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, albeit 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 largely on the FBI’s use of the so-called “Steele dossier,” a collection of allegations about Trump prepared by British ex-spy Christopher Steele.
But the judge’s remark that the decision was difficult could be an ominous sign as Durham still needs to convince jurors that Danchenko is guilty beyond a reasonable doubt. The special counsel’s investigation suffered a setback in May when another person accused of lying to the FBI, cybersecurity lawyer Michael Sussmann, was acquitted by a jury in DC federal court. Danchenko’s trial is scheduled to begin Oct. 11 in federal court in Alexandria, Va. Durham argued the case in person at the hearing Thursday.
The jury will be asked to weigh statements Danchenko, who has pleaded not guilty, made during 2017 FBI interviews of a longtime Democratic-aligned Washington public relations chief, Charles Dolan Jr., and a former president of the Russian American Chamber of Commerce, Sergei Millian.
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The key to the case is whether those statements by Danchenko to the FBI were deliberate deceptions that had a material effect on the government’s efforts to verify the allegations in the dossier, a series of reports by Steele, based on information provided by Danchenko and others. Steele had been hired to produce the reports by research firm Fusion GPS, which had been hired by a law firm representing 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 “ambiguous and speculative statements” to the FBI about “subjective” beliefs.
Danchenko’s prosecution, they said, was “a case of extraordinary government overreach.”
“The law only criminalizes unequivocally false statements material to a specific decision made by the government,” Danchenko lawyers Stuart A. Sears and Danny Onorato wrote, adding that the FBI’s questions “were fundamentally ambiguous, Mr. Danchenko’s answers were literally true . . , unresponsive 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 does not make it a false statement,” Sears argued in court Thursday. “He believes it.”
Durham’s team responded that the FBI’s questions were clear and that resolving disputes about contested facts is, in any event, a task reserved for a jury.
An FBI agent asked Danchenko a “decidedly blunt” question about Dolan during a June 15, 2017 interview, Durham’s team claimed in a brief filed Sept. 16.
“But you had never spoken to Chuck Dolan about anything that came up in the dossier, had you?” the agent asked, according to court documents.
“No,” Danchenko replied.
“You don’t think so?” asked the agent.
“None. We talked about, you know, related issues maybe, but no, no, no, nothing specific,” Danchenko said.
The special counsel said the context in which the interview took place should have made it clear that Danchenko was being asked about the sources behind the allegations in the Steele dossier. The indictment alleges that at least one allegation in the Steele dossier “reflected information that Danchenko gathered 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 2016 campaign chairman, and Dolan responded with information that closely matched what was in an Aug. 22 Steele report, the indictment says.
But Danchenko’s lawyers argued: “The most reasonable reading of this question is whether Mr. Danchenko and [Dolan] talked about the corporate reports themselves after they were published.”
“Mr. Danchenko’s answer to this question was literally true because he never spoke [Dolan] about the specific allegations contained in the company reports themselves, but they spoke about matters ‘related’ to the allegations later published in those reports,” Danchenko’s lawyers 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.
“Speaking refers to communication through spoken words, not writing,” the lawyers argued.
At the hearing Thursday, Durham argued that “in the current lexicon, ‘speech’ 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 when he turned over other material. Danchenko’s lawyers said in a lawsuit that the information in the Steele case in question actually came “from public news sources,” not Dolan.
Danchenko’s lawyers 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 considered a criminal lie .
Durham said an email showed Danchenko had never spoken to Millian on Aug. 8, 2016. Danchenko had claimed the anonymous caller contacted him weeks before that date, prosecutors allege.
“He knows it didn’t happen, that it wasn’t Millian calling him,” Durham said.
The special counsel’s team has previously revealed that Millian has not been found. Danchenko’s lawyers argued separately Thursday that several emails from Millian to a Russian journalist concerning Danchenko should not be admitted into evidence in the trial “without giving Mr. Danchenko an opportunity to cross-examine Millian.”