FBI malfeasance on trial

The acquittal of Igor Danchenko for making false statements to investigators about his part in providing bogus anti-Trump information for the discredited Steele dossier is, in the end, a footnote. As Russiagate special counsel John Durham argued in summing up the prosecution’s case to the jury, “the elephant in the room” was the FBI. It was the bureau’s malfeasance that was really on trial, and the verdict on that, emphatically, is guilty.

In the short trial, Durham established that the bureau knowingly submitted to the Foreign Intelligence Surveillance Court (FISC) sworn applications that claimed the information supplied by former British spy Christopher Steele had been verified. In reality, not only had the bureau failed to verify Steele’s claims of a “conspiracy of cooperation” between Donald Trump’s 2016 campaign and the Kremlin; it had offered Steele $1 million if he could provide corroborating proof. The FBI never had to pay because neither Steele nor his primary source for anti-Trump “intelligence,” Danchenko, could deliver.

That is not the half of it. The bureau knew Steele was compiling the dossier as opposition research for the Clinton campaign — he’d been contracted by the information firm Fusion GPS, which had been retained by Clinton’s lawyer, Marc Elias. At Danchenko’s trial, Durham elicited testimony from a senior FBI intelligence analyst, Brian Auten, that in a meeting in Rome in October 2016 (the same month that the FBI started using Steele’s fabricated reporting in its FISA application), an agent improperly briefed Steele on “Crossfire Hurricane,” the bureau’s codename for the Trump/Russia probe. That is, even as Steele was providing the FBI with nonsense that he could not back up, the FBI was providing Steele with classified intelligence related to Trump that Steele was then positioned to share with his Clinton campaign sponsors.

During these same weeks in the run-up to the 2016 election, the Clinton campaign was portraying Trump as a mole for Moscow. Simultaneously, Clinton campaign lawyer Michael Sussmann, a former Justice Department attorney, exploited his friendship with the FBI’s general counsel, James Baker, to convey directly to the bureau’s top hierarchy skewed data that he wrongly insisted showed that Trump had established a communications back channel with the Kremlin. Sussmann was the subject of Durham’s last prosecution — for lying to the FBI when he claimed, in conveying the shoddy information, that he was not representing any client in doing so.

As with the Danchenko case, Sussmann’s acquittal — which could be explained by the fact that his misconduct wasn’t as blameworthy as that of the FBI — was secondary in importance to Durham’s unrefuted evidence that the FBI knew Sussmann represented the DNC; that it falsely recorded that the information from Sussmann had come from the Justice Department; and that its headquarters concealed from the bureau’s own investigators the fact that Sussmann was the source, realizing that this would cause the agents to doubt the data (though, as it happened, the data was so half-baked that investigators concluded it was nonsense without being told that the source was biased).

As for the Steele dossier, evidence in Danchenko’s trial showed that the FBI swore that it was duly verified twice, in October 2016 and mid-January 2017, before it finally got around to interviewing the main source, Danchenko. He told interviewing agents that Steele’s reports were spurious. He said he was unaware that Steele had taken the rumor and innuendo he had passed along, embellished them with exaggeration and fabrication, and then wrote them up to appear as professional intelligence reporting — indeed, he claimed not to have seen or known about the so-called dossier until BuzzFeed published it in January 2017 (shortly before the FBI finally interviewed Danchenko).

Under the rules of the FISC, information is supposed to be verified before it is presented to a FISC judge; and, if the FBI or Justice Department learns that significant information previously presented to the FISC is inaccurate, the government must promptly correct the record. Here, far from alerting the court that Steele’s information was unreliable and could not be verified, the FBI continued to rely on it in obtaining additional surveillance warrants in April and June 2017. That is, for more than half a year into Trump’s presidency, a federal court was still being told that the FBI suspected him of being a clandestine agent of Russia.

Even worse, the bureau told the FISA court in April 2017 that it had interviewed Danchenko in an effort to “further” corroborate Steele (whose information had not been corroborated) and that agents found Danchenko to be “truthful and cooperative.” Omitted was the inconvenient fact that what Danchenko had been truthful and cooperative about was the fraudulence of the dossier.

It is fair to question Durham’s judgment in bringing the cases against Danchenko and Sussmann. The charges were weak, largely but not exclusively because the defendants’ alleged misconduct paled in comparison to the FBI’s. Durham’s only conviction was a guilty plea by FBI lawyer Kevin Clinesmith for lying to an agent by altering a key document in the preparation of a surveillance warrant. But even there, the judge imposed a minimal, no-jail sentence after prosecutors put up minimal resistance to Clinesmith’s implausible claim that he hadn’t meant to mislead the court. The unimpressive results will give Democrats and pundits who championed the Trump-Russia smear fodder to argue that Durham’s ultimate report should be ignored. We will wait to review the findings and supporting evidence. In the interim, Durham has done a public service in exposing how imperative it is that the FBI be subjected to searching congressional investigation and reform.

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