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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

Q You’re aware, Mr. Dolan, aren’t you, that the government was investigating you at some point?

A Yes.

Q You’re aware that they issued search warrants and subpoenas for your email communications?

A Yes.

Q You’re aware that they issued subpoenas for your phone records?

A Yes.

Q Your work email records?

A Yes.

Q Your Facebook records?

A Yes.

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

Q And I think you have already testified to this, but even knowing everything that the government has done to look into you, it’s still your testimony today that you’ve never talked to Mr. Danchenko about anything that ended up in the dossier, correct?

A Correct.

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

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

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

A Yes, I have.

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

A Our team did.

[snip]

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

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

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

A In this particular case, subpoenas.

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

A Yes.

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

A Those would be via search warrants.

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

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

A Yes.

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

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

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

A No.

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

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

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

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

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

John Durham’s Last Word: An Outright Lie about the Mueller Conclusions

There were aspects of Igor Danchenko attorney Stuart Sears’ closing argument yesterday that could have been stronger.

He could have more strongly emphasized that Danchenko had nothing to do with the words that appear in the dossier, and so when John Durham claims that the words in the dossier — alleging a conspiracy between Trump and Russia — are what Danchenko told the FBI he told Steele, he’s lying. Or maybe too stupid to understand that? That said, Sears did emphasize that Danchenko told the FBI the anonymous caller had said there was nothing bad about the ties between Russia and Trump.

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.

Still, this case is about reported speech, and Durham is prosecuting Danchenko for what the record shows is Christopher Steele’s speech, not for what the record shows is Danchenko’s speech.

Sears’ materiality argument could have been more forceful (though he correctly noted, jurors should never even have to get that far). Durham claims the alleged lies about Millian were material because they caused the surveillance against Carter Page; that is literally impossible for two of the alleged lies (which were told after surveillance stopped), including the October 24 alleged lie that, for the reasons I’ve laid out here, the jury may have more reason to believe Danchenko lied. And whether Danchenko told the FBI what Durham believes to be the truth — that no call with Millian happened — or Danchenko told them what he did — that the call that happened was so sketchy it shouldn’t have been relied on, and it did not include any claim of conspiracy — the decision the FBI should have taken would have been the same, to stop relying on that allegation in the FISA application. Importantly, Danchenko raised questions about the reliability of the call with no knowledge of the FISA application or the import of the conspiracy of cooperation language to the FISA application, but nevertheless told FBI everything they would need to remove the allegation from the FISA application.

And I think Sears could have hit the significance of the mobile apps harder. He did remind jurors about how Durham attempted to elicit false testimony about whether Danchenko had said this could be a mobile app.

The government set out to prove — Mr. Keilty told you in his opening statement he was going to prove Mr. Danchenko never received an anonymous call. Now, this is where — if you recall during the trial, special counsel got a little tricky here. Remember, they asked Agent Auten to refresh his recollection by reviewing a document, a report he had written, that Mr. Danchenko claimed to have received a cellular call from an anonymous caller. That was all they had him review. Just read that part, and what does it say? A cellular call, a cellular phone.

Then Mr. Onorato got up on cross-examination and literally said: Review the same report but read the rest of the sentence onto the next page.

And the full sentence that Agent Auten actually read out loud read: The call was either a cellular phone, or it was a communication through a phone app.

It was a good try, but it didn’t work. And it was a try because they know they have no evidence at all from which you could conclude there was not a call through a messaging app. They don’t have it. It’s their burden. They don’t have it. He doesn’t have to prove he received a call on a messaging app. They have to prove he didn’t.

Sears had more evidence here, though. There was the evidence that Millian was communicating via mobile apps using his iPad in the period he was in South Korea (though Durham worked hard to withhold it from the jury), and because he was overseas, Millian would be far more likely to use mobile apps than telephony. It might have been useful to explain why Ryan James’ effort to rule out a mobile app call by looking at only telephony calls didn’t even attempt steps that could have clarified the issue. The steps Durham’s hand-picked FBI agent failed to take prove, definitively, that Durham never attempted to fill what Sears called “a giant hole” in Durham’s case.

And if they have not convinced you beyond a reasonable doubt that he did not receive an anonymous call through a phone app, that’s the end of the case. They had to prove that.

They told you they would, but did they? Are you convinced beyond a reasonable doubt, as you sit here today, that Millian or perhaps someone else didn’t reach out to him anonymously over a messaging app in July 2016? What evidence do you have to make that conclusion? What evidence do you have to make that conclusion beyond a reasonable doubt? There’s none. It’s a giant hole in the case, and they can’t fill it with conjecture, speculation, and argument. Where is the evidence?

All that said, Sears laid out all the other compelling proof against Durham: that Durham’s own witnesses, Brian Auten and Kevin Helson, said Danchenko didn’t lie, and that all the details that Durham collected believing they would disprove Danchenko’s story in fact corroborated the claims Danchenko had made about the call and aftermath.

We’ll learn soon enough what the jury thinks about it. They deliberated for about three and a half hours yesterday and will resume deliberations at 9:30 this morning.

I’d like to address the underlying dynamic about the closing arguments, though.

Michael Keilty, the least corrupt member of the Durham team, had the initial close, which often is the longer of prosecutors’ two presentations, the one in which prosecutors explain to the jury which the most important pieces of evidence are and where to find them. At least by transcript pages, that wasn’t the case here: Keilty’s close spanned 21 pages, whereas Durham’s rebuttal spanned 22. Still, that’s totally within the norm, and how the prosecution splits their time is their own decision.

But that time differential is not what Judge Anthony Trenga expected. Even before Durham started, he remarked on how short Keilty’s close was and asked Durham in a bench conference how long he expected to take.

THE COURT: I thought the government’s closing was going to be a lot longer than it was. How long were you intending for rebuttal?

MR. DURHAM: I would say half an hour, 40 minutes.

THE COURT: Well, I’ll give you half an hour. All right.

MR. DURHAM: Yes, Your Honor.

I think Trenga suspected — as did I after Keilty’s close — that the entire plan from the start was to sandbag Danchenko’s team, effectively present the bulk of the close after Sears could no longer respond (this is what Durham did with Special Agent Kevin Helson’s testimony, raising the most damning testimony of the trial for the first time in a second redirect).

Sears anticipated that would happen. Based on all the times Durham pointed to evidence he didn’t have because he himself didn’t bother to try to collect it, Sears warned the jury about the Special Prosecutor’s efforts to shift the burden on Danchenko, repeatedly demanding that Danchenko affirmatively prove his claims, rather than just disprove Durham’s.

So now is the part where I have to sit down in a minute, and it’s the hardest part of the case for a defense attorney because they get the last word. And so we just have to sit there and listen and think about the things we meant to say when we were up here and forgot or the things that we think they’re getting wrong and that we feel like we can correct, like I was just able to do now, and we can’t.

And it’s particularly concerning in this case and difficult in this case because the burden shifting I heard in the government’s closing about where is the evidence that Mr. Danchenko did this or did that. He didn’t have any burden. You’re not going to see an instruction back there that says he has a burden to do anything. It’s the government’s burden to prove their case. It’s not his burden to disprove it.

The special counsel at times through its questions and arguments, they’ve not given you the full picture. They haven’t told you the whole story. Just like when they were showing the agents and had the agents testifying, well, if you knew this or if you knew that, what would you think? Oh, yeah, that would affect my views of that, or I would think that was important. They only showed them the stuff that they think helped their case.

[snip]

So I’m worried more so than usual when I go back to sit down about what you’re going to hear now and what I can’t respond to. And while I can’t do that, you can. You can pay attention to what’s said now, and you can discover those inaccuracies or misstatements, if there are any, when you go back to deliberate and consider the actual evidence in this case.

Before he did this, though, Sears talked about how Bill Barr started this investigation, burned Danchenko as a source, and how as part of the investigation Barr set up, Durham has not investigated what happened, but instead set out to prove guilt.

Agent Helson also told you that Mr. Danchenko’s information was vital to national security and led to the opening of more than two dozen active influence cases. He became a trusted source of information for our government that even led to the creation of a new team at the FBI as a result of the information he provided, the guy they are saying is a liar.

But as you’ve also heard at trial, the political winds in this country changed once then-President Trump appointed a new attorney general, William Barr. Barr not only essentially revealed Mr. Danchenko’s identity by releasing a redacted version of his January 2017 interview to the Senate Judiciary Committee, but that committee released that report within an hour of receiving it to the public.

Attorney General Barr also ordered an investigation into the investigation of the Trump campaign and its connections to Russia. So a new special counsel was appointed, this special counsel, to lead that investigation.

I submit to you that if this trial has proven anything, it’s that the special counsel’s investigation was focused on proving crimes at any cost as opposed to investigating whether any occurred.

I submit to you that a fair and reasonable look at the evidence in this case shows that the special counsel — they started out with the presumption of guilt, that Mr. Danchenko had lied, and they read guilt into every piece of evidence they came across and at every detail they saw. They ignored — and we’re going to show you. They ignored how their own evidence showed he was not guilty, that he was innocent.

This narrative is all true. Even within the trial, there was abundant evidence presented that Durham sought out to find someone to charge, not to find out what happened (neither of which is an appropriate use of prosecutorial resources, absent evidence of a crime).

For any critique I have about things Sears could have done tactically, the strategic decision to make Durham defend his own investigation clearly had an effect. I think Sear’s comments got to Durham, and made him defensive.

In his close, in the middle of spending much of his close focusing on a single 2020 LinkedIn message in which Danchenko admitted he was the source for 80% of the raw intelligence in the dossier, John Durham took the time to rebut the accusation about Bill Barr deliberately exposing Danchenko by blaming Danchenko for speaking to the press.

But what do you also know about that? And don’t forget what the evidence is. Mr. Sears wants to put this on Bill Barr. He wants to put it on politicians or whatever. You heard testimony from Mr. Helson that Mr. Danchenko himself, when he was interviewed by the press — all right. I think it was couched in the terms of your recollection controls, of course, but I think it’s couched in terms of, well, he had to do what he had to do to protect himself. He went and talked to the press.

And then later in his close, he returned to it again, not presenting the proof that Sears said was absent, but instead defending Bill Barr.

That’s when Durham decided to explain to the jury what he believes the results of the Mueller investigation were.

Now, I think that counsel’s suggestion is, oh, it’s Bill Barr. Bill Barr did this for political reasons. But reflect on how this came about. The Mueller report had come out, and there’s no collusion that was established. It’s not an illogical question to ask, well, then how did this all get started? Now, you can call that political. You can suggest, I guess, inferentially that somehow people who have spent a considerable period of time away from their families and whatnot did this for political reasons or what have you. If that’s your mind-set, I suppose that’s your mind-set.

But to look into the question of how did this all happen — Director Mueller, a patriotic American, the former director of the FBI, concludes there’s no evidence of collusion here or conspiracy. Is it the wrong question to ask, well, then how did this get started? Respectfully, that’s not the case. [my emphasis]

That’s the first time when Judge Trenga interrupted and told Durham to wrap it up.

THE COURT: You should finish up, Mr. Durham.

MR. DURHAM: Yes, Your Honor.

Only after Trenga told him to stop and only after defending Billy Barr twice did Durham turn to the crucial issue before him, attempting to disprove a mobile app call.

You know that the defendant didn’t receive an anonymous call here on an app from Millian or anyone else for at least three reasons:

First, there’s absolutely no evidence in the record of such a call, none.

Second, the statements the defendant made to the FBI are not in any way consistent with how someone would describe an anonymous call. They’re consistent with how somebody would describe a call that they made up.

Even though Danchenko was a trained business intelligence analyst whose entire task from orders from Christopher Steele was to find evidence of collusion between Trump and the Russians — if he had received an anonymous call, whether he thought it was Millian or it was somebody else, that would be the very evidence of collusion that he was looking for so eagerly. As a trained researcher, he clearly would have noted every detail possible: What’s the incoming call number? What’s the area code number? What other details are there? What do you know about the person’s speech pattern? None of that information is recorded or provided. It’s simply an anonymous caller.

He would have known to remember the cell phone application if it was a cell phone application that was involved. Look, that’s what a good research analyst does, looks into the details, records those details, and reports on those details. Mr. Danchenko did none of that. He didn’t provide any of that information to Steele, and he didn’t provide any of that information to the FBI.

Third, the most conclusive evidence that such a call never occurred, if you look at Government’s Exhibit 207T, the defendant’s August 18 email to Mr. Millian where the defendant states in his own words — I mean, he can’t get away from his own words. His words state that he wrote to Millian several weeks earlier and that they were contacts on LinkedIn but says nothing about the call that he told the FBI he thought was probably Millian. What possible reason could explain why the defendant wouldn’t at least ask Millian if he had called?

Because he had spent his time doing other things, including defending Bill Barr twice, in the middle of walking the jury through what Durham believes is his smoking gun evidence, he made a bid for more time.

I want you to look at Government’s Exhibit 115T, the August 24 email — Can I have five more minutes, Your Honor?

THE COURT: One minute.

MR. DURHAM: One minute.

The point being, I think (and Trenga may have thought) that Durham attempted to sandbag Danchenko, delaying the entirety of his substantive close until after Sears had finished.

And indeed, Durham’s presentation of what they believe is their smoking gun evidence didn’t come until Durham’s own close, not Keilty’s.

An attempted sandbag.

Though it only came after Durham spent his time trying to defend Barr’s actions, not just in exposing an FBI source, but in launching this investigation in the first place.

Which is why it matters that Durham lied about the conclusion of the Mueller investigation when he claimed, “Director Mueller, a patriotic American, the former director of the FBI, concludes there’s no evidence of collusion here or conspiracy.”

Mueller didn’t charge conspiracy and it is true that he said the available evidence did not prove it (in at least two cases, notably, because people had destroyed mobile app communications). But even ignoring the then-ongoing investigation into whether Roger Stone conspired to hack with Russia, Mueller explicitly stated that, “A statement that the investigation did not establish particular facts” — such as the finding that, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities” — “does not mean there was no evidence of those facts.”

Mueller pointedly said his statement explaining that he didn’t charge conspiracy doesn’t mean there is no evidence of conspiracy, but John Durham got up before a jury and asserted that anyway. To defend his actions spending almost twice as long hunting for guilt as Mueller did investigating Trump aides for their potential role in a crime, Durham affirmatively claimed what Mueller said one could not claim.

All the more so given that (as Onorato had already established), three of the first four subjects of the investigation were convicted, and five of those convicted — Mike Flynn, George Papadopoulos, Michael Cohen, Paul Manafort, and Roger Stone — were either convicted or (in the case of Manafort) found by a judge to have lied to cover up their interactions with agents of Russia in 2016.

Indeed, Brittain Shaw even explicitly used the standard on which the FBI first opened the investigation — to figure out whether claims like the ones George Papadopoulos made to Australia were true or not — in her attempt to prove the materiality of the literally true alleged lie Durham prosecuted Danchenko for.

With respect to knowing whether someone passed false information that contained allegations — not the Lewandowski part but somebody made up that they were an insider or had inside information, in the course of looking at Russian interference, as you did in the Special Counsel’s investigation, would that have been important to you?

In their bid to win this case, Durham and his prosecutors have argued not only that one can investigate whether someone is telling the truth when he claims to have inside access to Trump (as evidence in this trial showed Millian was doing), much less to Russia, as Papadopoulos was doing. Indeed, in his attacks on the FBI, Durham claimed one would be negligent not to investigate such things. Durham even argued that Mueller didn’t investigate Sergei Millian thoroughly enough.

And yet, when it came time to prove his own case, to explain why he hadn’t taken basic steps to disprove a mobile app call, Durham instead squandered his time inventing false claims about the results of the Mueller investigation.

We’ll see what the jury has to say about Durham’s defense of his prosecution. But there is no more fitting way for Durham to end this fiasco than to lie about how and why it all got started in the first place.

Update: Changed how long the jury has deliberated to include their lunch.

John Durham Created a False Pee Tape Panic Based Off a “Literally True” Alleged Lie

October 15, 2022/61 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Here’s how Judge Anthony Trenga explained his decision to dismiss the false statement charge against Igor Danchenko tied to Chuck Dolan, a charge alleging that Danchenko lied to his handling agent Kevin Helson when he responded to a question about whether he, “talked to Chuck Dolan about anything that showed up in the dossier,” with, “No. We talked about, you know, related issues, perhaps, but no, no, no, nothing specific.”

[A] prosecution for a false statement under Section 1001 cannot be based on a literally true statement even if that response is nonresponsive or misleading.

[snip]

The government presented two witnesses that provided direct evidence concerning Count 1: Charles Dolan and FBI Special Agent Kevin Helson. Dolan identified to one occasion when he spoke on the phone with Mr. Danchenko about the dossier, specifically on January 11, 2017, the day after it was published by BuzzFeed. Dolan testified, however, that there was no discussion about anything in the dossier, precisely what Danchenko told Helson, although the dossier was mentioned.

[snip]

Special Agent Helson confirmed in his testimony that he never explained to the defendant what he meant by “talked,” nor did he follow up with the defendant about what the defendant meant by his answer that he had talked about related issues with Dolan.

[snip]

The standard definition of “talk” means communication through the spoken word.

Applying that definition, the evidence in this case establishes that Mr. Danchenko’s answer was literally true.

[snip]

Helson asked an unambiguous question, defined otherwise would allow the government to impose the serious consequences of criminal liability under Section 1001 by divorcing words from the commonly understood meaning.

[snip]

Agent Helson testified that if what Dolan said was true, Mr. Danchenko’s answer was literally true; and in light of that testimony, Agent Helson understood the question the same way that Mr. Danchenko did, as asking for verbal communications.

Trenga’s decision came after the prosecution rested Friday, and Danchenko opted not to mount a defense (he was never going to do so; he never provided a witness list). On Monday, the two sides will present their closing arguments, and the jury will move to deliberating over the four remaining charges, which allege that Danchenko lied when he told the FBI, over and over, that he believed that an anonymous caller he claimed to have spoken to in late July 2016 was Sergei Millian. I hope to do a follow-up post explaining the evidence presented on those four charges.

Judge Trenga dismissed this charge because John Durham had accused Igor Danchenko of lying when all the evidence, including the affirmative testimony of two of Durham’s own witnesses, shows his statement was “literally true.”

Trenga judged that Durham had accused Danchenko of lying when in fact he was telling the truth after Durham, the frothers, and far too many members of the legacy press spent almost a year spinning conspiracy theories based on it, most notably by claiming that Chuck Dolan (whose ties to Democrats Durham and the press also wildly overstated) was the source for the pee tape allegation, even though Danchenko had named one of his Russian associates as the source and even though (we now know) Dolan claims he doesn’t remember meeting Danchenko at the Moscow Ritz, much less talking about pee tapes.

Trenga dismissed the charge after Durham spent much of the four day trial trying to bolster the materiality claims behind this charge.

For example, Durham prosecutor Michael Keilty had former FBI analyst Brittany Herzogg testify about how, months after the literally true alleged lie (Herzogg first joined the Mueller team the month after the literally true alleged lie), she tried but was not permitted to get the Mueller team to take further steps to investigate Dolan. Similarly, prosecutor Brittain Shaw had Special Agent Amy Anderson describe how at least three and possibly as many as six months after Danchenko told the literally true alleged lie, her supervisor on the Mueller team (which had to have new predications approved by Rod Rosenstein) did not let her open an investigation into Dolan.

On at least two occasions, these efforts to bolster the materiality of this literally true alleged lie extended to attempting to introduce false or misleading testimony to the jury.

On cross, Danny Onorato caught Shaw eliciting a false claim from Anderson — that Danchenko had not revealed Dolan’s ties to Dmitry Peskov — when in fact he had revealed that during the interview where he told the literally true alleged lie.

Q Okay. And are you aware that Mr. Danchenko in June, despite what Ms. Shaw asked you and despite what you told her, actually described that Mr. Dolan knew the press secretary of Vladimir Putin? Right?

A According to this document, yes.

Q Yeah. And it came from Mr. Danchenko, right?

A Yes.

Q Okay. And so you said that if you knew there was a connection back in June of Mr. Peskov and Mr. Dolan, that would be significant, right?

A Yes.

Q And you knew it in June, right?

A Yes.

Q And when you testified, you weren’t trying to lie; were you?

A I was absolutely not trying to lie.

Earlier that morning, Danchenko attorney Stuart Sears caught Durham himself trying to make further misrepresentations on this topic. In an attempt to suggest that Sears had coached Danchenko handler Kevin Helson to claim (falsely, Durham wanted to prove) that Danchenko had never been asked about the report at issue in this charge, Steele Report 105, Durham asked Helson to refer back to the original Danchenko interviews where — Durham falsely claimed — Helson would find Supervisory Analyst Brian Auten asking Danchenko about Report 105.

Q Now, counsel also asked you some questions on cross-examination yesterday that you — the question was asked and you kind of adopted it. The question was essentially — and Mr. Auten never asked Mr. Danchenko about the report number, which was 2016/105. It was the Manafort report.

A Okay.

Q He asked you if Auten asked him about that, and you said no or you adopted the question no. Do you recall, sir, whether or not — in the three-day interview in January of 2017 whether or not Mr. Danchenko was, in fact, asked questions and there was reporting in the report about the Manafort part of the dossier?

A I didn’t recall that, no.

Q All right. Do you recall it now? Well, let me withdraw that. I’d ask you to take a look at Government’s Exhibit 100. It’s just for identification in the record now. You are free, of course, to look at the entirety of it, but I would direct your attention most particularly to pages 11 and 12 to see if that refreshes your recollection as to whether or not Mr. Danchenko is, in fact, asked questions relating to Paul Manafort and the like in January 2017.

[snip]

A Is there a particular page?

Q Pages 11 and 12, but look through it as you want. Does that refresh your recollection, sir, as to whether, in fact, Mr. Danchenko had been asked about the Manafort matters back in January of 2017?

Here’s the passage of Danchenko’s January 2017 interviews where, Durham falsely claimed, Helson would find memorialization of Auten asking Danchenko about Report 105 — the report describing that Corey Lewandowski hated Manafort.

Not only does this passage relate to entirely different details about Manafort — his ties to Viktor Yanukovych rather than his animosity with Corey Lewandowski, not only does it address events that transpired even before Manafort started replacing Lewandowski as Trump’s Campaign Manager, not only do these events precede the report in question by five months, but this is not even a reference to what is known as the Steele dossier, paid for by Perkins Coie.

It’s a reference to the reporting on Manafort specifically that Oleg Deripaska paid for.

As Sears explained in a sidebar, Durham was deliberately conflating broader Manafort reporting (nobody pointed out what I have, that this specific reference wasn’t even to what is known as the Steele dossier) with the single report he charged.

MR. SEARS: Your Honor, Mr. Durham’s question has created the impression, I think, that the Manafort discussion, as referenced in that report, was about Report 105. My question was very specific about whether he had ever been shown that specific report. It is true that Paul Manafort came up during discussions.

THE COURT: In January?

MR. SEARS: In January. But just about his relationship with Ukraine, not about his resignation from the campaign or any of those issues. I’m concerned about the impression he’s giving to the jury because of the way the questions were asked. It is redirect.

THE COURT: On cross, he said that he wasn’t aware of —

MR. SEARS: Whether or not he had ever been shown that report.

THE COURT: So the report itself?

MR. SEARS: The report itself.

John Durham, in his attempt to prove that Danchenko lied about something that actually mattered in that literally true alleged lie, misrepresented the record, falsely claiming that Helson had misspoken.

I know! It’s dizzying even for me! And I knew this was a misrepresentation as soon as frothers falsely claimed Durham had caught Sears in a lie.

By yesterday’s testimony, Danchenko’s lawyers summarized what the Dolan charge was really about as opposed to what Durham had spun it into by mocking the idea you’d open an espionage investigation into someone because they repeated the publicly known fact that Corey Lewandowski hates Paul Manafort.

Q Okay. And I just want to ask one final question because I think you talked about Russian misinformation. Correct?

A Correct.

Q Do you think it could be Russian misinformation that Corey Lewandowski hated Paul Manafort back in July of 2016?

A I honestly don’t remember that specific allegation. Anything could be Russian misinformation.

Q Sure.

A It’s possible.

Q But I’m asking you. If you heard from me, “Corey Lewandowski hates Paul Manafort,” would you then run and open up an espionage investigation based on that fact?

A No.

The pushback from Durham’s prosecutors, discussing the the dossier in terms of “Russian interference,” “Russian-related,” and “related to Russia,” is actually a fair enough point.

Q And in terms of — he asked you about Mr. Manafort and Lewandowski. With respect to knowing whether someone passed false information that contained allegations — not the Lewandowski part but somebody made up that they were an insider or had inside information, in the course of looking at Russian interference, as you did in the Special Counsel’s investigation, would that have been important to you?

[snip]

Would it be relevant to you if that information actually had come from somebody the dossier claimed to be a Trump insider and the dossier was a Russian related — related to Russia and Donald Trump’s connections to Russia? Correct?

A Correct.

Q So would it have been relevant to know in that dossier that that information came from a Trump insider?

A Yes.

But that was an argument to investigate Dolan, not to prosecute Danchenko for his literally true statements about Dolan.

Taken on its face, too, it’s a vindication of opening an investigation to find out which of Trump’s Coffee Boys were lying about their role in a Russian influence operation. If this is your standard — and it is the standard Durham has finally adopted — then every investigation Crossfire Hurricane opened up was justified.

As I’ll show, Durham went further still yesterday, arguing that Mueller’s investigators hadn’t investigated Sergei Millian aggressively enough in 2017.

In any case, thus far, the only people who have been demonstrably lying are Durham’s own witnesses and, arguably, his own prosecution team. As Durham has been sustaining this claim that Danchenko lied even though what he said was literally true, Durham has burned two reportedly valuable FBI sources, damaged US cybersecurity efforts, partnered with a now-sanctioned Russian bank, and forced the declassification of details of multiple FBI counterintelligence investigations.

That is the damage Durham has wrought while he has been spinning tales of pee tapes to sustain his investigation.

At least with regards to Chuck Dolan, Judge Trenga has ruled, Igor Danchenko was literally telling the truth. Durham made of that literally true statement a bogus pee tape panic that has done breathtaking amounts of damage.

Update: Added more context per Frank Probst’s comment.

John Durham’s Re-Virgined Birth of the Carter Page and Sergei Millian Investigations

October 12, 2022/26 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

The Igor Danchenko trial kicked off yesterday to contentious start, with prosecutor Michael Keilty accusing Danchenko of lying while making some, um, expansive claims about the public record, and Danchenko attorney Danny Onorato accusing Keilty of lying about the extent of the immunity Danchenko was granted for his January 2017 interviews, after which Judge Anthony Trenga admonished Onorato for overstating the extent to which Keilty overstated Danchenko’s immunization.

And then John Durham — in the flesh!! — after naming some more FBI employees so the former President could include them in another frivolous lawsuit, settled in for some rather painful direct examination of Supervisory Analyst Brian Auten.

Most of it–because it focused on events that preceded the first FBI interviews of Danchenko (and because during his interview he could not have known how much of his reports or in what form were used in the Carter Page FISA)–was irrelevant to the charges against Danchenko.

The country wasn’t served by any of this.

But along the way, we learned that Sergei Millian was once a source for the FBI, and that the investigation into Millian was closed without charges. By the end of the day yesterday, prosecutors hadn’t been permitted to raise details of the investigation into Danchenko.

About two key details, however, Durham deliberately obscured the record.

First, as the Durham team did during the Michael Sussmann trial, Durham made a big deal about the fact that Crossfire Hurricane investigation was opened as a full investigation from the start.

Q. And the FBI opened that up to say full investigation?

A. That is correct.

Q. From day one?

He did this without mentioning the hack-and-leak by a hostile intelligence service targeting Hillary Clinton, making it sound, instead, as if Australia shared the George Papadopoulos tip out of the blue, rather than in response to the seeming corroboration of the tip by the WikiLeaks publication.

John Durham never tires of minimizing Russian attacks on democracy, it seems.

As his team did during the Sussmann trial, Durham made a big deal about the fact that only at a Full Investigation could DOJ get a FISA warrant targeting Page (Durham also incorrectly suggested the primary goal of a FISA warrant is to find criminal information).

Q. Explain to the jurors, then, what tools, investigative tools, the FBI had available at that time as a result of opening a full investigation as opposed to some lesser level of —

A. With a full investigation, you are able to use the Foreign Intelligence Surveillance Act, or FISA.

Q. And are court authorized FISAs, essentially, the most powerful tool that the FBI has available and —

A. I would say one of.

The problem with this entire premise — and the problem with his attack on the Horowitz Report is that there was already an investigation into Carter Page. What FBI did, with Carter Page, was take an existing counterintelligence investigation arising out of Page’s fondness for being recruited by Russian intelligence officers, and open it as part of an UNSUB (see this post for an explanation of what that means) tied to apparent advance knowledge of an attack on democracy.

Similarly, with Millian, Durham tried to get Auten to suggest that the first investigative focus the FBI developed on Millian in 2016 was from Steele.

Q. Let me ask you this: With respect to your meeting with Mr. Steele in early October of 2016, do you recall whether or not the name Sergei Millian came up?

A. Yes.

Q. And how did that come up?

A. Sergei Millian’s name came up as —

MR. ONORATO: Your Honor, I’m going to object.

THE COURT: Overruled. Go ahead.

BY MR. DURHAM: Q. With respect to Sergei Millian, whatever you learned from Mr. Steele in October of 2016, what, if anything, did you and your colleagues do regarding Sergei Millian?

A. Out of what we learned from Steele or from — or what came up before —

Q. With respect to Sergei Millian, whatever you learned from Mr. Steele in October of 2016, what, if anything, did you and your colleagues do regarding Sergei Millian?

A. Out of what we learned from Steele or from — or what came up before —

Q. Based on what you knew. Let’s not worry about hearsay from Steele.

A. No, no. I mean —

Q. What did you learn?

A. Millian’s name came up in the course and scope of the investigation prior to us talking to Mr. Steele.

Q. Okay. So — and this just calls for a yes or no. Did you have a — in your meetings with Steele, did Sergei Millian’s name come up?

A. Yes.

As the DOJ IG Report revealed, by that point, Millian was already a focus of other FBI agents.

According to a document circulated among Crossfire Hurricane team members and supervisors in early October 2016, Person 1 had historical contact with persons and entities suspected of being linked to RIS. The document described reporting [redacted] that Person 1 “was rumored to be a former KGB/SVR officer.”

Again, Durham tried to create a virgin rebirth to create original harm from the dossier where it did not exist.

Unsurprisingly, Durham also didn’t elicit from Auten that Steele had called Millian a “boaster” and said he “may engage in embellishment” in that meeting, or that as described in that meeting, Steele had claimed that the Carter Page information came from his research during the period when Oleg Deripaska, not Hillary, was paying for his research.

I assume Danchenko’s team will lay all this out in cross-examination today.

It’s just rather pathetic that, in his first outing, Durham is still obscuring the public record to create harm against Trump rather than an attack against the US by Russia.

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

September 24, 2022/72 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

September 4, 2022/21 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

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

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

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

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

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

But things may about to get interesting.

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

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

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

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

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

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

But Danchenko notes two more problems with the charge.

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

(1) the FBI’s investigation of the Trump Campaign relied in large part on the Company Reports to obtain FISA warrants on Advisor-1, (2) the FBI ultimately devoted substantial resources attempting to investigate and corroborate the allegations contained in the Company Reports, including the reliability of Danchenko’s sub-sources; and (3) the Company Reports, as well as information collected for the Reports by Danchenko, played a role in the FBI’s investigative decisions and in sworn representations that the FBI made to the Foreign Intelligence Surveillance Court throughout the relevant time period. Indictment at 4.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“The Bell Can Never Be Unrung” … The Many Times Durham’s Prosecutors Flouted Judge Cooper’s Orders

May 31, 2022/64 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Thanks to those who’ve donated to help defray the costs of trial transcripts. Your generosity has funded the expected costs. If you appreciate the kind of coverage no one else is offering, we’re still happy to accept donations for this coverage — which reflects the culmination of eight months work.

The jury in the Michael Sussmann case will return to work this morning. They deliberated for some period on Friday (I’m not sure whether how long they deliberated has been reported). But the jury was unable to get questions answered or a verdict accepted after Judge Christopher Cooper left for the long holiday at 2:30PM. Even if the jury ends up finding Jim Baker’s testimony unreliable — which would likely be the quickest way to come to a verdict one way or another — I would expect it to take the jury a bit of time to sort through the centrality of his testimony to the charges.

So while we wait, I want to catalog how Durham’s team blew off just about every adverse decision Cooper made against them.

1. Delayed Request for Privileged Material

As I laid out in this post, Cooper ruled that a bunch of the emails over which the Democrats had originally claimed privilege were not. But because Durham waited so long to request a review of the privileged documents, Cooper ruled Durham could not use the emails at trial.

In cross-examination of Fusion’s tech person, Laura Seago, DeFilippis used the content of one of those emails that apparently discussed hiding her Fusion affiliation from Tea Leaves. (I laid out this exchange in this post.)

MR. DeFILIPPIS: So we have an issue with regard to Ms. Seago’s testimony. The government followed carefully Your Honor’s order with regard to the Fusion emails that were determined not to be privileged but that the government had moved on.

As Your Honor may recall, there was an email in there in which Ms. Seago talks very explicitly about seeking to approach someone associated with the Alfa-Bank matter and concealing her affiliation with Fusion in the email. When we asked her broadly whether she ever did that, she definitively said no when I, you know, revisited it with her. So it raises the prospect that she may be giving false testimony.

And so we were — you know, I considered trying to refresh her with that, but I didn’t understand that to be in line with Your Honor’s ruling. So the government is — we’d like to consider whether we should be — we’d like Your Honor to consider whether we should be able to at least recall her and refresh her with that document?

THE COURT: I don’t remember that question, but the subject matter was concealing Fusion or her identities in conversations with the press. If I recall correctly, that email related to “tea leaves,” correct?

After repeatedly asking Seago whether she had hidden her affiliation from the media, he asked about this email, catching Seago in a gotcha (though both Judge Cooper and Sussmann lawyer Sean Berkowitz took the question, as Seago seemed to, to relate to outreach to the press).

After setting his perjury trap, DeFilippis immediately tried to recall Seago onto the stand to delve into the content of this email. In this case, Judge Cooper ruled that DeFilippis had waived his opportunity to do so.

THE COURT: Well, I think the time to have asked the Court whether using the document to refresh was consistent with the order was before she was tendered and dismissed. So I think you waived your opportunity. All right? So we’re going to move on.

2. Non-Expert Expert Testimony

One of the most contentious arguments leading up to trial was Durham’s belated attempt to use an expert witness, ostensibly to discuss the technical complexities of DNS and Tor at the heart of the case (topics which prosecutors had witnesses explain over and over in as much detail as their nominal expert witness David Martin did), to address the accuracy of the research on the DNS anomaly.

This was an attempt to lead the jury to believe the anomaly was fabricated by Rodney Joffe and the researchers, in spite of the fact that Durham obtained plenty of evidence it was not.

On April 25, Judge Cooper ruled that Durham could have an expert discuss the technicalities of the data, but could only raise the accuracy if Sussmann did so himself.

Then on May 6, Durham attempted to expand that ruling by asking the expert to address materiality. In discussions the morning of opening arguments that focused entirely on the testimony of non-DNS expert Scott Hellman, not the nominal expert on DNS David Martin, Cooper prohibited Martin’s discussion of spoofing. (I describe these discussions here.)

Ironically, this was all supposed to be about visibility, the import of understanding how much DNS traffic a researcher could access to the quality of that researcher’s work. In Hellman’s own analysis — for which he fairly demonstrably did not review the data that Sussmann shared with the FBI very closely — he showed no curiosity about the issue.

Searched “…global nonpublic DNS activity…” (unclear how this was done) and discovered there are (4) primary IP addresses that have resolved to the name “mail1.trump-email.com”. Two of these belong to DNS servers at Russian Alfa Bank. [my emphasis]

Nevertheless, DeFilippis used this nested set of witnesses as an opportunity to get Hellman — who admitted he had only a basic understanding of DNS, who didn’t review the data very closely, and who formed his initial conclusion in about a day — to comment on the methodology of the researchers.

Q. And what, if anything, did you conclude about whether you believed the authors of the paper or author of the paper was fairly and neutrally conducting an analysis? Did you have an opinion either way?

MR. BERKOWITZ: Objection, Your Honor.

THE COURT: Basis?

MR. BERKOWITZ: Objection on foundation. He asked him his opinion. He’s not qualified as an expert for that.

THE COURT: I’ll overrule it.

A. Sorry, can you please repeat the question?

Q. Sure. Did you draw a conclusion one way or the other as to whether the authors of this paper seemed to be applying a sound methodology or whether, to the contrary, they were trying to reach a particular result? Did you —

A. Based upon the conclusions they drew and the assumptions that they made, I did not feel like they were objective in the conclusions that they came to.

Q. And any particular reasons or support for that?

A. Just the assumption you would have to make was so far reaching, it didn’t — it just didn’t make any sense.

This is precisely the kind of opinion that Cooper had prohibited from an actual expert, admitted from someone whose own shoddy analysis became a recurrent theme for the defense.

3. Hearsay Clinton Tweet

DeFilippis’ efforts to get excluded information introduced was still more brazen with hearsay materials.

On May 7, Judge Cooper issued his initial ruling on which parts of Durham’s conspiracy theory could be admitted at trial. In general, Cooper permitted the introduction of Fusion GPS emails with the press about the Alfa Bank allegations, all of which post-date Sussmann’s alleged lie. He excluded all but one of the emails between Rodney Joffe and the researchers (more on the exception below).

Cooper equivocated wildly about a tweet sent out under Hillary Clinton’s name in response to the Franklin Foer story on the anomaly. In a hearing on April 27, he excluded it as hearsay.

THE COURT: All right. The Clinton Campaign Tweet, the Court will exclude that as hearsay. To the extent that the government believes that it offers some connection to the campaign and an attorney-client relationship, it’s likely duplicative of other evidence, so the Tweet will not come in.

In a pre-trial hearing on May 9 (after he had issued his order on motions in limine), Cooper explained he was revisiting the decision.

But I guess my question, as I have thought more about this, given the sort of two competing theories of the case and two narratives laid out in the Court’s ruling on the motion in limine, is whether it is relevant not for the truth, but to show the campaign’s connection to the alleged public relations effort to play stories regarding the Alfa-Bank data with the press and that therefore it is sort of context for the Government’s motive theory, that Mr. Sussmann sought to conceal that effort, as well as the campaign’s general connection to that effort.

After Sussmann lawyer Sean Berkowitz explained that the defense would not contest that the campaign wanted a story out there, Cooper opined that would make the tweet cumulative.

Well, if that’s going to be the case, and he’s not contesting that he was representing the campaign in connection with that effort, isn’t the tweet cumulative? It’s icing on the cake. Right?

DeFilippis claimed that without the tweet they would have no evidence about how the campaign worked the press on this issue (even though both Marc Elias, called as a government witness, and Robby Mook, who was originally listed as a government witness, eventually testified to the issue on the stand). After Judge Cooper said he would reserve his decision, Berkowitz noted that in fact, DeFilippis planned to use the tweet to claim the campaign wanted to go to the FBI when the testimony at trial (from both Elias and Mook) would establish that going to the FBI conflicted with the campaign’s goals.

[T]hey are offering the tweet for the truth of the matter, that that’s what the campaign desired and wanted and that it was a accumulation of the efforts.

Number one, it’s not the truth; and in fact, it’s the opposite of the truth. We expect there to be testimony from the campaign that, while they were interested in an article on this coming out, going to the FBI is something that was inconsistent with what they would have wanted before there was any press. And in fact, going to the FBI killed the press story, which was inconsistent with what the campaign would have wanted.

And so we think that a tweet in October after there’s an article about it is being offered to prove something inconsistent with what actually happened.

Then, after both Elias and Mook had testified that they had not sanctioned Sussmann going to the FBI, DeFilippis renewed his assault on Cooper’s initial exclusion, asking to introduce it through Mook’s knowledge that the campaign had tried to capitalize on the Foer story.

Having ruled in the past that the tweet was cumulative and highly prejudicial, Cooper nevertheless permitted DeFilippis to introduce the tweet if he could establish that Mook knew that the campaign tried to capitalize on the Foer story.

But Cooper set two rules: The government could not read from the tweet and could not introduce the part of the tweet that referenced the FBI investigation. (I explained what DeFilippis did at more length in this post.)

THE COURT: All right. Mr. DeFilippis, if you can lay a foundation that he had knowledge that a story had come out and that the campaign decided to issue the release in response to the story, I’ll let you admit the Tweet. However, the last paragraph, I agree with the defense, is substantially more prejudicial than it is probative because he has testified that had neither — he nor anyone at the campaign knew that Mr. Sussmann went to the FBI, no one authorized him to go to the FBI, and there’s been no other evidence admitted in the case that would suggest that that took place. And so this last paragraph, I think, would unfairly suggest to the jury, without any evidentiary foundation, that that was the case. All right?

MR. DeFILIPPIS: Your Honor, just two brief questions on that.

THE COURT: Okay.

MR. DeFILIPPIS: Can we — so can we use — depending on what he says about whether he was aware of the Tweet or the public statement, may we use it to refresh him?

THE COURT: Sure. Sure.

MR. DeFILIPPIS: Okay. And then, as to the last paragraph, could it be used for impeachment or refreshing purposes as well in terms of any dealings with the FBI?

THE COURT: You can use anything to refresh.

MR. DeFILIPPIS: Okay.

THE COURT: But we’re not going to publish it to the jury. We’re not going to read from it. And let’s see what he says. [my emphasis]

Having just been told not to read the tweet, especially not the part about the FBI investigation, DeFilippis proceeded to have Mook do just that.

The exhibit of the tweet that got sent to the jury had that paragraph redacted and that part of the transcript was also redacted. But, predictably, the press focused on little but the tweet, including the part that Cooper had explicitly forbidden from coming into evidence.

4. Hearsay about Joffe’s Request for Feedback

As noted above, Judge Cooper permitted just one email between Joffe and the researchers to come into evidence: a request for feedback Rodney Joffe made of the researches. But he did so based on Durham’s representation that either David Dagon or Manos Antonakakis — both of whom received the email — would testify.

Neither did.

During Sean Berkowitz’ cross-examination of Curtis Heide, one of the agents assigned to investigate the anomaly, Sussmann’s attorney had Heide explain how they knew David Dagon had a role in the research, but nevertheless never bothered to speak to him directly.

AUSA Jonathan Algor used that as an opportunity to ask to introduce not just the email that had been permitted, but also the response, claiming that by highlighting how shoddy the FBI investigation was, Berkowitz was opening the door to accuracy questions.

MR. ALGOR: So, Your Honor, there was a good amount of cross-examination regarding David Dagon.

THE COURT: Yes.

MR. ALGOR: And specifically asking about reaching out to him and also going into that he was the source of the white paper and what types of questions you would ask him and all. I think that this goes right to the red herring email.

THE COURT: I’m sorry, the what email?

MR. ALGOR: The red herring email, which you’ve previously excluded. It was Government Exhibit 124, when you would go through what type of questions. Now that Mr. Berkowitz has asked these, I would ask: What would you have asked having to provide data related to it? You know, Were there drafts of the white paper? Would Agent Heide ask who else he communicated with and what he believed regarding all of that data? And so I think he’s opened the door regarding that email.

Berkowitz noted that neither Sussmann nor Heide knew of the email.

MR. BERKOWITZ: Judge, this is not an email that was authored by Mr. Dagon. My cross-examination went directly to their investigation, who they spoke to, who they didn’t speak to. I asked him, he doesn’t know what Mr. Dagon said to Mr. Sussmann, if anything, and he said he didn’t. And I don’t think that opening the door to these communications where there’s no indication that it went to Mr. Sussmann is appropriate.

Cooper ruled that Algor could not introduce the email response.

That did not open the door to the excluded email about which — about what his and the other researchers’ views on the data or motivations may have been. In any case, the emails reflect — or the email reflects the views of Mr. Joffe, not Mr. Dagon, and those views came a full month and a half before the FBI was in a position to interview Mr. Dagon. They are, therefore, not relevant to Mr. Dagon’s views or motivations in any event.

So you can — you can certainly ask him, as you have in direct, what he would have done differently, what he would have questioned Mr. Dagon about, you know, to establish a materiality argument, but we’re not going to get into what the researchers’ motivations were. Okay?

Minutes later, Algor walked how Heide didn’t know any of the people on the email, and elicited from Heide the opinion that even asking the opinion might suggest people were trying to fabricate the data.

Q. Okay. And it — the “from” is Rodney Joffe. Do you see that?

A. Yes.

Q. And then the “to” is to Manos Antonakakis. Do you see that?

A. Yes.

Q. Do you know who that is?

A. I do not.

Q. And David Dagon, do you see that second name?

A. Yes.

Q. Do you know who David Dagon is?

A. No.

Q. You testified —

A. I’m sorry.

Q. — earlier —

A. I never met David Dagon, but I do know that he was the information that the source came forward and said he was potentially the author of the white paper.

Q. Okay. And that’s from a CHS that your team was contacted by?

A. Yes. Yes.

Q. And then, finally, April Lorenzen. Do you know who April Lorenzen is?

A. I do not.

[snip]

Q. Would you also want to know whether the authors of the white paper were trying to make it out so that it wasn’t — so that it couldn’t be understood if you weren’t a DNS expert?

A. That would be important.

Q. And if you could read that last line, please.

A. It says, “Do NOT spend more than a short while on this (if you spend more than an hour you have failed the assignment). Hopefully less.”

Q. And just going back to the line above, it says, without — it says, “NOT to be able to say this is, with out doubt, fact, but to merely be plausible,” would you want to understand that coming from the source of the white paper?

A. Yes.

The discussion of the bench conference immediately after Heide left the stand (Berkowitz generally refrained from objecting to these shenanigans in front of the jury) is entirely redacted. But as noted below, Judge Cooper ultimately excluded the entire email as hearsay introduced without proper foundation.

6. Hearsay Commentary on an Attorney

In the very same sidebar where Judge Cooper excluded the Heide testimony, he also explicitly prohibited prosecutors from tying a research request that Rodney Joffe had given a colleague, Jared Novick, to an attorney. The research request pertained to Richard Burt and Carter Page (among others) at a time both had established ties to Russia. Novick testified to Joffe’s displeasure with his work abilities and it’s quite clear the two don’t like each other.

MR. BERKOWITZ: So with respect, Judge, to that, it sounds as if outside the norm of what he normally does, that he thought it was likely for a political campaign. I’m not sure that his determination that he thought it was for an attorney is relevant. If they want to put in an attorney-client-privileged document that he saw, I think he can do that. But if he says I understood this was going to an attorney connected to the campaign, that’s hearsay. And it really doesn’t have anything to do with Mr. Sussmann, unless they can tie it up in any way.

THE COURT: Is there — is there any link to the defendant?

MR. ALGOR: Your Honor, just that he understood the tasking was related to opposition research regarding Trump; that he was told by Mr. Joffe — and his understanding was — that it was — it was someone tied to the Clinton campaign. But his understanding overall, full context and understanding, regardless of what Mr. Joffe said, was that this was going to someone tied to the campaign; and that also in receiving the document that had attorney-client privilege, that he understood it to be for an attorney.

THE COURT: How is that not hearsay if Mr. Joffe offered for the purpose of showing that, in fact, it was from —

MR. ALGOR: Because it’s a full understanding. It’s not getting into the actual specific statements that Mr. Joffe told him, but just the full context of what he was tasked to do and who the ultimate receiver was.

THE COURT: Okay.

MR. KEILTY: One second, Your Honor.

THE COURT: You can elicit his understanding that it was for a campaign, that it was unusual, that it may have had some political purpose. But I want you to stay away from any suggestion, which I don’t think has been established, that it was from Mr. Sussmann, including by suggesting it was from an attorney. Okay? [my enphasis]

Once again, minutes after Judge Cooper issued an order — this one ruling that Durham’s team could not elicit any reference to an attorney — Algor nevertheless got a former Joffe associate to do so.

Q. And, again, you — during cross-examination, Mr. Berkowitz asked you a series of questions regarding — regarding your work for Mr. Joffe on this project?

A. Uh-huh.

Q. And without getting into any specific conversations, based on the totality of your work, who was the intended audience for the project?

A. It was to go to an attorney with ties.

MR. BERKOWITZ: Objection, Your Honor.

THE COURT: Sustained.

That was the first time Berkowitz started getting really insistent about the pattern of Durham’s prosecutors completely ignoring explicit prohibitions from Cooper.

MR. BERKOWITZ: And — and just briefly, Your Honor, I don’t know when is an appropriate time to — to raise this. I want to express what — and I am not a — a hotheaded person —

THE COURT: You’re not a what?

MR. BERKOWITZ: I’m not a hotheaded person, but I have deep concern over the last line of questioning with the witness eliciting something that I think was clearly prohibited. And it’s consistent, in our view, with the line of questioning relative to Mr. Elias, [sic] relative to them reading the tweet that had been excluded. And, again, I know you don’t apportion bad faith, and I’m not asking you to do that at this point, but I just — I’m — I’m really concerned about the number of those issues that have come in and the prejudice to Mr. Sussmann. And I don’t know how best to deal with it, but I want to raise that to your attention.

Judge Cooper finally warns Durham to follow his orders

The Novick questioning finally stirred Cooper to try to do something about prosecutors flouting his orders. The first thing the next morning, he issued a both-sides warning about adhering to his rulings.

THE COURT: Okay. Good morning, everybody. All right. I just want to return briefly to the discussion we had at the end of the day yesterday.

You know, we’ve been here for two weeks. I have tried my best to let you folks try your cases as you see fit without undue intervention from the Court, as is my usual practice. But I obviously have set some evidentiary guardrails in the case that I expect both sides to follow, and I think you’ve done that for the most part.

Yesterday, however, I thought it was pretty clear — that I was pretty clear that in Mr. Novick’s testimony the government was not to suggest a link between the defendant and — on the one hand, and Mr. Joffe and the researchers’ data collection efforts on the other hand, or their views about the data. I didn’t think there was an evidentiary foundation for that.

I thought that the jury would only be able to speculate about any such connection, and I thought that any knowledge Mr. Novick had about that was necessarily hearsay from Mr. Joffe, who obviously is not here to testify. And I thought, at least, the final question in the redirect that was asked yesterday, nevertheless, attempted to establish such a link.

You know, I know that questions get asked rhetorically or argumentatively that are likely to draw an objection, and I will give lawyers some slack on that, but I expect both sides to comply with my evidentiary rulings.

There’s a lot of evidence in this case. There’s a lot for the jury to digest. They will have plenty of validly admitted evidence to pore over, and from here on out, including in arguments, I expect both sides to comply with both the letter and the spirit of the Court’s evidentiary rulings. So let’s keep it clean from here, okay?

MR. KEILTY: Yes, Your Honor.

Berkowitz used that exchange to request that Cooper exclude the entirety of the email that Algor used to invite Heide to suggest the data had been fabricated as the only way to limit the damage from prosecutors breaking Cooper’s rules.

MR. BERKOWITZ: Thank you very much for that, Your Honor. I have one other request related to it. And I don’t mean to go to the well, but there was an additional line of questioning yesterday related to Government Exhibit 132 with Agent Heide. I’m happy to provide a copy of it, if you would like.

THE COURT: Just remind me what it is.

MR. BERKOWITZ: It’s the document they sought to admit between Rodney Joffe, David Dagon, and Manos Antonakakis, “Is this a plausible explanation?”

THE COURT: Yes, I know that one. Actually, pass it up.

MR. BERKOWITZ: Your Honor, I went back and read the basis for your admitting the document, which was that it was not hearsay because there was a statement, “can you review,” and a question, “is this a plausible explanation?” I think we all contemplated at the time that both Mr. Dagon and Mr. Antonakakis were on the witness list and might testify.

You did allow it in. We didn’t object on the basis that you had previously ruled on it.

The manner in which it was used with the witness, I think, didn’t comply with the spirit of the Court’s ruling. There were questions asked related to “if you had spoken with Mr. Dagon, and you were aware of this communication” words to the effect of “would that have been concerning?”

And the witness — and I’m not suggesting that it was elicited intentionally, but the witness said “it would concern me because it appears as if it’s fabricated.”

Berkowitz noted that (like the Clinton tweet before it, though Berkowitz didn’t make the connection) that exchange got reported in the press.

That’s been reported in the press, even though you struck it from the record at our request.

Our remedy request, Your Honor, in light of that, and in light of the lack of probative value of that document with no connection to Mr. Sussmann, would be to strike the question and answering related to that document, to strike that document from the record, and not allow the prosecution team to use it with any defense witnesses, as well as not to use it in argument because it would have been stricken from the record.

We think the probative value of that document at this stage is minimal, and I expect that if it is published to the jury and used in any way, the jurors will associate it with the fabrication comment. And you worked real hard — and we have all worked really hard — to keep out the accuracy of the data. And the prejudicial nature of the document and the testimony associated with it is something that we think, while it can’t be remedied, and the bell can never be unrung, they should not be reminded and put before them. [my emphasis]

After having just been scolded, DeFilippis nevertheless made a bid to keep the document that might trigger the improperly elicited comment in as evidence.

Michael Keilty — the closest thing to a grown-up on this team — then tried to explain away Algor’s flouting of the rules with Novick.

MR. KEILTY: One last thing, Your Honor, just with respect to the final question to Mr. Novick yesterday. I think Your Honor’s aware that the government obviously did not intend for that — to elicit that answer. Instead, it intended to elicit an answer regarding Mr. Novick’s thoughts about whether this was involved with a political entity or political campaign. We didn’t have the opportunity or the benefit of conferring with Mr. Novick prior to Your Honor’s ruling. So we apologize for that, but we just wanted to put on the record some of the reasons why.

THE COURT: Well, you could have asked, “Without telling me who it came from, what was your understanding of the general nature of the source?” Right?

7. Hearsay on Top of Hearsay about Joffe’s Joke about a Job

But the Durham team’s defiance of Cooper didn’t stop there. While Cooper had permitted (with the proper foundation) a Joffe email that elicited feedback, Cooper had excluded an email — sent to someone never identified as a witness in this case — in which Joffe had joked about working in cybersecurity under a Clinton Administration. Nevertheless, as part of a long exchange with retired FBI Agent Tom Grasso in which DeFilippis asked Grasso materiality questions about stuff he heard about but had no firsthand knowledge of — each time presented as fact rather than as a conspiracy that Durham had explicitly been prohibited from presenting because they hadn’t charged it — Durham’s lead prosecutor raised the allegation he had been prohibited from raising.

Q. So when he came to you or at any time after that, did Mr. Joffe disclose to you whether he was working on this with representatives of the — of a political campaign?

A. He did not, no.

Q. And do you think you’d remember if he had told you at the time, you know, “I’m doing this, working with some folks who are working with the political campaign”?

A. I would think I would remember that, yes.

Q. So Mr. Joffe didn’t tell you — have you heard of a firm called Fusion GPS?

A. I have heard of Fusion GPS, yes, sir.

Q. Okay. And are you generally aware that they had — without getting into any specific work you did, are you generally aware that they had done some work for the Clinton Campaign at the time?

A. Yes, I —

Q. Okay.

A. Yes, I am aware of that, yes.

Q. So Mr. Joffe didn’t say he was working with Fusion GPS on this project?

A. Not that I recall, no.

Q. And Mr. Joffe never told you that, you know, this project had arisen in the context of opposition research that the Clinton Campaign was working on?

A. I do not recall that coming up, no.

Q. If Mr. Joffe had come to you and said, “I’m working with some investigators and some lawyers who are working for the Clinton Campaign, and, you know, that’s part of what I’m doing here with this information, can you please keep my name out of this,” would you have viewed that differently than you viewed the information as you got it?

[snip]

Q. Okay. And in the 2016 election period, you and Mr. Joffe, I imagine, never discussed politics or anything like that?

A. I don’t recall political discussions with him, no.

Q. Okay. And did you — so you certainly didn’t know that he was working with folks affiliated with a particular political party or campaign on what he brought to you, right?

A. I have no recollection of that.

Q. And any recollection of hearing or learning that he was expecting any kind of position in a future political administration?

A. I do not have a recollection of that other than — let me rephrase that. I have a recollection of that being reported in the media, but I don’t have a —

MR. BERKOWITZ: Objection, Your Honor.

THE COURT: Sustained. [my emphasis]

When Berkowitz raised this exchange at the end of the day, Judge Cooper noted that the several meetings they had with Grasso were ample basis for DeFilippis to understand that Grasso had no knowledge of those matters (or, for that matter, the topics covered by that entire line of questioning).

MR. BERKOWITZ: Judge, I regret that I’m going back to this same issue that we started the day with where you admonished counsel to be careful of the guardrails related to evidentiary rulings. We had another situation n today that I think ran afoul of your comments. There was an email that was the subject of a motion related to Mr. Joffe communicating about a potential job. And in the cross-examination of Agent Grasso there was a question about, “He certainly didn’t know he was working with folks affiliated with a particular political party or campaign when he brought that to you. Right?”

Answer: “I have no recollection of that.” I didn’t object.

And then he followed up with: “And any recollection of hearing or learning that he was expecting any kind of position in a future political administration, knowing that there was nothing in the 3500 materials related to that and knowing an objection that was sustained could elicit a belief that he would do that?”

The witness answered, “I do not have a recollection of that other than — let me rephrase that. I have a recollection of that being reported in the media.”

I objected. Your Honor, they had met with this witness four times. They had pretried him twice. There was nothing in the 3500 material to suggest that he had any belief of that or any recollection or any connection.

And it’s another instance in a litany of instances that’s suggesting to the jury topics and issues that were the subject of your ruling. And I, you know, particularly with the potential testimony of Mr. Sussmann coming up, I don’t know what else to say or to do, and we’ll consider filing a motion. But I wanted to raise the issue, and I take no joy in continuing to do this. But I cannot stand by while it continues to go on.

DeFilippis at first tried to excuse blowing off Cooper’s ruling by saying that the rules for cross-examination are different. But not if the witness was originally a witness for the prosecution.

THE COURT: Counsel?

MR. DeFILIPPIS: Yes, Your Honor. I guess we’re glad that Mr. Berkowitz raised it in the sense that, you know, typically the rules for cross-examination are different from evidence presented in a case in chief. And if there is a good-faith basis to ask — inquire as to knowledge of a matter, Your Honor, the government didn’t phrase the question tethered to any email or refer to any hearsay.

It was just inquiring as to knowledge and then inquiring as to whether that fact would be relevant to what it is that Mr. Grasso’s interactions with Mr. Joffe were.

So if, again if the Court wants —-

THE COURT: Counsel, I don’t disagree with that, but you got to have a good faith basis for asking the question. Right? And if you prepped this guy and he’s never said anything about it, then there’s no good-faith basis. Okay? Him reading it in The New York Times or whatever is not a good-faith basis.

Then DeFilippis claimed that the question — which came after two earlier ones in which he asked Grasso questions about things he had “heard of” — was not deliberately intended to elicit such a response.

MR. DeFILIPPIS: Yeah, and to be clear, Your Honor, the portion where he said he read in the — we didn’t know that, and we wouldn’t have intentionally elicited something from a press account. So we will certainly be careful.

THE COURT: He was the defense’s witness here, but he was on your witness list. You should have known. If there was a basis to ask that question, you should have known what it was.

MR. DeFILIPPIS: Yeah. Understood, Your Honor.

Only after this exchange on prosecutors using someone who had originally been a government witness to invite speculation did Cooper exclude the entire email discussion involving Heide.

THE COURT: In that vein, let’s go back to GX-132 the admission of the email did not sit well with me yesterday, and it still does not sit well with me.

The Court ruled that the document was [sic] hearsay originally because it contained a question and a request, as opposed to an assertion. But the Court made clear in its order that, in order to be admitted, it would still need a proper foundation. The witness through which the document ultimately was admitted, albeit not without an objection from the defense, was Mr. Heide, who, as far as I could tell, had no personal knowledge whatsoever of the email. He didn’t know Mr. Joffe. He didn’t know the researchers who received it. He obviously was not a party to the email. So frankly, I don’t see how he could testify to that email in his personal knowledge as required by Rule 602.

So for that reason, I don’t think it was properly admitted through that witness. As I said yesterday, we had expected at least two of the researchers to testify based on who was on the government’s list. And I think it would have been properly admissible through those people to explain how the data came into being as the Court ruled prior to trial. So I am going to exclude that email as well as any testimony by Mr. Heide describing his interpretation or views or thoughts on the email. Okay?

Conspiracy theory

This repeated defiance of Judge Cooper was treated as one after another evidentiary issue, usually prosecutors sneaking in hearsay with no basis. Ultimately, however, it was about a more basic ruling Judge Cooper had made, that this trial would not be about a conspiracy theory that Durham wanted to criminalize without charging.

As Berkowitz observed in his close,

This case is not about a giant political conspiracy theory. It’s about a short meeting.

[snip]

So the people who were part of this large political conspiracy theory are the people at HFA, Rodney Joffe, and Fusion GPS. They’re the people that are supposedly involved in this conspiracy.

There will be a lot said about this trial, no matter the verdict. But the serial defiance of the Durham prosecutors was a successful attempt to do something else that Judge Cooper had prohibited: to criminalize, under a conspiracy theory, perfectly legal behavior.

OTHER SUSSMANN TRIAL COVERAGE

Scene-Setter for the Sussmann Trial, Part One: The Elements of the Offense

Scene-Setter for the Sussmann Trial, Part Two: The Witnesses

The Founding Fantasy of Durham’s Prosecution of Michael Sussmann: Hillary’s Successful October Surprise

With a Much-Anticipated Fusion GPS Witness, Andrew DeFilippis Bangs the Table

John Durham’s Lies with Metadata

emptywheel’s Continuing Obsession with Sticky Notes, Michael Sussmann Trial Edition

Brittain Shaw’s Privileged Attempt to Misrepresent Eric Lichtblau’s Privilege

The Methodology of Andrew DeFilippis’ Elaborate Plot to Break Judge Cooper’s Rules

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

That Clinton Tweet Could Lead To a Mistrial (or Reversal on Appeal)

John Durham Is Prosecuting Michael Sussmann for Sharing a Tip on Now-Sanctioned Alfa Bank

Apprehension and Dread with Bates Stamps: The Case of Jim Baker’s Missing Jencks Production

Technical Exhibits, Michael Sussmann Trial

Jim Baker’s “Doctored” Memory Forgot the Meeting He Had Immediately After His Michael Sussmann Meeting

The FBI Believed Michael Sussmann Was Working for the DNC … Until Andrew DeFilippis Coached Them to Believe Otherwise

The Visibility of FBI’s Close Hold: John Durham Will Blame Michael Sussmann that FBI Told Alfa Bank They Were Investigating

The Staples Receipt and FBI’s Description of Michael Sussmann Sharing a Tip from Hillary

“and” / “or” : How Judge Cooper Rewrote the Michael Sussmann Indictment

Hot and Cold Running John Durham Conspiracy Conspiracies

December 20, 2021/31 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

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

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

The filing is entirely reasonable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

John Durham: Destroying the Purported Victims to Save Them

November 15, 2021/33 Comments/in 2016 Election, emptywheel, Mueller Probe /by emptywheel

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

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

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

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

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

Consider the following moves Durham made in his indictment:

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

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

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

Durham’s Matryoshka Materiality Claims

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

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

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

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

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

The Section 702 directive targeting Olga Galkina

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

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

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

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

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

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

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

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

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

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

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

The Sergei Millian counterintelligence investigation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Oleg Deripaska counterintelligence and sanctions investigations

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

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

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

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

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

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

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

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

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

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

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

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

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

The Carter Page FISA Collection

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

[snip]

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

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

Durham’s Materiality Claims

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

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