Matters deemed tangential to the charges of making false statements, including a notorious and uncorroborated rumor of a sex tape, will be excluded from the case.
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Igor Danchenko, a Russia analyst who gathered the rumors for the Steele dossier.
WASHINGTON — John H. Durham, the Trump-era special counsel, set off political reverberations last year when he unveiled a lengthy indictment of an analyst he accused of lying to the F.B.I. about sources for the so-called Steele dossier, a discredited compendium of political opposition research about purported ties between Donald J. Trump and Russia.
But the trial of the analyst, Igor Danchenko, which opens on Tuesday with jury selection in federal court in Alexandria, Va., now appears likely to be shorter and less politically salient than the sprawling narrative in Mr. Durham’s indictment had suggested the proceeding would be.
In an 18-page order last week, the judge overseeing the case, Anthony J. Trenga of the Eastern District of Virginia, excluded from the trial large amounts of information that Mr. Durham had wanted to showcase — including material that undercuts the credibility of the dossier’s notorious rumor that Russia had a blackmail tape of Mr. Trump with prostitutes.
Certain facts Mr. Durham dug up related to that rumor “do not qualify as direct evidence as they are not ‘inextricably intertwined’ or ‘necessary to provide context’ to the relevant charge,” Judge Trenga wrote, adding that they “were substantially outweighed by the danger of confusion and unfair prejudice.”
In that and other disputes over evidence, Judge Trenga, a George W. Bush appointee, almost always sided with Mr. Danchenko’s defense lawyers. Mr. Durham, they said, had tried to inject irrelevant issues into the trial in “an unnecessary and impermissible attempt to make this case about more than it is.”
Judge Trenga’s ruling has pared down the larger significance of the trial, which is likely to be Mr. Durham’s final courtroom act before he retires as a longtime prosecutor. The grand jury that Mr. Durham has used to hear evidence has expired, suggesting he will bring no further indictments.
Mr. Durham is also writing a report to Attorney General Merrick B. Garland, who succeeded the Trump administration official who appointed him as special counsel, William P. Barr.
ImageJudge Trenga’s ruling has pared down the significance of the trial, which is likely to be John H. Durham’s final courtroom act before he retires as a longtime prosecutor.Credit…Samuel Corum for The New York Times
The dossier, which is at the heart of the Danchenko trial, attracted significant public attention when BuzzFeed published it in January 2017. Mr. Trump and his supporters frequently try to conflate it with the official Russia inquiry or falsely claim that it was the basis for the F.B.I.’s investigation.
But the F.B.I. did not open the investigation based on the dossier, and the final report by the special counsel, Robert S. Mueller III, did not cite anything in it as evidence. The F.B.I. did cite some claims from the dossier in applying for court permission to wiretap a former Trump campaign adviser with ties to Russia.
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- Global Threat: New research shows that nearly three-quarters of respondents across 19 countries with advanced economies are very concerned about false information online.
The dossier grew out of opposition research indirectly funded by Hillary Clinton’s presidential campaign and the Democratic National Committee. Their law firm, Perkins Coie, contracted with the research firm Fusion GPS, which subcontracted research about Trump business dealings in Russia to a company run by Christopher Steele, a former British intelligence agent.
Mr. Steele in turn subcontracted to Mr. Danchenko, a Russian-born analyst living in the United States, who canvassed people he knew, including in Europe and Russia. Mr. Danchenko verbally relayed what the analyst later called “raw intelligence” — essentially uncorroborated gossip — to Mr. Steele, who drafted the dossier.
A bureau counterintelligence analyst determined Mr. Danchenko’s identity and the F.B.I. first spoke to him in early 2017, during which he said he had not seen the dossier until BuzzFeed published it. Its tenor was more conclusive than was justified, he said, and he portrayed the blackmail tape story as mere rumor and speculation.
Mr. Danchenko talked to the F.B.I. for hours about what he had gathered, and court filings by Mr. Durham disclosed that the bureau formally deemed him a confidential human source.
An inspector general report revealed in late 2019 that Mr. Danchenko’s interview had raised doubts about the credibility of the dossier and criticized the bureau for failing to tell that to a court in wiretap renewal applications that continued to cite it. The report essentially portrayed Mr. Danchenko, whom it did not name, as a truth-teller, and the F.B.I. as deceptive.
But after further investigation, Mr. Durham accused Mr. Danchenko of deceiving the F.B.I. — including by concealing that a public relations executive with ties to Democrats, Charles Dolan, had been his source for a minor claim involving office politics in the Trump campaign. That assertion made its way into the dossier.
At the trial, Mr. Danchenko’s defense will apparently be that the F.B.I. asked him whether he had ever “talked” to Mr. Dolan about information in the dossier and that his somewhat equivocal denial was true: They had instead communicated by writing about that topic.
ImageMr. Danchenko is accused of making false statements to the F.B.I.Credit…Chip Somodevilla/Getty Images
Defense lawyers had asked Judge Trenga to throw out the charge, arguing that the particular statute Mr. Danchenko had been charged with covers only affirmative misstatements, not misleading omissions. The judge has characterized that issue as a close call but let it go forward, while suggesting he could revisit the question later.
Mr. Durham had also wanted to present striking but inconclusive evidence: In the summer of 2016, when Mr. Danchenko went to Moscow to gather rumors like the one about a purported sex tape, Mr. Dolan was staying at the hotel where the tape had supposedly been filmed three years earlier — and toured the suite where Mr. Trump had stayed.
But Mr. Dolan told Mr. Durham’s team that he had never heard the tape rumor until BuzzFeed published the dossier, and Mr. Durham did not claim that Mr. Dolan was a source of the rumor. The judge excluded that information from the trial as irrelevant to the false statements Mr. Danchenko is charged with making.
Mr. Durham also brought four false-statement charges against Mr. Danchenko related to accusations that he lied to the F.B.I. about a person he said had called and provided information without identifying himself.
Mr. Danchenko told the F.B.I. he believed the caller had probably been Sergei Millian, a former president of the Russian-American Chamber of Commerce, but Mr. Durham contends that is a lie and Mr. Danchenko never believed that.
Like Mr. Steele, Mr. Millian is abroad; he refused to come to the United States to be a witness at the trial. The judge has also ruled inadmissible two emails Mr. Millian apparently wrote about Mr. Danchenko in 2020 denying that he talked to Mr. Danchenko.
The “emails lack the necessary ‘guarantees of trustworthiness’ as the government does not offer direct evidence that Millian actually wrote the emails, and, even if he did, Millian possessed opportunity and motive to fabricate and/or misrepresent his thoughts,” the judge wrote.
After Mr. Durham was assigned to investigate the Russia investigation in the spring of 2019, Mr. Trump and his supporters stoked expectations that Mr. Durham would uncover a “deep state” conspiracy against him and charge high-level F.B.I. and intelligence officials with crimes.
But instead, Mr. Durham developed two cases on narrow charges of false statements involving outside efforts to uncover links between Mr. Trump and Russia. One was against Michael Sussmann, a lawyer with Democratic ties who was acquitted of lying to the F.B.I. when he shared a tip about possible connections between Mr. Trump and Russia. Another was against Mr. Danchenko.
Mr. Durham filled court filings with copious amounts of information seemingly extraneous to the charges, while insinuating that Democrats had conspired to frame Mr. Trump for colluding with Russia.
While that was not the theoretical conspiracy Mr. Trump and his supporters at outlets like Fox News had originally focused on, Mr. Durham’s filings provided fodder for them to stoke grievances about the Russia investigation. But judges in both cases have proved skeptical about putting much of that material before a jury.
In both instances, however, Mr. Durham’s earlier filings had already made that information public.
Mr. Danchenko was the subject of a counterintelligence investigation more than a decade ago, after the F.B.I. received a tip that he had made a remark that someone interpreted as an offer to buy classified information. He had also had contact with someone at the Russian embassy believed to be an intelligence officer. The bureau closed the case in 2011 without charging him.
Mr. Danchenko — who made his name as a Russia analyst by bringing to light evidence that President Vladimir V. Putin likely plagiarized parts of his dissertation — has denied being a Russian agent and said he has no memory of the purported remark. For now, the judge has barred Mr. Durham’s team from introducing details about that inquiry, although prosecutors can tell the jury that there had been one.
In an interview last month with the conservative Washington Examiner, Mr. Barr suggested that despite the special counsel’s limited achievements in the courtroom, the investigation was a success from another point of view.
“I think Durham got out a lot of important facts that fill in a lot of the blanks as to what was really happening,” Mr. Barr said, adding that he expected “the Danchenko trial will also allow for a lot of this story to be told, whether or not he’s ultimately convicted.”
Source: nytimes.com
