RUTHFULLY YOURS

While the seemingly slow pace of Special Counsel John Durham’s “Russiagate” investigation is frustrating to many, it appears that conditions are ripe for a slew of indictments in 2022, holding to account both FBI personnel and a number of other actors connected to Hillary Clinton’s 2016 presidential campaign, possibly including the Clinton campaign itself.

Although grand jury proceedings are kept confidential, COVID restrictions likely caused both its sessions to be postponed and its witnesses to be temporarily excused from appearing. These delays were inevitable and certainly not Durham’s fault.

One strikingly ironic result of the partisan Mueller investigation was that its one-sided focus ignored any attempt to ferret out anti-Trump crimes dealing with “Russian Collusion.” Had it done so, a subsequent investigation, such as Durham’s, might have been foreclosed. In any case, Mueller’s investigation delayed the start of Durham’s.

Durham is scrupulously ethical and does not leak to a thirsty public. That is a good thing, because the partisan Attorney General Merrick Garland would like nothing better than a “good cause” excuse to fire Durham for violating Department of Justice policies. Durham’s silence, though, has frustrated curious citizens.

But recent indictments do tell us something about the focus of Durham’s probe, when viewed alongside other publicly available information such as the Report of FBI Inspector General Michael Horowitz on FBI FISA abuse.

For instance, Durham in the Igor Danchenko indictment does not mention, as does Horowitz in his report, that in his January 24-26, 2017, interview with the FBI, Danchenko said his Steele dossier claims were mainly gossip, rumor, and bar talk. After this interview, for the next year and a half, the FBI told the Foreign Intelligence Surveillance Court (FISC) that it found Danchenko truthful and cooperative, a claim repeated to the Senate. But what the FBI did not tell FISC or the Senate was that Danchenko was truthful and cooperative about the Steele dossier’s being untruthful speculation and jest “over beers.” In short, the central thrust of the FISA application was without factual basis.

Accordingly, any FBI agent who knew of Danchenko’s interview and participated in either of the two subsequent FISA renewal applications or the Senate testimony has potential criminal culpability. The Danchenko interview thus places agents Stephen Somma, Joe Pientka, Peter Strzok, Bill Priestap, Lisa Page, Andrew McCabe, and others in potential jeopardy.

What role FBI General Counsel James Baker played, and what knowledge FBI Director James Comey can be proven to have had, are unknown.

This same analysis can be applied to the FBI chain of command regarding other misstatements or material omissions regarding, for just one example, the failure to disclose Steele’s affiliation with the Clinton campaign. Horowitz has itemized 17 separate such scenarios.

We know that the FBI did not disclose the past cooperation of Carter Page, who was falsely accused of being a Russian agent, and that failure to disclose could be a basis for culpability of the same chain. Moreover, FBI lawyer Kevin Clinesmith altered a CIA email about Carter Page to submit with the fourth warrant application, for which he was indicted. But who else knew of Clinesmith’s actions? Clinesmith is likely cooperating and can name names.

What about Comey? He will claim lack of knowledge about just about everything but for his name, rank, and serial number. Indeed, as to CIA’s referral of an investigative lead on September 7, 2016 suggesting a Russian disinformation plot, Comey testified that this dramatic revelation “doesn’t ring a bell.”

While Comey can perhaps escape revealing much of his guilty knowledge, he cannot credibly deny the July 28, 2016 Oval Office briefing by then CIA Director John Brennan reporting on a possible Russian disinformation plot. This may be the only undisclosed knowledge material to the case that Durham can prove the slippery Comey possessed. If Comey credibly claims that it was not his job to closely “flyspeck” each application, however, he may escape liability.

Now, to the Clinton side of the investigation. A recent Durham court filing noted that Hillary’s campaign manager Robby Mook, her communications director Jennifer Palmieri, and advisor Jake Sullivan were at least witnesses in the scheme involving lawyer Michael Sussman to sell the FBI the false story of an “Alfa Bank server” colluding with the Trump campaign. But Durham has not given us as a hint as to whether any of these three knew that the Alfa Bank claim was the “red herring” other conspirators acknowledged among themselves, which knowledge we await with bated breath.

Then there is the chain from Sussman to his law partner Marc Elias (referred to in the indictment as “Campaign Lawyer-1”), who in turn advised the Clinton campaign, including, perhaps, Hillary Clinton herself—though to what extent is unknown. Elias may thus be a person of interest, but going beyond him may be difficult.

Clinton ally Rodney Joffe, a cybersecurity expert referred to in the indictments as “Tech Executive-1,” at least two researchers delving into non-public data inappropriately, as well as principals and agents of Glenn Simpson’s Fusion GPS, are all possible targets regarding the Alfa Bank canard, along with the Clinton campaign itself.

We know only of the Alfa-Bank hoax from the Sussman indictment, but can infer there are likely other false stories which Clinton aides discussed. For instance, who discussed the false story of Trump lawyer Michael Cohen traveling to Prague to collude with Russia, other than Danchenko and possibly friend Olga Galkina? Who knew that this false story was to be fed to the FBI?

Early in his investigation, Durham reviewed a deposition of the supposed “Russian-connected” Professor Joseph Mifsud, about his revelation to George Papadopoulos of Russian possession of harmful Clinton emails, which in turn began the opening of the FBI “Crossfire Hurricane” investigation.

This counterintelligence investigation was initiated on a false premise if FBI agents knew Mifsud was a Western Intelligence agent provocateur, fabricating the Russian email possession story out of whole cloth. One may infer that high FBI counterintelligence officials Bill Priestap and Peter Strzok knew of this false predication. But it is likely not a crime if FBI agents did not lie to others about Mifsud. Did agents lie to Horowitz or did they reveal in confidence Mifsud’s Western intelligence connection?

Similarly, if any FBI agents were conferring with Sergei Millian as an informer, wouldn’t these agents know that the Steele dossier was false in its implication of Millian? If so, they seemingly concealed this material fact from FISC.

The Mueller team, assisted by the FBI agents assigned to it, prepared a sentencing memorandum for the court in the prosecution of George Papadopoulos, strongly implying that Mifsud was likely a Russian agent, which at least some FBI agents knew to be false. Unless the court was confidentially advised of the truth, there may be grounds for obstruction of justice and false statements.

In short, while there are many possible targets, as described above, only lower subjects on the totem pole will be strongly tempted to point to the culpability of higher-ups, with Clinesmith being a prime example.

In Watergate, the Nixon White House was excoriated, and rightly so, for hinting at executive clemency for the burglars. Similarly, suggestions of pardon by the Biden White House are not unlikely, but also difficult to prove. So don’t expect indictment of the big fish in either the Biden or Clinton camps.

Nevertheless, the New Year should prove very busy and productive for John Durham.