The Danchenko Motions

Sounds like the title to a Robert Ludlum novel, doesn't it?

I've reviewed the government motions in limine and the response of defendant Igor Danchenko, a US based Russian national.  Read together they reinforce my notion that the government will have a difficult time convincing a jury, particularly one in the DC area, to find Danchenko guilty (and they may very well be correct in that conclusion).  At the same time, the motions reinforce my confidence in the underlying accuracy of the real story behind the Russia collusion hoax:

(1) The Steele Dossier, created by the Clinton campaign, was phony.

(2) The FBI was fully aware of this by the time Trump was inaugurated, or shortly thereafter.

(3) Director Comey knowingly misled the President during their dinner of January 27, 2017, when the President told the Director he was considering ordering the FBI to investigate the Dossier, and Comey implied the FBI was not doing so, even as he had signed the original application and one renewal of the FISA warrent application stating that he could certify as to the accuracy of the Dossier.

(4) Under FISA Court rules the FBI had an affirmative obligation notify the Court of "any misstatement or omission of material fact".  Not only did it fail to do so, it certified as to the reliability of the Steele Dossier in two subsequent renewal applications made to the Court, even after interviewing Danchenko.

(5) The Mueller investigation, which disavowed any relevance of, or reliance upon, the Dossier, was aware of this by the time it began its work in May 2017. 

(6) Based on his response to the government's motion, Danchenko's position is not that the Steele Dossier (or Steele Reports, as the government calls the documents), for which he served as Christopher Steele's primary source, is accurate.  In fact, it is explicitly Danchenko's defense that he told the FBI he could not vouch for the accuracy of the information he passed on and of the problems with the allegations, so that whatever he said could not have been material in misleading the FBI.  I think that correct - the FBI knew the information was bad, but was willing to use anything at hand to get Trump.  That's not Danchenko's fault.

The most startling revelation in these filings is that from March 2017 to October 2020, Igor Danchenko was a Confidential Human Source (CHS) for the FBI, despite the fact that by March 2017, the FBI was aware of the lack of credibility of the Steele Dossier, and that Danchenko had been the subject of an FBI counterintelligence operation in 2009 and 2010.  Why did the FBI hire Danchenko as a CHS despite knowing this and that the information which he provided to Steele, and upon which the FBI relied in its representations to the FISA Court were reliable, was not, in fact, reliable?

Danchenko's answer in response to the motion in limine is that he will argue the fact that the FBI made him a CHS knowing this background, is further evidence this investigation was not material to his credibility he intends to introduce testimony from one supervisory special agent who agreed "one of the upshots [of the Crossfire Hurricane Investigation] has been a relationship with [Mr Danchenko] which has provided the FBI insights into individuals and to areas that it was otherwise was lacking because of the difficulty with which the FBI has in recruiting from that part of the world". (p.26)  That Danchenko can make this credible claim, based upon his designation as a CHS, demonstrates the problems the prosecution has by going after Sussman and Danchenko for false statements while ignoring malfeasance by government officials.

The more likely explanation is it allowed the FBI and DOJ to keep Danchenko out of sight, once they knew of his problematic role in the Steele Dossier, and then from further questioning from Congressional Republicans, particularly after the Mueller investigation fell apart. (1)

I'd like to know who approved Danchenko as a CHS - given his role and the prominence of the investigation this would have had to be approved by senior FBI/DOJ officials.

UPDATE: The CHS revelation regarding Danchenko has also prompted a filing by Carter "The Most Innocent Man in America" Page, for reconsideration regarding the dismissal of his civil lawsuit against James Comey and other government officials.  While I doubt on legal grounds that Page will be able to revive his lawsuit, the factual allegations (which are, in all regards accurate) lay out the extent of the scheme involved in obtaining the FISA Warrant and its renewals against him.

"This case involves an FBI lawyer who made a false statement in seeking a secret Foreign Intelligence Surveillance At of 1978 ("FISA") search warrant.  Furthermore Defendant Clinesmith [Kevin Clinesmith, the FBI lawyer who pleaded guilty to making the false statement] (and perhaps other individuals) intentionally altered Central Intelligence Agency ("CIA") emails, which originally identified Dr. Page as a CIA source, to instead state that Dr. Page was not a CIA source.   Through these efforts, the individual FBI Defendants contrived a fairytale to justify illegal surveillance of Dr. Page.  Extensive proof shows that FBI leadership, including Defendant Comey and other individual Defendants, knowingly presented a false narrative of Trump-Russia collusion for a period of years to the public and within congressional hearings in which numerous agents testified to the narrative under oath.  Further proof demonstrates that political operatives in Washington, effectively laundered thousands of dollars under the guise of "legal services" to create a fabricated dossier [a reference to the Federal Election Commission finding that resulted in penalties imposed on the Clinton Campaign].  But with this month's Danchenko payoff admissions by Defendant DOJ and with these new prima facie realities exposed, the vastly underestimated deception and potential strata of fraudulent acts inherent in that extensively pled original guise has now grown infinitely worse."

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The government motion and defendant response involve the government's intent to introduce evidence at trial related to the defendant's knowledge, motive, and intent which it anticipates the defendant will object to based on materiality and relevance.  

Among the areas the government seeks to introduce evidence:

Regarding the role of Charles Dolan, the Democratic operative, Hillary supporter, and Kremlin-connected DC insider:

"Dolan's role as a contributor to the Steele Reports was highly relevant and material to the FBI's evaluation of those reports because, among other things, (1) Dolan maintained a relationship with several high-ranking Russian government officials who appear in the Steele Reports, (2) Dolan maintained a relationship with another of the defendant's alleged sub-sources [a Russian national in Cyprus], (3) Dolan was present in Moscow with the defendant when the defendant allegedly gathered some of the information reflected in the Steele Reports, and (4) Dolan's historical and ongoing involvement in Democratic politics had the potential to bear on his reliability, motivations, and potential bias as a source for the Steele Reports." (p.4).

Admission of emails intended to show Danchenko "fabricated these facts regarding [Serge] Millian", alleged to be a provider of key information to the Steele Dossier.  The government also reveals that Serge Millian left the US in March 2017, stating "that he left the United States due to threats on his and his family's personal safety because of his alleged role in the Steele Reports. . . Millian has repeatedly informed the Government that he had concerns for his and his family's safety (who reside abroad) should he testify.  Millian also informed the Government that he does not trust the FBI and fears being arrested if he returns to the United States". (p.23)

Seeks to admit evidence of an uncharged false statement regarding "Donald Trump's alleged salacious sexual activity at the Ritz-Carlton Hotel in Moscow".  This was the one specific allegation Director Comey alerted President-elect Trump to at their meeting on January 6, 2017.  Trump was outraged and Comey's notes, written immediately after, conclude that his reaction was an indication of guilt.  It also led to his outburst to DNI nominee Dan Coats a couple of weeks later (see The Forrest Gump of Campaigns).

Seeks to admit evidence of the counter-intelligence investigation which asserts, "In late 2008, while the defendant was employed by a prominent think tank in Washington DC, the defendant engaged two fellow employees about whether one of the employees might be willing or able in the future to provide classified information in exchange for money.  According to one employee, the defendant believed that he might be in a position to enter the incoming Obama administration and have access to classified information." (p.30); and that the FBI initiated a "full investigation" after Danchenko "(1) had been identified as an associate of two FBI counterintelligence subjects and (2) had previous contact with the Russian Embassy and known Russian intelligence officers".   The investigation was closed after "the FBI incorrectly believed that the defendant had left the country." (p.31)

The Danchenko response takes the position the government is selectively cherry-picking statements to construct a misleading narrative.  It implicitly argues any representations to the FBI were immaterial because it didn't matter to the agency and did not impact its investigation, and Danchenko had no control over how Steele characterized and reported the information he passed on to him.

Regarding Dolan, Danchenko "(1) told the FBI about the Moscow trips with Dolan, (2) told the FBI that Steele knew of Dolan, (3) told the FBI that not only was Dolan doing work with Olga Galkina [the Cyprus connection] but that Mr Danchenko himself had introduced them, and (4) told the FBI that Dolan had connections and relationships with high-level Kremlin officials, including President Putin's personal spokesperson, Dmitry Peskov." (p.17)

Regarding Millian, Danchenko "unambiguously and consistently told the FBI that he had never definitively spoken or met with Millian". (p.10), only claiming "he spoke with an anonymous caller who he believed was Millian". (p.23)

Regarding the Ritz-Carlton,  Danchenko "told FBI that he was told about a well-known 'rumor' regarding the activity and 'that he had not been able to confirm the story' when he later met with hotel staff". (p.9), only reporting it as "rumor and speculation". (p.10)

Because the court will be reluctant to pick between different factual narratives, I suspect it will allow most of the government's motion, but if Danchenko can establish these assertions as facts, or create sufficient doubt about the government's narrative, to the satisfaction of the jury, the government will not obtain a conviction.

The bottom line is that the emptiness of the Russia collusion allegations have been further demonstrated by the very nature of the Danchenko and Sussman defenses but, as I wrote when the Danchenko indictment was announced:

There are clearly many shady and unethical actions by a lot of players here but to what extent they are also illegal is to be determined, as well as Durham's willingness to go there.  This recent column from former prosecutor Andrew McCarthy puts it this way:

. . . many things that smack of abuse of power are not prosecutable crimes. The law necessarily gives government officials a wide berth to use aggressive investigative measures based on dubious suspicions. It is easy to see the abuse, but much harder to establish it as a crime. That is why a system that fails to hold abusive officials politically accountable will be a failed system. Establishing their criminal guilt is much harder.

That no one has been held accountable for this scandal is appalling and weakens our democracy.  That the institutional media, which breathlessly reported every leak from the intelligence community, DOJ, and Mueller, without the slightest skepticism or interest in undertaking its own independent evaluation, has ever acknowledged what really happened from 2016 to 2020, effectively undermined its own credibility.

Unfortunately, Chuck Schumer was correct when, in January 2017, he publicly warned Donald Trump "you take on the intelligence community — they have six ways from Sunday at getting back at you."

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(1) By now, the bad faith of the Mueller investigation should be evident to any fair minded observer.  The May 17, 2017 order authorizing the investigation stated it would be "a full and thorough investigation of the Russian government's offer to interfere in the 2016 presidential election".  By the time of the Mueller report in 2019, his team knew (1) the Steele Dossier, containing allegations purporting to come from Russian sources, could not be verified; (2) Igor Danchenko, a Russian national who had been the subject of a counterintelligence investigation, was the prime source for the document; (3) Charles Dolan, a Clinton supporter with Kremlin connections, was also a source; (4) the Clinton campaign had paid for the Steele Dossier; (5) FusionGPS and Christopher Steele, who compiled the Dossier, were also working for Kremlin-connected Russian oligarchs; and (6) FusionGPS was working with the Russian lawyer who set up the Trump Tower meeting with Fredo Trump Jr, yet Mueller professed not to know anything about the Steele Dossier, and there was no mention of any of the above facts in the Mueller Report, not even to rebut any implications of these actions.  Obviously, Muller and the Clinton supporting lawyers who constituted his team, felt it necessary to suppress any information regarding these connections.

UPDATE:  On September 29 the Department of Justice charged Oleg Deripaska, a Putin-associated oligarch, with conspiracy to violate US sanctions imposed upon him and his company.  Christopher Steele worked for Deripaska before, during, and after his work for the Clinton Campaign assembling the Steele Dossier.  In addition, Senator Mark Warner (D-Va) was in surreptitious contact with Deripaska while the senator was effectively running the Senate Intelligence Committee investigation on Russian interference with the 2016 election (for more on this see footnote 11 on my Election Tampering post).