If you haven’t seen this story yet by Paul Sperry at RealClearInvestigations it is worth your time.
I’m going to return to the subject of Igor Danchenko a few times in the days ahead, but here I want to address just some of the issues that jumped out at me from Sperry’s story, and the story in the New York Times on Saturday claiming that Danchenko was promised confidentiality by the FBI when he agreed to be interviewed about his work for Steele in the weeks following the publication of the Steele Dossier by Buzzfeed in early January 2017.
Let’s begin with the fact that Danchenko did not just walk into an FBI building, show his driver’s license and say “I’m Igor Danchenko. I was Christopher Steele’s primary source on his Steele Dossier memos about President Trump. I’d like to talk with someone about what I said to Mr. Steele.”
The 57 page “Electronic Communication” documenting the 3-day interview is unclear, and the press reporting has been inconsistent on whether the FBI made a possible ID on Steele’s “Primary Subsource” (PSS) identity and sought out Danchenko, or Danchenko contacted the FBI when the Dossier was made public by Buzzfeed and Danchenko realized exactly how much Steele had used from the information Danchenko had given him.
The IG Report on Four FISAs says that the FBI had tentatively identified the PSS as “Person 1” — who is not named in the IG Report — as early as October 2016, and that Person 1 was known to the FBI and that the FBI had an open investigation on Person 1.
Later in the IG Report, it covers the FBI’s January interview with the PSS, which is reflected in the 57-page EC, but the IG Report never confirms that the PSS interviewed was “Person 1” as previously suspected by the FBI. The Report does state that Steele never gave the FBI the identity of his PSS. I have not re-read every word of the IG Report in search of whether the IG confirmed “Person 1” was, in fact, the PSS. If that is true, then the FBI waited a long time — from October to January — to put some pressure on the PSS to submit to an interview. But that assumes that it was the FBI who went to Danchenko, and not the other way around.
What we do know from the IG Report — Footnote 336 — is that David Laufman, Chief of the Export Control Section of the National Security Division of DOJ, told the IG that he negotiated the terms of the Danchenko interview with Danchenko’s attorney.
Laufman told us that he negotiated with the Primary Sub-source’s counsel to facilitate the FBI’s interview and sought to “build a cooperative relationship that could … result in the Bureau’s being in a position to assess the validity of information in the [Steele election reporting] resulting from [the Primary Sub-source’s] activities or the collection of [his/her] sub-subsources. So I saw my role as a broker to get that relationship consolidated .” Laufman said that the portion of the interview he attended established the line of communication with the Primary Sub-source and, as he recalled, generally covered the facts in a “superficial” way. He said that after the completion of the interview, he never saw the FBI’s written summary of the interview.
The IG Report says that Laufman attended only the first day of the 3-day interview and that one of his deputies attended days 2 and 3. Note that Laufman told the IG he never saw the 57 page EC that documented the interview. In my experience that would not be unusual. EC’s are normally internal FBI documents and do not get circulated outside the Bureau. Both Laufman and his deputy were present and able to take notes for themselves. I would be most curious to know — one hasn’t surfaced yet — if either of them prepared a “memo to file” or something similar reflecting what Danchenko said. I would not have done so had I been there — that would be creating another document possibly subject to discovery — though it would likely be covered by a privilege. I would have probably kept handwritten notes, and held onto those for later use if needed.
What is also curious about Laufman’s presence is “Why him?” The reliability of PSS and verification of his information was a key issue in the ongoing Carter Page FISA that was supervised and approved by the Officer of Intelligence of the National Security Division. Why wasn’t it the OI Chief who attended the meeting? Was it to contain the information? Laufman is a partisan Democrat loyalist — he’s made that clear since he left government. That is a question Mary McCord should answer since she was the Acting Assistant Attorney General for the National Security Division at the time, and it would have been her decision — assuming she made it — to have Laufman interact with Danchenko’s attorney, and then attend the FBI interview.
So Laufman’s presence for the first day of the interview was not a coincidence, and it wasn’t because the FBI called him and said “Steele’s PSS is going to be interviewed. Do you want to be present?”
Further, a “use immunity” agreement doesn’t just lay around on a desk somewhere waiting for someone to fill in the blanks, date, and sign it. These documents have various titles, and take various forms and have varying content — “proffer letter” is another common phrase used in describing them. The EC references that a “proffer letter” is attached.
When I first started with DOJ in 1992, each AUSA had their own version of what was then called a “Queen for a Day” letter. I had the “good fortune” — if you want to call it that — to make use of one in my very first case on my very first day, when a subject of an investigation contacted DEA and said he wanted to be interviewed on a matter I was assigned to assist a more senior prosecutor with as part of my training. The senior AUSA told me to draft a “Queen for a Day” letter to be signed at the start of the interview. I didn’t let on that I had no idea what he was talking about, went back to my office and started looking at the DOJ policy manual trying to find out what a “Queen for a Day” letter was. After a couple of hours with no luck, and with the time for the interview fast approaching, the senior AUSA asked if I had the letter ready and I had to confess I had no idea what he was talking about. He had a good laugh and said “It’s a “use immunity” agreement that promises we won’t use anything he says during the interview against him in a trial if we end up in one.” He pulled out a sample from another case file, told me to retype it on my own computer and save it as a form since I’d be needing it regularly in the years ahead. He was right.
Only DOJ attorneys can grant “use immunity.” Law enforcement agents like FBI Special Agents are not allowed to do so. The reason is simply to centralize knowledge of that kind of arrangement with the prosecutor, and not make the granting of such immunity a part of normal “investigative” tactics employed by agents to gather information which prosecutors might not be aware of when building a case. If the case agent thinks it would be useful in a particular situation with a particular person to be interviewed, then he/she brings it to the prosecutor’s attention and they make the decision. The current format used by DOJ has become more standardized. It is almost always in the form of a letter. The content provides that the person has agreed to answer questions from federal law enforcement, with or without the presence of an attorney. The person understands he can be prosecuted for making false statements during the interview if he is not truthful in his responses. However, the answers given during the interview will not be used as “direct evidence” against the person in any future prosecution that might arise. Information learned by the government as a result of the answers given during the interview may be used in any later prosecution. Answering questions under the format does not make the person being interviewed an “informant” or “cooperating witness.” The person acknowledges they have consulted with an attorney on the terms and conditions of the agreement, and the attorney has explained to them all their rights. They are not under arrest, and they can end the interview and depart at any time. By remaining and answering questions, the person is acknowledging that they are doing so voluntarily.
You only go down the road of giving “use immunity” if two conditions are met. First, the person you are giving “use immunity” to has substantial information that will advance the investigation in a meaningful way. Second, the information the person has might also tend to implicate that person himself in criminal conduct of others he is going to provide information about.L
Laufman would have answered those questions before agreeing to give Danchenko “use immunity” by having the attorney make a “proffer” about what it is Danchenko would say on certain subjects if asked. The Steele memos had been public for nearly 3 weeks at the time of the FBI interview with Danchenko. He said in the interview that he had never seen the Steele memos prior to their publication, so it was only at that point that he knew what Steele had attributed to him and his sources.
Before going into the interview, Danchenko’s attorney would have gone over each memo with him, line by line, and found out from Danchenko what was accurately attributed to Danchenko, what was inaccurately attributed, and what was a mix of the two. Regarding inaccuracies, Danchenko’s attorney would have gotten accurate information from him — or a statement from him that he didn’t know anything about the subject.
With that information in hand, Danchencko’s attorney would have been in a position to negotiate a “use immunity” agreement with Laufman. He would have “proffered” to Laufman what Danchenko would say about a variety of matters set forth by Steele in his memos, which would have established why interviewing Danchenko could advance the investigation. Laufman would then have conferred with the FBI CH team about the value of Danchenko’s information as described by his attorney and reached a decision on how to proceed with the interview.
By the end of January 2017, the CH investigation had been ongoing for 6 months. The Carter Page FISA had just been reauthorized, and for more than 3 months the FBI had been receiving information on Page’s history with the Trump campaign and his contacts with Russians. At this point in time, the Bureau’s POV should have been one of deep suspicion about what Steele attributed to his PSS in the memos because we know now that the investigation had not turned up anything substantial or consistent with the suspicions that led to the opening of Crossfire Hurricane or justified the Page FISA warrant.
But the IG Report and the EC of the interview both show that wasn’t the case. Instead, the interview of Danchenko was still looked upon first and foremost as an opportunity to validate all the allegations made about Trump and Trump campaign officials as they were detailed in the Steele memos.
Laufman said it himself – his role was to develop a “cooperative relationship” with the PSS. What Laufman and the CH team members who participated really imagined was that the PSS would become a “Cooperating Human Source” — cutting out Steele — and he would bring to them directly evidence about Pres. Trump from inside Russia through his network of sources.
As the IG Report notes — and has been largely ignored in the reporting on the 53-page EC — Danchenko was interviewed in March and June 2017, long after his initial interview revealed the vacuous and specious nature of the information he had given to Steele. Establishing that continuing relationship is what led to those later interviews.
More later on the Sperry article and the issue of the NYT story about the alleged promise of “confidentiality” — I call bullshi’ite — to Danchenko as a condition of his interview.