Durham never filed charges, and it remains unclear what level of an investigation it was, what steps he took, what he learned and whether anyone at the White House ever found out. The extraordinary fact that Mr. Durham opened a criminal investigation that included scrutinizing Mr. Trump has remained secret.

By regulation, there should be some investigative result from this investigation in Durham’s report. It’s not in there.

2. All mention of the conspiracy theories Durham and Barr chased in Europe. The first year or so of the Durham investigation, Bill and John spend traipsing around the world chasing the conspiracy theories George Papadopoulos had floated in a 2018 House Oversight appearance. Barr has confessed they found nothing. But Durham doesn’t do that — or even mention the conspiracy theories — in his report. That’s important for a number of reasons: because Durham asserts that Congress should have no say in criminal investigations even though they dictated the initial direction of his own, because (as I’ll show) Durham badly whitewashes everything having to do with Papadopoulos, and because Durham also doesn’t mention the investigative steps he failed to take while running off to Italy to get Joseph Mifsud’s blackberries.

3. Durham’s own investigative failures. I’ve written at length about how Durham’s own investigative failures make anything Crossfire Hurricane did look tame by comparison. He failed to get relevant information from DOJ IG or ask Jim Baker to check his iCloud for what happened to be texts proving Michael Sussmann’s defense until after he indicted Sussmann. He never interviewed Papadopoulos, indicted Danchenko relying on what Sergei Millian said on Twitter, and then failed to obtain the messaging app evidence he would need to disprove a call between Millian and Danchenko. Durham focuses, at length, on steps he speculated the FBI didn’t take on the Carter Page FISC, but he had more egregious failures to pursue what turned out to be exculpatory information.

4. The Trump Tower Moscow deal. In a footnote, Durham concedes there are things that the FBI later found that corroborated ties between Trump and Russia that weren’t known when the investigation was opened. The only example he provides, however, is the June 9, 2016 meeting in Trump Tower in New York.

There were also at least some activities involving the Trump campaign and Russians that did not become public, and were not known to the FBI, until much later. For example, on June 9, 2016, senior representatives of the campaign met briefly with a private Russian lawyer, Natalia Veselnitskaya, and others at the Trump Tower. Mueller Report at 110, 117. Veselnitskaya “had previously worked for the Russian government and maintained a relationship with that government throughout this period oftime.” Id. at 110. The initial email to Donald Trump Jr. proposing the meeting said that the Crown prosecutor of Russia was offering to provide the campaign with documents and information that would incriminate Clinton. Id. The meeting at the Trump Tower only became public over a year later. Id. at 121.

Durham leaves out many others — like Manafort sharing campaign strategy and Trump having Manafort order Roger Stone to reach out to WikiLeaks. But because Durham focuses closely on Dmitry Peskov’s role in the Steele dossier and a brief nod he makes towards Russian disinformation in it, Durham’s silence about Michael Cohen’s January 2016 conversation with Dmitry Peskov’s office asking for help on a Trump Tower Moscow deal, using sanctioned banks and a former GRU officer as broker, is the most damning. Olga Galkina and Charles Dolan’s ties to Peskov — an interminable focus of this report — are important especially because Peskov was the one person in Russian who undeniably knew that Cohen had made a secret call to Russia during the campaign that both he and Trump were lying to cover up. Yet Durham simply ignores that critical context.

5. Konstantin Kilimnik’s name. Not only did Durham fail to mention most of the most damning things that Trump and his flunkies did, he also failed to mention some of the key people they did them with. None is more important than Konstantin Kilimnik, with whom Paul Manafort conspired to cover up his past pro-Russian Ukraine lobbying, to whom Manafort provided campaign strategy at a meeting where they also discussed millions in debt relief for Manafort, and about which meeting Amy Berman Jackson found Manafort had lied to prosecutors. Kilimnik is important for two reasons. First, Durham nods to the potential role of “Oligarch 1,” whom he doesn’t reveal was Oleg Deripaska, in disinformation in the dossier. He also confirms that Christopher Steele was working for Deripaska earlier in 2016 (in which discussion Durham does name the now-sanctioned Oligarch). But Durham never mentions that Manafort had direct ties to Deripaska through Kilimnik. And Durham repeatedly claims that, because the Intelligence Community had no record of ties between Trump and Russian intelligence services when the FBI opened Crossfire Hurricane, it’s proof the FBI shouldn’t have opened the investigation. Of course, the IC has since concluded that Kilimnik shared that campaign information from Manafort with Russian spooks and that he is himself a spook. Thus, the IC’s failures to identify Kilimnik’s intelligence ties (and those of other people more loosely tied to Russia and Trump) is not a reflection, at all, of the merit of the investigation, but instead a mark of the IC’s own failures in advance of the operation.

6. Description of Guccifer 2.0’s initial releases. Unlike Kilimnik, Durham at least mentions Guccifer 2.0, the persona GRU officers created as a cut-out through whom to release some of the files they stole. But Durham only mentions the persona in a discussion of what he calls a Clinton Plan to impose a political cost on Trump for cozying up to Russia.

Per FBI verbal request, CIA provides the below examples of information the CROSSFIRE HURRICANE fusion cell has gleaned to date [Source revealing information redacted]: [] An exchange … discussing US presidential candidate Hillary Clinton’s approval of a plan concerning US presidential candidate Donald Trump and Russian hackers hampering US elections as a means of distracting the public from her use of a private email server. According to open sources, Guccifer 2.0 is an individual or group of hackers whom US officials believe is tied to Russian intelligence services. Also, per open sources, Guccifer 2.0 claimed credit for hacking the Democratic National Committee (DNC) this year.

There’s much that is downright noxious about Durham’s treatment of his so-called Clinton Plan. But he fails to distinguish the treatment of whatever report this intelligence made of Guccifer 2.0 and the allegation about Hillary, including when discussing its briefing and dissemination. More problematic still, Durham claims that all this only happened in late July 2016, even though the Democrats identified the hack and its attribution, Guccifer 2.0 started releasing stolen files, and (per Rick Gates, at least) Roger Stone entered discussions with the persona about advance releases in mid-June. Durham’s silence (aside from this quotation) about Guccifer 2.0 not only serves his criminalization of Hillary’s response to being victimized by a nation-state attack, but it permits him to craft a completely false timeline on which his Clinton Plan conspiracy theory depends.

7. The biased FBI Agent running the Clinton Foundation informant. Durham engages in a good deal of false comparisons between how Hillary was treated and how Trump was. Most fall apart. For example, he points to a defensive briefing Hillary got in a different foreign influence investigation to claim that Trump should have gotten a defensive briefing in the Crossfire Hurricane investigation. But his own report shows she didn’t get that briefing until around ten months into the investigation; less than six months into the Russia investigation, Trump got a briefing, about Mike Flynn. Durham’s comparisons of the conduct of the Clinton Foundation investigation and Crossfire Hurricane are even more strained, since he engages in no reflection of how shoddy Clinton Cash was, which (unlike the Steele dossier here) was part of that predication. Nor does he contemplate the rampant leaking, during the campaign, about that investigation. Most dishonest, however, is Durham’s silence about the single informant run during 2016 known to be handled by biased agents, one targeting Clinton Foundation described in the Carter Page IG Report.

We reviewed the text and instant messages sent and received by the Handling Agent, the co-case Handling Agent, and the SSA for this CHS, which reflect their support for Trump in the 2016 elections. On November 9, the day after the election, the SSA contacted another FBI employee via an instant messaging program to discuss some recent CHS reporting regarding the Clinton Foundation and offered that “if you hear talk of a special prosecutor .. .I will volunteer to work [on] the Clinton Foundation.” The SSA’s November 9, 2016 instant messages also stated that he “was so elated with the election” and compared the election coverage to “watching a Superbowl comeback.” The SSA explained this comment to the OIG by saying that he “fully expected Hillary Clinton to walk away with the election. But as the returns [came] in … it was just energizing to me to see …. [because] I didn’t want a criminal to be in the White House.”

On November 9, 2016, the Handling Agent and co-case Handling Agent for this CHS also discussed the results of the election in an instant message exchange that reads:

Handling Agent: “Trump!”

Co-Case Handling Agent: “Hahaha. Shit just got real.”

Handling Agent: “Yes it did.”

Co-Case Handling Agent: “I saw a lot of scared MFers on … [my way to work] this morning. Start looking for new jobs fellas. Haha.”

Handling Agent: “LOL”

Co-Case Handling Agent: “Come January I’m going to just get a big bowl of popcorn and sit back and watch.”

Handling Agent: “That’s hilarious!” [my emphasis]

This exchange is similar to the texts that Durham uses to implicate Peter Strzok, Lisa Page, or Kevin Clinesmith. But in this case, this agent was directly handling an informant targeting the actual candidate during the election.

8. The response to Mike Flynn’s lies about Sergey Kislyak. In retrospect, another significant thing missing from this report is the investigation into how, in early 2017, the FBI responded to Mike Flynn’s lies about speaking with Sergey Kislyak. We know that Durham did investigate this. Much of what he investigated was handed to Jeffrey Jensen to launder into the effort to overturn the Flynn prosecution. But Durham doesn’t even whitewash the ultimate charges against Flynn, as he does, to hilarious effect, with George Papadopoulos. There’s nothing more than a passing reference to discomfort from investigators that could pertain to this investigative effort. I’m not sure what to make of its absence. It’s possible it was too closely related to the blow-up with Nora Dannehy. Possibly, the interim report the team drafted without her knowledge focused on Flynn and she debunked it, meaning there’s a prosecutorial judgment somewhere that undermines the claims Barr and others made. Possibly, the games Barr played after that — including the release of a Bill Barnett 302 that conflicted in key ways with the public record — have made those claims untenable. Whatever the reason, its absence in this report is notable.

There’s a lot more that’s missing from this report. But if Durham were to fill just a few of these critical gaps, the whole thing would crumble.

Update: Added an eighth missing item, the Mike Flynn prong of the investigation. Subsequently fixed Jensen’s first name.

John Durham Repeats Debunked Claims in Report to Garland

John Durham has, after four years, finally released a report.

It is corrupt. It harms America. It misrepresents FISA.

It also repeats claims that were debunked under oath. I’ll be reading it here. But for those who want to vent, this is your open thread.

Trophy Documents: The Entire Point Was to Make FBI Obedient

Those who didn’t follow John Durham’s trials closely undoubtedly missed the parade of scarred FBI personnel whose post-Crossfire Hurricane vulnerability Durham attempted to exploit to support his invented claims of a Clinton conspiracy.

Sure, lots of people wrote about Jim Baker’s inability to provide credible answers about the meeting he had with Michael Sussmann in September 2016. Fewer wrote about the credible case that Sussmann’s attorneys made that a prior Durham-led investigation into Baker — for sharing arguably classified information with a reporter in an attempt to forestall publication of a story — made Baker especially quick to cooperate with Durham in 2020. Fewer wrote about Baker’s description of the stress of Jim Jordan’s congressional witch hunts.

It sucked because the experience itself, sitting in the room being questioned the way that I was questioned, was, as a citizen of the United States, upsetting and appalling, to see members of Congress behaving the way that they were behaving. It was very upsetting to me.

[snip]

It sucked because my friends had been pilloried in public, my friends and colleagues had been pilloried in public, improperly in my view; that we were accused of being traitors and coup plotters. All of this was totally false and wrong.

Such a circus was the kind of thing that might lead someone like Baker to prefer the “order” of a prosecutor chasing conspiracy theories, someone whose memory was seared by the firing of Jim Comey.

[Sean Berkowitz]. And this is a pretty terrible experience as well. Right?

A. It’s more orderly.

Q. (Gestured with hand to ear.)

A. This is more orderly. It’s terrible but orderly.

Q. And you’re doing the best you can. Right, sir?

A. Yes, sir.

Q. But it’s hard to remember events from a long time ago, 1snre sez

A. It depends on what the event is. I remember Jim Comey being fired, for example. That’s a long time ago and I have a clear recollection of that. So it depends on what you’re talking about.

But Baker wasn’t the only one who discussed the years of scrutiny. Counterintelligence Special Agent Ryan Gaynor, who worked in DC on the Russian investigations during 2016, described how in October 2020, after he revealed to Durham’s team that he knew a DNC lawyer had brought in the Alfa Bank tip, Durham’s team told him they were no longer treating him as a witness, but as a subject of the investigation.

A. Yeah. There were two thoughts. The first one was that I felt like I had woefully ill prepared for the meeting, because I didn’t know what the meeting was honestly going to be about with this investigation.

The second thought was that I was in significant peril, and it was very concerning as a DOJ employee to be told that now the Department of Justice is interested in looking at you as a subject instead of a witness.

Sussmann lawyer Michael Bosworth got Gaynor to explain that after he told a story more to Durham’s liking, he was moved back to the status of witness.

During his testimony, Curtis Heide (who played a key role in the George Papadopoulos investigation) explained how the FBI Inspection Division investigation into Crossfire Hurricane Agents, including him, remained pending, 6 years after the events in question. He noted that, three years after the DOJ IG Report, he was still being investigated even though he, “didn’t author any of the affidavits or any of the materials related to the applications in question.”

The same was true in the Danchenko case. Brian Auten, a key intelligence analyst on Crossfire Hurricane, described how, after having met with agents from DOJ IG four times, having done a long report for FBI’s Internal Affairs Division, and having met with the Senate Judiciary Committee — all with no concerns raised about his own conduct — the first time he met with Durham’s team, he was told he was a subject of the investigation. After Auten gave testimony that confirmed Danchenko’s reliability — seriously damaging his case — Durham himself raised investigations that undermined his own witness’ testimony.

Q. Do you recall that there was a reporter that the OIG had written concerning the Carter Page FISAs?

A. Yes.

Q. And how would you characterize that report?

A. The report was quite extensive and it discussed characterizing a number of errors and omissions.

Q. And with respect to the errors and omissions, were they tick-tacky kinds of omissions or were they significant omissions and errors that had been committed?

A. I believe the OIG described them as significant.

Q. And then with respect to the investigation done by the OIG, separate and apart from that, would it be a fair statement that you and your colleagues were under investigation by the inspection division by the FBI?

A. Yes.

Q. And would it be a fair statement that your conduct in connection with that is, you, yourself, based on the investigation done by the inspection division of the FBI, have some issues, correct?

A. I — be a little bit more specific. I’m sorry. I don’t — I have issues?

Q. Isn’t it, in fact, true that you’ve been recommended for suspension as the result of the conduct?

A. It is currently under appeal.

That line of testimony immediately preceded a hilarious failed attempt from Durham to get Auten to agree that George Papadopoulos was simply a young man with no contact to Trump who was only investigated for his suspect Israeli ties, not for his Russian ties. But it was a palpable example of the way that Trump’s minions used criminalizing FBI investigations into Trump as a way to create a makebelieve world that negates real evidence of Trump’s corruption.

About the only two FBI agents who weren’t portrayed as somehow tainted by the events of 2016 in Durham’s two failed prosecutions were two agents who fucked up investigations: Scott Hellman, who correctly told a junior agent that she would face zero repercussions of she botched the Alfa Bank investigation, and Ryan James, an FBI agent who started his career in Connecticut, who nevertheless failed to pull the evidence necessary to test Sergei Millian’s claims.

Durham rewarded the incompetence that served his purpose and attempted to criminalize what he considered the wrong answers or at least to use the threat of adverse consequences to invent a false record exonerating Trump.

And Durham came in after Jim Comey, Peter Strzok, Andrew McCabe, and Bruce Ohr had already been fired, and Lisa Page, with Strzok, deliberately humiliated on a global stage serially. He came in and exploited the uncertain status — the Inspection Division review left pending while Durham worked — of everyone involved. Such efforts didn’t end with the conclusive acquittals debunking Durham’s theories of conspiracy. Since then, Jim Baker has been dragged back through the mud — publicly and in Congress — as part of Twitter Files, Chuck Grassley passed on “whistleblower” complaints about Auten identifying Russian disinformation as such, and Timothy Thibault was publicly berated because some of the same so-called whistleblowers feeding Jim Jordan shit had complained to Chuck Grassley he was discouraging GOP conspiracy theories about Hunter Biden.

It was never just Strzok and McCabe. The entire Republican Party has relentlessly focused on punishing anyone involved in the Trump investigation, using both unofficial and official channels. When Trump promised “retribution” the other day at CPAC, this kind of relentless effort to criminalize any check on Trump’s behavior is what he was talking about.

That kind of background really helps to understand the WaPo story that described Washington Field Office FBI agents quaking at the prospect of searching Donald Trump’s beach resort.

[P]rosecutors learned FBI agents were still loath to conduct a surprise search. They also heard from top FBIofficials that some agents were simply afraid: They worried takingaggressive steps investigatingTrump could blemish or even end their careers, according to somepeople with knowledge of the discussions. One official dubbed it “the hangover of Crossfire Hurricane,” a reference to the FBI investigation of Russia’s interference in the 2016 presidential election and possible connections to the Trump campaign, the people said. As president, Trump repeatedly targeted some FBI officials involved in the Russiacase.

[snip]

FBI agents on the case worried the prosecutors were being overly aggressive. They found it worrisome, too, that Bratt did not seem to think it mattered whether Trump was the official subject of the probe. They feared any of these features might not stand up to scrutiny if an inspector general or congressional committee chose to retrace the investigators’ steps, according to the people.

Since I wrote my piece wondering whether the FBI hesitation gave Trump the chance to steal 47 documents, Strzok himself, Joyce Vance, and Jennifer Rubin have weighed in.

Rubin, I think, adopts the position of someone who hasn’t followed the plight of all the people not named Strzok who were targeted for investigating Donald Trump. She attributes the reluctance to investigate Trump (and the intelligence failures leading up to January 6, which I’ll return to) to Wray.

After a debacle of this magnitude, that sort of passivity should alarm all Americans. Imagine if, after the terrorist attacks of Sept. 11, 2001, the national security community did not evaluate how it missed the telltale signs of an imminent attack. The failure of leadership in the Jan. 6 case is inexcusable. Yet Wray has never been held to account for this delinquency.

[snip]

[O]ne is left wondering why the FBI seems disinclined to stand up to right-wing authoritarian movements and figures. Whatever the reason, the pattern reveals an unmistakable lack of effective leadership. And that in turn raises the question:Why is Wray still there?

It is absolutely the case that Wray did far too little to protect FBI agents in the face of Trump’s attacks. Wray created the opportunity for pro-Trump FBI agents and Durham to criminalize investigating Trump. I think Wray attempted to avoid rocking the boat at all times, which led the FBI to fail in other areas (including the investigation of Brett Kavanaugh). Though I’m also cognizant that if Wray had been fired during the Trump administration, he might have been replaced by someone like Kash Patel, and having a Trump appointee in charge right now may provide cover for the ongoing investigations into Trump.

But you could fire Wray tomorrow and not eliminate the effects of this bureaucratic discipline, the five year process to teach everyone in the FBI that investigating Trump can only lead to career disaster, if not criminal charges.

Also under Wray, though, the Bureau had already increased its focus on domestic terrorism, with key successes both before and after January 6. Steven D’Antuono, the chief voice of reluctance to search Mar-a-Lago, presided over the really troubled but ultimately successful effort to prevent a kidnapping attempt targeting Gretchen Whitmer, a plot that arose out of anti-lockdown protests stoked by Trump (though unusually, D’Antuono let a subordinate take credit for the arrests).

I think the specific failures in advance of January 6 lay elsewhere. Wray has not done enough in the aftermath to understand the FBI’s failures, but FBI has also been overwhelmed with the case load created by the attack. But, as I hope to return to, I think the specific failure in advance of January 6 lies elsewhere.

Whatever the merit in blaming Wray for FBI’s failure to prepare for January 6, there’s a bigger problem with Rubin’s attempt to blame him on the MAL search. Strzok sketched out in great detail something I had seen, too. The dispute about searching Trump’s house wasn’t between the FBI and DOJ. It wasn’t just what Vance and Strzok both describe as a fairly normal dispute between the FBI and DOJ with the former pushing the latter to be more aggressive.

It was between the WFO on one side and DOJ and FBI HQ on the other.

[A] careful reading of the Post’s reporting (insofar as the reporting is complete) reveals this was not so much a conflict between DOJ and the FBI as much as a conflict between DOJ and FBI headquarters, on the one hand, and the management of the FBI’s Washington Field Office, on the other.

Indeed, a key part of the drama surrounding the pre-August search meeting described by the WaPo involved the conflict between FBI General Counsel Jason Jones — whom WaPo makes a point of IDing as a Wray confidant, thereby marking him as Wray’s surrogate in this fight — and WFO Assistant Director Steven D’Antuono.

Jason Jones, the FBI’s general counsel who isconsidered a confidant of FBI Director Christopher A.Wray, agreed the team had sufficient probable cause to justify a searchwarrant.

[snip]

Jones, the FBI’s general counsel, said he planned to recommend to Deputy FBI Director Paul Abbate that the FBI seek a warrant for the search, the people said. D’Antuono replied that he would recommend that they not.

This, then, was partly a fight within FBI, one in which Wray’s surrogate sided with prosecutors.

Strzok makes a compelling argument that this story may have come from pushback necessitated by people at WFO floating bullshit claims, not dissimilar from — Strzok doesn’t say this, but I will — the leak by right wing agents to Devlin Barrett about the Clinton Foundation investigation in advance of the 2016 election, which led Andrew McCabe to respond in a way that ultimately gave Trump the excuse he wanted to fire him.

Indeed, Strzok’s post includes a well-deserved dig on the WaPo’s claim about, “the fact that mistakes in prior probes of Hillary Clinton … had proved damaging to the FBI,” an unsubstantiated claim I also called out.

[E]ven journalists can be imprecise or inaccurate. The Post’s article isn’t, for example, the type of comprehensive accounting you’d get in a report produced by an Inspector General, who can compile the statements of everyone involved and review and compare those statements to the written record in all its various forms.

Strzok right suggests that DOJ IG’s Report disproved WaPo’s claim about the Hillary investigation, but he seems to have forgotten that the DOJ IG Report into McCabe’s response on the Clinton Foundation didn’t fully air the FBI spox’s exculpatory testimony.

All of which is to say that, in the same way that WFO agents have an understandable visceral concern about getting involved in an investigation targeting Trump, people at HQ might have an equally visceral concern about stories seeded to Devlin Barrett alleging internal conflict that might create some flimsy excuse for firing.

But there’s something still unexplained about the WaPo story. Vance notes, as I did, that D’Antuono may have given Trump the opportunity to steal 47 documents.

[T]he delay couldn’t be undone. We still don’t know whether that resulted in the permanent loss of classified material. It did result in a delay in the timeline for making prosecutive decisions, ultimately extending the investigation into the period where Trump announced his 2024 candidacy, leading to the appointment of a special counsel to continue the investigation and determine whether to prosecute.

But Vance still accepts WaPo’s specious claim about timing, the claim that the delay (from June to August) in searching Trump’s resort led the investigation to bump up against a Trump campaign announcement that would surely have happened earlier had Trump not gotten an injunction. There’s nothing to support that temporal argument, and the public record on the injunction (which, again, lasted until almost a month after Jack Smith’s appointment) disproves it.

The timing issue is one of many reasons why I keep thinking about this earlier Devlin Barrett story, one that did bump up against the appointment of a Special Counsel. On November 14, the day before Trump formalized his 2024 run and so four days before the appointment of Jack Smith, Barrett and WaPo’s Mar-a-Lago Trump whisperer, Josh Dawsey, published a story suggesting that maybe Trump shouldn’t be charged because he just stole a bunch of highly classified documents to keep as trophies.

Federal agents and prosecutors have come to believe former president Donald Trump’s motive for allegedly taking and keeping classified documents was largely his ego and a desire to hold on to the materials as trophies or mementos, according to people familiar with the matter.

As part of the investigation, federal authorities reviewed the classified documents that were recovered from Trump’s Mar-a-Lago home and private club, looking to see if the types of information contained in them pointed to any kind of pattern or similarities, according to these people, who spoke on the condition of anonymity to discuss an ongoing investigation.

That review has not found any apparent business advantage to the types of classified information in Trump’s possession, these people said. FBI interviews with witnesses so far, they said, also do not point to any nefarious effort by Trump to leverage, sell or use the government secrets. Instead, the former president seemed motivated by a more basic desire not to give up what he believed was his property, these people said.

[snip]

The analysis of Trump’s likely motive in allegedly keeping the documents is not, strictly speaking, an element of determining whether he or anyone around him committed a crime or should be charged with one. Justice Department policy dictates that prosecutors file criminal charges in cases in which they believe a crime was committed and the evidence is strong enough to lead to a conviction that will hold up on appeal. But as a practical matter, motive is an important part of how prosecutors assess cases and decide whether to file criminal charges.

As I showed, that story, like this one, simply ignored stuff in the public record, including:

  • Trump’s efforts, orchestrated in part by investigation witness Kash Patel, to release documents about the Russian investigation specifically to serve a political objective
  • The report, from multiple outlets, that Jay Bratt told Trump’s lawyers that DOJ believes Trump still has classified documents
  • Details about classified documents interspersed with a Roger Stone grant of clemency and messages — dated after Trump left the White House — from a pollster, a book author, and a religious leader; both sets of interspersed classified documents were found in Trump’s office
  • The way Trump’s legal exposure would expand if people like Boris Epshteyn conspired to help him hoard the documents or others like Molly Michael accessed the classified records

Since then, other details have become clear. Not only was that story written after DOJ told Trump they believed he still had some classified documents, but it was written in the period between the time Trump considered letting the FBI do a consensual search and the time he hired people to do the search for him, a debate inside the Trump camp that parallels the earlier investigative fight between WFO and DOJ. Indeed, when DOJ alerted Trump’s lawyers in October that they believed Trump still had classified documents, that may have reflected WFO winning the debate they had lost before the August search: to let Trump voluntarily comply.

That’s important background to where we are now. Trump’s team has misrepresented to the press how cooperative they have been since. First, Trump’s people misleadingly claimed that Beryl Howell had decided not to hold Trump in contempt (rather than just deferred the decision) and Trump lied to the press for several months, hiding the box with documents marked classified and the additional empty classified folder. Those public lies should only make investigators wonder what Trump continues to hide.

We know Trump blew off the subpoena that WFO agents were sure would work in June, and there’s good reason to believe DOJ finds Trump’s more recent claims of cooperation to be suspect as well.

So let’s go back to that earlier Devlin story. As I noted at the time, I don’t dispute that the most classified documents have the appearance of trophies, but that’s because of the Time Magazine covers they were stored with, not because of any halfway serious scrutiny of Trump’s potential financial goals. Particularly given the presence of 43 empty classified folders in the leatherbound box along with the most sensitive documents, no thorough investigator could rule out Trump already monetizing certain documents, particularly given Trump and Jared Kushner’s financial windfalls from the Saudi government, particularly given the way that Trump’s Bedminster departure coincided with Evan Corcoran’s turnover of classified documents, particularly given that the woman who carted a box including some marked classified around various offices had been in Bedminster with Trump during the summer. I don’t dispute that’s still a likely explanation for some — but in no way all — of the documents, but no competent investigator could have made that conclusion by November 14, when Devlin published the story.

Unless Devlin’s sources — perhaps the same or similar to the sources who know that WFO agents were cowed by the treatment of Crossfire Hurricane agents — were working hard to avoid investigating those potential financial ties.

Unless the timing of the story reflected an attempt to win that dispute, only to be preempted by the appointment of Jack Smith. The earlier dispute could not have been impacted by the appointment of Jack Smith. If there was a later dispute about how to make sure Trump wasn’t still hoarding classified documents, though, it almost certainly was.

Someone decided to leak a story to Devlin Barrett suggesting that investigators had already reached a conclusion about Trump’s motive, even though as the story acknowledged, “even the nonclassified documents” — better described as documents without classification marks that not only hadn’t been reviewed yet, which could have included unmarked classified information — “taken in the search may include relevant evidence.” (Note, these are the same unclassified documents that, the recent story  describes D’Antuono, insanely from an investigative standpoint, scoffing at collecting because, “We are not the presidential records police.”) Devlin’s sources decided to leak that story at a time when DOJ was trying to figure out how to get the remaining documents from Trump, and yet his sources presented a working conclusion that it didn’t matter if DOJ got the remaining documents: it had already been decided, Devlin’s sources told him, that Trump was just a narcissist fighting to keep his trophies from time as President and probably that shouldn’t be prosecuted anyway.

The story of the earlier dispute is alarming because it confirms that WFO agents remain cowed in the face of the prospect of investigating Trump, as some did even six years ago. The later story, though, is alarming because leaks to Devlin have a habit of creating political firestorms that are convenient for Trump. But it is alarming because it suggests even after the August search proved the WFO agents’ efforts to draw premature conclusions wrong, someone still decided to make — and force, by leaking to Devlin Barrett — some premature conclusions in November, an effort that genuinely was thwarted by the appointment of Jack Smith.

James Comer’s Twitter Hearing Confirmed Donald Trump’s Censorship Attempt and Matt Taibbi’s “Censorship” about It

“When did these guys drink the Kool-Aid, and who served it to them?” the NYT quoted Bob Luskin as saying of John Durham and Bill Barr in last month’s blockbuster, revealing scandalous new details about the Durham investigation.

The answer is clear: both men had pickled in conspiracy theories floated on Fox News, and several specific investigative prongs were laundered through a Mark Meadows House “investigation” and a Lindsey Graham Senate one, to be picked up by Durham as if formally referred.

One of the most alarming disclosures in the NYT blockbuster on the Durham investigation, for example, was that after the Italians provided a tip about Trump’s criminal exposure on a junket that Barr and Durham took together in 2019, someone leaked to the press that a criminal investigation into others, not Trump, had been opened.

The trip to Italy about came after George Papadopoulous aired conspiracy theories — suspicions he explicitly attributed to right wing outlets, not his own personal knowledge — in a House Oversight hearing.

[T]he belief that got Bill Barr to fly to Italy — that Mifsud actually works for Western, not Russian, intelligence — Papadopoulos cited to a Daily Caller article which itself relayed claims Mifsud’s Russian-backed lawyer made he had read the day before.

Q Okay. So, and Mifsud, he presented himself as what? Who did he tell you he was?

A So looking back in my memory of this person, this is a mid-50’s person, describes himself as a former diplomat who is connected to the world, essentially. I remember he was even telling me that, you know, the Vietnamese prime minister is a good friend of mine. I mean, you have to understand this is the type of personality he was portraying himself as.

And, you know, I guess I took the bait because, you know, usually somebody who — at least in Washington, when somebody portrays themselves in a specific way and has credentials to back it, you believe them. But that’s how he portrayed himself. And then I can’t remember exactly the next thing that happened until he decided to introduce me to Putin’s fake niece in London, which we later found out is some sort of student. But I could get into those details of how that all started.

Q And what’s your — just to kind of jump way ahead, what’s your current understanding of who Mifsud is?

A My current understanding?

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

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

[snip]

Q And then at what point did you learn that, you know, he’s not who he said he was?

A Like I said, I don’t have the concrete proof of who this person is. I’m just going with reports. And all I can say is that I believe the day I was, my name was publicly released and Papadopoulos became this person that everyone now knows, Mifsud gave an interview to an Italian newspaper. And in this newspaper, he basically said, I’m not a Russian agent. I’m a Clinton supporter. I’m a Clinton Foundation donor, and that — something along those lines. I mean, don’t quote me exactly, you could look up the article yourself. It is in La Republica. And then all of a sudden, after that, he disappears off the face of the planet, which I always found as odd.

[snip]

I guess the overwhelming evidence, from what I’ve read, just in reports, nothing classified, of course, because I’m not privy to anything like that, and considering his own lawyer is saying it, Stephan Roh, that Mifsud is a western intelligence source. And, I guess, according to reports yesterday, he was working with the FBI

Less than a year after this testimony, Barr and Durham were flying off to Italy together to chase down Papadopoulos’ feverish imaginings.

It’s not that Barr and Durham believed Papadopoulos to be credible; Durham never interviewed the Coffee Boy, not even to assess Sergei Millian’s credibility before indicting Igor Danchenko based on Millian’s hearsay claims. But they nevertheless chased that clear conspiracy theory all the way to Italy together.

The Congressional hearing — a hearing that didn’t even incorporate Papadopolous’ own emails, which would have made it harder for the convicted liar to sustain a number of the claims he made — served as a way to legitimize what were obviously rewarmed frothy rants. The hearing was a messaging vehicle that served to legitimize garbage claims. Had the press called this out as a circus in real time, it might have forestalled some of Barr and Durham’s own stunts.

The same is happening again, with the multiple “investigations” pitched by the new GOP-led House. And much of the press is playing along again, treating the hearings as both-sides disputes about the truth, rather than clear efforts to mainstream conspiracy theories that supplant any hold on the truth.

Consider James Comer’s hearing with former Twitter executives (video, transcript), a hearing called in response to Matt Taibbi’s sloppy rants about files selectively released by Elon Musk, the same kind of conspiracy theories floated during the Russian investigation by right wing outlets and then legitimized by Congressional hearings.

The finding of Comer’s hearing is clear: the witnesses all rebutted any claim that government influence drove the decision to throttle the NYPost report on a laptop that Rudy Giuliani claimed belonged to Hunter Biden. The hearing exposed that the claimed basis for legislative interest in Twitter’s actions was baseless. That should been the headline: James Comer’s conspiracy theory flopped. James Comer exposed, wasting taxpayer dollars.

Worse still for the Congressman from Kentucky, witness testimony revealed just one instance of the federal government affirmatively asking that content be taken down, just one instance of censorship. That demand came from Donald Trump.

As Twitter whistleblower Anika Navaroli explained in response to a Gerry Conolly question, when Chrissy Teigen responded to a Trump  attack on her by calling him a, “pussy ass bitch,” the White House asked Twitter to take the tweet down.

Rep. Gerry Connolly (D-VA):

Okay. On September 8th, 2019 at 11:11 PM Donald Trump heckled two celebrities on Twitter. John Legend and his wife, Chrissy Teigen, and referred to them as the musician, John Legend and his filthy mouthed wife, Ms. Teigen responded to that email at 12:17 AM and according to notes from a conversation with you, Ms. Navaroli’s counsel, your counsel, the White House almost immediately thereafter contacted Twitter to demand the tweet be taken down. Is that accurate?

Anika Collier Navaroli:

Thank you for the question. In my role, I was not responsible for receiving any sort of request from the government. However, what I was privy to was my supervisors letting us know that we had received something along those lines or something of a request. In that particular instance, I do remember hearing that we had a request from the White House to make sure that we evaluated this tweet and that they wanted it to come down because it was a derogatory statement directly towards the President.

Rep. Gerry Connolly (D-VA):

They wanted it to come down. They made that request.

Anika Collier Navaroli:

To my recollection, yes.

Daily Beast was one of the few outlets that reported, accurately, that the hearing showed the opposite of what Republicans claimed: in fact, Trump had been the one to use government power to attempt to silence speech on Twitter. Rolling Stone reported on another pathetic detail from Comer’s hearing, when Byron Donalds got Yoel Roth to explain what was implicit in all of Chairman Comer’s discussions of the scope of the hearing: Republicans were complaining that Twitter took down nonconsensual dick pics of Hunter Biden, some posted as part of a campaign by Steve Bannon associate Guo Wengui.

Comer’s premise was shattered by a “pussy ass bitch” retort and dick pics. That’s the weight of James Comer’s chairmanship. And with it should go the credibility of Taibbi’s consistently shoddy rants.

Five times since then, Taibbi has complained that his own silence about Twitter’s coddling of Trump was exposed in the hearing. In none of those complaints did he issue a correction.

Indeed, in his responses, Taibbi repeated several of his lies, obscuring that those FBI spreadsheets he complained about were part of an FBI effort to protect voting rights or that a request that a CIA colleague get an invite to a publicly listed meeting is some sign of the deep state. Taibbi just keeps repeating claims that have long been exposed as garbage.

Taibbi was exposed as a partisan fraud in the hearing, and that should be one of the takeaways.

Yet much of the rest of the coverage of the hearing was like AP’s, which treated the entire premise as if it were serious, dedicating the first four paragraphs to a (false) claim that this was the first that any of them had admitted throttling the NYP story was a mistake (as the hearing reviewed repeatedly, Roth had already given a deposition on the subject, and while the story quotes Jack Dorsey, it doesn’t mention that he has testified to Congress as well). Nowhere in the AP story does it reveal that Comer’s entire premise was debunked by the hearing. It’s not until paragraphs 18 and 19 that AP mentions that the Twitter files presented no evidence for Comer’s claim.

The issue was also reignited recently after Musk took over Twitter as CEO and began to release a slew of company information to independent journalists, what he has called the “Twitter Files.”

The documents and data largely show internal debates among employees over the decision to temporarily censor links to the Hunter Biden story. The tweet threads lacked substantial evidence of a targeted influence campaign from Democrats or the FBI, which has denied any involvement in Twitter’s decision-making.

Nowhere did AP reveal that Donald Trump was the only one guilty of the crime that Comer wants to pursue. Nowhere did AP reveal other instances where Twitter coddled Trump, as when they rewrote their content moderation standards on attacks on immigrants, which previously had banned the use of the term, “Go back to where you came from,” to retroactively excuse their approval of a Trump attack on AOC and others.

Worse still, AP was silent about the degree to which members like Clay Higgins started baselessly calling for the arrest of witnesses not accused, much less credibly, of a crime.

In other words, AP let James Comer dictate the terms of their story even after the premise of it had been debunked.

That’s not journalism.

And there’s one more reason why the press needs to treat these hearings not as a both-sides affair but as an effort to flip truth upside-down.

While neither have said this outright, both Comer’s hearing and the first hearing of Jim Jordan’s insurrection protection committee attacked the nation’s ability to push back against disinformation, including, but not limited to, Russian disinformation.

And as Roth explained in the Twitter hearing, for example, Republican attacks on Twitter were an attack on efforts that came out of a bipartisan response to Russia’s interference in the 2016 election.

Shontel Brown:

Mr. Roth, in a recent interview you stated, and I quote, beginning in 2017, every platform Twitter included, started to invest really heavily in building out an election integrity function. So I ask, were those investments driven in part by bipartisan concerns raised by Congress and the US government after the Russian influence operation in the 2016 presidential election?

Yoel Roth:

Thank you for the question. Yes. Those concerns were fundamentally bipartisan. The Senate’s investigation of Russian active measures was a bipartisan effort. The report was bipartisan, and I think we all share concerns with what Russia is doing to meddle in our elections.

This is what both hearings explicitly sought to roll back, those bipartisan efforts to protect American democracy.

Comer engaged in his own disinformation as part of the process. He falsely claimed that a letter from 50 former spooks said “Hunter Biden’s laptop was Russian disinformation,” rather than that it bore the hallmarks of disinformation. Jim Jordan and HPSCI Chair Mike Turner are now ratcheting up threats against those spooks for speech they engaged in as private citizens, precisely the thing that Jordan purports to be fighting.

In Jordan’s insurrection protection hearing, he presented three witnesses purporting to talk about the weaponization of government. One, Tulsi Gabbard, presented as evidence of weaponizing government that private citizen Hillary Clinton claimed she was being “groomed” by Russia, something that had nothing to do with weaponizing government and everything to do with the free speech Tulsi purported to be defending. The two others, Chuck Grassley and Ron Johnson, complained that the FBI warned them their own investigation into private citizen Hunter Biden parroted an organized Russian campaign.

Taken together, these efforts are fairly unashamedly complaining that private entities — whether Twitter, Hillary, or former spooks — are exercizing their own right to speak up against Russian disinformation. That is, all three efforts use government resources against those speaking up against Russia.

And against the background of the Durham investigation — which investigated Hillary’s campaign because of the way she responded to being victimized by a Russian attack — this effort continues a GOP-led effort to criminalize opposition to Russian disinformation.

There’s no reason, journalistically, to treat this as a serious pursuit. Particularly not given the abundant evidence that these efforts are premised on false claims and easily debunked propaganda, and are an attempt to legitimize that propaganda to serve as the basis for criminal investigations.

If James Comer and Jim Jordan want to squander their majority by building hearings and investigations around lies, the press should call them on that, not reward it. If they don’t, we’re headed down an increasingly ugly cycle.

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth began his series on the press’ Russia investigation failures by noting that trust in the traditional media collapsed after the 2016 election (a claim based on a statistical error), with a sharp rise in concern about “fake news” and, according to Rasmussen, half of those surveyed thinking the press was the enemy of the people.

Before the 2016 election, most Americans trusted the traditional media and the trend was positive, according to the Edelman Trust Barometer. The phrase “fake news” was limited to a few reporters and a newly organized social media watchdog. The idea that the media were “enemies of the American people” was voiced only once, just before the election on an obscure podcast, and not by Trump, according to a Nexis search.

Today, the US media has the lowest credibility—26 percent—among forty-six nations, according to a 2022 study by the Reuters Institute for the Study of Journalism. In 2021, 83 percent of Americans saw “fake news” as a “problem,” and 56 percent—mostly Republicans and independents—agreed that the media were “truly the enemy of the American people,” according to Rasmussen Reports.

Gerth believes part of the problem stems from an erosion of journalistic norms, which he listed at length in an afterward, starting with the press’ unwillingness to report facts that run counter to the prevailing narrative.

My main conclusion is that journalism’s primary missions, informing the public and holding powerful interests accountable, have been undermined by the erosion of journalistic norms and the media’s own lack of transparency about its work. This combination adds to people’s distrust about the media and exacerbates frayed political and social differences.

One traditional journalistic standard that wasn’t always followed in the Trump-Russia coverage is the need to report facts that run counter to the prevailing narrative.

And in spite of his citation of WaPo’s tracking of the vast number of lies Donald Trump told during his term early in the series, Gerth put great stock in what Donald Trump told him in two interviews, adopting Trump’s attribution of the coverage of Russia for the reality TV star’s decision to start labeling the media, “fake news.”

He made clear that in the early weeks of 2017, after initially hoping to “get along” with the press, he found himself inundated by a wave of Russia-related stories. He then realized that surviving, if not combating, the media was an integral part of his job.

“I realized early on I had two jobs,” he said. “The first was to run the country, and the second was survival. I had to survive: the stories were unbelievably fake.”

This is a critical point: Gerth appears to believe Trump that called the media “fake news” not as part of an effort to manipulate the media or to damage one of the institutions of accountability that might check his power, but instead as part of a good faith response to coverage of him.

From that premise, CJR decided the way to understand the collapse in trust of the media was to focus largely on NYT and WaPo’s performance in their coverage of Russia. 

CJR editor Kyle Pope told me,

What we wanted to do with this piece was focus entirely on the media coverage, without the usual notes about Trump’s failings. Specifically, we wanted to focus largely on the New York Times and the Washington Post, as important leaders of the coverage. This was not intended as a 360-degree roundup of everything written about Trump and Russia.

There are obviously enormous problems with the conception of this project, particularly with media polarization in the US that looks like this (a source Gerth relied on to assess the problem).

Others engaged in the “Russiagate” project correctly recognize the import of cable news in the equation (though most, like Glenn Greenwald, ignore the power of the self-contained bubble around Fox, which doesn’t even attempt to hold itself to standards of truth). In 23,000 words, for example, Gerth never considers whether Fox’s scandalous Seth Rich coverage fostered distrust of the media.

In his series, Gerth spent a great deal of time questioning claims about the impact of Russia’s social media operation in 2016 (which, like many “Russiagate” analysts, he treats as the only possible means by which Russia influenced the election). But he didn’t consider the impact of social media, generally, on this decline in trust, not even in the vast reaches of America where there is no more local news, where news consumers increasingly rely on information fed by algorithms that reward the most inflammatory information, from whatever source.

So even on its own terms, it’s a project designed to fail, because it ignores centrally important parts of the equation.

Worse still, Gerth didn’t even carry out what he claimed to set out to do.

That’s actually one of the reasons I’ve spent so much time dissecting his effort: because the ways in which he claimed to limit his scope, and his deviation from that scope, is itself very telling.

Gerth shows how little WaPo and NYT chased the dossier

Start with his focus on the Steele dossier. The dossier is mentioned or discussed in paragraphs making up over 5,000 words out of Gerth’s 23,000-word series. That’s consistent with the “Russiagate” project, which often treats the dossier as stand-in for the entire Russian investigation (or, here, the coverage of it).

Even regarding the Steele dossier, Gerth’s own summary of their coverage  makes it clear that the NYT and WaPo aren’t the villains of the dossier story. The villains in his account are Michael Isikoff, David Corn, CNN, BuzzFeed, McClatchy, and Jane Mayer.

Gerth struggled to implicate NYT and WaPo in his dossier complaint. He noted that NYT mentioned it, including FBI’s efforts to reach out to its sources, in a February 14, 2017 article he spends  almost 1,000 words attacking.

In the article’s discussion of the dossier, it described Steele as having “a credible track record” and noted the FBI had recently contacted “some” of Steele’s “sources.” Actually, the FBI had recently interviewed Steele’s “primary” source, a Russian working at a Washington think tank, who told them Steele’s reporting was “misstated or exaggerated” and the Russian’s own information was based on “rumor and speculation,” according to notes of the interview released later. The day the Times piece appeared in print, Strzok emailed colleagues and reported that Steele “may not be in a position to judge the reliability” of his network of sources, according to Justice Department documents released in 2020.

But as I note below, the dossier is in no way Gerth’s primary complaint with this article and others in a series of similar reports from NYT.

Gerth also included the dossier in a critique of NYT’s reporting on the Nunes Memo.

At the Times, the coverage of the GOP memo was skeptical while a dueling memo, a few weeks later from the ranking Democrat on the committee, was portrayed more favorably.

The Times, at the start of the piece about the Republican memo, called it “politically charged”; noted, in the next sentence, how it “outraged Democrats”; and did not quote the memo’s allegation of the dossier’s “essential” role in the surveillance. The same day, in a separate piece, the Times again called the GOP memo “politically charged” and quoted the “scathing” criticism by Democrats.

Later that month, the Democrats released their own memo. It said the surveillance warrant “made only narrow use of information from Steele’s sources.” The Times story called it a “forceful rebuttal” to Trump’s complaints about the FBI’s inquiry. In the end, the allegations of abuse by Nunes were confirmed in 2019 when the Inspector General released a report that was a “scathing critique” of the FBI, as the Times told readers at the time.

In a statement to CJR, the Times said: “We stand behind the publication of this story,” referring to its reporting on the Nunes memo.

In doing so, he overstates the extent to which the DOJ IG Report on Carter Page, “confirmed” Nunes’ claims. As I noted in a claim-by-claim assessment after the release of the report, both memos got things wrong and both got things right, and Democrats were right that the dossier was not part of the predication of the Russian investigation. Mostly, though, they were just talking past each other, a problem exacerbated by the secrecy behind which both sides could hide their arguments.

Gerth found a little more to work with in the WaPo.

He made much of the fact that one journalist on a long (and accurate) piece about Trump’s ties to Russia was friends with Glenn Simpson, one of the founders of Fusion GPS, via which the Democrats paid for the Steele dossier.

The lead author of the story, Tom Hamburger, was a former Wall Street Journal reporter who had worked with Simpson; the two were friends, according to Simpson’s book. By 2022, emails between the two from the summer of 2016 surfaced in court records, showing their frequent interactions on Trump-related matters. Hamburger, who recently retired from the Post, declined to comment. The Post also declined to comment on Hamburger’s ties to Fusion.

Here was a tie, Gerth insinuated, that proved journalism collapsed in the face of Hillary’s attempts to push oppo research.

But 1,500 words later in Gerth’s series, he showed that Hamburger pushed back on Fusion tips like the Carter Page one when he couldn’t substantiate them.

[S]ome reporters, aware of the dossier’s Page allegations, had pursued them, but no one had published the details. Hamburger, of the Washington Post, told Simpson the Page allegations were found to be “bullshit” and “impossible” by the paper’s Moscow correspondent, according to court records.

That’s important background to Gerth’s coverage of WaPo’s 2017 story on Sergei Millian

The Post landed a long story about Sergei Millian, a Belarusian-American businessman, on March 29. The top of the piece identified Millian as the source behind the dossier’s most serious allegation, a “well-developed conspiracy” between the Trump campaign and the Kremlin, the same ground covered by the Wall Street Journal and ABC in January. The claim that Millian was a key informant whose information was “central to the dossier” was stated without any attribution or sourcing. In 2021 the Post retracted the parts of the story describing Millian as a dossier source after John Durham, a special counsel looking into the origins of the Trump-Russia investigations, indicted Steele’s main source for lying to the FBI. Durham alleged the fact of Millian being a source had been “fabricated.” The Post editor’s note explained that Durham’s indictment “contradicted” information in the March story, and additional reporting in 2021 further “undermined” the account. The Post also deleted parts of a few other stories that repeated the allegation that Millian was a dossier source.

WaPo retracted much of the story after the Danchenko indictment, with this editor’s note:

The original version of this article published on March 29, 2017, said that Sergei Millian was a source for parts of a dossier of unverified allegations against Donald Trump. That account has been contradicted by allegations contained in a federal indictment filed in November 2021 and undermined by further reporting by The Washington Post. As a result, portions of the story and an accompanying video have been removed and the headline has been changed.

The original account was based on two people who spoke on the condition of anonymity to provide sensitive information. One of those people now says the new information “puts in grave doubt that Millian” was a source for parts of the dossier. The other declined to comment.

WaPo’s retraction (like the CNN “reckoning” which Gerth cites approvingly) were themselves problematic, because (as I noted about the CNN piece) they took John Durham’s false statements indictment against Steele’s primary subsource, Igor Danchenko, insinuating — but falling far short of charging — a conspiracy as a source of fact. Worse still, the indictment was obviously problematic. In it, Durham relied on Millian’s claims, made on social media but not to a grand jury, for a key part of his case. After Millian refused to testify at trial, Durham admitted he had little but hearsay to prove his case. 

And as Danchenko attorney Stuart Sears noted at trial, several of Millian’s communications, in which Millian boasted about his ties to Trump, were consistent with Danchenko’s claims about the call he attributed to Millian.

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

Gerth cheered retractions based off an indictment alone over three months after a jury acquitted Danchenko of lying about this call, which he told the FBI he believed, but was not certain, came from Millian. 

And Gerth, who complains about transparency, buried that fact: while Gerth emphasized the WaPo and CNN retractions in Part Two of his series, he didn’t get around to informing readers that Igor Danchenko had been acquitted until Part Four, over 9,000 words and two clicks later.

Gerth elsewhere noted that Mueller’s indictments against Yevgeniy Prigozhin and the GRU hackers haven’t been tried, yet when it served his narrative, he applauded these retractions based on an indictment alone.

Meanwhile, Gerth credited WaPo with breaking the news that the Democrats had funded the dossier, which is ample proof that the WaPo wasn’t shielding the project.

Amazingly, Gerth complained that the NYT didn’t retract anything in the wake of the Danchenko indictment, even though he found so little to complain about in the NYT coverage of the dossier and even though, as he describes, WaPo’s Erik Wemple (who might consider whether his own campaign for dossier accountability went too far, in light of the Danchenko acquittal) called out NYT’s Adam Goldman as one of those who approached the dossier responsibly. Gerth even noted that the NYT acknowledged the flimsiness of the dossier’s allegations in real time.

The Times has offered no such retraction, though the paper and other news organizations were quick to highlight the lack of firsthand evidence for many of the dossier’s substantive allegations;

It’s genuinely not clear what Gerth thinks the NYT should retract, a question I posed to Pope that he declined to answer.

And Gerth makes this complaint even though his series was published four days after NYT’s bombshell report of how corrupt the Durham investigation was. Somehow CJR didn’t find time to remove or amend Gerth’s complaints about NYT’s critical reporting on the Durham investigation, including his complaint that Goldman suggested a junket Barr and Durham took to Italy might be chasing a “conspiracy theory,” when the recent NYT report has revealed it was far worse. 

There are other grave problems with Gerth’s treatment of the dossier, all consistent with the ”Russiagate” project more generally. The DOJ IG Report Gerth relies on so heavily laid out abundant reason to suspect that Russia larded the dossier with disinformation, probably with the participation of Manafort associate Oleg Deripaska.

That’s important given the fragments of truth that appear in the dossier. As Durham briefly acknowledged at trial and as I noted in an interview hosted by CJR, the reason Danchenko’s ties to Clinton ally Chuck Dolan were so significant, and led Durham to charge Danchenko for making a “literally true” statement about Dolan to the FBI, was that Dolan established ties between Olga Galkina — the source of the most problematic claims in the dossier, alleging Michael Cohen spoke directly with the Kremlin about election interference — and Dmitri Peskov. The link raises the possibility that someone who knew about Michael Cohen’s January 2016 call to the Kremlin, to Peskov’s office, a call both Cohen and Trump lied to conceal, was behind the dossier allegation that falsely claimed Cohen had other contacts with the Kremlin. Peskov knew that Cohen and Trump were lying to hide that earlier contact, which made the later false allegation more powerful.

Other records show that Russia likely used Steele for a functional role in their operation. In spring 2016, Deripaska is believed to have been the client who hired Steele for intelligence collection targeting Paul Manafort. Then Deripaska used Steele as part of a brutal double game with Manafort. Essentially, Deripaska used the former British spy’s association with the FBI to increase Manafort’s legal vulnerability while he had Kilimnik exploit Manafort’s financial vulnerability, all of which made it easier to obtain inside information on the Trump campaign at the August 2 meeting. 

And, in a story about the dossier that Gerth doesn’t mention, Manafort came back from what we now know to be a meeting with a Deripaska associate and told Reince Priebus to focus on the dossier’s inaccuracies as pushback on the Russian investigation. That is, the focus on the dossier as a substitute for Trump’s real Russian ties seems to have become part of Russia’s plan, if it wasn’t from the start. If the dossier was deliberate disinformation — and the Republican members of Congress who investigated that document insist it was — then it must be considered part of Russia’s attack on US democracy –  in which Gerth and other “Russiagate” participants are enthusiastic participants.

Polarization and trust in the media lie at the center of Gerth’s project. Yet he failed to consider how the dossier, not the coverage of it, might be a key driving factor in polarization. That makes his project part of the problem.

Gerth’s selective coverage of NYT and WaPo’s Pulitzer-winning journalism

Even while Gerth failed to significantly implicate NYT and WaPo in what he portrays as the gravest journalistic crime in Russian coverage, hyping the Steele dossier, he also ignored key parts of their coverage.

For example, he didn’t acknowledge that WaPo reported on Carter Page’s inflammatory comments in Moscow weeks before Steele did. Much of the focus on Page subsequent to WaPo’s report was based on this public source, not the dossier. It’s one of many events that the press covered for its real news value that Gerth, in his own narrative, suggests could only have happened with Hillary’s intervention.

Gerth also ignored large swaths of NYT and WaPo’s award-winning journalism on Russia, although he covered Trump’s attack on that reporting in the third installment of his series. 

NYT won a Pulitzer in 2017 for ten Russia-related articles and NYT and WaPo shared a prize for a combined 20 stories on the Russian investigation in 2018. Trump has sued the Pulitzer Board for defamation relating to the 2018 award. In his coverage, Gerth suggests that Trump’s lawsuit against the Pulitzer Board  for those awards has merit.

Best as I’ve been able to reconstruct, this page lists the newspaper coverage mentioned in Gerth’s series (in numerous ways, CJR’s decision not to link the media Gerth claimed to discuss made it very difficult to assess his claims, and I made one error in my questions to CJR as a result). The page also lists, at the end, some key stories that Gerth did not address. Those with asterisks — both in the stuff he covered and the stuff he did not — were part of the Pulitzer packages for which NYT and WaPo won prizes.

Gerth included just one of the stories for which NYT won a Pulitzer in 2017, the Manafort secret ledger story (the same story,  as Fusion GPS revealed after Barry Meier attacked them in a book, for which Fusion provided research).

But he ignored the rest. 

That had the effect of hiding the general background on Russia’s international assault on its opponents that NYT, as an institution, would have brought into its coverage of Trump’s suspected ties to the Kremlin in 2017: stories about Russia hunting down its enemies in other countries, Russia’s use of disinformation, the elite hackers Russia was recruiting, and Russia’s cultivation of the far right.

Gerth also ignored two stories that were specifically on point to his project: A September 2016 story revealing how often Julian Assange’s Wikileaks releases served Russia’s political  interests (I raised some concerns about the piece here), and a December 2016 epic that described the Russian hack-and-leak from the DNC perspective (I pointed out the DNC’s changing story about being warned by the FBI here). The DNC story should be particularly important to Gerth’s project because it explicitly made the comparison with the Watergate burglary in 1972 that Gerth complains about in his series. It also provided a great deal of information, much publicly available, backing the hack-and-leak attribution to Russia – an attribution that Gerth claims remains “far from definitive.”

I asked Pope why the Assange and the DNC hack stories weren’t included in the series. He pointed to coverage of other NYT stories as proof CJR wasn’t ignoring the (2017, not 2018) Pulitzer stories.

Do you think it fair to ignore all the stories for which WaPo and NYT did get Pulitzers, including the 2017 ones on WikiLeaks and the DNC hack?

We didn’t ignore them. From the piece: “For the Times, Trump’s mess was a pot of gold: two of the Times stories about the meeting and the emails were part of its winning Pulitzer Prize package.

And … “But before that omission, the Times exposed another piece of the FBI’s Russia puzzle. The paper landed a major story at the end of the year, in time to be included in its Pulitzer package that ultimately shared the prize for national reporting.”

But there were a bunch of Pulitzer winners Gerth left out whose omission is still more problematic, particularly given his suggestion that the entirety of the press’ early 2017 focus on Russia in Trump’s administration stemmed from the publication of the dossier.

For example, Gerth barely mentions the coverage of Mike Flynn’s lies and resignation and its central role, starting even before the publication of the dossier, in press coverage in early 2017. He slips discussion of a key David Ignatius column, the first to report on Mike Flynn’s calls with Russian ambassador to the US, Sergei Kislyak, in between his references to the dossier.

The WSJ and the Times stories were not well received by Fusion. At first, they feared for Steele’s safety. Then they felt the Times’ behavior was “improper,” because it had “unilaterally” published material “it had learned off the record,” the founders wrote in their book.

Hours after the Times story ran, the Post upped the temperature on Russia even more. Columnist David Ignatius disclosed that incoming national security adviser Michael Flynn had phoned Russia’s US ambassador “several times” at the end of the year, according to “a senior US government official.” Ignatius noted the talks had come on the day the Obama administration had expelled Russian diplomats in retaliation for the country’s hacking activities, so he questioned whether Flynn had “violated” the spirit of an “unenforced” law barring US citizens from trying to resolve “disputes.”

Ignatius went on to write that it might be a “good thing” if Trump’s team was trying to de-escalate the situation. But Ignatius didn’t know the substance of the conversations. Hours before his story went online, Ignatius appeared on MSNBC and, while not disclosing his upcoming Flynn exclusive, said “it was hard to argue” against the need to “improve relations with Russia.”

The existence of Flynn’s talks with the ambassador was known by Adam Entous, a reporter then at the Post, but he held off writing anything because the mere fact of a contact wasn’t enough to justify a story. “It could have been something innocent,” Entous, now with the Times, said in an interview, “something he would be praised for.”

On the heels of the Ignatius column, the FBI’s “investigative tempo increased,” according to FBI records, and the Senate intelligence panel announced an inquiry into Russia’s election activities. (The House Intelligence Committee announced a similar effort later that month.)

Two days after the Senate announcement, Bob Woodward, appearing on Fox News, called the dossier a “garbage document” that “never should have” been part of an intelligence briefing.

But he doesn’t reveal why the FBI’s investigative tempo increased in the wake of Ignatius’ column. 

Stories that the WaPo published that he ignored did. A Pulitzer-winning WaPo report published the same day revealed that Flynn was denying he had discussed sanctions with the Russian Ambassador, the first of many compromising lies Trump’s associates told in the early days of his Administration. Flynn’s lies (as Mueller confirmed in his congressional testimony) created the risk that he could be blackmailed, which led the FBI and DOJ to respond more aggressively than they otherwise might have. Another Pulitzer-winning WaPo story explained all that on the day Flynn resigned. 

Later in the spring, a Pulitzer-winning NYT report revealed that Trump knew Flynn was under investigation for his secret relationship with Türkiye even before the president appointed him to be National Security Adviser. Gerth’s silence about all these stories is particularly damning, given that he later gets a key detail about Flynn’s prosecution wrong, which I’ll return to.

Other award-winning stories revealed still more Russian ties that Trump and his associates were trying to hide. A March story from WaPo — yet another Pulitzer winner — revealed that Jeff Sessions had failed to disclose some interactions with Sergey Kislyak, the same ambassador  with whom Flynn was undermining Obama foreign policy during the transition. An April Pulitzer-winning story from the NYT revealed that Jared Kushner had omitted transition period meetings with Russians — not just Kislyak, but also the head of a sanctioned bank — in his security clearance paperwork.

While Gerth may have mentioned a May article for which NYT won a Pulitzer, if he did, he did so only as part of his complaint that the NYT repeatedly referred to the line from Trump’s interview with Lester Holt in which he referred to “the Russian thing” in his explanation for firing Comey.

A tweet from the show on May 11 set the narrative for the Holt interview: “Trump on firing Comey: ‘I said, you know, this Russia thing with Trump and Russia is a made-up story.’” Those few words, by suggesting Comey’s firing was aimed at getting the FBI inquiry off his back, provided fresh ammunition to anti-Trumpers.

The full interview, which was available online, presented a more nuanced story, and appeared to reflect what his advisers told him: firing Comey could prolong, not end, the investigation. Trump told Holt, soon after the controversial words, that the firing “might even lengthen out the investigation” and he expected the FBI “to continue the investigation,” to do it “properly,” and “to get to the bottom.”

The media focused on the “Russia thing” quote; the New York Times did five stories over the next week citing the “Russia thing” remarks but leaving out the fuller context.

But Gerth’s account elided the entire reason Trump’s NBC quote was used in that particular NYT article: because Trump told Kislyak and Sergey Lavrov roughly the same thing, privately, on the same day.

President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.

“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”

Mr. Trump added, “I’m not under investigation.”

Gerth doesn’t address the real concerns presented by Trump privately bragging about firing the FBI director – in charge of counterintelligence – to his Russian visitors.

Indeed, given Gerth’s focus on Trump’s use of “fake news,” he might have at least mentioned the last lines of the NYT story:

At one point, Mr. Trump jokingly asked whether there were reporters in the room.

“No,” Mr. Lavrov said. “No fake media.”

Whether you think that Trump’s adoption of the term “fake news” was merited or not, the answer to Trump’s question, “Russia, if you’re listening,” was yes, they were.

Gerth also appears to have paid no attention to a Pulitzer-winner from WaPo written in the same time frame, revealing that Trump shared highly classified Israeli intelligence with his Russian visitors in the same meeting, another cause for concern that Gerth simply makes disappear. 

Those aren’t the only damning stories Gerth ignored. As Pope emphasized to me, Gerth credited NYT for two of three Pulitzer-winning stories on the June 9 meeting that Don Jr took with a Russian lawyer in hopes of acquiring dirt on Hillary– the July 10 one revealing that Don Jr took a meeting with Russians offering dirt, and the July 11 one revealing Don Jr’s enthusiastic response. But I don’t believe he credited the WaPo for their July 31 Pulitzer-winning story revealing that Trump drafted Don Jr’s misleading statement, claiming a meeting about dirt on Hillary and sanctions relief was about adoption.

The omission is really telling given Gerth’s take on a July 19 story from the NYT (which did not win a prize). In an interview with three NYT reporters, Trump successfully got the NYT to participate in his efforts to obstruct the investigation by airing his threats to fire Jeff Sessions (he had asked Corey Lewandowski to fire Jeff Sessions on the same day). In the interview, Trump also confirmed that he and Putin spoke about the topic of his misleading statement before drafting it, meaning adoptions. But Gerth deemed that interview important primarily because Mike Schmidt asked Trump about the dossier.

A week after the Trump Tower story, the president conducted a serendipitous interview with three Times reporters, including Schmidt, who asked if Comey’s sharing of the dossier with Trump before his inauguration was “leverage.” Trump replied, “Yeah, I think so, in retrospect.”

After the Oval Office sit-down, an aide, worried about the possibility of repercussions from an impromptu interview, sought Trump’s reaction.

“I loved that,” the aide, who requested anonymity, recalled him saying. “It was better than therapy. I’ve never done therapy, but this was better.”

This is a fairly astounding view on the relative newsworthiness of the interview — I’ve pointed out the importance, to Trump’s obstructive purpose, of NYT’s decision to bury the Putin tie rather than dedicate an entire story to it. It’s also a prime example of how the unrelenting focus on the dossier by “Russiagate” adherents diverts attention from far more damning events, both creating in that unrelenting focus the narrative they claim to combat, and in the process burying the real events that “Russiagate” adherents claim could only come as part of a manufactured narrative.

I asked CJR, “Why do you believe a comment on the dossier was more important than a scoop substantiating Trump’s problematic ties to Putin?” but it was another of the questions the magazine’s editor declined to answer.

There are more Pulitzer winners that Gerth left out, including a WaPo story describing both Trump’s refusal to take steps to protect American democracy from Russian interference…

Nearly a year into his presidency, Trump continues to reject the evidence that Russia waged an assault on a pillar of American democracy and supported his run for the White House.

The result is without obvious parallel in U.S. history, a situation in which the personal insecurities of the president — and his refusal to accept what even many in his administration regard as objective reality — have impaired the government’s response to a national security threat. The repercussions radiate across the government.

Rather than search for ways to deter Kremlin attacks or safeguard U.S. elections, Trump has waged his own campaign to discredit the case that Russia poses any threat and he has resisted or attempted to roll back efforts to hold Moscow to account.

… As well as Russia’s assessment of the “staggering return”  achieved by their interference operation.

U.S. officials said that a stream of intelligence from sources inside the Russian government indicates that Putin and his lieutenants regard the 2016 “active measures” campaign — as the Russians describe such covert propaganda operations — as a resounding, if incomplete, success.

Moscow has not achieved some its most narrow and immediate goals. The annexation of Crimea from Ukraine has not been recognized. Sanctions imposed for Russian intervention in Ukraine remain in place. Additional penalties have been mandated by Congress. And a wave of diplomatic retaliation has cost Russia access to additional diplomatic facilities, including its San Francisco consulate.

But overall, U.S. officials said, the Kremlin believes it got a staggering return on an operation that by some estimates cost less than $500,000 to execute and was organized around two main objectives — destabilizing U.S. democracy and preventing Hillary Clinton, who is despised by Putin, from reaching the White House.

The bottom line for Putin, said one U.S. official briefed on the stream of post-election intelligence, is that the operation was “more than worth the effort.”

But the stories from the first half of 2017 that Gerth left out are key. They not only reveal the real reason that the FBI investigation picked up in early 2017, they also show that a great deal of important journalism provided abundant reason to be concerned about all the secrets about Russia that Trump and his aides were keeping, independent of the dossier.

The contacts with Russian spies that were later confirmed

That focus – the ties with Russia that Trump, his National Security Adviser, his Attorney General, and his son-in-law failed to disclose – makes Gerth’s chief complaint about the NYT coverage look very different.

He appears especially peeved over a series of NYT stories in this same time period that described the sheer number of contacts that investigators were discovering with various Russians described by the paper as intelligence officers.

Gerth’s critique relies heavily on a Peter Strzok annotation of the February 14 story that Strzok shared with top FBI officials (parts of which, detailing how few call records the investigation had yet obtained, explain why early reports Gerth points to to make claims about the investigation, including one from James Clapper, are meaningless). It is absolutely true that Strzok found no basis for the NYT to claim that the Russians with whom Trump and his aides were in contact were Russian spies. 

Gerth also reviews how Comey disavowed such reports in his public testimony to Congress, with support from Devin Nunes.

That section of the series, covering all four stories, is over 2,500 words long.

As Gerth described it, when NYT has been challenged on these stories, they’ve stood by them. I share Gerth’s curiosity regarding NYT’s sources for the stories, but like Gerth himself, the NYT is not about to share their sources. 

It’s worth noting, though, that Gerth seems to believe that the US-based three letter agencies (or the Congressional personnel who’ve been briefed by those agencies) referenced in Strzok’s memo are the only possible sources for these stories. We know that at least five other intelligence services — the UK, the Dutch (from whom the US got a great deal of intelligence on the operation), the Spanish, the Ukrainians, and the Israelis — would have had their own views about which foreign interlocutors with Trump aides were spies. We know of a number of witnesses, not in government at all, who told Mueller they believed one or another interlocutor was a spy. We also know of a number of overt spies (such as Emirati ones) who had a role in the international effort to influence Trump. And we know of contacts – like that between Stone and Guccifer 2.0 – that were legitimately viewed as a spy contact when they started to become known around this time.

The clearest error in the NYT series pertains to the claim that an investigation into Stone had already been opened, but that’s an error SSCI seems to have shared, because on March 16,  Senator Richard Burr told Don McGahn the FBI was investigating Paul Manafort, Roger Stone, Carter Page, and “Greek Guy.”

In the years since, however, the US government has come to believe more of the people known to have been interacting directly with Trump’s aides were Russian spies.

Konstantin Kilimnik — who along with at least two other Deripaska allies have been described as Russian agents in official US documents — is a particularly important one, given Gerth’s complaints that the NYT didn’t call Kilimnik for comment when the record shows they did (including in the March 3 one).

Gerth’s claims about the evidence that Kilimnik was a spy were nothing short of fanciful, including a perennial “Russiagate” favorite — which he credits to John Solomon’s scoop, from a period when Solomon was part of Rudy Giuliani’s outreach to people like Dmitry Firtash – that Kilimnik had been a source for the State Department.

As for Kilimnik possibly being a Russian spy, the only known official inquiry, by Ukraine in 2016, didn’t result in charges. More recent claims that he worked for the Russians, by the Senate intelligence panel in 2020 and the Treasury Department in 2021, offered no evidence. Conversely, there are FBI and State Department documents showing Kilimnik was a “sensitive source” for the latter. (The documents were disclosed a few years ago by John Solomon, founder of the Just the News website. Kilimnik, in an email to me, confirmed his ties with State.)

One primary objective of most spies, of course, is to infiltrate the agencies of other governments.

I asked CJR why Gerth claimed SSCI had no evidence against Kilimnik when their section substantiating their assessment about Kilimnik includes 16 bullet points, over half redacted, and they also included a separate 5-page, largely redacted section showing more fragmentary evidence that Kilimnik had a role in the hack-and-leak. I also asked why Gerth thought the FBI, under Trump, would have issued a $250,000 reward for Kilimnik’s arrest.

Those questions also went unanswered.

So the NYT may well have been ahead of the FBI’s assessment in spring 2017 (and their report that Stone was already part of the investigation has been shown to be wrong). But those reports really aren’t ahead of what the US intelligence community says they have since corroborated. Moreover, many of the Pulitzer stories that Gerth doesn’t mention show that Trump and his associates were aggressively lying to hide their ties to Russians or their interlocutors, and criminally so, in the case of Flynn and George Papadopoulos (and, ultimately, Michael Cohen and Roger Stone, too). That background — the lies that Flynn and Sessions and Kushner were telling about their Russian ties — is important background to these stories Gerth hates, yet he makes no mention of them.

Gerth’s main remaining gripe about the WaPo is even more remarkable. He spent six paragraphs on the WaPo’s scoop reporting the FISA order targeting Carter Page.

In early April, the Post story on Page landed, calling the surveillance “the clearest evidence so far that the FBI had reason to believe during the 2016 presidential campaign that a Trump campaign adviser was in touch with Russian agents. Such contacts are now at the center of an investigation into whether the campaign coordinated with the Russian government to swing the election in Trump’s favor.” It noted Page’s “effusive praise” for Putin and mentioned Schiff’s congressional recitation of the Page allegations in the dossier. Relying on anonymous sources, it gave a vague update on the dossier’s credibility: “some of the information in the dossier had been verified by US intelligence agencies, and some of it hasn’t.”

At the Times, the newsroom was irked about getting beaten by the Post. “Times is angry with us about the WP scoop,” Strzok texted to an FBI colleague, a few days later.

But the Post scoop was incomplete. Its anonymous sources mirrored the FBI’s suspicions but left out the bureau’s missteps and exculpatory evidence, as subsequent investigations revealed. It turns out that the secret surveillance of Page was an effort to bring in heavier artillery to an FBI inquiry that, in the fall of 2016, wasn’t finding any nefarious links, as the Times reported back then. Agents were able to review “emails between Page and members of the Donald J. Trump for President Campaign concerning campaign related matters,” according to an inquiry in 2019 by the Justice Department Inspector General. FBI documents show the surveillance of Page targeted four facilities, two email, one cell, and one Skype.

Still, even with the added surveillance capability, the investigation had not turned up evidence for any possible charges by the date of the Post piece, which came four days after the secret surveillance, called FISA, for the Foreign Intelligence Surveillance Act, was renewed for the second time. (Page was never charged.)

The IG review also found that the FISA warrant process was deeply flawed. It relied heavily on the dossier, including the fabricated Millian allegation of a conspiracy, the IG found. Furthermore, the report said the warrants contained seventeen “significant errors and omissions,” such as leaving out exculpatory information about Page, including his previous work for the CIA and comments he made to an undercover FBI informant. And by the time of the Post piece, the dossier’s credibility was collapsing; the FBI knew the CIA called it “internet rumor,” and on its own the FBI “did not find corroboration for Steele’s election reporting,” according to the IG report.

The Post spokesperson, who would only speak on background, said the article on Page was “fair and accurate” and meant to reflect “how deeply the FBI’s suspicions were about Page.” They acknowledged the story was incomplete, noting that “at that time there was a lot that was not publicly known.” [my emphasis]

This passage commits several errors. The FBI targeted Page not because they were looking for heavier artillery. They did so because Page was about to travel internationally and they wanted coverage of that trip. (The FBI consistently described the FISA targeting of Page as “productive” or “fruitful.”) And Bill Barr’s DOJ didn’t withdraw the probable cause claim for Page’s first two FISA orders. The applications against him, which were based in part on his voluntary sharing of non-public information with known Russian intelligence officers, alleged he knowingly aided and abetted foreign spies.

Over time, there would be more than those four facilities, and in fact one main reason FBI submitted the especially problematic June 2017 application was because the FBI wanted to access financial information and two encrypted messaging apps, the latter out of suspicion that Page had destroyed a phone once he discovered he was under investigation.

The FBI also had concerns about Page’s initial denial in a March 16, 2017 interview that he had sought out some Russian official to identify himself as the Male-1 in court filings for one of the Russians trying to recruit him some years earlier.

There was evidence for possible charges; there was evidence when the FBI first opened an investigation into him in April 2016. Just not enough to charge him.

Errors aside, though, Gerth here adopts a fairly remarkable stance. He complains that the WaPo story confirming the FISA targeting did not include all the problems with the FISA applications that wouldn’t be discovered until much later. I spoke with a Congressional Republican who was privy to the applications targeting Page in summer 2018, for example, and even at that point, the person believed there was abundant other evidence against Page, even without any information from Steele. Crazier still, in April 2017 when the WaPo published that scoop, the worst abuse of all identified in the Page applications – the alteration of an email – hadn’t happened yet.

The WaPo would have needed a time machine to meet Gerth’s strictures.

Gerth’s claims that the NYT and WaPo’s reporting was particularly problematic are, with a few exceptions, extraordinarily weak, and that’s before you consider all the Pulitzer articles he simply ignored. But he also ignores some of the more problematic NYT stories, like the NYT decision to bury Trump’s discussion of adoptions with Putin immediately before he wrote a misleading note claiming the June 9 meeting addressed adoptions. Similarly, Gerth had no problem that the NYT not only parroted Bill Barr’s misleading March 24, 2019 letter about the Mueller Report, but ran entire blocks of his letter on the front page. I asked CJR if they had any problem with this article, which misrepresented court filings in the Manafort case to suggest that his sharing of polling data with Konstantin Kilimnik happened in the spring, not during the general election, and involved only Ukrainian oligarchs, not Deripaska; to this day, the article feeds misunderstanding about that allegation. 

That was another question to which I got no answer.

Gerth has plenty of complaints about the NYT — just not about the stories where they erred on the side of downplaying the discoveries of the Russian investigation.

But as I’ll show in my next post, Gerth’s poor framing of his complaints about the NYT coverage doesn’t end there.

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR