Is John Durham Wasting Your Money?
Spoiler: Probably yes.
Sorry for the late post everyone. Elisabeth and I had a little movie night together on Sunday, and then two-month old Lillian got her first round of vaccines on Monday, which made her cry a lot and break our hearts. The Jackal is taking a break for Thanksgiving, but the December 6th edition will not be late.
Guys, I’m going to be honest with you: This week’s Jackal is a little headier than most, but as I’ve said before, research is a muscle; the more you do it, the better you get at it. But I also hope I can communicate to you all why a special prosecutor in D.C. is affecting your lives and related to the current events of this week. LFG.
So, last week I briefly touched on the significance of the “Durham Investigation,” and said I would write a longer Jackal on it. I also quickly went over it just before I went out on paternity leave, but I’ll start with a refresher. However, before I go into everything, I want you to keep something in the back of your head: Federal investigations cost a lot of money, and they are done with your tax dollars. Robert Mueller’s investigation cost somewhere around 13 million dollars, and even though they like to brag that they got that much money back by raiding Paul Manafort’s closet, it is still a real dollar amount. Durham’s investigation has been going on longer than Mueller’s, very few people fully understand what he’s doing, and he is generally free from oversight. It’s time to look at what sort of work he’s doing with our money.
Who is John Durham?
Durham is the former U.S. Attorney for the United States District Court for the District of Connecticut (blech). During the Trump Administration, he was initially appointed to be a sort of “reviewer” in a probe by the Department of Justice into the origins of the Russia Investigation. Just before former Attorney General Bill Barr left office, he craftily converted Durham into a special prosecutor, which has allowed to him to stay on into the Biden Administration. I did a quick thread on what made this so crafty back in February:
What is Durham investigating?
The core of Durham’s investigation has been somewhat of a mystery. Prior to him officially becoming a Special Counsel, he had turned up only one indictment. That was related to Kevin Clinesmith, an FBI lawyer who was found guilty of doctoring an email related to surveillance of former Trump Campaign employee (and non-ironic bucket hat wearer), Carter Page. Although Clinesmith served no time in prison, his crimes had previously been identified by the Inspector General of the Department of Justice (DOJ), Michael Horowitz (put a pin in that).
In September, Durham filed his first indictment in over a year, of Michael Sussmann, a former attorney at Perkins Coie who did work on the 2016 Hillary Clinton Campaign. Most recently, Durham indicted a Russian national, Igor Danchenko. Both Sussmann and Danchenko have been indicted for lying to the FBI, which we will touch on below.
If you can feel your eyes glazing over, I can really lay out the central thesis right now: Durham’s investigation is - at this point - so poorly formulated that I think it’s clear his ultimate goal is to present an alternative narrative to what Bob Mueller and the Senate Intelligence Committee were able to prove: The 2016 Trump Campaign coordinated their activities with Russian intelligence and engaged in “COLLUSION.” But more on that towards the end.
What makes Durham so crappy at his job?
OK, so snark aside, it is incredibly helpful to look at Durham’s indictments of both Sussmann and Danchenko in depth. It’s also important to note something off the bat: Neither of these cats1 have been indicted for presenting false materials to the FBI, fabricating evidence, or clandestine activities. Sussmann is charged with lying to the FBI about who he represented in his conversations with their head attorney and Danchenko for lying about conversations he had with Charles Dolan, Jr., who had also previously worked for the Clintons.
Michael Sussmann’s Indictment
Durham’s indictment shows that Sussmann has only been charged with one count: Making false statements to the FBI, under 18 USC § 1001(a)(2). Fun fact: Lying to the FBI is a crime, and you do not even have to be under oath. Therefore, for obvious reasons, you should never talk to the FBI.
A false statement under this section of the United States Code (get it? U.S.C.), particularly to the FBI, must meet two “prongs:”
It must be material.
It must be a false, fictitious, or fraudulent, and the person making the statement must do so knowingly.
In terms of materiality, the Sussmann indictment has serious issues. Here are the basic facts: Sussmann was charged by Durham for making false statements to the FBI’s general counsel, Jim Baker, about whom he was representing when he presented information to the FBI.
You see, Sussmann’s background is in cybersecurity. So, he went to Jim Baker (the FBI’s general counsel) to present him evidence about - what was then - a media story involving a weirdo internet connection between Alfa-Bank and Trump Tower. Even at the time, the story was viewed with skepticism by legal and tech journalists.2
In his indictment, Durham says presenting this false information to the FBI wasted its resources, making Sussmann’s lie (which we will explain later) material. Even here, where the prosecution has wide latitude, Durham has some issues. Imagine this scenario: Nancy Pelosi reads a story in the press about the Alfa-Bank story, and she says during an interview that the FBI should take a look at this stuff. Michael Sussmann basically did the same thing privately, and both scenarios would have resulted in the same outcome: The FBI would have investigated and found nothing.
But let’s leave materiality aside because Sussmann’s attorneys have hinted that they will file a motion to dismiss on this point, and if that happens everything else falls apart (it’s unlikely that they will succeed, but we’ll see).
Instead, let’s focus on Sussmann’s lie to Jim Baker about who he was representing at the time. When he presented his information to the FBI, Sussmann was doing work (on behalf of Perkins Coie) for a few different entities, but most notably the Hillary Clinton Campaign. Durham says he was actually representing the Clinton Campaign when he presented his information to the FBI, and you can see that based on his billing records. The problem, Durham asserts, is that when Sussmann made his statements to Baker, he said he was not…
doing his work on the aforementioned allegations "for any client," which led the FBI General Counsel to understand that SUSSMANN was acting as a good citizen merely passing along information, not as a paid advocate or political operative.
So, the entirety of Durham’s indictment of Sussmann rests on the memory and testimony of Jim Baker from 2016. But, having a one-witness prosecution is only the beginning of Durham’s problems. Here is testimony that Baker gave, under oath, in October of 2018:
Q. Okay. So when Mr. Sussman [sic] came to you to provide some evidence, you were not specifically aware that he was representing the DNC or the Hillary Clinton campaign at the time?
A. I don’t recall, I don’t recall him specifically saying that at the time.
For Durham to have convinced a grand jury to indict Sussmann must tell us that he has gotten more recent testimony from Jim Baker that helps him prove his case, but his more immediate testimony from that time shows that Baker was foggy on the whole thing. Kyle Cheney makes that point in this thread:
To sum it up: The prosecution’s argument is that Michael Sussmann lied to Jim Baker about what “firm” he was representing that day, and Baker:
Was the only person he talked to.
Cannot remember exactly what Sussmann said about whom he was representing.
This is, to put it simply, an extremely weak indictment and one that Durham’s team (currently headed by some stand-up lawyers, at least in Sussmann’s case) will have a hard time proving. But it gets worse.
The Danchenko Indictment
In early November, Durham released his second “solo” indictment, in which he charged Igor Danchenko with making five false statements to the FBI:
According to the indictment, on June 15, 2017, March 16, 2017, May 18, 2017, Oct. 24, 2017, and Nov. 16, 2017, Danchenko made false statements regarding the sources of certain information that he provided to a U.K. investigative firm that was then included in reports prepared by the U.K. investigative firm and subsequently passed to the FBI. The June 15, 2017, false statement count alleges that Danchenko denied that he had spoken with a particular individual about material information contained in one of the Company Reports when he knew that was untrue. The March 16, 2017, May 18, 2017, Oct. 24, 2017, and Nov. 16, 2017, counts involve statements made by Danchenko on those dates to FBI agents regarding information he purportedly had received from an anonymous caller who he believed to be a particular individual, when in truth and in fact he knew that was untrue.
Let’s parse through this: A primary factor in this particular indictment is none other than the Steele Dossier. As Durham lays out, Danchenko was one of Steele’s main sources for the Dossier, and he apparently lied to the FBI about the basis for his own sources. One lie that Danchenko allegedly told involved Charles Dolan, Jr., who worked both for (and against!) the Clinton Campaign.
The other lie is related to a dude named Sergei Millian, and it makes up the remaining four charges, with Durham alleging that Danchenko told the same lie four different ways. This is pretty abnormal:
The indictment of Danchenko suffers from the same weaknesses of the Sussmann indictment. Namely, it is still not at all clear that Danchenko lied to the FBI about his contacts with either men.
Durham has two major problems in this regard:
He leaves out parts of transcripts that could exculpate Danchenko, especially his equivocal statements about the conversations he was having.
His central piece of evidence against Danchenko for most of the accounts seems to be Sergei Millian’s Twitter account.
I’m not kidding on point 2. One of the big charges against Danchenko is that he lied about whether or not he was having conversations with Millian, and the evidence used against Millian is his Twitter account:
It does not state anywhere in the whole of Danchenko’s indictment that Durham placed Millian under oath or made him testify in front of the Grand Jury. He makes statements about how Danchenko’s assertions to the FBI were lies, but never provides any evidence as to how exactly those were lies. The entire thing is incredibly weak.
Does that mean that Sussmann and Danchenko are angels? No, but it is pretty clear that Durham’s real intent with these indictments is to tell a story, and it’s one that conservative media has been trying to tell since 2017.
Both of Durham’s indictments are what’s called, “Talking Indictments.” In other words, they try to create a narrative for the reader. However, the problem with his talking indictments is that the conversation doesn’t get very far. The most significant portion of the Sussmann’s indictment is Durham’s focus on his employment with the Hillary Clinton Campaign. Never mind the fact that it’s not at all clear that the dude actually lied to the FBI, what matters is that he was there on behalf of Hillary Clinton, trying to stir up some nasty stuff about Trump and the Russians.
With Danchenko, he wants to make a case that the primary source for the Steele Dossier was getting all of his information from a Clinton operative, Charles Dolan. Meaning, the Clinton Campaign was feeding information to Danchenko, who was feeding it to Steele. Neither of those things are crimes, but Durham is using his indictments to try and tell that story.
However, much like Fetch, Durham is having a hard time making this happen. The only thing Durham could find that Dolan contributed to the Dossier was some note about Paul Manafort getting kicked off Trump’s Campaign (Dolan admitted he read this in the news). Durham also suggests that Danchenko made up the infamous “pee tape” allegations and cited Millian as a source. There is a major, major problem with that argument, but Durham has seemingly tricked the media into overlooking it.
The Media is Falling for Durham’s Spin
A pet peeve of mine that stretches across political media and public officials is that apparently no one has read either the Mueller Report or the Senate Select Committee’s Report on Trump and Russia. New York Magazine has declared that the Dossier suffered a “crippling blow” because Millian wasn’t actually the source for the “pee tape” allegation.
But the “pee tape” rumor was one that had been floating around for a long time; according to Michael Cohen, he had been trying to track down tapes involving Trump since 2013, “significantly prior to the 2016 U.S. election cycle.”
The point here isn’t to defend the Dossier (which shouldn’t trusted because it contains a ton of Russian disinformation3) or the veracity of the pee tape.4 My whole point is simply this: The Trump Campaign was a giant magnet for Russian meddling. Some of that was because the Campaign itself was openly welcoming contacts with Russian nationals. Another reason was because it was filled with unprofessional hacks who were easily manipulated by foreign intelligence. Therefore, it is only logical that a guy like Christopher Steele heard a lot of rumors surrounding a Campaign that was a “grave counterintelligence threat.”
The key point that cannot be erased is this: Mueller stated in his report that he found evidence of a conspiracy between the Russians and the Trump Campaign, where the Campaign openly welcomed Russian interference in the 2016 election. Mueller also clearly stated that there wasn’t enough evidence for him to charge the Campaign with a crime (and members of Mueller’s own team disagreed with him!).
Durham is clearly doing the opposite: He is conducting an investigation where he is leveling charges against people that he absolutely may not be able to prove; where Mueller used caution, Durham is being reckless, all so he can give an air of validity to a GOP conspiracy theory.
We saw this week how so many conservatives praised the not guilty verdict in the Rittenhouse case, and how he was given the benefit of the doubt under the law. Totally agree. However, I really do wonder why they aren’t saying the same thing about Michael Sussmann or Igor Danchenko?
I want to go back to a “pin” I placed above: The Inspector General of the DOJ previously handed Durham his only indictment; these two new ones are Durham working on his own, and if they are indicative of the work that is about to come, I don’t think it’s wrong to have some sympathy for Sussmann and Danchenko here, even if they are shady characters. I think Durham has indicted them with the hopes that one of them will “flip” and give him another thread to unravel. Given the powers of the Federal government, there will be immense pressure on them, and that is why we should always be pro-defendant in any criminal case.
See everyone after Thanksgiving, but during the Holiday, please read this from David Brooks.
I am reviewing my writing after finishing it and am wondering if extreme Dad energy forced me to call these guys “cats.” I thought to be called a “cat” you had to play/listen to jazz or something, but I’m leaving it.
Of course, there is still some disagreement.
One of the sneakier things in Mueller’s report and in the Committee’s report is that Manafort came back from a meeting with his Russian intelligence handler, Konstantin Kilimnik, and told the Trump Administration to talk about the Dossier. Oleg Deripaska, a Russian oligarch with close ties to Putin, was aware of Steele’s work by at least February of 2016 (page 882 of the Committee’s report), and Steele (mistakenly) assumed Deripaska was not working for Putin. The Committee was inconclusive, but it’s entirely possible the Dossier itself was part of Russia’s interference, and part of their effort to create an “alternative narrative” for Trump’s opponents to latch onto. It would be funny if this was the thread Durham was trying to unravel, but I have my doubts.
Cohen has actually said he thinks this is all a game of telephone related to one of Trump’s visits to a Vegas nightclub where certain “lewd acts” were performed.
Interesting. I don't agree or disagree. If Durham's case is really that weak it will be absolutely destroyed before it gets to a court. On the other hand, a good prosecutor only presents enough information to get an indictment. The other information is held back until discovery. The leverage that is acquired by having an indictment is used to intimidate the accused in order to get the accused to seek a deal, and offer information that can be used to further investigations.