U.S. District Judge Anthony J. Trenga ruled Thursday that Danchenko’s case must be weighed by a jury, clearing the way for his trial next month. But it was “an extremely close call,” Trenga said from the bench.
The ruling is a victory, if only a temporary one, for Durham — who was asked by former attorney general William P. Barr in 2019, during the Trump administration, to investigate the FBI’s 2016 Russia investigation. Durham’s investigation came to focus in large part on the FBI’s use of the so-called “Steele dossier,” a collection of claims about Trump compiled by British ex-spy Christopher Steele.
But the judge’s remark that the decision was difficult could be an ominous sign, as Durham still must convince jurors Danchenko is guilty beyond a reasonable doubt. The special counsel’s investigation suffered a setback in May when another person charged with lying to the FBI, cybersecurity lawyer Michael Sussmann, was acquitted by a jury in D.C. federal court. Danchenko’s trial is scheduled to begin Oct. 11 in federal court in Alexandria, Va. Durham argued the case personally at the hearing Thursday.
The jury will be asked to weigh statements Danchenko, who has pleaded not guilty, made during FBI interviews in 2017 about a longtime Washington PR executive aligned with Democrats, Charles Dolan Jr., and a former president of the Russian American Chamber of Commerce, Sergei Millian.
Key to the case is whether those statements from Danchenko to the FBI were willful deceptions that had a material effect on the government’s efforts to verify the claims in the dossier, a series of reports by Steele, based on information from Danchenko and others. Steele had been hired to produce the reports by research firm Fusion GPS, which had been hired by a law firm that represented Trump’s opponent, Hillary Clinton, and the Democratic National Committee.
Danchenko’s defense team asked the judge to dismiss the five-count indictment in a legal brief filed Sept. 2, arguing that Danchenko made “equivocal and speculative statements” to the FBI about “subjective” beliefs.
Danchenko’s prosecution, they said, was “a case of extraordinary government overreach.”
“The law criminalizes only unambiguously false statements that are material to a specific decision of the government,” Danchenko attorneys Stuart A. Sears and Danny Onorato wrote, adding that the FBI’s questions at issue “were fundamentally ambiguous, Mr. Danchenko’s answers were literally true, non-responsive, or ambiguous, and the statements were not material to a specific government decision.”
“If Rudy Giuliani says he believes the 2020 election was fraudulent, that doesn’t make it a false statement,” Sears argued in court Thursday. “He believes it.”
Durham’s team countered that the FBI’s questions were clear and that, in any event, settling disputes over contested facts is a job reserved for a jury.
An FBI agent asked Danchenko a “decidedly straightforward” question about Dolan during a June 15, 2017, interview, Durham’s team asserted in a brief filed Sept. 16.
“But you had never talked to Chuck Dolan about anything that showed up in the dossier, right?” the agent asked, according to court filings.
“No,” Danchenko replied.
“You don’t think so?” the agent asked.
“No. We talked about, you know, related issues perhaps but no, no, no, nothing specific,” Danchenko said.
The special counsel said the context in which the interview was taking place should have made clear that Danchenko was being asked about the sources behind the claims in the Steele dossier. The indictment alleges that at least one allegation in the Steele dossier “reflected information that Danchenko collected directly” from Dolan — despite Danchenko’s denial that they had discussed anything “specific” in it.
Danchenko asked Dolan via email about Paul Manafort’s resignation as Trump’s campaign chairman in 2016, and Dolan replied with information that closely matched what was in an Aug. 22 report from Steele, the indictment says.
But Danchenko’s attorneys argued: “The most reasonable reading of this question is whether Mr. Danchenko and [Dolan] talked about the Company Reports themselves after they were published.”
“Mr. Danchenko’s answer to this question was literally true because he never talked to [Dolan] about the specific allegations contained in the Company Reports themselves, but they did talk about issues ‘related’ to the allegations later published in those reports,” Danchenko’s attorneys wrote.
They added that the FBI agent’s question was imprecisely worded because an email exchange between Danchenko and Dolan was not the same as “talking,” which is the word the FBI agent used during the interview.
“Talking refers to communication through spoken words, not in writing,” the attorneys argued.
At the hearing Thursday, Durham argued that “in the current-day lexicon, ‘talking’ has different meanings.”
“He knew exactly what the FBI was looking for; he knew the context of what was being asked of him,” Durham said, adding that Danchenko did not produce the email exchange about Manafort to investigators as he was turning over other materials. Danchenko’s attorneys said in a court filing that the information in the Steele dossier at issue actually came “from public news sources,” not Dolan.
Danchenko’s attorneys also argued that his statements to the FBI in 2017 — that he “believed” Millian had reached out to him anonymously in a phone call and shared information about Trump and Russia — were “literally true” and could not be deemed a criminal lie.
Durham said an email showed that Danchenko had never spoken to Millian as of Aug. 8, 2016. Danchenko had claimed the anonymous caller reached out to him weeks before that date, prosecutors allege.
“He knows that that didn’t happen, that it was not Millian who called him,” Durham said.
The special counsel’s team previously disclosed that Millian has not been located. Danchenko’s attorneys argued separately on Thursday that several emails from Millian to a Russian journalist that pertain to Danchenko should not be admitted as evidence in the trial “without allowing Mr. Danchenko the opportunity to cross-examine Millian.”