Andrew C. McCarthy: John Durham’s Final Act: Exposing the FBI

Russiagate special counsel John Durham is in the homestretch. His grand jury wrapped up work last week, apparently with no new indictments on the horizon. Attorney General Merrick Garland is said to anticipate receiving his final report by the end of the year. And Durham is gearing up for his last trial: the prosecution of Igor Danchenko, the principal source for the discredited Steele dossier.

That last one should be grabbing our attention. We now know that the so-called dossier compiled by former British spy Christopher Steele was a Clinton campaign production. It is one of the great dirty tricks in modern political history: The 2016 Democratic presidential campaign colluded with the incumbent Democratic administration’s law enforcement and intelligence apparatus to portray their partisan opposition, Donald Trump, as a Kremlin mole, then made the smear stick to the point of forcing Trump to govern for over two years under the cloud of a special-counsel investigation.

This enterprise included substantial reliance by the FBI on the bogus Steele dossier in obtaining spying authorization from the Foreign Intelligence Surveillance Court (FISC) — on sworn representations that the bureau believed Trump was in a “conspiracy of cooperation” with Vladimir Putin’s anti-American regime.

Danchenko turns out to have been Steele’s principal source for this fever dream. Last year, Durham indicted him on five counts of lying to the FBI. But that’s not the half of it. Last week, in a jaw-dropping court submission, Durham revealed that the FBI signed up Danchenko as an informant and paid him for almost three years — from March 2017 through October 2020.

Failure upon failure

If you’re keeping score, that would be throughout (a) most of the FISC-authorized surveillance; (b) the Mueller investigation, which somehow failed to detect — or at least to report — that Danchenko misled the bureau; and (c) Justice Department Inspector General Michael Horowitz’s investigations of the FBI’s misconduct in the Trump investigation — in the reports of which there is no indication that Horowitz was told Danchenko was on the bureau payroll and available to be interviewed.

There’s more. Although Danchenko was the most important source for Steele’s explosive allegations against Trump, the FBI did not interview him prior to using Steele’s dossier in its first two sworn surveillance applications, in October 2016 and January 2017. When the bureau finally got around to questioning Danchenko — because it hadn’t been able to corroborate Steele’s claims despite relying on them in court — it learned that Steele appeared to have exaggerated and possibly fabricated rumors and innuendo about Trump that Danchenko was said to have passed along.

Yet, far from alerting the FISC judges that there was significant reason to disbelieve the information from Steele about Trump — who was by then the incumbent president — the FBI continued to rely on that suspect information in sworn surveillance applications in April and June 2017, based on which the FISC granted additional spying warrants.

Durham’s investigation indicates that Danchenko lied to the FBI multiple times, falsehoods that should have been easy for the nation’s flagship federal investigative agency to run down. Yet they kept him on board, kept paying him.

But it gets worse. While the bureau used inane, unverified information from Steele and Danchenko to suggest to a court that the president of the United States might be a Russian asset, the FBI had intelligence indicating that Danchenko himself might actually have been a Russian asset.

That was detailed in yet another Durham court filing last week, in the Virginia federal court where Danchenko is soon scheduled to be tried. The prosecutor related that Danchenko was “the subject of an FBI counterintelligence from 2009 to 2011.”

Why was the investigation closed? Did the FBI end up finding out that Danchenko was not really a Russian asset? Well, no. In fact, reports from its investigation claim that in 2008, when he was working at the Brookings Institution (a center-left Washington think tank), Danchenko offered to pay two of his fellow researchers for classified information if they got jobs in the incoming Obama administration. There is no indication anything came of this, but upon being tipped off, the bureau did some digging and learned that Danchenko had been in contact with people it was investigating as possible Russian intelligence officers.

So what happened? Unbelievably, Durham now explains that the counterintelligence investigation was closed because “the FBI incorrectly believed that [Danchenko] had left the ­country.”

Yup, you read that correctly.

Déjà vu?

Durham’s investigation suffered a significant setback in the spring when a Washington, DC, jury acquitted Democratic lawyer Michael Sussmann. Durham’s prosecutors presented abundant evidence that Sussmann had falsely told the FBI that he was not working for the Clinton campaign when he peddled spurious information about a supposed Trump-Putin communications back channel. But the prosecutors curiously portrayed the FBI as the victim of Sussmann’s machinations when the proof suggested that the bureau was not fooled at all — and seemed more like a willing participant in building the Trump/Russia political narrative.

Could Durham run into the same problem in prosecuting Danchenko? Could be. After all, Danchenko, like Sussmann, is charged with lying to the FBI, and a jury may once again be left to wonder whether the bureau was actually fooled.

Yet these prosecutions are secondary to the vital story: What role did the FBI, whether by misfeasance or malfeasance, play in the Clinton campaign’s project to paint Trump as a clandestine agent of the Kremlin? For now, we have to hope that Durham’s final report will answer that question.

Andrew C. McCarthy is a former federal prosecutor.

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