Ihad a column on the home page earlier Tuesday about the trial of Igor Danchenko, which had just begun in federal district court in Alexandria, Va. Danchenko was indicted last year by Russiagate special counsel John Durham. It is alleged that he lied about his sources for the information he provided in 2016 to former British spy Christopher Steele for the now-discredited “dossier” — faux intelligence reports claiming then–GOP presidential candidate Donald Trump was corruptly colluding with Vladimir Putin’s regime in Russia.
Judge Anthony Trenga, a Bush-43 appointee, is moving things right along. The trial began with jury selection this morning. The prosecution and defense then gave their opening statements, and the government began presenting its case.
In that regard, the most notable development is that Durham is an active participant in this trial (rather than just running things like a coach on the sidelines, as he did a few months back in the trial of Michael Sussmann, which ended in an acquittal). Durham did not give the prosecution’s opening statement — that was left to Michael Keilty. Durham, however, is conducting the examination of one of the government’s most important and potentially problematic witnesses, FBI supervisory intelligence analyst Brian Auten. Besides being among the most important investigators in the so-called Crossfire Hurricane probe (the code name for the Trump–Russia investigation, over which the Justice Department’s inspector general has been scathing in critiquing the political bias of key FBI participants), Auten has reportedly been implicated by bureau whistleblowers in an effort to dismiss derogatory information about Hunter Biden as “Russian disinformation.”
We’ll see how that shakes out. For now, I want to focus on the opening by one of Danchenko’s lawyers, Danny Oronato. It leads me to conclude that we won’t be seeing Danchenko on the witness stand, testifying in his own defense.
As I detailed in the column, Danchenko is alleged to have concealed one source, Charles Dolan, and to have fabricated a key conversation with another, Sergei Millian. The defense knows that Durham’s team will have trouble with the four false-statements counts related to Millian because Millian is overseas, beyond subpoena power, and has refused to appear as a witness.
Prosecutors allege that Danchenko never actually spoke with Millian on the phone, and knew he had not done so when he told the FBI he believed that he had. Oronato counters that Danchenko sincerely believed that a man who called him but did not give his name was Millian.
Because Millian has made himself unavailable to testify, the government is trying to prove that Danchenko did not speak to him by (among other circumstantial evidence) introducing phone records from Millian and Danchenko that record no contact between them at the relevant time. As the Associate Press reports, Oronato tried to rebut that claim by arguing that the government has no idea whether the call was placed via an Internet app rather than a traditional phone. Apps that encrypt communications are difficult to intercept, and it would be likely, Oronato reasons, for a caller who wished to remain anonymous to use one.
Whatever you may think of this theory, it strongly suggests that Danchenko’s approach is to bank on the government’s inability to prove the Millian charges beyond a reasonable doubt. The defense knows Durham won’t have a direct witness (Millian) who can testify that the call never happened, and can’t prove to a certainty by mere phone records that it didn’t happen. The defense will further contend, based on the government’s own evidence, that Danchenko never claimed he was absolutely certain that the caller was Millian, and that when he said he believed it was Millian, he was telling the truth. If the government cannot prove that something a person said was literally and intentionally false, then it cannot establish a false-statement offense, even if the person’s story is implausible.
When the prosecution does not have a direct witness to a key event, and an accused’s defense is thus that the government’s circumstantial evidence is insufficient to surmount the demanding “proof beyond a reasonable doubt” hurdle, the accused typically opts not to testify. Were Danchenko to take the stand, the government would suddenly have the direct witness it now lacks. Practically speaking, the defense would lose its constitutional advantage of having no burden of proof: Instead of the government’s thin evidence, the central dynamic of the trial would become the government’s story versus Danchenko’s story. If the jury were convinced that Danchenko was lying, it could convict him.
Similarly, on the Dolan count, as I explained in Tuesday’s preview column, Danchenko’s position is that when he told the FBI that he and Dolan never “talked about” matters that ended up in the dossier (such as the circumstances of Paul Manafort’s ouster as chairman of Trump’s 2016 campaign), he was referring to their many face-to-face conversations. The agents failed to clarify that by “talked about” they were also referring to email exchanges (which is how they discussed Manafort). That is, Danchenko’s team is again relying on what it portrays as the government’s straight-up inability to prove the charges. If that’s the defense, then the defendant should not testify.
These indicators that Danchenko will stay away from the witness stand are consistent with what his attorneys’ strategy has been. In the pretrial motions, Danchenko’s team fought very hard to prevent Durham from being able to prove that 13 years ago, the FBI strongly suspected he was a clandestine agent of Russia. Judge Trenga ultimately ruled in the defense’s favor. If Danchenko were to testify, however, Durham would be able to make this damaging information known to the jury during cross-examination. Why would Danchenko do that? It would make no sense.
I would expect a rapid trial, in which the defense completely relies on what it contends is the government’s inability to prove the charges. Danchenko won’t testify, and the defense will present little or no evidence — content to use cross-examination and argument to draw the jury’s attention to holes in the special counsel’s case.