The same weaknesses that resulted in Sussmann’s acquittal also apply to the Danchenko case.
The same weaknesses that resulted in Sussmann’s acquittal also apply to the Danchenko case.
A jury has been selected and opening statements are set to begin Tuesday afternoon in the criminal trial of Igor Danchenko. Danchencko, you’ll recall, was the principal source of the discredited “Steele dossier,” the 2016 Hillary Clinton campaign confabulation on which the FBI and Justice Department relied, in sworn surveillance-warrant applications to a secret federal court, to smear Clinton’s Republican opponent, Donald Trump, as a clandestine agent of Russia.
Already, the handwriting is on the wall: This is not going too well for John Durham, the special counsel appointed to investigate the genesis of the FBI’s Trump–Russia probe. Judge Anthony Trenga, the George W. Bush appointee who is presiding over Danchenko’s trial, is clearly skeptical about the prosecution. Though he declined to dismiss the charges pretrial, he appears poised to throw out at least one of the five counts once the government has presented its case, and he has sharply limited the evidence Durham will be permitted to introduce.
If this seems to you eerily similar to the only other trial prosecution that has come out of Durham’s probe, which resulted this past spring in the acquittal of heavyweight Clinton and Democratic Party lawyer Michael Sussmann, you’re not wrong.
Prosecutors have teed up Danchenko’s case the same way they teed up Sussmann’s: The FBI is portrayed as the victim — a dupe to whom anti-Trump sources peddled dodgy information. In reality, the bureau is better understood as a willing collaborator that was bent on nailing Trump and that found the derogatory information it was fed too good to check — notwithstanding that federal law and court rules require information presented to the Foreign Intelligence Surveillance Court (FISC) to be verified. Indeed, that is what made Russiagate scandalous and why Durham was appointed in the first place.
This miscasting of the FBI was the fatal flaw in the Sussmann trial. Durham’s team presented convincing evidence that the lawyer was lying when he claimed he’d not been representing any client at the time that he brought the bureau anti-Trump information. In fact, he was an emissary of the Clinton campaign — the client he was billing. But the jury (in Washington, D.C., a bastion of anti-Trump Democrats) could not conclude beyond a reasonable doubt that this misstatement was material, as the false-statement statute requires. It turned out FBI officials were well aware that Sussmann represented top Democrats when, in the stretch-run of the presidential campaign, he brought them patently bogus data falsely suggesting that Trump and the Kremlin had established a communications back-channel. Moreover, the FBI’s brass actively concealed from its own subordinate investigators that Sussmann was the source of the information — even going so far as to falsely claim that the anti-Trump data had come from the Justice Department.
Durham hopes that he’ll get a more sympathetic hearing from a jury in Alexandria, Va., in whose federal district court Danchenko is being tried. Nevertheless, the Danchenko trial has the makings of a Sussmann replay.
The five charges in the indictment allege two sets of lies. First, in Count One, Danchenko is accused of lying to conceal the fact that a longtime Clinton operative, Charles Dolan, was the source of some information in the dossier — specifically, speculation about why Paul Manafort was ousted as chairman of Trump’s campaign in the summer of 2016. Second, in Counts Two through Five, Danchenko is accused of fabricating a source, Trump supporter Sergei Millian, who ran a fly-by-night outfit he portentously called the Russian-American Chamber of Commerce. In a nutshell, Danchenko claimed that a person he believed was Millian had informed him — by phone, anonymously — that Trump was in a corrupt conspiracy with the Kremlin. In fact, Durham says Danchenko was well aware that he had never spoken to Millian (whom he did not know) when he told the FBI otherwise.
The problem for Durham is that even if Danchenko was lying — and the Millian claims, in particular, appear to have been obvious lies — the FBI should have known he was lying. Had it been doing its job honestly and competently, the bureau would not only have quickly figured out that Danchenko’s information was nonsense; it would have interviewed Danchenko before submitting two sworn surveillance-warrant applications to the FISC. Moreover, to the extent that finally interviewing Danchenko confirmed that the allegations in former British spy Christopher Steele’s dossier were nonsense, the FBI should have gone back to the FISC and confessed its error; instead, it continued to rely on those allegations, under oath, yet another two times.
That is to say, whatever false statements Danchenko made were trivial compared to the government’s own shocking misconduct. Yet the theory of Durham’s prosecution is that the government was victimized by Danchenko — not that the FBI itself was deceiving the court.
Now, Durham is a highly experienced prosecutor, very knowledgeable about the law. He would point out that false-statements charges do not require him to prove that the FBI was in fact deceived by material misinformation, only that it could have been deceived. Alas, this is not a law-school exam; it’s a jury trial. In the real world, when a jury is repulsed by the government’s own misconduct, its inclination is to turn a blind eye to the comparatively less serious misconduct of a defendant. The jury rationalizes such acquittals as what justice requires, even if they are not what the law technically calls for.
The special counsel is also reprising another strategy that the court rejected in the Sussmann case: attempting to prove egregious misconduct that is not charged in the indictment in order to establish the far less serious crimes that are charged. Thus did Durham, for example, ask Judge Trenga for permission to prove that, over a decade ago, the FBI suspected that Danchenko was himself a clandestine agent of Russia. As I’ve detailed, there is colorable evidence of this. The court has concluded, though, that this intriguing diversion has little to do with the false statements alleged in the indictment. Indeed, I believe its principal relevance runs against Durham’s case: How could the FBI responsibly have taken and used information from such a source — information that maligned a presidential candidate, who subsequently became the sitting president, as an operative of a hostile foreign regime — without first taking every possible step to corroborate its truthfulness?
The prosecution has other flaws, too.
First, it is not even clear that the alleged false statement related to Dolan was false, which is why Judge Trenga has signaled that he will dismiss it prior to jury deliberations. As the indictment’s reproduction of a recorded conversation between Danchenko and an FBI agent shows, Danchenko initially said that he doubted Dolan would be involved with Russia in any corrupt way. Then, after agreeing when the agent asked him, “You had never talked to [Dolan] about anything that showed up in the dossier, right?” Danchenko quickly added the caveat, “We talked about, you know, related issues perhaps, but no, no, no, nothing specific.”
Here, the problem is two-fold.
First, in a false-statement case, it is always the obligation of the official doing the questioning to clarify any ambiguity — to pin down the witness on exactly what he is saying. It is never the witness’s obligation to correct any misimpression the questioner may be laboring under. Even if the witness is consciously trying to mislead the interrogator, if his answer is either literally true or ambiguous, then there is no actionable false statement. In Danchenko’s caveat, he acknowledged talking to Dolan about issues “related” to the dossier allegations. That is, he said both that he and Dolan did not discuss “anything that showed up in the dossier,” and that they did discuss “related issues perhaps.” To make a false-statement case out of that, Durham would need the FBI’s questioner to have pressed Danchenko on this distinction until he clarified what exactly he was saying. And to be fair, if the government wants to prosecute Danchenko for lying specifically about whether he discussed Manafort’s ouster from the Trump campaign with Dolan, then it should be required to prove beyond a reasonable doubt that Danchenko (a) knew this was precisely what he was being asked about, and (b) intentionally gave the agent false information.
Second, the agent asked only if Danchenko talked about dossier allegations with Dolan. The Danchenko–Dolan exchanges concerning Manafort were conducted by email. Danchenko contends that, when the agent referred to things he and Dolan “talked about,” he understood that to refer to oral conversations rather than written messages. Is Danchenko lying about that? I wouldn’t be surprised . . . but, again, it was the agent’s job to establish definitively that he was lying during questioning. In a criminal trial, the defendant is presumed innocent and gets the benefit of the doubt if the agent’s question was arguably unclear.
The Millian counts should be easier for Durham to prove. Danchenko preposterously claims that, after he tried — in various ways and without success — to contact Millian, he got a call from a man who did not give his name but whom Danchenko assumed must be Millian. This man conveniently gave him explosive anti-Trump information, which he passed along to Steele, who dutifully gussied it up for the dossier, which the FBI in turn plugged into its sworn surveillance-warrant applications. In reality, Millian did not call Danchenko. The latter may be making the whole thing up; at a minimum, he did not communicate with Millian, nor did he and Millian make plans to meet personally, much less actually meet.
This would all be very easy for Durham to prove . . . if he had Millian as a witness. But he does not.
Once the dossier became public in 2017, its misrepresentations led the media to finger Millian as the key source of the Trump–Russia “collusion” allegations. In the feeding frenzy that followed, Millian fled the country with his family, saying that he feared for his life and he’d developed a healthy mistrust of the U.S. government. A native of Belarus (though a naturalized American), Millian is believed to be in Dubai or some other overseas haven from which he cannot lawfully be extradited for testimony. He agreed to be interviewed long-distance by Durham, but he has refused to testify at the trial (which would involve being cross-examined about his personal business affairs and his reputation for embellishment).
It is not impossible that Durham could prove the Millian counts without Millian’s testimony. But it will be a more difficult, disjointed presentation than it would be if Millian took the stand. And, to end where we began, even if you believe Durham’s account (as I do), the astonishing thing is not that Danchenko lied; it is that the FBI relied on Danchenko’s prevarications, which should have been easy to establish as deeply suspect if not out and out false, in what was an investigation of the sitting president of the United States by the time they finally got around to interviewing him.
As was the case in Special Counsel Durham’s prosecution of Sussmann, two things will be true of the prosecution of Danchenko. First, no matter how the case plays out, the most notable evidence will be about the behavior of the FBI, not the defendant. Second, even if that evidence is deeply disturbing, as seems likely, acquittals on some or all counts, which also seem likely, would give the media–Democrat complex all the reason it needs to argue that Durham’s final report — which will detail collusion between the Clinton campaign and Obama-era agencies to frame Donald Trump as a tool of the Kremlin — should be dismissed as unreliable.