The special counsel charged Danchenko late last year with lying to the FBI concerning his role as Christopher Steele’s primary sub-source. Earlier this month, Danchenko asked the court to dismiss the charges against him, claiming his supposed lies to the FBI were not “material” to the government’s investigation. “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,” Danchenko
argued in his motion to dismiss.
As I
explained at the time, Danchenko’s argument is wrong as a matter of law because for a lie to be “material,” “the falsehood need not actually influence the agency’s decision-making process, but merely needs to be ‘capable’ of doing so. Thus, legally speaking, that the Crossfire Hurricane team, and later Special Counsel Robert Mueller’s office, seemed unconcerned with what Danchenko said … is irrelevant. The question is whether the lie was capable of influencing how a hypothetically ‘objective’ government official would have acted had they known the truth.”
The reality remains, however, that the jurors will be unlikely to believe the government’s
argument that Danchenko’s alleged falsehoods “were capable of influencing several decisions of the FBI agents,” unless Durham “tells the jury that Danchenko’s alleged lies did not actually influence the government’s investigation because the agents were out to get Trump.” But additional pre-trial court
filings from the last 10 days
indicate the special counsel’s office has no intention of taking that tack, and will instead argue to the jury “the fact that the FBI apparently did not identify or address” inconsistencies in Danchenko’s stories or follow up with his contradiction of the Steele dossier.
This approach seems destined to fail, doubly so given the recent revelation that the FBI made Danchenko a paid confidential human source (CHS) in March 2017 — a designation Danchenko held until October of 2020. The FBI cleared Danchenko as a CHS even though he had been a subject of an FBI counterintelligence investigation from 2009 to 2011, based on
claims that he had “engaged two fellow employees about whether one of the employees might be willing or able in the future to provide classified information in exchange for money.”