By Paul Sperry for RealClearInvestigations
Since being named special counsel in October 2020, John Durham has investigated or indicted several unscrupulous anti-Trump informants. But he has spared the FBI agents who handled them, raising suspicions he's letting investigators off the hook in his waning investigation of misconduct in the Russiagate probe.
In recent court filings, Durham has portrayed the G-men as naive recipients of bad information, tricked into opening improper investigations targeting Donald Trump and obtaining invalid warrants to spy on one of his advisers.
But as the cases against the informants have gone to trial, defense lawyers have revealed evidence that cuts against that narrative. FBI investigators look less like guileless victims and more like willing partners in the fraudulent schemes Durham has brought to light.
Notwithstanding his reputation as a tough, intrepid prosecutor, Durham has made excuses for the misconduct of FBI agents, providing them a ready-made defense against any possible future prosecution, according to legal experts.
"Durham was supposed to clean up the FBI cesspool, but it doesn't look like he's going to be doing that," said Paul Kamenar, counsel to the National Legal and Policy Center, a Washington watchdog group. "He started with a bang and is ending with a whimper."
In the latest example, critics point to a flurry of pretrial motions in Durham's case against former FBI informant Igor Danchenko, the primary source for the false claims regarding Trump and Russia advanced by the opposition research paid for by Hillary Clinton's campaign known as the Steele dossier.
Next month, Danchenko faces charges he lied to FBI investigators multiple times about the sourcing of the information in the dossier, which the bureau used to secure wiretap warrants to spy on a former Trump campaign adviser. Relying on Danchenko's reporting, the FBI claimed that the adviser, Carter Page, was a Russian agent at the center of "a well-developed conspiracy of cooperation" between Trump and the Kremlin to steal the 2016 presidential election.
"The defendant was providing them with false information" as part of "a concerted effort to deceive the FBI," Durham alleged in a recent filing with the U.S. District Court in Alexandria, Va., where the trial is scheduled to be held Oct. 11.
Had agents known Danchenko made up the allegations, Durham asserted, they might have asked more questions about the dossier and not relied on it to swear out the ultra-invasive Foreign Intelligence Surveillance Act warrants to electronically monitor Page, a U.S. citizen who was never charged with a crime.
But Danchenko's legal team points out that he turned over an email to the FBI during a January 2017 meeting with agents and analysts that indicated a key dossier subsource may have been fictionalized. Stuart Sears, one of Danchenko's attorneys, argued earlier this month in a motion to dismiss the charges that investigators "essentially ignored" any concerns they may have had about Danchenko's sourcing, because they continued to renew the FISA warrants based upon it. Therefore, he argued, any lies his client allegedly told them were inconsequential, making them un-prosecutable under federal statutes requiring such false statements to have a "material" impact on a federal proceeding.
While Durham did not dispute the FBI's apparent complicity in the fraud, he waved it aside as immaterial to the case at hand. "The fact that the FBI apparently did not identify or address these inconsistencies is of no moment," he said in his filing.
At the same time, Durham acknowledged agents allowed the fabrications to contaminate their wiretap warrants – noting they were "an important part of the FISA applications targeting Carter Page." But he stopped short of blaming the FBI, even for incompetence. According to Durham, the nation's premiere law enforcement agency was misled by a serial liar and con man.
"He's painting it as though the FBI was duped when the FBI was more than willing to take the initiative and go after Trump," Kamenar said, adding that though Danchenko may have been a liar, he was a useful liar to FBI officials and others in the Justice Department who were pursuing Trump.
The special prosecutor's indifference to the FBI's role in the scandal is more remarkable in light of what Danchenko admitted in his January 2017 interviews with the FBI. He told investigators that much of what he reported to Steele was "word-of-mouth and hearsay," while some was cooked up from "conversation that [he] had with friends over beers," according to a declassified FBI summary of the interviews, which took place over three days. He confessed the most salacious allegations were made in "jest."
Still, the FBI continued to use Danchenko's claims of a "well-developed conspiracy of cooperation" between Russia and Trump to convince the FISA court to allow investigators to continue to surveil Page, whom the FBI accused of masterminding the conspiracy based on Danchenko's bogus rumors. Agents even swore in FISA court documents reviewed by RealClearInvestigations that Danchenko was "truthful and cooperative."
The combination of Danchenko reporting a "conspiracy" and the FBI vouching for his credibility persuaded the powerful FISA court to continue to authorize wiretapping Page as a suspected Russian agent for almost a year. In addition to collecting his emails and text messages in 2017, agents were able to sweep up all his prior communications with Trump officials from 2016.
If the FBI were skeptical of Danchenko, it didn't show it. The next month, the bureau put him on its payroll as a confidential human source, or CHS, making him part of the bureau's untouchable "sources and methods" sanctum and thereby protecting him and any documents referencing him from congressional and other outside scrutiny. It made him a paid informant in spite of knowing Danchenko was a potential Russian spy threat who could be feeding federal agents disinformation. The FBI had previously opened a counterespionage probe of Danchenko from 2009 to 2011, and as his lawyers pointed out in a recent court filing, agents who were part of the case probing Trump/Russia ties, codenamed Crossfire Hurricane, "were well aware of the prior counterintelligence investigation" when they were supposedly conned by their informant.
"It stretches credibility to suggest that anything else would have caused the FBI to be more suspicious of Mr. Danchenko's statements and his potential role in spreading disinformation than the very fact that he was previously investigated for possibly engaging in espionage on behalf of Russia," Sears said. "Armed with that knowledge, however, the FBI nevertheless persisted" in using him as a source – while never informing the FISA court of the prior investigation.
The FBI didn't terminate Danchenko until October 2020, the month after the Senate declassified documents revealing the FBI had investigated him as a Russian agent. It also happened to be the same month Durham was appointed special counsel.
On Oct. 19, 2020, then-Attorney General Bill Barr tapped Durham "to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III."
So far, Durham has focused on the "any other person" part of his mandate. Federal officials and employees appear to be getting a pass.
Though Durham prosecuted former FBI lawyer Kevin Clinesmith in August 2020, when he was acting as a U.S. attorney, he did not initiate the case. Rather, it was referred to him by Justice Department Inspector General Michael Horowitz, who first exposed how Clinesmith had doctored exculpatory evidence in the Page warrant process. Even though Clinesmith admitted forging a CIA email to make it look like Page never helped the agency monitor Russia, when in fact he did and clearly wasn't acting as a Russian agent, Durham failed to put him behind bars. Clinesmith was sentenced to 12 months' probation and 400 hours of community service, which as RCI first reported, the registered Democrat satisfied by researching and editing articles for his favorite liberal weekly newspaper in Washington.
Kamenar said the Clinesmith case was a "bad omen" for how Durham would handle dirty FBI agents. He pointed out that the prosecutor could have charged Clinesmith with the more serious crime of altering a CIA document, but instead negotiated a deal letting him plead to the lesser offense of lying to a government agency, which Kamenar called "a garden variety process crime." And "now he's got his law license back."
Clinesmith worked closely on the case with FBI Supervisory Intelligence Analyst Brian Auten, who was singled out by Horowitz in a 2019 report for cutting a number of corners in the dossier verification process and even allowing information he knew to be incorrect slip into the FISA affidavits and mislead the court.
Auten met with Danchenko at the bureau's Washington field office and helped debrief him about the dossier in January 2017. And he wrote the official FBI summary of those meetings, which noted Danchenko "contradicted" himself several times. Auten learned firsthand that the information Danchenko passed to Steele was nothing more than bar gossip, and that his "network of subsources" was really just a circle of drinking buddies. Also at those meetings, the analyst received an Aug. 24, 2016, email revealing that Danchenko never actually communicated with Sergei Millian, the Belarusian-born American businessman whom he had identified as his main source of Trump/Russia connections – the all-important, albeit apocryphal, "Source E" and "Source D" of the dossier. It turns out Danchenko attributed the critical "conspiracy of cooperation" allegation the FBI cited as probable cause for all four FISA warrants to this made-up source, meaning the cornerstone evidence of suspected Trump-Russia espionage was also made up.
What's more, Auten learned that though Danchenko was born in Russia, he was not based there and had no access to Kremlin insiders. On the contrary, he confirmed that Danchenko had been living in Washington and had previously worked for the Brookings Institution, a Democratic Party think tank whose president at the time was tied to Clinton.
Yet Auten and his Crossfire team led the FISA court to believe Danchenko was "Russian-based" – and therefore presumably more credible. They used this same description in all four FISA affidavits, including the two renewals that followed the January 2017 meetings with Danchenko.
Internal FBI emails from two months later revealed that Auten knew that using the term "Russian-based" was deceptive. While tasked with helping review Crossfire documents requested by Congress, including FISA applications, he worried about the description and whether it should be corrected. He discussed the matter with Clinesmith. But the falsehood reappeared in subsequent FISA applications.
It was also in January 2017 that Danchenko revealed to Auten and his FBI handlers that one of his subsources was his childhood friend Olga Galkina, whom he said supplied him the rumor that former Trump lawyer Michael Cohen traveled to Prague during the campaign to hatch a plot with Kremlin officials to hack Clinton campaign emails.
The FBI already knew from intelligence reports that Cohen had not, as the dossier claimed, traveled to Prague to conspire in the alleged Russian hacking of Democrats, or for any other reason.
On Jan. 12, 2017, Auten and his Crossfire teammates received a CIA report that warned the Cohen rumor was likely part of a Russian disinformation campaign. The agency had discovered no such Prague meeting took place after querying foreign intelligence services, shooting a major hole in the dossier. The CIA report should have led the Crossfire team to treat any allegations sourced to Galkina with caution. But on the same day, the FBI got its FISA wiretap on Page renewed based on another groundless claim by Galkina – this one alleging the Trump aide secretly met with top Kremlin officials in Moscow to discuss removing U.S. sanctions. The falsehood showed up in two more FISA applications, which alleged "Russia's efforts to influence U.S. policy were likely being coordinated between the RIS [Russian Intelligence Services] and Page, and possibly others."
Galkina also had a relationship with Charles Dolan, a Clinton adviser who figures prominently in the Danchenko case Durham is prosecuting.
It turns out Dolan was one of the sources for the infamous "pee-tape" allegation about the Kremlin supposedly having blackmail evidence of Trump consorting with prostitutes at the Ritz-Carlton in Moscow, which has been debunked as another dossier hoax. But according to Durham, Danchenko tried to conceal Dolan's role in the dossier from the FBI. The special prosecutor argued that the deception deprived FBI agents and analysts information that would have helped them evaluate "the credibility, reliability and veracity" of the dossier. He said if they had known Dolan was a source, they might have, among other things, sought emails Dolan and Danchenko exchanged exposing their Ritz-Carlton hoax.
"Had the defendant truthfully told the FBI that Dolan played a role in providing certain information for the Steele reports the FBI might well have interviewed and/or collected such emails from Dolan," Durham speculated.
In addition, the prosecutor said, investigators might have learned of Dolan's "involvement in Democratic politics" and "potential bias as a source for the Steele reports." Except that they already knew about Dolan and his politics – as well as his involvement in the dossier. It's also likely they already had his emails.
In another interview with Danchenko about his dossier sources, which took place June 15, 2017, FBI agents asked Danchenko if he knew Dolan and whether he was "contributing" to the Steele reports. Though Danchenko acknowledged he knew Dolan, he denied he was a source. Agents didn't ask any follow-up questions. (They also never sought to charge him with making false statements to federal agents.)
How did the FBI know to ask about Dolan? Because he was well-known to the bureau's Russia counterintelligence agents as a businessman who frequently traveled to Moscow and met with Kremlin insiders. But more importantly, his friend Galkina was under FISA surveillance as a suspected Russian spy at the time, according to declassified records. The FBI was collecting not only Galkina's emails, but also those of Dolan and Danchenko, all of whom regularly communicated in 2016 – which suggests that at the time the FBI asked Danchenko about Dolan, it had access to those emails and was reviewing them.
This may explain why, as defense lawyer Sears noted, "the FBI never asked Mr. Danchenko about emails or any other written communications with Dolan" – and why it never interviewed Dolan.
While Durham acknowledged that the FBI knew about Dolan's troubling ties at the time and neglected to dig deeper, he said he's not bothered by the oversight. "The fact that the FBI was aware that Dolan maintained some of these relationships and failed to interview Dolan is of no moment," he maintained dismissively in a court filing. All that matters, he suggested, is that the FBI was lied to.
One of those emails was particularly alarming. In an Aug. 19, 2016, email to Dolan, Danchenko made it clear he was compiling dirt on Trump and his advisers and sought any rumor, no matter how baseless and scurrilous. He solicited Dolan, specifically, for "any thought, rumor, allegation" on former Trump campaign manager Paul Manafort.
Such emails called into question the veracity of the whole dossier and further tainted the credibility of Danchenko's "network of subsources." But on June 29, 2017 – two weeks after the FBI asked about Dolan – the FBI renewed the FISA wiretap on Trump adviser Page based on, once again, the dubious dossier.
From its wiretapping of Galkina, moreover, Auten and others at the FBI who sorted through such FISA collections would have seen communications showing her strong support for Hillary Clinton, and how Galkina was expecting political favors in exchange for spreading dirt on Trump. In an August 2016 email to a friend, Galkina expressed hopes that Dolan would help her score a State Department job if Clinton won election.
It was a major red flag. But like all the others, the FBI blew right past it. Agents continued to vouch for Danchenko as "truthful" and his subsources as reliable, and continued to cite Galkina's fabrications in FISA renewals.
Under FISA rules, the FBI had a duty to "immediately inform" the secret court of any misstatements or omissions, along with any "necessary corrections" of material facts sworn in affidavits for warrants. But the FBI failed to correct the record, even after it became obvious it had told the court falsehoods and hid exculpatory evidence. In August 2017, agents finally got around to interviewing Galkina, who confessed the dossier allegations attributed to her were "exaggerated," according to the Horowitz report.
Scammed by the Alfa Bank Scam?
Last year, Durham also painted the FBI as a victim of the 2016 political machinations of two other anti-Trump informants – Michael Sussmann and Rodney Joffe, who conveyed to investigators false rumors about Trump allegedly setting up a secret hotline with the Kremlin through Russia-based Alfa Bank.
Durham charged Sussmann, a Washington lawyer who represented the Democratic National Committee and the Clinton campaign, with lying to the FBI's top lawyer James Baker when he told him he was coming in with the tip – outlined in white papers and thumb drives – all on his own and not on behalf of Democrats and Clinton, whom he was billing for the Trump-Alfa "confidential project."
"Sussmann's false statement misled the FBI general counsel and other FBI personnel concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to access and uncover the origins of the relevant data and technical analysis, including the identities and motivations of Sussmann's clients," Durham maintained in the indictment.
But evidence emerged at the trial of Sussmann, who was acquitted, that bureau officials already knew the "political nature" of the tip and where the data came from, but withheld the information from field agents so they would continue investigating Trump through the election.
For example, in a Sept. 22, 2016, email describing the "special project," an FBI official in Washington stated that "Counsel Baker provided [Supervisory Special Agent] Joe Pientka with 2 thumb drives and identified they were given to him by the DNC."
"Everybody at the FBI actually thought the data came from a political party," Sussmann lawyer Sean Berkowitz argued, according to the trial transcript. "The (case) file is littered with references to the DNC."
But Durham kept offering explanations for why FBI brass bit on the politically tainted tip, opening a full field investigation based on it.
"Had Sussmann truthfully disclosed that he was representing specific clients [the Clinton campaign], it might have prompted the FBI general counsel to ask Sussmann for the identity of such clients, which, in turn, might have prompted further questions," Durham argued.
"In addition, absent Sussmann's false statement, the FBI might have taken additional or more incremental steps before opening an investigation," he added. "The FBI also might have allocated its resources differently, or more efficiently, and uncovered more complete information about the reliability and provenance of the purported data at issue."
Headquarters, however, did know the identity of the clients. Problem was, they blinded agents in Chicago, where a cyber unit was assigned to the case, to the fact that the source for the information was Sussmann and Joffe – a federal cyber-security contractor who was angling for a job in a Clinton administration. (A longtime FBI informant, Joffe was terminated last year after he was exposed as the ringleader of the Alfa Bank scam.)
"You were not allowed to speak to either the source of the information, the author of the white paper, or the person who provided the source of the information and the data?" Berkowitz asked Chicago-based FBI agent Curtis Heide during the trial, according to transcripts.
"Correct," Heide replied.
Another Chicago investigator was led to believe the tip came into the bureau as a referral from the "U.S. Department of Justice."
Still, field agents were able to debunk it within two weeks.
The FBI was not fooled by the hoax, yet nonetheless went along with it for the next four months. The case wasn't formally closed until Jan. 18, 2017, just two days before Trump was inaugurated. But then it was soon reopened after Clinton operatives again approached the FBI – as well as the CIA – with supposedly new evidence, which also proved false.
"Comey and crew kept the hoax alive," former FBI counterintelligence lawyer Mark Wauck said, referring to then-FBI Director James Comey. They welcomed any predication that allowed them to open investigations on Trump, he added.
Pientka testified that Comey was "fired up" about the tip, despite the fact nothing had been corroborated. Comey even held senior-level meetings on the Alfa investigation in his 7th floor office. (Pientka, who led the "close-hold" investigation from headquarters, also helped supervise the Crossfire Hurricane probe.)
Ironically, no one knew better that Sussmann was a Democratic operative with an agenda than Baker – the official Durham claimed was the direct victim of the scam.
Baker, a fellow Democrat, was a close friend of Sussmann, who had his own badge to get past security at the Hoover Building. Sussmann had Baker's personal cell number and Baker cleared his busy schedule to meet with him within hours of Sussmann calling to discuss his tip. Baker was well aware that Sussmann was representing the DNC, because Sussmann entered the building numerous times during the 2016 campaign to talk with top FBI officials about the alleged DNC hack by Russia. In fact, Sussmann had just visited headquarters with a delegation from the DNC on Aug. 12, 2016 – several weeks before he approached Baker with the bogus Alfa tip. They were there to pressure the FBI into concluding Russian intelligence was behind the "hacking" of DNC emails.
"I understood he had been affiliated with the Democratic Party, but that he had come representing himself," Baker testified during the trial.
Why didn't he tell investigators about Sussmann? "I didn't want to share his name because I didn't want to color the investigation," he said. "I didn't want to color it with politics."
In his closing argument, Durham prosecutor Andrew DeFilippis told jurors the FBI's conduct was "not relevant."
"Ladies and gentlemen, you've seen that the FBI didn't necessarily do everything right here. They missed opportunities. They made mistakes. They even kept information from themselves," he said. "That is not relevant to your evaluation of the defendant's lie."
Judicial Watch President Tom Fitton complained Durham and his team have been acting more like apologists for the FBI than potential prosecutors of the FBI.
"The FBI leadership knew full well the Clinton gang was behind the Alfa Bank-Russia smears of Trump," he said. "Durham tried to pretend (the) FBI was a victim (when) it was a co-conspirator."
Wauck agreed. "The FBI-as-victim narrative was a bit of a legal fiction that Durham deployed for the purposes of the trial," he said. "The reality that emerged is that the FBI's top management was complicit in the Russia hoax that Sussmann was purveying."
Folding Up His Tent
Durham was first tasked with looking into the origins of the Russiagate probe in May 2019, before his formal appointment as special counsel in 2020. Trump and Republicans have expressed disappointment that after a total of more than three years of investigation, he has not prosecuted any top former FBI officials, including Comey and Andrew McCabe, who signed some of the FISA affidavits, or Peter Strzok, the biased leader of the Crossfire Hurricane probe who assured McCabe's lawyer in an August 2016 text that "we'll stop" Trump from becoming president. None has received a target letter. In recent months, McCabe and Strzok have gone on CNN, where they work as paid contributors, and smugly bashed Durham for running a "partisan" investigation, while at the same time gloating he's held the FBI up to be more of a victim than a culprit.
"Comey and Strzok and McCabe have gotten a free ride out of all this," Kamenar said.
Also, Durham went easy on Baker, another top FBI official, even after he held back key evidence from the special prosecutor before the Sussmann trial, a blatant lack of cooperation that may have cost Durham a conviction in the case. Comey's general counsel has received "favorable treatment," Wauck observed.
Baker, who reviewed and OK'd the FISA applications, never told Durham about a damning text message he received from Sussmann on his cellphone. Durham had already indicted Sussmann for lying to Baker, and he could not use Sussmann's smoking-gun message – "I'm coming on my own – not on behalf of a client or company" – during the trial to convince jurors he was guilty of lying about representing the Clinton campaign. Legal analysts said it was slam-dunk evidence that would have sealed his case.
Baker testified he didn't turn over the text to Durham because no one asked for it. He proved a reluctant witness on the stand against his old pal Sussmann.
"I'm not out to get Michael and this is not my investigation. This is your investigation," he told DeFilippis during questioning. DeFilippis has since stepped down to take a job in the private sector.
(Demonstrating the incestuous nature of the Beltway, Baker also happens to be an old friend of Bill Barr, who hired Durham. Barr hired Baker as his deputy when he ran Verizon's legal shop in 2008.)
In another sign Durham has not lived up to his billing as an aggressive prosecutor, FBI Director Christopher Wray suggested in recent Senate testimony that Durham's team has not interviewed all of the Crossfire members still employed at the bureau. In lieu of face-to-face interviews, he said Durham's investigators have reviewed transcripts of interviews of the agents previously conducted by the Office of Professional Responsibility, the FBI's in-house disciplinary arm.
Recent published reports say Durham is in the process of closing up shop and completing a final report on his findings by the end of the year. Republicans have promised to seize on the report if they win control of the House in November and take back the gavel to key oversight committees on the Hill, along with subpoena power.
Some former colleagues who have worked with Durham and are familiar with his inquiry blame COVID-19 for his relatively few prosecutions and lackluster record. They say pandemic-related shutdowns in 2020 and 2021 set back his investigation by limiting travel, interviews, and grand jury hearings. As a result, they say, the clock ran out on prosecuting a number of potential crimes. The last FISA warrant, which according to the court was illegally obtained, was approved June 29, 2017, which means the five-year federal statute of limitations for that crime expired months ago.
Though Durham hinted in the Sussmann case about investigating a broader "conspiracy" or "joint venture," there are few signs pointing to such a massive undertaking. Bringing a "conspiracy to defraud the government" charge, naming multiple defendants, would require Durham adding staff and office space and beefing up his budget by millions of dollars, the former colleagues said.
According to expenditure statements, Durham continues to operate on a shoestring budget with a skeletal staff compared with his predecessor Mueller's robust operation, which indicted 34 people. And one of the two grand juries Durham used to hear evidence has expired. It recently wrapped up work, apparently without handing down new indictments (though some could be under seal).
"If Durham were building toward an overarching indictment alleging a corrupt conspiracy between the Clinton campaign and the FBI to deceive the court, he would not be charging people with lying to the FBI," former federal prosecutor Andrew McCarthy said.
If there are any investigations still open after Durham retires, they could be handled by U.S. attorneys, the sources said. At least one of Durham's prosecutors works as a trial lawyer in the U.S. Attorney's Office in D.C.
According to a court exhibit, Joffe "remains a subject" in the Sussmann-related investigation into alleged attempts by federal contractors to defraud the government with false claims about Trump and Russia. Joffe invoked his Fifth Amendment right not to testify after receiving a grand jury subpoena and has not cooperated with requests for documents. His lawyer did not return phone calls and emails.
The Special Counsel's Office did not respond to requests for comment.
The FBI declined comment for this article, but issued a statement last year saying it "has cooperated fully with Special Counsel Durham's review."
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