Last week, Special counsel John Durham achieved two major victories prior to the criminal trial of ex-Clinton campaign attorney Michael Sussmann, though. In addition to ordering a key witness to appear in court, the judge also agreed to review memos that defense attorneys tried to conceal by claiming attorney-client privilege.
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In a hearing, District Judge Christopher Cooper expressed doubt that memos detailing the Fusion GPS firm’s opposition research on Donald Trump’s ties to Russia – some of which have been made public – were covered by the attorney-client privilege and allowed Durham to review 38 of the documents that prosecutors wish to present at trial later this month.
Cooper said he wasn’t convinced that the Clinton campaign, Sussmann, and his law firm, and Fusion GPS had the blanket privilege over the documents. Cooper cited a memo describing how Fusion counseled a reporter as evidence that Fusion was providing media advocacy and not legal advice.
In addition, Cooper unsealed his order to compel, which granted limited immunity to Fusion GPS computer researcher Laura Seago and ordered her to testify at trial as Durham had requested.
Now the special counsel has a new fight on his hands.
Durham on Tuesday filed documents with the court alleging that the FBI and U.S. intelligence have begun slowly producing documents related to his case against Igor Danchenko, in which prosecutors claim he lied about how he acquired the information that appear in the controversial and discredited Steele dossier that was used against the former president of the United States.
District Judge Anthony Trenga was asked by Durham to extend the deadline for Danchenko’s attorneys to turn over classified materials from May 13 to June 13. Several of the classified documents have already been handed over to the lawyers of Danchenko, although Durham said, “recent world events continue to contribute to delays in the processing and production of classified discovery,” perhaps being an allusion to the Ukraine-Russia situation.
“In particular, some of the officials preparing and reviewing the documents at the FBI and intelligence agencies continue to be heavily engaged in matters related to overseas activities,” Durham wrote on Tuesday, adding that they are “continuing to press the relevant authorities to produce documents in classified discovery as quickly as possible and on a rolling basis, and no later than the proposed deadline set forth below.”
Russian analyst Danchenko was indicted for lying to the FBI in an investigation into alleged Trump-Russia collusion in November. As part of attempting to corroborate allegations in the Steele dossier, FBI officials interviewed him several times throughout 2017 while they attempted to verify the sources of information he provided to former UK intelligence agency Christopher Steele.
During the 2016 election, Steele was hired by opposition research firm Fusion GPS to investigate allegations made against Trump and his campaign members. Fusion GPS was hired by Democratic Party-affiliated law firm Perkins Coie, which was a contractor for the Clinton campaign.
Known collectively as the Steele dossier, the former British spy allegedly conspired with Russians to defeat then-candidate Hillary Clinton in 2016 by writing notes and documents that alleged Trump had ties to the Russian government. Nevertheless, Steele’s work contains numerous false claims, which prompted investigations by the FBI, the IG, and Congress. According to Trump, the allegations are part of a long-running witch hunt meant to smear his administration and delegitimize his reelection bid.
Durham alleges that Danchenko intentionally lied to the FBI when he denounced he was Charles Dolan’s primary source for the Steele dossier in 2017. He is scheduled to go on trial in November 2022.
Danchenko’s attorney, Mark Schamel, said he did not plead guilty to the charges in November. Schamel said Danchenko’s expertise as an analyst was “above reproach” at the time.
“For the past five years, those with an agenda have sought to expose Mr. Danchenko’s identity and tarnish his reputation while undermining U.S. National Security,” Schamel said. “This latest injustice will not stand.”
The indictment claims that Danchenko’s purported false statements to the FBI “were material to the FBI because … the FBI’s investigation of the Trump Campaign relied” on the dossier to get warrants to surveil former Trump campaign aide Carter Page.
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“The FBI ultimately devoted substantial resources attempting to investigate and corroborate the allegations contained in the dossier, including whether Danchenko’s sub-sources were reliable,” according to the indictment. The dossier compiled by Steele and other information provided by Danchenko “played a role in the FBI’s investigative decisions and in sworn representations that the FBI made to the Foreign Intelligence Surveillance Court throughout the relevant time period.”
Approximately 5,000 classified documents were produced by the government to Danchenko’s lawyers as well as 61,000 unclassified documents, Durham said. Most of the classified materials, Durham believes, have been turned over.
In a related development, the trial for former Clinton campaign lawyer Michael Sussmann, who had previously worked for Perkins Coie, is scheduled for later in May. The FBI accuses Sussmann of lying, although he has pleaded not guilty.