A federal judge on Friday dismissed the first of five counts special counsel John Durham sought against Russian information analyst Igor Danchenko. The charge in question was recently described by Donald Trump’s attorneys as a critical portion of a so-called “methodically complied” civil complaint against Hillary Clinton and a long list other defendants Trump dubiously accused of racketeering conspiracy in connection with the 2016 presidential campaign.
A federal judge in Florida, U.S. District Judge Donald M. Middlebrooks, threw out Trump’s civil RICO case against Clinton and all of the other defendants named, but Trump’s attorneys have pointed to Durham’s indictment of Danchenko to defend themselves against a request for sanctions filed by Clinton co-defendant Charles Halliday Dolan Jr.
Danchenko Charge Dismissed
Danchenko was accused of five counts of lying to the FBI. The first of those five counts alleged that Danchenko lied to the FBI when he claimed he had not communicated with a public relations executive (since identified as Dolan) “about any material contained” in so-called “Company Reports” (also known as the Steele Dossier, which concerned “Trump’s purported ties to Russia”). Rather, Durham asserted, “in truth and in fact, and as the defendant well knew, PR Executive-1 [read: Dolan] was the source for an allegation contained in a Company Report dated August 22, 2016 and was otherwise involved in the events and information described in the reports.”
U.S. District Judge Anthony Trenga, a George W. Bush appointee who is presiding over Danchenko’s trial, “said in court Friday that Danchenko’s answer to the FBI interviewer ‘was literally true’ and that Durham’s case on that specific charge was too weak to send to the jury,” CNN reported.
FOX News reported that Trenga rubbished the first count against Danchenko during a standard Rule 29 motion for a judgment of acquittal. Such motions are regularly made during criminal trials but are rarely won by defendants because prosecutors generally allege enough information to nose the case over the requisite line necessary for a jury’s consideration. The rule in question reads as follows:
Rule 29. Motion for a Judgment of Acquittal.
(a) Before Submission to the Jury. After the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government’s evidence, the defendant may offer evidence without having reserved the right to do so.
The reason Danchenko’s team won the motion, according to FOX, was because an FBI agent asked Danchenko the following: “You never talked to Dolan about the dossier?” (emphasis added).
The evidence at trial, according to FOX, was that Danchenko answered in the negative.
However, the evidence also indicated that Dolan had provided an email to Danchenko that did make it into the now-infamous and debunked dossier that alleged Trump had ties to Russia.
Thus, according to Judge Trenga, the call of the FBI agent’s question — about whether Danchenko “talked” to Dolan — resulted in a true answer. A “talk” is something verbal; an “email” is a writing. Therefore, Danchenko was correct to say he had not “talked” to Dolan, Trenga reportedly concluded.
Or, in other words, Durham’s team “has not presented any evidence that Danchenko understood ‘talk’ meant more” than a verbal conversation, Judge Trenga reportedly said.
“The language of the question controls,” Trenga also reportedly said while referencing the way the FBI phrased the question. “He [FBI Special Agent Kevin Helson] didn’t ask for written communications or e-mail.”
The judge also reportedly noted that criminal statutes “are not to be loosely construed” and that the “burden is on the questioner to pin the witness down” on precisely what the questioner wants to know. Here, the judge concluded, that did not happen.
The other four counts against Danchenko involve communications with someone else, not Dolan. Those counts will go to the jury.
Defending the RICO Case
Judge Trenga’s decision to toss the count involving Dolan, however, could raise curious questions in connection with a motion for sanctions filed by Dolan against Trump’s attorneys. Dolan wants Trump and his attorneys to pay for tying him into the ex-president’s sprawling yet scuttled RICO case against Clinton, the Democratic National Committee, and others.
Dolan asserted in a motion for sanctions that Trump’s attorneys were flat-out wrong about his own resume and place of residence. He also said Trump’s attorneys twisted the facts — or, at the very least, made illogical inferences from — Durham’s indictment of Danchenko in order to plead civil claims against him.
Trump’s attorneys responded to Dolan’s motion by using Durham’s then-untested indictment as a crutch, as Law&Crime recently pointed out. Trump’s attorneys averred that their amended complaint was sound because it was in line with what the Durham indictment alleged:
Indeed, the Amended Complaint was methodically compiled in reliance on official government documents and other authoritative sources. As demonstrated below, the vast majority of Plaintiff’s allegations against Defendant were sourced directly from Special Counsel John Durham and, more specifically, his criminal indictment against Igor Danchenko. The indictment — which is the culmination of a large-scale, years-long investigation by a highly-qualified federal agency — is rife with actionable allegations against Defendant and provides ample support for the claims asserted Defendant in this civil action. In addition, Plaintiff’s counsel has undertaken significant, diligent, and good-faith steps to assure that the Amended Complaint has a legitimate evidentiary and stands by the adequacy of those efforts.
That filing continues:
In short, [Dolan’s] motion is entirely without merit; it lacks specificity, is devoid of factual and evidentiary support, and is comprised of nothing more than thread-bare legal analysis. Plaintiff’s [Trump’s] claims are rooted in evidentiary support, based on viable legal theories, and present actionable claims against Defendant for his role in furthering the false narrative that Plaintiff colluded with the Russian government to undermine the 2016 Presidential Election.
Judge Trenga’s decision to rubbish the charge therein relied upon by Trump’s attorneys may in turn buttress Dolan’s motion for sanctions — which Judge Middlebrooks has yet to decide.
Dolan just days ago rebutted Trump’s arguments by immediately noting that the untested charge against Danchenko was not, as a matter of law, a firm foundation upon which to build a civil case.
In that reply, Dolan also reasserted that Trump’s RICO lawsuit was littered with “unsupported” factual assertions and “objectively unreasonable” legal theories. He also said sanctions were “especially appropriate precisely because” Trump is a “former president and prominent public figure.”
[Photos as follows: Trump by Mario Tama/Getty Images; Danchenko by Alex Wong/Getty Images; Durham via a U.S. Department of Justice portrait; Clinton by Stefano Mazzola/Getty Images.]
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