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Judge says Durham can't use Danchenko's alleged Russian intel links at trial

Washington Examiner logo Washington Examiner 10/5/2022 Jerry Dunleavy
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The judge overseeing the case against Igor Danchenko dealt a series of blows to special counsel John Durham, including ruling he could not use as evidence details from the FBI’s prior counterintelligence investigation into the main source for British ex-spy Christopher Steele’s discredited dossier.

The Tuesday evening ruling by Judge Anthony Trenga followed a lengthy effort by Durham to use a pile of evidence about the Russian-born lawyer, including his alleged links to Russian intelligence, during the trial set to begin next Tuesday.

The judge also denied the special counsel’s request to provide evidence showing Danchenko allegedly misled about the sourcing for the unfounded “pee tape” claims that Steele put into his anti-Trump and Democratic-funded dossier, as well as limited a host of other evidence Durham had sought to show the jury.

Danchenko was on the FBI's payroll as a confidential human source from March 2017 to October 2020 before he was charged in November 2021 with five counts of making false statements to the bureau. He has pleaded not guilty.

According to Durham, Danchenko anonymously sourced a fabricated claim about Trump campaign manager Paul Manafort to Hillary Clinton ally Chuck Dolan, who spent years, including 2016, doing work for Russian businesses and the Russian government.

Durham's indictment also says Danchenko lied to the FBI about a phone call he claims he received from Sergei Millian, an American citizen born in Belarus, who the Steele source had said told him about a conspiracy of cooperation between former President Donald Trump and the Russians, which the special counsel says is false.

Trenga, a George W. Bush appointee who sits on the Foreign Intelligence Surveillance Court, expressed skepticism about the charges last week.


Counterintelligence investigation

The judge said both “the government and Danchenko agree that the fact of a prior counter-intelligence investigation should be admitted at trial,” yet the defendant “wishes to exclude the details of the investigation.” Durham’s team argued strenuously in court last week that the mere mention of the investigation’s existence and its closure should not be an option because it would be misleading.

Durham prosecutor Michael Keilty said last week that “the FBI closed the investigation because they mistakenly believed” that Danchenko had left the United States, “but it wasn’t because they hadn’t found anything on Mr. Danchenko.”

Keilty argued the counterintelligence investigation’s findings are relevant because of the bureau’s later need to determine if the dossier was true, adding that “there was a huge fear in the FBI that this was Russian disinformation.”

Durham has previously highlighted how Danchenko was the subject of an FBI counterintelligence investigation as a potential national security threat from 2009 to 2011 and wanted findings from that investigation, which unearthed links between the defendant and Russian intelligence, to be used at trial.

“The Court will exclude the details of the investigation,” Trenga ruled Tuesday. “The probative value of these unproven allegations, i.e., Danchenko sought to facilitate the sale of classified information and that he had contact with Russian intelligence services, which would have to be established through multiple levels of hearsay, is of only marginal relevance in terms of proving the materiality of Danchenko’s allegedly false statements. The evidence’s low probative value is substantially outweighed by the danger of unfair prejudice and confusion of the issues.”

Dossier’s Ritz-Carlton allegations

The judge noted that Durham "seeks to admit evidence of Danchenko’s uncharged false statements to the FBI regarding his sourcing of the Ritz-Carlton allegations," which showed up in the Steele dossier in June 2016.

Trenga also noted that, during his 2017 interviews with the FBI, Danchenko was “asked about these allegations and the identities of Sources D and E, to which Danchenko allegedly made several false statements.”

Durham has interviewed and wanted to call Bernd Kuhlen, the German-born then general manager of the Ritz-Carlton.

“The Government intends to prove at trial that the defendant falsely sought to attribute the Ritz Carlton Allegations to Mr. Kuhlen, and, as referenced above, to Sergei Millian as part of his work on the Steele Reports that are described in the Indictment,” Durham wrote last month.

The judge said this would be inadmissible:

“Danchenko’s allegedly false statements regarding his sourcing of the Ritz-Carlton allegations do not qualify as direct evidence. At bottom, the government has charged Danchenko with making five false statements about his sourcing for the Steele Reports pertaining to two sets of lies, i.e., lying about Dolan’s lack of contribution and/or involvement with the Reports and lying about his belief that he received a call and information from Millian. As the Court signaled at the hearing, the relevancy and probative value of the Ritz-Carlton allegations is questionable.”

The Russian's lawyers had contended in court that the statements about the so-called pee tape are "immaterial, irrelevant, and impermissible character evidence.”

The judge sided with Danchenko, ruling that "the Dolan-related Ritz allegations do not qualify as direct evidence as they are not ‘inextricably intertwined’ or ‘necessary to provide context’ to the relevant charge.”

False statements about working for Steele

The judge noted Tuesday that Durham “seeks to move into evidence Danchenko’s allegedly false statement that he never revealed to friends or connections that he worked for Steele."

The dossier was created after Steele was hired by the opposition research firm Fusion GPS, which was itself hired by Perkins Coie and Marc Elias, the general counsel for Clinton’s campaign. Danchenko was allegedly Steele’s main source.

“The evidence pertaining to Danchenko’s allegedly false statement about disclosure of his work for Steele and Orbis is admissible as it relates to Dolan,” Trenga ruled Tuesday. “However, the Court finds that evidence of communications Danchenko had with other individuals identified by the government is not admissible.”

Fabricating sources and Danchenko’s old employer

Durham’s team also sought to introduce a February 2016 email to his former employer Cenk Sidar, in which Sidar asked Danchenko for recommendations to improve a report. In response, Danchenko seemed to recommend using misleading or fabricated sources.

“Emphasize sources. Make them bold or CAPITALISED [sic],” Danchenko wrote. “The more sources the better. If you lack them, use oneself as a source (‘Istanbul-Washington-based businessman’ or whatever) to save the situation and make it look a bit better.”

The special counsel said that email should be allowed in at trial.

“Under the government’s theory of the case, Danchenko fabricated sources of information that he provided to Steele, including fabricating Millian as a source,” Trenga wrote. “Accordingly, the government seeks to introduce the Sidar email to prove Danchenko’s common plan or absence of mistake or accident.”

But the judge shot this effort down, too, writing, “The government appears to seek to use this email to paint Danchenko as having a dishonest character and thus a propensity to fabricate and falsify sources. Therefore, this email is inadmissible.”

Emails from Sergei Millian

Durham had also sought to admit three emails from Millian to Dmitry Zlodorev, an employee of RIA Novosti, a Russian state-run media outlet, to demonstrate that Danchenko never actually received a call from Millian. One of the emails was from July 2016, while two were from July 2020.

Danchenko sent his first email to Millian on July 21, 2016, then later claimed to the FBI that he received a late-July call from someone he “believed” was Millian.

Millian sent a July 26, 2016, email to Zlodorev, asking, “An email came from Igor. Who is that? What sort of person?”

The judge said the July 2016 email would be allowed in, but the later emails from Millian would not.

“The Court concludes that the July 26, 2016 email is admissible in its entirety,” Trenga ruled, adding, “In contrast, the Court will exclude both of Millian’s July 2020 emails. The Court must consider the changed circumstances against which those emails were sent.”


Political bias

Trenga also ultimately deferred on whether Danchenko will be allowed to allege political bias on the part of Durham during the trial.

“The government seeks to prevent Danchenko from presenting evidence or making arguments at trial that the present prosecution is politically motivated,” the judge wrote Tuesday. “Danchenko asks that he be allowed to reserve the right to test the credibility, bias, motivation, and reliability of the government’s witnesses.”

Trenga stated that "whether such evidence would be admissible cannot be determined at this time and the Court will rule on specific evidence if and when this type of evidence is sought to be presented at trial.”


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Tags: John Durham, Justice, Justice Department, FBI, Christopher Steele

Original Author: Jerry Dunleavy

Original Location: Judge says Durham can't use Danchenko's alleged Russian intel links at trial


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