Durham and the Danchenko verdict: Three questions

In 2019, when John Durham was appointed as special counsel to investigate the origins of the FBI’s probe into contacts between Russia and former President Donald Trump, many on the right cheered. 

Mr. Trump and his supporters hoped Mr. Durham would prove the Russia probe a hoax, the product of a political conspiracy involving Hillary Clinton and other Democrats. Some posted pictures of Mr. Durham dressed as Batman or the Punisher.

“What they did was so illegal, at a level that you’ve rarely seen before,” Mr. Trump said in 2021.

But as the Durham probe nears its end, those hopes are far from realized. On Tuesday, in a case Mr. Durham prosecuted, a jury acquitted Igor Danchenko, a researcher who was a primary source for the infamous Steele dossier, of lying to the FBI.

The Durham team has brought two cases to court on narrow charges and lost both. The grand jury Mr. Durham convened to hear evidence has expired and he appears to be winding down his effort after three years. His last task is likely to be writing a final report to submit to Attorney General Merrick Garland.

“Donald Trump promised that John Durham would expose the ‘crime of the century.’ Instead, he mostly produced over-charged cases against unknown names that resulted in acquittals,” says Barbara McQuade, a professor at the University of Michigan Law School and former U.S. attorney, in an email.

What happened in the Danchenko case?

Federal prosecutors are not used to losing cases. Their conviction rate for cases brought to trial is over 80%, according to Pew Research data.

But Mr. Durham’s federal case against Mr. Danchenko seemed to struggle from the start. The prosecutor pressed forward despite indications that the case was far from a slam-dunk for the government.

Mr. Danchenko was a key source for the Steele dossier, the compendium of unproven assertions and rumors about Mr. Trump’s dealings with Russia that was made public when BuzzFeed published it in 2017. He is a Russian citizen who lives in suburban Washington, D.C., and works as a Eurasian political and economic analyst for American think tanks and other employers.

The FBI was one of those other employers. At trial, an agent described him as an “uncommonly valuable” human source who helped the bureau with dozens of investigations and intelligence reports over the years. 

Mr. Danchenko, however, was swept up in the Durham team’s investigation of the Steele dossier’s origins. In 2021 he was charged with five counts of lying during FBI interrogation.

Prosecutors charged Mr. Danchenko with lying about two things. One was denying that he had “talked” to Charles Dolan, a Democratic lobbyist, about things that later appeared in the dossier.

An FBI agent testified that Mr. Danchenko was telling the truth, since the information in question, if it had indeed come from Mr. Dolan, had been discussed via email, not physical speech. The judge in Mr. Danchenko’s trial agreed with a defense request that this count be dismissed before the case went to the jury.

The second alleged lie dealt with a mysterious phone call Mr. Danchenko said he received in July 2016 from a man who did not identify himself. Mr. Danchenko said that at the time he thought the caller was Sergei Millian, former president of the Russian-American Chamber of Commerce.

The caller never appeared for an agreed-upon meeting.

Prosecutors charged that Mr. Danchenko never received the call, or if he did, whether he really thought Mr. Millian was the person on the other end of the line. They presented phone records showing no call between those two at the purported time.

But Mr. Danchenko’s defense pointed out that both men had phones with various communications apps, such as WhatsApp, which could have been the means of speaking. The jury was unconvinced by the prosecution argument and after nine hours of deliberation over two days cleared Mr. Danchenko of the remaining charges.

Juror Joel Greene told The Washington Post that jurors were “pretty unanimous” in how they viewed the case from the start of deliberations.

Why all the focus on the Steele dossier? 

Mr. Durham made investigation of the Steele dossier a central aspect of his overall probe. The dossier was political from its origins: a law firm that represented Hillary Clinton and the Democratic National Committee hired the research firm Fusion GPS to compile information on Mr. Trump’s possible connections to Russia.

Fusion GPS in turn hired former British spy Christopher Steele to do the actual work.

The dossier contained some salacious charges about Mr. Trump’s personal behavior that seemed dubious from the start. Since then much of it has been shown to be exaggerated, or even Russian disinformation. At the Danchenko trial, FBI agents said they were unable to corroborate it.

But the dossier was not the starting point of the Trump-Russia investigation. In 2019, a Department of Justice Office of the Inspector General report concluded that the officials who opened the case did not know at the time about Mr. Steele’s work. In part the investigation was sparked by information from a foreign government that a Trump campaign worker, George Papadopoulos, said Russia had information damaging to Mrs. Clinton, and might release it.

The FBI did use parts of the dossier in applications for wiretaps on a former foreign policy adviser for the Trump campaign, according to the inspector general report, which harshly criticized the bureau for relying on such a flawed document for investigatory purposes.

What, if anything, comes next? 

In Mr. Durham’s other court loss, a Washington federal court jury in March found cybersecurity lawyer Michael Sussmann not guilty of lying to the FBI concerning his relationship to the Clinton campaign.

In 2020 a former FBI lawyer, Kevin Clinesmith, was sentenced to a year of probation under a plea deal with Mr. Durham in which he admitted that he had altered an email used in an eavesdropping application.

Some Trump supporters have expressed frustration with Mr. Durham’s lack of success in court. GOP Rep. Matt Gaetz of Florida on Wednesday complained that “Durham has been on this investigation for years, and here we are 0-2.”

But others have said that information Mr. Durham has unearthed and attempted to use in court arguments could be more important than convictions. He has compiled a record of FBI malfeasance that, if Republicans win control of the House in November, could lead to an inquiry similar to the 1975-76 Church Committee, a Senate panel that investigated abuses in the CIA, said Kash Patel, a former Trump National Security Council official, on Wednesday.

Mr. Durham is required to produce a concluding report on his activities. However, whether it is publicly released will be up to Attorney General Garland.