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Danchenko's Reasonable Motion To Dismiss
Igor Danchenko—Chris Steele’s source who is being prosecuted by John Durham for alleged false statements to the FBI—is scheduled to go on trial in October. In any prosecution, a defendant’s motion to dismiss, paired with the government’s response, is often a key point, because it provides strong indications regarding both the defense that will be offered as well as how the government will deal with the defense at trial. In a sense it’s a test run before the trial starts. A major caveat to bear in mind is that these motions and responses are directed to the judge, who rules on them as a matter of law. At trial many of those same arguments will be directed, instead, to a jury of the defendant’s peers, and the outcome will hinge on how persuasive the jury finds those arguments.
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Another aspect of these pretrial exchanges is that the government, in responding to the defense motions, may reveal information that was not previously made public. That was the case in Durham’s unsuccessful prosecution of Michael Sussmann. Danchenko’s team has filed their motion to dismiss, and we await Durham’s response.
Margot Cleveland has written an excellent analysis of Danchenko’s motion:
Will John Durham highlight the complicity of the deep state in the Russia-collusion hoax? If not, it might cost him.
Margot found Danchenko’s motion to be intriguing, even though she rates as “weak” as a matter of law. I read the motion when it came out a few days ago and had a similar reaction, with a difference. Margot, in addition to considering the likely response of the judge to Danchenko’s arguments—which she rates as “weak” by the usual legal standards—but also considers the possible effect those same arguments may have on a jury. As I was, Margot was struck by how reasonable Danchenko’s arguments are from a simple common sense standpoint. To which I would simply add that a reading of Danchenko’s motion is an education in how far we have come from the original intent of the statute in question: 18 USC 1001—popularly known as False Statements to the Government.
Margot is absolutely right that under established SCOTUS precedents Danchenko’s “materiality” argument is legally weak. However, I can assure readers that for most of my career this type of “false statement” case would never have been brought. I dealt with this issue at considerable length in this post:
The point is simple enough. The government should not be in the business of manufacturing crimes—mostly “process” crimes. And, in fact, until 1998 or so, 1001 was not used for that purpose—nothing like it. The Danchenko motion illustrates the nightmare world a person can now find themselves trapped in when they speak freely to the government, because it’s not all that difficult to find a “false statement” in almost any recollection. Obviously, for most of us, Danchenko isn’t a terribly sympathetic defendant, but the real point is that that can happen to anyone—it’s the government that decides. If the government likes you, you get a pass. If not, well …
So, on to Margot’s excellent explanation of materiality and what effect the exchange of motions may have going forward.
We’ll skip Danchenko’s more technical arguments regarding whether his statements to the FBI were or were not false. The materiality issue is presented in the first paragraph:
Crossfire Hurricane agents never intended to drop their investigation of Donald Trump, and therefore any lies he told the FBI did not affect their decision-making, Igor Danchenko argued in a motion filed on Friday seeking dismissal of the criminal charges pending against him in a Virginia federal court. With the trial set to start next month, Special Counsel John Durham must now decide whether to acknowledge the deep state’s complicity or risk a second acquittal.
That argument is repeated here:
In seeking dismissal of these five counts, Danchenko’s attorneys argued in the motion to dismiss they filed on Friday that the government’s false statement charges failed as a matter of law because ambiguity in the FBI’s questions and in his own answers make it impossible to show he knowingly lied to the government. What proved more intriguing, however, was Danchenko’s second argument based on “materiality.” Here, in essence, Danchenko argued that his statements, even if knowingly false, could not create criminal liability because they were immaterial to the FBI’s investigation.
I spent several years arguing that there never was any reasonable predication for the Russia Hoax, aka Crossfire Hurricane. We have good reason to believe that John Durham agrees with that assessment, because he very publicly disagreed with IG Michael Horowitz on that precise issue—dismissing the notion that Alexander Downer’s stories about Papadopoulos provided predication for an investigation. I further argued, at great length, that neither was there any predication for the Mueller Witchhunt that Rod Rosenstein set up, because that Witchhunt was also based on the same faked probable cause. It was only later that we got the stunning confirmation of the degree of FBI duplicity, when we learned that Danchenko had, in January 2017, exposed the falsity of the Steele Dossier to the FBI. I had argued—with Andrew McCabe’s concurrence!—that without the Steele Dossier there would have been no FISA but, in addition, no Mueller Witchhunt, because the Mueller Witchhunt was based on the same faked probable cause that the FBI had used in their FISA applications. All the Papadopoulos nonsense was a subterfuge to mask the centrality of the Steele Dossier. Durham knows that and has stated that publicly.
That, in essence, is Danchenko’s argument on the materiality issue. His argument is that the FBI (and the known Deep State cabal) was determined to “get” Trump, and nothing he told them was going to get them to stop investigating Trump. Danchenko told the FBI that the Steele Dossier—the real core of Crossfire Hurricane—was a load of BS. Did that stop the FBI? No, it did not. Having learned that the Steele Dossier was nonsense, the FBI continued to use it to renew the Carter Page FISA. In fact, so little effect did Danchenko’s revelations have on the FBI that they continued to push for the appointment of a Special Counsel. Obviously no little gotcha “false statements” on Danchenko’s part were going to stop the “get Trump” train from rolling down the tracks. Any misstatements, or even false statements, by Danchenko were thus “immaterial.”
The really interesting question is: How will Durham counter that argument at trial? It’s one thing to win the argument with the judge before trial, but it’s quite another thing to win it with the jury. Here’s how Margot puts it:
As a matter of law, Millian’s materiality argument is weak, but as a matter of defense-attorney rhetoric, it holds the potential to score Danchenko an acquittal.
Danchenko did as the FBI asked, his defense will argue to the jury, before stressing that even after Danchenko highlighted Steele’s lies to the bureau, agents continued to investigate Millian. This fact will serve as a lynchpin for Danchenko to argue that his statements, even if false, were immaterial.
Margot’s argument is that it could turn out that Durham’s best response to this defense argument will be to lay bare the wrongdoing by the FBI. Her reasoning is that for Durham to argue that the FBI actually relied to its detriment on Danchenko’s “false” statements could simply prove to be inherently non-credible—a bridge too far for the jury. Thus:
While Durham’s team will argue to the jury — assuming the district court denies Danchenko’s motion to dismiss the indictment — that the alleged lies were capable of influencing several decisions of the FBI agents, the reality is that the jurors will have a hard time buying that proposition unless Durham exposes the malfeasance of the Crossfire Hurricane agents and the members of Mueller’s team. In short, Durham needs to tell the jury that Danchenko’s alleged lies did not actually influence the government’s investigation because the agents were out to get Trump.
But that brings us up against another problem for Durham. If he lays bare the truth for the jury and the world to see—including, possibly, matters not previously revealed—what reasonable jury would convict Danchenko?
And that brings us full circle to what I was saying above, about the nightmarish world the judicially authorized abuse of the False Statement statute has landed us in.