A Preview of the Igor Danchenko Trial

Unanswered questions of Clinton Campaign involvement

The trial of Igor Danchenko is scheduled for October 11, 2022. While it is only a false statement case, we can’t help but ask whether the trial will reveal any Danchenko contacts with the Hillary Clinton Presidential Campaign while he was acting as Christopher Steele’s primary subsource.

The reason for that question? More on that below.

First we start with the background. As you might recall, Danchenko was used by Steele as he conducted opposition research on Trump and his associates. Steele’s dossier (also called “Company Reports”) eventually made it into the hands of federal officials and the FBI and Special Counsel Robert Mueller, who used it to prepare and submit applications for warrants under the Foreign Intelligence Surveillance Act (FISA) to spy on Carter Page (and to collect the communications of the Trump campaign).  

As Special Counsel John Durham alleged in the Danchenko indictment:

“Each of the FISA applications set forth the FBI’s assessment that Page was a knowing agent of Russia and further alleged – based on the Company Reports – that Page was part of a “well-coordinated conspiracy of co-operation” between Trump’s campaign and the Russian government.”¹

The charges against Danchenko stem from false statements he gave the FBI during multiple interviews from January 2017 through November 2017. These are the counts from the Danchenko indictment:

1. Count 1. June 15, 2017: Danchenko denied to FBI agents that he spoke with public relations executive Charles Dolan (a long-time participant in Democrat party politics) about materials in the Steele dossier. In fact, Dolan was the source of Danchenko’s and, as alleged by Special Counsel Durham, was “otherwise involved in the events and information described in the” dossier.

2. Count 2. March 16, 2017: Danchenko told FBI agents he received a call in late July 2016 from a person he thought was Sergei Millian, when Danchenko knew he had never received a call from Millian.

3. Count 3. May 18, 2017: Danchenko gave a false statement to FBI agents that he “was under the impression” that the late July 2016 call was from Millian.

4. Count 4. October 24, 2017: Danchenko falsely stated to FBI agents that he believed he spoke to Millian on the phone on more than one occasion.

5. Count 5. November 16, 2017: Danchenko lied that he “believed he has spoken to [Millian] on the telephone,” when Danchenko well knew he had never spoken to Millian.

This isn’t the easiest false statements case, so credit to Durham for bringing it. The reason isn’t because Danchenko told the truth. He’s most certainly a serial fabricator. It’s that Danchenko’s statements were made around 5 years ago to sloppy agents, and to an FBI and Department of Justice that was uninterested in uncovering and pursuing the truth.

Adding to the problems is that Sergei Millian, concerned about FBI abuses and generally untrustworthy of US assurances, remains somewhere overseas and will not testify at trial. At the same time, Durham must be conscious of the fact that the FBI was more than willing to allow Danchenko to lie.

Materiality

That brings us to “materiality.” Danchenko is charged under 18 USC § 1001, which criminalizes false statements to federal officials. Under this statute, Durham must prove that Danchenko’s statements were “materially false.”²

Normally, proving materiality in this context wouldn’t be difficult. But Durham faces the challenge of proving that Danchenko’s false statements were material to an FBI that invited and ignored Danchenko’s lies. If there is any relief to those waiting on justice to be administered, it is that Danchenko’s lies didn’t need to influence the FBI. They only needed to be “capable of influencing” the FBI. Danchenko’s false statements definitely meet that standard.

One way Durham will explain the materiality of Danchenko’s false statements will be to point to FBI obligations to notify the FISC about the misrepresentations from its witness under FISC Local Rule 13:

“the FBI and DOJ would be required to inform the FISC about the misrepresentations made in each of the applications it provided to the FISC. Had the FISC known of these misrepresentations, it could have terminated the surveillance of Carter Page and/or ordered the FBI and DOJ to destroy the information it had already collected.”³

Not that the FBI would have notified the FISC. As we have discussed, the FBI was generally aware of Danchenko’s contacts with Charles Dolan (and thus that one source of Danchenko’s information was a Clinton ally) and likely suspected back June 2017 that Danchenko had lied about his conversations with Dolan. Then there is the fact that the FBI refused to notify the FISC, contrary to the court’s rules, that Danchenko had contradicted some of Steele’s reporting.

Moreover, the FBI misrepresented to the FISC in 2018 that it had “no control over” Danchenko, when in fact the FBI made Danchenko a paid confidential human source (CHS) from March 2017 through October 2020. This hid Danchenko from inquiry, and thus protected the FBI (and the DOJ and the Mueller Special Counsel) from their own lies being exposed. “Sources and methods.”

To elaborate on that issue, I’m wondering if we’ll see any evidence as to who approved Danchenko as a paid CHS and why the FBI took that step. It might happen, if only because Danchenko lied while he was a confidential human source. If we had to guess a name, we’d venture it may have been former FBI Assistant Director for Counter Intelligence Bill Priestap who approved Danchenko as a CHS.

And if the past provides any guidance, we may also see the steps the FBI took - or refused to take - to corroborate Danchenko’s statements, and who at the FBI was involved in that effort. At the Sussmann trial, for example, it was revealed that FBI leadership stopped inquiry into Sussmann’s role as the source for the bogus Alfa Bank information. As we wrote a couple weeks ago:

“the dispute over the materiality of Danchenko’s lies almost requires the defense to prove government misconduct/ignorance. To which we say - good. Expose them.”

What of Charles Dolan and the Clinton Campaign?

Expect Charles Dolan to testify to his conversations with Danchenko and others relating to the dossier allegations at the trial. He’s already testified before a grand jury. For background, Dolan is described in the Danchenko indictment as having “maintained historical and ongoing involvement in Democratic politics.” His history includes serving as chairman of a national Democratic political organization, being a state chairman of Bill Clinton’s 1992 and 1996 presidential campaigns, and an advisor to Hillary Clinton’s 2008 presidential campaign.

Based on his ties with the Clintons, one would think that the Clinton Campaign would have known about Dolan’s contacts with Danchenko. However, the Danchenko indictment states “individuals affiliated with the Clinton Campaign did not direct, and were not aware of, [Dolan’s] meetings with Danchenko and other Russian nationals.”

That statement concerns Dolan’s lack of interactions with the Clinton Campaign. It still leaves unanswered the question of whether Danchenko had any contacts with the Clinton campaign, and whether the Clinton campaign was aware of Danchenko’s activities.

Two theories on that. It’s possible that the Clinton campaign received updates on the opposition research but otherwise isolated itself from these matters, preferring its lawyers at Perkins Coie and its contractors at Fusion GPS (and their sources) get their hands dirty. That would be consistent with what we saw in the Michael Sussmann trial, a real-time demonstration of how the Clinton machine uses the the attorney-client and work-product privileges to manipulate the press, spread false accusations, and hide a number of sins.

It is also possible that the Clinton campaign had more knowledge about Danchenko than has been made publicly available. I bring that up because back in December, we discussed a curious filing by Durham, which confirmed that the Clinton campaign and “multiple former employees of that campaign” were subject to “matters before the Special Counsel.” In that filing, Durham discussed the potential conflict of interest of Danchenko’s lawyers, whose firm also represented the Clinton campaign and those former campaign employees.

Specifically, Durham raised these areas of inquiry that may become issues at the Danchenko trial:

1. The Clinton Campaign’s knowledge or lack of knowledge concerning the veracity of information in the dossiers sourced by Danchenko;

2. The Clinton Campaign’s awareness or lack of awareness of Danchenko’s collection methods and sub-sources;

3. Meetings or communications between and among the Clinton Campaign, Fusion GPS, and Christopher Steele regarding or involving Danchenko;

4. Danchenko’s knowledge or lack of knowledge regarding the Clinton Campaign’s role in the activities surrounding the Steele Dossier; and

5. The extent to which the Clinton Campaign and/or its representatives directed, solicited, or controlled Danchenko’s activities.

All of those points are important, but that last one is particularly compelling and is worth repeating: “The extent to which the Clinton Campaign and/or its representatives directed, solicited, or controlled Danchenko’s activities.”

That implies the Clinton Campaign’s awareness of Danchenko and contacts with Danchenko. (After all, if the answer was “no,” then there would be no conflict.) Thus the potential conflict described by Durham:

“the Clinton Campaign and [Danchenko] 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.”

All this reminds us of a question we have previously asked. If the Clinton Campaign was being informed of the work by Fusion GPS, what of the likelihood that the Clinton Campaign was informing the work of Fusion GPS?

And here’s a follow-up question: from whom did Danchenko get the name Sergei Millian?

Furthermore, one has to ask whether those Clinton Campaign/Danchenko contacts, if they existed, stopped after the election – or whether they continued through Danchenko’s 2017 interviews with the FBI.

Will these issues be raised, and will we get answers on the Clinton Campaign’s ties to Danchenko (or Danchenko’s “sources”)? As outside observers, we can’t – and won’t – make guarantees. There’s danger in false promises just like there’s danger in false hope. Durham, however, has suggested the possibility of former representatives of the Clinton Campaign testifying at trial, stating:

“in the event that one or more former representatives of the Clinton Campaign are called to testify” at trial, Danchenko and the witness “would be represented by the same law firm, resulting in a potential conflict.”

Whether they testify remains to be seen. We haven’t yet seen a witness list.

Other Matters

If you’re interested about Danchenko’s potential defenses, they’re outlined in his motion to dismiss, which was ultimately denied by the Court. I’ll summarize briefly: during trial, expect his attorney to argue that Danchenko’s answers were literally true and that the statements were immaterial.

Also, this week the Court issued an order concerning evidence Durham sought to admit at trial. You can read the order here. It’s heavy on details, many of which are ancillary to the charges against Danchenko. Here’s a summary of some of the more important parts of that order.

• Danchenko was subject to a prior counterintelligence investigation, after Danchenko told colleagues “he had access to people who would be willing to pay money in exchange for classified information.” The FBI made this a “full investigation” after learning Danchenko was an associate of “two FBI counterintelligence subjects” and had previous contacts with “the Russian Embassy and known Russian intelligence officers.” This investigation was closed after the FBI mistakenly believed Danchenko had left the country. The Court will allow the admission of the fact that Danchenko was part of a prior counter-intelligence investigation, though it will exclude details of this investigation.⁴

• Durham seeks to admit evidence of Danchenko’s uncharged false statements to the FBI regarding his sourcing of the Ritz-Carlton (pee tape) allegations. The Court has generally denied that request, with leave to possibly allow for evidence that Danchenko knew Millian was not a Steele source for that information “based on the evidence submitted at trial.”

• Evidence of Danchenko’s false statements about disclosure of his work for Steele and Orbis is admissible as it relates to Dolan.

• The Court will allow the below July 26, 2016 e-mail from Sergei Millian to be introduced at trial, even though Millian will not be present. It will be used by Durham to show that Millian’s state of mind – one of confusion – after Danchenko reached out to him. It advances the theory that Millian never talked to Danchenko. (Other e-mails from Millian are inadmissible.)

Trial Transcripts and Updates Throughout the Trial

Finally, we will be ordering transcripts for each day of the Danchenko trial and will be posting the most relevant and important excerpts here (just as we did during the Sussmann trial). We should be receiving the transcripts every evening. Your support helps make that possible.

1. Cleaned up.

2. A materially false statement has the “natural tendency to influence, or [is] capable of influencing, the decision of the decision-making body to which it was addressed.” Kungys v. United States, 485 U.S. 759, 770 (1988).

3. Cleaned up.

4. This being a false statements case, the Court found the probative value of these allegations is “substantially outweighed by the danger of unfair prejudice and confusion of the issues.” This ruling is no surprise.