A Virginia jury will begin deliberations Monday in the criminal case Special Counsel John Durham brought against Steele dossier primary sub-source Igor Danchenko for allegedly lying to the FBI. Here’s what you need to know about the charges, the law, and the evidence presented during last week’s trial to understand the case and the eventual jury verdict.
In November of 2021, the special counsel’s office charged Danchenko in a five-count indictment with lying to the FBI related to his role as Christopher Steele’s “primary sub-source” for “the notorious dossier that enabled Obama administration surveillance of the Trump campaign.”
The first count of the indictment alleged that Danchenko lied when, on June 15, 2017, he responded “no,” to this question from his handler, identified during the trial as Special Agent Helson: “You had never talked to Chuck Dolan about anything that showed up in the dossier, right?”
Dolan, a longtime Democrat operative and Clinton crony, had worked with Danchenko in mid-2016 through the fall, with Danchenko assisting Dolan in organizing a conference in Moscow. Danchenko had also introduced one of his friends who was looking for a public relations firm to Dolan. Amid these interactions, Danchenko emailed Dolan, asking Dolan for any inside information about Paul Manafort’s removal from the Trump campaign.
In response to Danchenko’s email, Dolan claimed he “had lunch with a GOP friend who knows the players” and learned that Trump’s former primary campaign manager Corey Lewandowski hated Manafort. During the trial, Dolan admitted he invented the GOP friend and instead concocted the supposed insider information. Nonetheless, a nearly identical claim appeared in the Steele dossier.
While the trial evidence established that Danchenko had communicated with Dolan via email concerning Paul Manafort’s removal from the Trump campaign — details later summarized in the Steele dossier — on Friday, presiding federal Judge Anthony Trenga dismissed the related false statement charge contained in Count I of the indictment.
Judge Trenga, a George W. Bush appointee, held that the special counsel could not prevail on its false statement charge against Danchenko because the evidence presented at trial failed to show Danchenko had ever “talked” with Dolan about Manafort. Here, the court stressed that “talked” literally means “to deliver or express in speech, to express, communicate, or exchange ideas or thoughts by means of spoken words, to convey or exchange ideas, thoughts, information, and so on, by means of speech.”
“Applying that definition, the evidence in this case establishes that Mr. Danchenko’s answer was literally true,” because “the government failed to introduce any evidence that Mr. Danchenko verbally communicated with Dolan about the Manafort allegations that ended up in the Steele dossier,” the court held. Trenga further noted that the government had failed to present any evidence “that would allow the jury to find that Mr. Danchenko understood the word ‘talk’ more broadly than its standard meaning.” Consequently, as a matter of law, the government could not prevail on the false statements charge related to Dolan as alleged in Count I of the indictment, and Trenga dismissed that count.
Sergei Millian Counts II-V
The remaining counts of the indictment, Counts II-V, charged that Danchenko lied to his FBI handler, Helson, on four separate occasions, on March 16, May 18, Oct. 24, and Nov. 16, 2017, when he told Special Agent Helson he had received an anonymous call in late July from an individual he believed was Sergei Millian.
At the time of the supposed call from Millian, Millian was the president of the Russian-American Chamber of Commerce and a Trump supporter. According to Danchenko, however, during their approximate 15-minute telephone conversation, Millian supposedly told Danchenko there was “a well-developed ‘conspiracy of cooperation’ between the Trump campaign and Russian officials.” Danchenko also told the FBI that the individual whom he believed was Millian had agreed to meet in New York but then never showed.
Steele later incorporated the assertions Danchenko attributed to Millian into the dossier and, based on those allegations and other allegations, obtained four surveillance orders from the Foreign Intelligence Surveillance Act, or FISA, court to intercept the emails and telephone conversations of Carter Page. The government maintained in its indictment that Danchenko never received a call from an individual he believed to be Millian and that lie affected its investigation of the Steele dossier.
Danchenko sought dismissal of the four counts related to his alleged lies about his conversation with an individual he believed to be Millian. While the trial court did not grant Danchenko’s motion, it also did not deny it; rather, the court held it was “not prepared at this juncture to conclude that the evidence is insufficient as a matter of law to sustain a conviction, and the better course, at this point, is to reserve on this aspect of the motion pending a verdict.”
That the court “reserved” ruling Danchenko’s motion to dismiss the four remaining counts suggests that, should Danchenko be found guilty, the court may nonetheless overturn the jury verdict and hold that the evidence is insufficient to convict Danchenko under Section 2001 of the federal criminal code.
A conviction under Section 2001 requires the government to prove beyond a reasonable doubt that Danchenko made a false statement in a matter involving a government agency — here the FBI; he made that statement knowingly or willfully; and the false statement was material to the FBI’s functioning.
The Trial Evidence
During last week’s trial, the Special Counsel presented evidence on each of these elements, calling six witnesses over the course of four days: Brian Auten, an FBI supervisor analyst charged with leading the analysts who assisted the special agents running the Crossfire Hurricane investigation; Kevin Helson, an FBI special agent in the Washington field office and Danchenko’s handler; Charles Dolan; Brittany Hertzog, a now-former intelligence analyst for the FBI who was on the Mueller special counsel team; Amy Anderson, a supervisory special agent on the Mueller team; and Ryan James, a special agent also assigned to Mueller’s investigation.
Danchenko’s legal team thoroughly questioned the government’s witness on cross-examination but opted not to call any witnesses, and thus the jury never heard from Danchenko. Millian also did not testify, refusing to return to the United States out of fear for his and his family’s safety.
What the jury heard, however, filled some 1,100 transcript pages, with the government presenting testimony and supporting documentation indicating that Danchenko represented to his handler on the four dates specified in the indictment and that he had received a telephone call from an individual he believed to be Millian.
While the defense highlighted through its questioning of the witnesses that Danchenko never claimed to be certain of the identity of the anonymous caller, as the government will stress in its closing statement, the issue isn’t whether Danchenko expressed certainty in identifying Millian as the caller; the issue is whether Danchenko genuinely thought Millian had called him.
He didn’t, the government will argue, highlighting that in his initial email to Millian, Danchenko invited Millian to contact him via phone or email, supplying Millian with a cell number and his email address, but that a subpoena issued to Danchenko’s cell phone provider showed no incoming calls during the relevant time frame that could have been Millian or any other anonymous caller.
In response, Danchenko’s attorneys will remind the jury that Danchenko told the FBI the anonymous call may have come through on a calling app that would not show up on his cell phone records. Danchenko never mentioned a calling app in his message to Millian, the prosecutors will counter, and with numerous different calling apps, Millian would have no way of knowing which one to use. The special counsel’s team will likewise stress that the emails admitted at trial showed that when Danchenko intended to use a calling app he would reference it in his communications.
Prosecutors will further highlight the second email Danchenko sent to Millian that made no mention of a missed meeting or telephone call. Here, Danchenko will counter that, of course, their client didn’t raise the call with Millian since the caller wanted to remain anonymous.
In addition to countering the prosecution’s arguments as noted above, Danchenko will stress to the jury that Auten testified to both the Senate Judiciary Committee and the Office of Inspector General that he believed Danchenko was being truthful about his sub-sources. FBI agent Helson’s testimony that he trusted Danchenko and found Danchenko a credible and valuable source over the years he handled him will also help the defense.
Here, the defense will likely stress the number of cases Danchenko assisted with and also the supposed harm to national security Durham’s prosecution has caused by outing Danchenko as a confidential human source and thereby forcing the FBI to drop him. Look for Danchenko’s attorneys to hint that political payback underlies the case, while Durham’s team will counter Helson’s glowing review of Danchenko by stressing that Danchenko had been a target of an espionage case and that Helson failed to take recommended safeguards to ensure Danchenko’s loyalties lie with the FBI, such as giving him a polygraph exam.
The defense team will likewise stress the timing involved, highlighting that shortly after Danchenko emailed Millian, Millian emailed their mutual friend to inquire who Danchenko was. It was shortly after that email that Danchenko claimed he received the anonymous phone call. Further corroborating Danchenko’s story, his attorneys will argue, is the last-minute train ticket he bought to travel to New York, where the anonymous person supposedly had agreed to meet Danchenko, as well as a Facebook post Danchenko made while in New York stating he had a meeting that evening. Travel records also show Millian arrived in New York from overseas during this time frame. All of these details, the defense will argue, indicate that Millian, in fact, called Danchenko.
Danchenko will also attack the “materiality” element and claim that even if Danchenko had lied, the trial evidence established that his purported falsehoods had no effect on the investigation. The legal standard for materiality, however, only requires a false statement to have “a natural tendency to influence, or [be] capable of influencing, either a discrete decision or any other function of the agency to which it is addressed.” And thus, that the Crossfire Hurricane team had a preordained conclusion in mind — Trump colluded with Russia — is legally irrelevant to the question of materiality.
Further, Durham skillfully elicited from the FBI witnesses that had they known Danchenko never received the supposed call from Millian, that information would have been important to the investigation in several ways. That said, a jury having heard blunder after blunder by the Crossfire Hurricane team may feel any lie by Danchenko is unworthy of punishment.
As this concise summary of the evidence demonstrates, over the course of four days of trial, the special counsel’s office and Danchenko’s defense team both elicited from the half-dozen witnesses evidence that could support a conviction or justify an acquittal of Danchenko. There are two facts, however, that may be Danchenko’s undoing in the jury’s eyes.
First, in his testimony, Helson stressed that handlers will review intel previously provided by their confidential human sources to see if the source might remember more details, but also to assess whether a source is lying. On the latter point, Helson noted that it is difficult for a CHS to remember his lies, so by asking a source to repeat the intel, the FBI is better able to assess when a source is lying.
Danchenko’s handler would also testify that upon asking Danchenko to explain his communications with Millian again, Danchenko claimed he spoke on the phone two times with the individual he believed to be Millian. But Danchenko never before claimed they had spoken two times. That contradiction may well lead the jury to conclude Danchenko had lied about believing Millian called him.
The jury may likewise conclude Danchenko lied about believing Millian had called him because, as Durham’s team stressed during questioning, it makes no sense that a supporter of Donald Trump would then provide a tip disparaging of Trump to an unknown individual.
Later Monday morning, Danchenko’s attorneys and Durham’s team will make many, if not all, of these arguments in their closing statements. And then it will be up to the jury to decide Danchenko’s fate — and Durham’s as well.