In the false-statements trial of Igor Danchenko, the defendant is charged with lying about two of his sub-sources.
In the false-statements trial of Igor Danchenko (see here, here, and here), the defendant, who was the principal source for British spy Christopher Steele’s now-discredited “dossier” of anti-Trump reporting, is charged with lying about two of his sub-sources. Essentially, he is said to have concealed that he got some information about the Trump 2016 presidential campaign from a Clinton ally named Charles Dolan, and to have fabricated contact with a tangential Trump associate named Sergei Millian (with whom he allegedly had no actual contact).
In Special Counsel John Durham’s examination of the first prosecution witness, FBI supervisory intelligence analyst Brian Auten, an issue arose that underscores why the case is uphill for Durham. It entails relevant emails. To put it succinctly, Danchenko had a number of email exchanges with Dolan, and he unsuccessfully tried to reach Millian by email. In his 2017 interviews by the FBI relevant to the Russiagate investigation, and in the years thereafter when the bureau kept him on the books as a paid intelligence informant, Danchenko did not reveal the existence of the emails.
But then again, did anyone ask him?
Durham elicited from Auten that it would have been very important to the FBI’s investigation to know about these emails. It would have helped the bureau assess the quality of information from Danchenko and, derivatively, Steele. The implication of Auten’s testimony is that Danchenko was being deceptive. Intentional deceptiveness is the state of mind the government must prove beyond a reasonable doubt to convict an accused of making false statements.
You may notice, however, that although Danchenko is charged in five counts — one related to Dolan, and four to Millian — he is not accused of lying about emails.
We can deduce from this that Danchenko was not asked directly whether he had email communications with Dolan, or whether he had tried to reach Millian via email. Either that or, if he was asked about such emails, he did not deny them.
This goes to a point I made at the start of the trial: In the context of perjury or false statements, it is always the government’s interrogator’s burden to be precise about what is being asked and to pin down the witness. It is never the witness’s burden to correct any misimpression the government interrogator may be under — even if the witness realizes the interrogator is under a misimpression, and even if the witness is trying to be deceptive. It is simply not the witness’s job to read the minds of his interrogators and tell them whatever he believes may be significant to them. It is the interrogators’ job to ask exacting questions and clear up any ambiguities — intentional or not — created by the witness’s answers.
A corollary to this: A witness cannot properly be accused of lying if he has not been asked a question that would necessarily have elicited the information the government claims has been withheld. It is objectionable for a prosecutor to ask me, “Isn’t it a fact that you never told the FBI you robbed the bank?” if there is no evidence that the FBI ever asked me whether I robbed the bank. It is not my job to volunteer information (let alone incriminating information); it is the investigators’ job to ask.
It is entirely possible — I’d be willing to bet that it’s likely — that Danchenko was disingenuous in his some of his discussions with the FBI about the sources of information that he fed to Steele. But to prove that he intentionally made false statements, the prosecution will have to establish that he was asked sharp questions and gave clear answers that were plainly untrue.