A judge is allowing prosecutors to move forward with their criminal case against an analyst who provided key details for a flawed dossier on ex-President Donald Trump, although the judge called his decision “an extremely close call.”
Lawyers for Igor Danchenko asked a judge Thursday in U.S. District Court in Alexandria to dismiss all five charges against him. He's accused of lying to the FBI about how he obtained the information that ultimately made its way into the “Steele dossier,” a report that purported to detail connections between Trump and Russian intelligence and helped fuel a full-fledged FBI investigation called “Crossfire Hurricane" in the months leading up to the 2016 election.
The dossier famously suggested that Russians had compromising information on Trump regarding salacious sexual activity he allegedly engaged in at a Moscow hotel.
The indictment alleges Danchenko lied about the credibility of his sources when in reality his primary source was actually a Democratic operative named Charles Dolan with ties to Trump's opponent in the 2016 election, Hillary Clinton.
The indictment says the FBI could have better judged the veracity of the Steele dossier had it known that a Democratic operative who volunteered for Clinton was the source of much of the dossier's information.
Danchenko's lawyers argued Thursday that all the charges should be dismissed because Danchenko's answers to the FBI were technically true, if not necessarily illuminating.
Specifically, Danchenko denied that he “talked” to Dolan about the allegations in the dossier. In reality, Danchenko had discussed the accusations in an email with Dolan, but never spoke with him in an oral conversation.
“It was a bad question,” said Danchenko's lawyer, Stuart Sears. “That's the special counsel's problem. Not Mr. Danchenko's. ... He is not required to guess what the question actually means.”
The other counts deal with a statement to the FBI that Danchenko received other details in an anonymous phone call from someone he “believed" to be Sergei Millian, a former president of the Russian-American Chamber of Commerce.
Sears said Danchenko never said with any certainty that Millian was the source and that it can't be a false statement if that was what Danchenko truly believed.
Special Counsel John Durham, who was appointed in 2019 by then-Attorney General William Barr to look for government misconduct in the “Crossfire Hurricane” investigation, said that Danchenko's statements, if examined in context rather than in isolation, will show that he knowingly lied.
He said Danchenko himself used the word “speaking” to refer written words posted on social media accounts. And he said the evidence will show Millian didn't know Danchenko and that Danchenko had no reason to believe that Millian was the anonymous caller that Danchenko cited.
“He knows exactly what the FBI is looking for, the context of those questions,” Durham said.
The judge, Anthony Trenga, acknowledged that the defense's theory “can be a very persuasive, strong argument to a jury,” but he said that ultimately the government met its burden to overcome a motion to dismiss.
It will be up to a jury to determine whether the government can meet its burden of proving a crime beyond a reasonable doubt, a much higher standard. Trenga said he will revisit the issue during trial after the government presents its case.
The most incendiary allegations in the Steele dossier — that Trump hired prostitutes to engage in sexual activity in the presidential suite of the Ritz-Carlton in Moscow — may not be part of the trial at all. Danchenko is not actually charged with lying to the FBI about his sourcing for that specific allegation. But prosecutors want to present evidence to the jury about it nonetheless, and elicit testimony that would suggest Dolan was Danchenko's source for that allegation as well.
Defense lawyers say any testimony about it is irrelevant and prejudicial and threatens to “swallow the trial” if it's allowed in.
Prosecutor Michael Keilty countered that it's important to show Dolan's connection to those allegations.
“It's not going to be a sideshow,” he said. “We're not going to talk about what Mr. Trump did or did not do at the Ritz.”
Trenga took the issue under advisement — he said he had concerns about the relevancy of the information compared to its potential for prejudice, and that he would rule on that and other issues of what evidence will be allowed at trial before it begins Oct. 11.