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      Judge Narrows Trial of Analyst Who Gathered Steele Dossier Claims About Trump

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      Matters deemed tangential to the charges of making false statements, including a notorious and uncorroborated rumor of a sex tape, will be excluded from the case.WASHINGTON — John H. Durham, the Trump-era special counsel, set off political reverberations last year when he unveiled a lengthy indictment of an analyst he accused of lying to the F.B.I. about sources for the so-called Steele dossier, a discredited compendium of political opposition research about purported ties between Donald J. Trump and Russia.But the trial of the analyst, Igor Danchenko, which opens on Tuesday with jury selection in federal court in Alexandria, Va., now appears likely to be shorter and less politically salient than the sprawling narrative in Mr. Durham’s indictment had suggested the proceeding would be.In an 18-page order last week, the judge overseeing the case, Anthony J. Trenga of the Eastern District of Virginia, excluded from the trial large amounts of information that Mr. Durham had wanted to showcase — including material that undercuts the credibility of the dossier’s notorious rumor that Russia had a blackmail tape of Mr. Trump with prostitutes.Certain facts Mr. Durham dug up related to that rumor “do not qualify as direct evidence as they are not ‘inextricably intertwined’ or ‘necessary to provide context’ to the relevant charge,” Judge Trenga wrote, adding that they “were substantially outweighed by the danger of confusion and unfair prejudice.”In that and other disputes over evidence, Judge Trenga, a George W. Bush appointee, almost always sided with Mr. Danchenko’s defense lawyers. Mr. Durham, they said, had tried to inject irrelevant issues into the trial in “an unnecessary and impermissible attempt to make this case about more than it is.”Judge Trenga’s ruling has pared down the larger significance of the trial, which is likely to be Mr. Durham’s final courtroom act before he retires as a longtime prosecutor. The grand jury that Mr. Durham has used to hear evidence has expired, suggesting he will bring no further indictments.Mr. Durham is also writing a report to Attorney General Merrick B. Garland, who succeeded the Trump administration official who appointed him as special counsel, William P. Barr.Judge Trenga’s ruling has pared down the significance of the trial, which is likely to be John H. Durham’s final courtroom act before he retires as a longtime prosecutor.Samuel Corum for The New York TimesThe dossier, which is at the heart of the Danchenko trial, attracted significant public attention when BuzzFeed published it in January 2017. Mr. Trump and his supporters frequently try to conflate it with the official Russia inquiry or falsely claim that it was the basis for the F.B.I.’s investigation.But the F.B.I. did not open the investigation based on the dossier, and the final report by the special counsel, Robert S. Mueller III, did not cite anything in it as evidence. The F.B.I. did cite some claims from the dossier in applying for court permission to wiretap a former Trump campaign adviser with ties to Russia.The Spread of Misinformation and FalsehoodsElection Fraud Claims: A new report says that major social media companies continue to fuel false conspiracies about election fraud despite promises to combat misinformation ahead of the midterm elections.Russian Falsehoods: Kremlin conspiracy theories blaming the West for disrupting the global food supply have bled into right-wing chat rooms and mainstream conservative news media in the United States.Media Literacy Efforts: As young people spend more time online, educators are increasingly trying to offer students tools and strategies to protect themselves from false narratives.Global Threat: New research shows that nearly three-quarters of respondents across 19 countries with advanced economies are very concerned about false information online.The dossier grew out of opposition research indirectly funded by Hillary Clinton’s presidential campaign and the Democratic National Committee. Their law firm, Perkins Coie, contracted with the research firm Fusion GPS, which subcontracted research about Trump business dealings in Russia to a company run by Christopher Steele, a former British intelligence agent.Mr. Steele in turn subcontracted to Mr. Danchenko, a Russian-born analyst living in the United States, who canvassed people he knew, including in Europe and Russia. Mr. Danchenko verbally relayed what the analyst later called “raw intelligence” — essentially uncorroborated gossip — to Mr. Steele, who drafted the dossier.A bureau counterintelligence analyst determined Mr. Danchenko’s identity and the F.B.I. first spoke to him in early 2017, during which he said he had not seen the dossier until BuzzFeed published it. Its tenor was more conclusive than was justified, he said, and he portrayed the blackmail tape story as mere rumor and speculation.Mr. Danchenko talked to the F.B.I. for hours about what he had gathered, and court filings by Mr. Durham disclosed that the bureau formally deemed him a confidential human source.An inspector general report revealed in late 2019 that Mr. Danchenko’s interview had raised doubts about the credibility of the dossier and criticized the bureau for failing to tell that to a court in wiretap renewal applications that continued to cite it. The report essentially portrayed Mr. Danchenko, whom it did not name, as a truth-teller, and the F.B.I. as deceptive.But after further investigation, Mr. Durham accused Mr. Danchenko of deceiving the F.B.I. — including by concealing that a public relations executive with ties to Democrats, Charles Dolan, had been his source for a minor claim involving office politics in the Trump campaign. That assertion made its way into the dossier.At the trial, Mr. Danchenko’s defense will apparently be that the F.B.I. asked him whether he had ever “talked” to Mr. Dolan about information in the dossier and that his somewhat equivocal denial was true: They had instead communicated by writing about that topic.Mr. Danchenko is accused of making false statements to the F.B.I.Chip Somodevilla/Getty ImagesDefense lawyers had asked Judge Trenga to throw out the charge, arguing that the particular statute Mr. Danchenko had been charged with covers only affirmative misstatements, not misleading omissions. The judge has characterized that issue as a close call but let it go forward, while suggesting he could revisit the question later.Mr. Durham had also wanted to present striking but inconclusive evidence: In the summer of 2016, when Mr. Danchenko went to Moscow to gather rumors like the one about a purported sex tape, Mr. Dolan was staying at the hotel where the tape had supposedly been filmed three years earlier — and toured the suite where Mr. Trump had stayed.But Mr. Dolan told Mr. Durham’s team that he had never heard the tape rumor until BuzzFeed published the dossier, and Mr. Durham did not claim that Mr. Dolan was a source of the rumor. The judge excluded that information from the trial as irrelevant to the false statements Mr. Danchenko is charged with making.Mr. Durham also brought four false-statement charges against Mr. Danchenko related to accusations that he lied to the F.B.I. about a person he said had called and provided information without identifying himself.Mr. Danchenko told the F.B.I. he believed the caller had probably been Sergei Millian, a former president of the Russian-American Chamber of Commerce, but Mr. Durham contends that is a lie and Mr. Danchenko never believed that.Like Mr. Steele, Mr. Millian is abroad; he refused to come to the United States to be a witness at the trial. The judge has also ruled inadmissible two emails Mr. Millian apparently wrote about Mr. Danchenko in 2020 denying that he talked to Mr. Danchenko.The “emails lack the necessary ‘guarantees of trustworthiness’ as the government does not offer direct evidence that Millian actually wrote the emails, and, even if he did, Millian possessed opportunity and motive to fabricate and/or misrepresent his thoughts,” the judge wrote.After Mr. Durham was assigned to investigate the Russia investigation in the spring of 2019, Mr. Trump and his supporters stoked expectations that Mr. Durham would uncover a “deep state” conspiracy against him and charge high-level F.B.I. and intelligence officials with crimes.But instead, Mr. Durham developed two cases on narrow charges of false statements involving outside efforts to uncover links between Mr. Trump and Russia. One was against Michael Sussmann, a lawyer with Democratic ties who was acquitted of lying to the F.B.I. when he shared a tip about possible connections between Mr. Trump and Russia. Another was against Mr. Danchenko.Mr. Durham filled court filings with copious amounts of information seemingly extraneous to the charges, while insinuating that Democrats had conspired to frame Mr. Trump for colluding with Russia.While that was not the theoretical conspiracy Mr. Trump and his supporters at outlets like Fox News had originally focused on, Mr. Durham’s filings provided fodder for them to stoke grievances about the Russia investigation. But judges in both cases have proved skeptical about putting much of that material before a jury.In both instances, however, Mr. Durham’s earlier filings had already made that information public.Mr. Danchenko was the subject of a counterintelligence investigation more than a decade ago, after the F.B.I. received a tip that he had made a remark that someone interpreted as an offer to buy classified information. He had also had contact with someone at the Russian embassy believed to be an intelligence officer. The bureau closed the case in 2011 without charging him.Mr. Danchenko — who made his name as a Russia analyst by bringing to light evidence that President Vladimir V. Putin likely plagiarized parts of his dissertation — has denied being a Russian agent and said he has no memory of the purported remark. For now, the judge has barred Mr. Durham’s team from introducing details about that inquiry, although prosecutors can tell the jury that there had been one.In an interview last month with the conservative Washington Examiner, Mr. Barr suggested that despite the special counsel’s limited achievements in the courtroom, the investigation was a success from another point of view.“I think Durham got out a lot of important facts that fill in a lot of the blanks as to what was really happening,” Mr. Barr said, adding that he expected “the Danchenko trial will also allow for a lot of this story to be told, whether or not he’s ultimately convicted.” More

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      Possibility of Obstruction Looms Over Trump, Affidavit Suggests

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      Unredacted portions of the affidavit point to a crime that has been overshadowed amid disputes over classified information.WASHINGTON — When the Justice Department proposed redactions to the affidavit underlying the warrant used to search former President Donald J. Trump’s residence, prosecutors made clear that they feared the former president and his allies might take any opportunity to intimidate witnesses or otherwise illegally obstruct their investigation.“The government has well-founded concerns that steps may be taken to frustrate or otherwise interfere with this investigation if facts in the affidavit were prematurely disclosed,” prosecutors said in the brief.The 38-page affidavit, released on Friday, asserted that there was “probable cause to believe that evidence of obstruction will be found at” Mr. Trump’s Mar-a-Lago compound, indicating that prosecutors had evidence suggesting efforts to impede the recovery of government documents.Since the release of the search warrant, which listed three criminal laws as the foundation of the investigation, one — the Espionage Act — has received the most attention. Discussion has largely focused on the spectacle of the F.B.I. finding documents marked as highly classified and Mr. Trump’s questionable claims that he had declassified everything held at his residence.But by some measures, the crime of obstruction is a threat to Mr. Trump or his close associates that is as much or even more serious. The version investigators are using, known as Section 1519, was part of the Sarbanes-Oxley Act, a broad set of reforms enacted in 2002 after financial scandals at companies like Enron, Arthur Andersen and WorldCom.The heavily redacted affidavit provides new details of the government’s efforts to retrieve and secure the material in Mr. Trump’s possession, highlighting how prosecutors may be pursuing a theory that the former president, his aides or both might have illegally obstructed an effort of well over a year to recover sensitive documents that do not belong to him.To convict someone of obstruction, prosecutors need to prove two things: that a defendant knowingly concealed or destroyed documents, and that he did so to impede the official work of any federal agency or department. Section 1519’s maximum penalty is 20 years in prison, which is twice as long as the penalty under the Espionage Act.Julie O’Sullivan, a Georgetown University law professor who specializes in white-collar crime, said the emerging timeline of the government’s repeatedly stymied attempts to retrieve all the documents, coupled with claims by Mr. Trump that he did nothing wrong because he had declassified all the documents in his possession, raised significant legal peril for him.“He is making a mistake in believing that it matters whether it’s top secret or not,” she said. “He is essentially conceding that he knew he had them.” If so, she added, then not giving them back was “obstructing the return of these documents.”The cloud of potential obstruction carries echoes of the Russia investigation led by the special counsel, Robert S. Mueller III. That inquiry ended up being as much about how Mr. Trump had sought to impede his work, as it was about scrutinizing Russia’s efforts to manipulate the 2016 election and the nature of myriad Russian links to people associated with Mr. Trump’s campaign.Explore Our Coverage of the Trump InvestigationsWhite House Documents: Mr. Trump kept more than 700 pages of classified documents, according to a letter from the National Archives. The Justice Department is said to have retrieved more than 300 classified documents from Mr. Trump since he left office.A Showdown in Georgia: Senator Lindsey Graham is fighting efforts to force him to testify before an Atlanta special grand jury investigating election interference by Mr. Trump and his allies in the state.Invoking the Fifth Amendment: Sitting for a deposition in the New York attorney general’s civil inquiry into his business practices, Mr. Trump repeatedly invoked his constitutional right against self incrimination.In a coincidence, the Justice Department on Thursday revealed an internal document commissioned by then-Attorney General William P. Barr that laid out purported justifications for his pronouncement in 2019 that Mr. Trump was cleared of obstruction suspicions, despite every episode recounted in the Mueller report. This time, however, the Justice Department is not overseen by a Trump loyalist.Because of the heavy redactions in the newly released affidavit, it remains unclear whether there is any other investigation or official agency effort that law enforcement officials think Mr. Trump or people in his circle might have obstructed in refusing to turn over the government documents. But at a minimum, it is clear that the government’s efforts to retrieve the records have repeatedly been impeded.The timeline laid out in the redacted affidavit, which fills in several gaps in the public understanding, traces back to May 6, 2021. On that day, as The New York Times reported this week, the general counsel for the National Archives first reached out to Mr. Trump’s designated representatives to the agency and asked for the return of about two dozen boxes of missing documents. More

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      Memo Details Barr’s Justifications for Clearing Trump of Obstruction

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      A document released by court order showed how in 2019, Justice Department lawyers argued that President Donald J. Trump had not illegally impeded the Russia investigation.WASHINGTON — The Biden administration released a Trump-era memorandum on Wednesday that provided the most detailed look yet at the Justice Department’s legal reasoning for proclaiming that President Donald J. Trump could not be charged with obstruction of justice over his efforts to impede the Russia investigation.The March 2019 memo, delivered to the attorney general at the time, William P. Barr, concluded that none of Mr. Trump’s actions chronicled in the report by the special counsel, Robert S. Mueller III — from firing his F.B.I. director to pressuring the White House counsel to recant his testimony to prosecutors — could be shown beyond a reasonable doubt to be criminal acts.Many of these actions, two senior Justice Department officials wrote, should be interpreted by an inference that Mr. Trump “reasonably believed” the investigations were impeding his government agenda, meaning he lacked the corrupt intent necessary to prosecute him for obstruction.The Justice Department under both the Trump and the Biden administrations fought unsuccessfully in court to avoid releasing the full text of the memo, which was the subject of a Freedom of Information Act lawsuit by the government watchdog group Citizens for Responsibility and Ethics in Washington.After losing in court on Friday, the Justice Department had the option to appeal the case. But the department’s senior leadership decided to release the document, according to a senior official in federal law enforcement. The leadership never opposed airing its contents, but had contested its release on narrower legal grounds, the person added.The memo’s release in 2022 — long after the Mueller investigation and its aftermath — is largely significant for historical reasons. While Mr. Barr immediately pronounced Mr. Trump cleared of any obstruction of justice offense, he never discussed in detail his rationale for rejecting many of the episodes in the Mueller report.The memo to Mr. Barr was signed by Steven A. Engel, the head of the Office of Legal Counsel, and Ed O’Callaghan, the principal associate deputy attorney general who had been the main liaison between the Justice Department and the special counsel’s office.Outside specialists in white-collar law greeted the disclosure of the memo with some skepticism, describing its tone as essentially that of a defense lawyer in a trial rather than an even-handed weighing of the law and evidence.“Not impressed,” said Samuel Buell, a Duke University law professor and former federal prosecutor. “It reads more like a defense lawyer’s brief than a full and balanced analysis citing the legal authorities.”Among the most significant episodes of potential obstruction described in the Mueller report was Mr. Trump’s dangling of a potential pardon before witnesses like Paul Manafort, his former campaign chairman, while encouraging him not to cooperate with investigators. Mr. Manafort was convicted of financial crimes, and Mr. Trump pardoned him late in his administration.The Trump InvestigationsCard 1 of 6The Trump InvestigationsNumerous inquiries. More

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      Read the Justice Department’s Memo to Attorney General William P. Barr

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      Subject: Review of Special Counsel’s Report Page 4

      The Special Counsel’s Report cites over a dozen federal obstruction decisions in the Report, yet in nearly every one, the charged conduct involved (i) inherently wrongful acts to destroy evidence, to create false evidence, or to tamper with witnesses or jurors, and (ii) an effort to prevent the investigation or punishment of a separate, underlying crime. We have identified only two cases that lack one of those elements. The first is Arthur Anderson LLP v. United States, 544 U.S. 696, 707-08 (2005), which concerned the destruction of evidence in advance of an expected SEC investigation. Although there was no evidence in that case of an underlying crime, the exception essentially proves the rule, because the Supreme Court vacated the conviction precisely because the prosecution could have covered innocuous conduct. When it comes to actions otherwise lawful in themselves, the Court emphasized the need to “exercise restraint in assessing the reach of a federal criminal statute,” because of the need to provide “fair warning.” Id. at 696, 703-04. The Court emphasized that such restraint is particularly appropriate where the “act underlying the conviction… is by itself innocuous,” is not “inherently malign” and could be performed for appropriate, non-criminal reasons. Id. In construing the obstruction statute, the Supreme Court observed that “corrupt” and “corruptly” “are normally associated with wrongful, immoral, depraved, or evil” conduct, and the Court vacated the conviction because the jury instruction did not meet that demanding standard. Id. at 705.

      The Report also cites United States v. Cueto, 151 F.3d 620, 631 (7th Cir. 1998), which was a case that clearly involved an effort to protect an underlying crime-namely an illegal gambling operation but that also involved actions that would have been lawful if undertaken for a noncorrupt purpose. The Seventh Circuit there affirmed the conviction of one of the owners of the gambling operation, because he had repeatedly abused state court processes in order to take discovery from grand jury witnesses in an effort to impede the federal investigation. Although the obstruction charge involved otherwise lawful conduct, we cannot describe it as in any way resembling the facts described in the Special Counsel’s Report.²

      In our prior discussions, the Special Counsel has acknowledged that “we have not uncovered reported cases that involve precisely analogous conduct.” See Special Counsel’s Office Memorandum to the 600.4 File, Preliminary Assessment of Obstruction Evidence, at 12 (July 3, 2018). Indeed, in seeking to identify cases in which the misuse of otherwise lawful authority established an obstruction case, the memorandum cited three charging documents, two of which arose from state court and thus did not involve federal criminal violations. See id. All three cases involved an effort to use official authority to prevent the prosecution or punishment of a distinct crime. The one federal case did not involve just the abuse of official authority, but rather witness tampering and manufacturing false evidence, concerns that go to the heart of the obstruction statutes. Accordingly, there simply does not appear to be any clear legal precedent similar to the kinds of conduct evaluated here.

      2

      The Special Counsel also cites United States v. Cintolo, 818 F.2d 980, 992 (1st Cir. 1987), which recognized that “any act by any party-whether lawful or unlawful on its face-may abridge § 1503,” but that case involved both an inherently wrongful act (tampering with a grand jury witness) and separate, underlying crimes (an illegal gambling and loan-sharking operation). More

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      With Trump, Merrick Garland Can’t Afford to Miss

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      The two weeks since the F.B.I. descended on Mar-a-Lago have felt remarkably familiar. It’s not just that Donald Trump is dominating headlines once again; it’s that all the hits of 2017 and 2018 are being played again: legal experts cobbling together complex theories out of fragmentary information, exciting Twitter speculation about espionage and treason, a “this time we’ve got him” spirit unseen since the days of Bob Mueller devotional candles.The familiarity is useful; it means that we can look back and consider why they didn’t “get him” then, why Russiagate ended in a relative fizzle and sealed Republicans into a permanent suspicion of any investigation into Trumpian malfeasance.The Russia investigation was predicated — in the public eye and, at least in part, in its legal origins — on dire and dramatic scenarios: that Donald Trump had been cultivated as an agent of influence by Moscow, that there was a secret alliance between Trump’s inner circle and Russian intelligence, that the Trump campaign and the Russians had effectively collaborated in the hacking and dissemination of the Democratic National Committee’s emails. (And lordy, that maybe there was a pee tape.)None of these scenarios were proved by the investigation. As many Trump critics hastened to argue, the Mueller report did not exonerate the president or his campaign from wrongdoing. But the guilt established or suggested involved many things done in the clear light of day in an election that Trump won (encouraging Russian hackers and touting the information released), things attempted but never brought to fruition (some hapless, “Burn After Reading”-level attempts to connect with Russian dirt peddlers) and possible obstructions of justice in the course of the Mueller inquiry.Meanwhile, it also became clear that the investigation itself was guilty of process abuses, particularly in the way that the F.B.I. went about obtaining FISA warrants. And there was an obvious feedback loop between this investigative overreach and the overheated media coverage — the fact that law enforcement was unwisely using the infamous Steele dossier as a predicate encouraged journalists to amplify the dossier’s extreme scenarios, because after all, if the F.B.I. took them seriously, they must be very serious indeed.The endpoint of the investigation, then, reminded everyone that Trump is a self-interested intriguer surrounded by low-minded hacks. But it also made both the feds and the press look as if they had overreached in search of a Watergate ending. And for the partisan mind, the second part loomed inevitably larger, confirming Trump’s supporters in their belief that whatever sins their man might commit, the deep state was always out to get him.Now here we are again, and like the decisions of Mueller and James Comey before him, Merrick Garland’s choices turn on facts that the public can see only through a glass darkly. But I sincerely hope that the attorney general had the Russiagate experience in mind when he signed off on the search of Mar-a-Lago and that he considers how Mueller’s investigation finished as he considers his next move.The lesson to be drawn is emphatically not that Trump needs to be given permanent immunity because of a “don’t arrest ex-presidents” rule or out of fears that his supporters will take to the streets or launch lone-wolf attacks on the F.B.I.The lesson, rather, is that if the agents of the state come after Trump, and especially now when they come as representatives of an administration that might face him in the next election, they can’t afford to miss.Not only in the jury box but also in the court of public opinion, it needs to be clear, crystal clear, what separates any crimes he might be charged with from — for example — the perjury and obstruction of justice that didn’t send Bill Clinton to prison or the breach of intelligence protocols that Hillary Clinton wasn’t charged with. You don’t just need a plausible legal case that tests interesting questions about presidential declassification powers; you need an easy-to-explain slam-dunk.So if you have Trump taking design documents for nuclear weapons and shopping them to his pals in Saudi Arabia, congratulations — you got him; lock him up. If you have him taking boxes of notes from foreign leaders because he’s a childish egomaniac who thinks that he’s earned his White House souvenirs, well, then take the documents back, declare victory for the public interest and stop there. And if he took documents about the Russia investigation itself, of the sort that he wanted declassified during his presidency, well, tread carefully, lest you trap us all in an awful time loop where it’s forever 2017.It seems like a reasonable presumption that the documents in question are more serious than just some notes to Kim Jong-un but that the potential incrimination falls short of Trump literally selling secrets. But that’s a presumption, not a prediction. I’ve learned to be unsurprised by Trump’s folly and venality but also by his capacity to induce self-defeating blunders among people and institutions I would have considered relatively sensible before his ascent.So no predictions, just the warning: Don’t miss.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTOpinion) and Instagram. More

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      Garland Becomes Trump’s Target After F.B.I.’s Mar-a-Lago Search

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      The F.B.I. had scarcely decamped from Mar-a-Lago when former President Donald J. Trump’s allies, led by Representative Kevin McCarthy of California, began a bombardment of vitriol and threats against the man they see as a foe and foil: Attorney General Merrick B. Garland.Mr. Garland, a bookish former judge who during his unsuccessful Supreme Court nomination in 2016 told senators that he did not have “a political bone” in his body, responded, as he so often does, by not responding.The Justice Department would not acknowledge the execution of a search warrant at Mr. Trump’s home on Monday, nor would Mr. Garland’s aides confirm his involvement in the decision or even whether he knew about the search before it was conducted. They declined to comment on every fact brought to their attention. Mr. Garland’s schedule this week is devoid of any public events where he could be questioned by reporters.Like a captain trying to keep from drifting out of the eye and into the hurricane, Mr. Garland is hoping to navigate the sprawling and multifaceted investigation into the actions of Mr. Trump and his supporters after the 2020 election without compromising the integrity of the prosecution or wrecking his legacy.Toward that end, the attorney general is operating with a maximum of stealth and a minimum of public comment, a course similar to the one charted by Robert S. Mueller III, the former special counsel, during his two-year investigation of Mr. Trump’s connections to Russia.That tight-lipped approach may avoid the pitfalls of the comparatively more public-facing investigations into Mr. Trump and Hillary Clinton during the 2016 election by James B. Comey, the F.B.I. director at the time. But it comes with its own peril — ceding control of the public narrative to Mr. Trump and his allies, who are not constrained by law, or even fact, in fighting back.“Garland has said that he wants his investigation to be apolitical, but nothing he does will stop Trump from distorting the perception of the investigation, given the asymmetrical rules,” said Andrew Weissmann, who was one of Mr. Mueller’s top aides in the special counsel’s office.“Under Justice Department policy, we were not allowed to take on those criticisms,” Mr. Weissmann added. “Playing by the Justice Department rules sadly but necessarily leaves the playing field open to this abuse.”Mr. Mueller’s refusal to engage with his critics, or even to defend himself against obvious smears and lies, allowed Mr. Trump to fill the political void with reckless accusations of a witch hunt while the special counsel confined his public statements to dense legal jargon. Mr. Trump’s broadsides helped define the Russia investigation as a partisan attack, despite the fact that Mr. Mueller was a Republican.Some of the most senior Justice Department officials making the decisions now have deep connections to Mr. Mueller and view Mr. Comey’s willingness to openly discuss his 2016 investigations related to Mrs. Clinton and Mr. Trump as a gross violation of the Justice Manual, the department’s procedural guidebook.The Mar-a-Lago search warrant was requested by the Justice Department’s national security division, whose head, Matthew G. Olsen, served under Mr. Mueller when he was the F.B.I. director. In 2019, Mr. Olsen expressed astonishment that the publicity-shy Mr. Mueller was even willing to appear at a news conference announcing his decision to lay out Mr. Trump’s conduct but not recommend that he be prosecuted or held accountable for interfering in the Russia investigation.But people close to Mr. Garland say that while his team respects Mr. Mueller, they have learned from his mistakes. Mr. Garland, despite his silence this week, has made a point of talking publicly about the investigation into the Jan. 6 attack on the Capitol on many occasions — even if it has only been to explain why he cannot talk publicly about the investigation.“I understand that this may not be the answer some are looking for,” he said during a speech marking the first anniversary of the Capitol attack. “But we will and we must speak through our work. Anything else jeopardizes the viability of our investigations and the civil liberties of our citizens.” More

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      More Evidence Bolsters Durham’s Case Against Michael Sussman

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      Separately, defense lawyers asked a judge to block the Trump-era special counsel from making the Steele dossier a focus of next month’s trial.WASHINGTON — The Trump-era special counsel scrutinizing the Russia investigation has acquired additional evidence that may bolster his case against a Democratic-linked lawyer accused of lying to the F.B.I. at a September 2016 meeting about Donald J. Trump’s possible ties to Russia, a new court filing revealed.In the politically high-profile case, the lawyer, Michael Sussmann, is facing trial next month on a charge that he falsely told an F.B.I. official that he was not at the meeting on behalf of any client. There he relayed suspicions data scientists had about odd internet data they thought might indicate hidden Trump-Russia links.The new filing by the special counsel, John H. Durham, says that the night before Mr. Sussmann’s meeting, he had texted the F.B.I. official stating that “I’m coming on my own — not on behalf of a client or company — want to help the bureau.”The charge against Mr. Sussmann, which he denies, is narrow. But the case has attracted significant attention because Mr. Durham has used filings to put forward large amounts of information, insinuating there was a conspiracy involving the Hillary Clinton campaign to amplify suspicions of Trump-Russia collusion. Mr. Durham has not charged any such conspiracy, however.The disclosure of the text to the F.B.I. official in question, James A. Baker, then the bureau’s general counsel, was part of a flurry of late-night filings on Monday by prosecutors and the defense centering on what evidence and arguments the judge should permit in the trial.At the same time, the filings suggest that the special counsel may use the trial to continue to examine larger efforts linked to the Clinton campaign that raised suspicions about potential collusion between the Trump campaign and Russia — including the so-called Steele dossier.The dossier is a notorious compendium of opposition research about purported Trump-Russia ties, since revealed to be thinly sourced and dubious. It was written by Christopher Steele, a subcontractor for Fusion GPS, a research firm that Mr. Sussmann’s former law firm, Perkins Coie, had hired to scrutinize such matters.Mr. Sussmann, a cybersecurity specialist, had worked for the Democratic Party on issues related to Russia’s hacking of its servers. One of his partners at Perkins Coie, Marc Elias, a campaign law specialist, was representing the Clinton campaign and hired Fusion GPS.Mr. Durham’s new filing refers to the dossier and Mr. Steele — including a meeting with Mr. Sussmann that Mr. Steele has said involved the suspicions about the odd internet data — and Mr. Sussmann’s legal team said that Mr. Durham appears to be planning to bring up the dossier at the trial even though the indictment does not mention it.Mr. Sussmann’s defense lawyers accused Mr. Durham of promoting a “baseless narrative that the Clinton campaign conspired with others to trick the federal government into investigating ties between President Trump and Russia,” asking the judge to block prosecutors from making arguments and introducing evidence related to the Steele dossier.“But there was no such conspiracy; the special counsel hasn’t charged such a crime; and the special counsel should not be permitted to turn Mr. Sussmann’s trial on a narrow false statement charge into a circus full of sideshows that will only fuel partisan fervor,” they wrote.The Durham team’s filing also asked the judge to bar the defense from making arguments and presenting evidence “that depict the special counsel as politically motived or biased based on his appointment” by the Trump administration.“The only purpose in advancing these arguments would be to stir the pot of political polarization, garner public attention and, most inappropriately, confuse jurors or encourage jury nullification,” it said. “Put bluntly, the defense wishes to make the special counsel out to be a political actor when, in fact, nothing could be further from the truth.”In the spring of 2019, the special counsel investigating the Trump campaign and Russia, Robert S. Mueller III, detailed “numerous links between the Russian government and the Trump campaign” but did not charge any Trump associate with conspiring with Russia. As Mr. Trump continued to claim that he was the victim of a “deep state” conspiracy, the attorney general at the time, William P. Barr, assigned Mr. Durham to scour the Russia investigation for any wrongdoing.But Mr. Durham has not developed any cases against high-level officials. Instead, he has brought false-statements charges involving two efforts by outsiders to hunt for signs of Trump-Russia links, both of which were thin and involved Perkins Coie in some way. He has used the indictments to insinuate that the Clinton campaign may have orchestrated the concoction of false smears against Mr. Trump, but without charging such a conspiracy.One such effort was the Steele dossier, and the other was the suspicions that Mr. Sussmann relayed to Mr. Baker. The latter suspicions had been developed by a group of data scientists who analyzed odd internet data they thought might suggest clandestine communications between a server for the Trump Organization and a server for Alfa Bank, a Kremlin-linked Russian financial institution.The F.B.I. — which had already opened the investigation that would evolve into the Mueller inquiry — looked into the Alfa Bank matter but decided the suspicions were unfounded.After Mr. Sussmann’s indictment, several criminal law specialists said the charge was an unusually thin basis for a federal case because it boiled down to a dispute over what was said at a one-on-one meeting at which there were no other witnesses and there was no recording. But the newly disclosed text message from Mr. Sussmann could bolster prosecutors’ case.In accusing Mr. Sussmann of falsely saying he was not conveying the suspicions on behalf of any client, the indictment also contended that he was concealing that he was actually representing two clients at that meeting — the Clinton campaign and a technology executive, Rodney Joffe, who worked with the cyberspecialists who analyzed the Alfa Bank data. Law firm billing records show that Mr. Sussmann listed the campaign for time working on Alfa Bank issues.Mr. Sussmann’s legal team has denied that he told Mr. Baker he was not conveying the information on behalf of any client. They also insisted to the Justice Department before the indictment that Mr. Sussmann was not there at the direction or on behalf of the campaign. In court filings, they have acknowledged that Mr. Sussmann “arranged for this meeting on behalf of his client,” referring to Mr. Joffe.The defense for Mr. Sussmann therefore may turn in part on what it means to be somewhere on behalf of a client. In a separate filing on Monday night, the defense asked the judge, Christopher Cooper of the Federal District Court for the District of Columbia, to dismiss the case if Mr. Durham does not grant immunity to Mr. Joffe, so that the technology executive can testify about his interactions with Mr. Sussmann regarding the meeting.In that filing, they said Mr. Joffe would offer “critical exculpatory testimony on behalf of Mr. Sussmann,” including that the two agreed that he should take the information to the F.B.I. “to help the government, not to benefit Mr. Joffe.” They also said that “contrary to the special counsel’s entire theory,” Mr. Joffe’s work with the data scientists was not connected to the campaign.A spokeswoman for Mr. Joffe did not provide a comment. But a letter from Mr. Joffe’s lawyer included in the filings said that while Mr. Joffe “can provide exculpatory information concerning the allegations against” Mr. Sussmann, Mr. Joffe still faced the possible risk of indictment and would invoke his Fifth Amendment rights not to testify. More

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      William P. Barr’s Good Donald Trump and Bad Donald Trump

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      ONE DAMN THING AFTER ANOTHERMemoirs of an Attorney GeneralBy William P. BarrIt’s a rare Washington memoir that makes you gasp in the very second sentence. Here’s the first sentence from William P. Barr’s “One Damn Thing After Another,” an account of his two turns as attorney general: “The first day of December 2020, almost a month after the presidential election, was gray and rainy.” Indeed it was. Here’s the second: “That afternoon, the president, struggling to come to terms with the election result, had heard I was at the White House. …” Uh, “struggling to come to terms with”? Not exactly. How about “struggling to overturn the election he just lost” or “struggling to subvert the will of the voters”? Maybe “struggling to undermine American democracy.”Such opening vignettes serve a venerable purpose in the Washington memoir genre: to show the hero speaking truth to power. Barr had just told a reporter that the Justice Department had “not seen fraud on a scale that could have effected a different outcome in the election.” This enraged the president. “You must hate Trump,” Trump told Barr. “You would only do this if you hate Trump.” But Barr stood his ground. He repeated that his team had found no fraud in the election results. (This is because there was none.) By the end of the book, Barr uses the election controversy as a vehicle for a novel interpretation of the Trump presidency: Everything was great until Election Day, 2020. As Barr puts it, “In the final months of his administration, Trump cared only about one thing: himself. Country and principle took second place.” For Barr, it was as if this great president experienced a sudden personality transplant. “After the election,” Barr writes, “he was beyond restraint. He would only listen to a few sycophants who told him what he wanted to hear. Reasoning with him was hopeless.”The heart of “One Damn Thing After Another” concerns the earlier days of Trump’s presidency when, apparently, “country and principle” took first place. In his December confrontation with Trump, Barr recalls a comment that may be more revealing than he intends: “‘No, Mr. President, I don’t hate you,’ I said. ‘You know I sacrificed a lot personally to come in to help you when I thought you were being wronged.’”Sarah Silbiger/The New York TimesThis, as the rest of the book makes clear, is the real reason Barr came out of a comfortable retirement in early 2019 to serve as Jeff Sessions’s successor as attorney general. Barr — who thought Trump was “being wronged” by the investigation into the 2016 election led by Robert S. Mueller III, the special counsel — wanted to come to Trump’s defense. Barr refers to the allegations that Trump colluded with the Russians in the lead-up to the election as, variously, the “Russiagate lunacy,” the “bogus Russiagate scandal,” “the biggest political injustice in our history” and the “Russiagate nonsense” (twice). Barr was as good as his word and sought to undermine Mueller and protect Trump at every opportunity. As Barr reveals in his book, Trump first asked him to serve on his defense team, but Barr later figured he could do more good for the president as attorney general. He was right.Throughout, Barr affects a quasi-paternal tone when discussing Trump, as if the president were a naughty but good-hearted adolescent. When Trump says repeatedly that he fired the F.B.I. director James Comey because of the Russia investigation, Barr spins it as, “Unfortunately, President Trump exacerbated things himself with his clumsy miscues, notably making imprecise comments in an interview with NBC News’s Lester Holt and joking around with the Russian foreign minister and ambassador the day after firing Comey.” The just-joking defense is a favorite for Barr, as it is for the former president. In a strikingly humorless book, there is one “funny” line from Trump: “‘Do you know what the secret is of a really good tweet?’ he asked, looking at each of us one by one. We all looked blank. ‘Just the right amount of crazy,’ he said.” (Rest assured that Barr says the president spoke “playfully.”)During his confirmation hearing, Barr promised to make Mueller’s report public — and he contrived to do so in the most helpful way for the president. In the key part of the report, concerning possible obstruction of justice by Trump (like firing Comey to interfere with the Russia investigation), Mueller said he was bound by Justice Department policy barring indictments of sitting presidents. So, instead of just releasing the report as he had promised, Barr took it upon himself to decide whether Trump could be charged with obstruction of justice. Barr “cleared the decks to work long into the night and over the weekend, studying the report. I wanted to come to a decision on obstruction.” And then, mirabile dictu, Barr concluded that the president had not violated the law, and wrote a letter to that effect. When the Justice Department got around to releasing the actual report several weeks later, it became apparent that the evidence against Trump was more incriminating than Barr let on, but by that point the attorney general had succeeded in shaping the story to the president’s great advantage.Doug Mills/The New York TimesBarr portrays Mueller, a former colleague and friend from their service in the George H W. Bush administration, as a feeble old man pushed around by liberals on his staff. To thwart them, Barr took extraordinary steps to trash Mueller’s work. On the eve of the sentencing of Roger Stone, Trump’s longtime political adviser, for obstruction of justice, Barr overruled the prosecutors and asked for a lighter sentence: “While he should not be treated any better than others because he was an associate of the president’s, he also should not be treated much worse than others.” In fact, Stone was being sentenced pursuant to guidelines that apply in all cases, but in this one and only instance, Barr decided to intervene.Even more dramatic was Barr’s intercession on behalf of Michael Flynn, who pleaded guilty to lying to the F.B.I. Prodded by Flynn’s attorney, Sidney Powell, who later emerged as a principal conspiracy theorist in the post-2020 election period, Barr not only allowed Flynn to revoke his guilty plea but then dismissed the case altogether. “I concluded that the handling of the Flynn matter by the F.B.I. had been an abuse of power that no responsible A.G. could let stand,” he writes. Suffice it to say that none of the thousands of other cases brought by the Justice Department during Barr’s tenure received this kind of high-level attention and mercy; moreover, it was rare, and perhaps even unprecedented, for the department to dismiss a case in which the defendant pleaded guilty.The only scalps Barr wanted were of those in the F.B.I. who started the Russia investigation in the first place. He writes, “I started thinking seriously about how best to get to the bottom of the matter that really required investigation: How did the phony Russiagate scandal get going, and why did the F.B.I. leadership handle the matter in such an inexplicable and heavy-handed way?” He appointed a federal prosecutor named John Durham to lead this probe, which has now been going on longer than the Mueller investigation, with little to show for it.Drew Angerer/Getty Images“One Damn Thing After Another” begins with a fond evocation of Barr’s childhood in a conservative family nestled in the liberal enclave surrounding Columbia University in New York City. His mother was Catholic, and his father Jewish (though he later converted to Catholicism), and Barr gives a lovely description of his elementary school education at the local Corpus Christi Church. (George Carlin went there too. Go figure.) Barr went on to Horace Mann and then Columbia, where he developed an interest in China. After college, he worked briefly at the C.I.A. while attending night law school, where he excelled. He moved up the ranks in the Justice Department until the first President Bush made him attorney general, at 41, in 1991. He was a largely nonideological figure, mostly preoccupied, as many were in those days, with getting surging crime rates under control.The next quarter-century brought Barr great financial rewards as the top lawyer for the company that, in a merger, became Verizon. More to the point, it brought a hardening of his political views. Barr has a lot to say about the modern world, but the gist is that he’s against it. While attorney general under Trump, he dabbled as a culture warrior, and in his memoir he lets the missiles fly.“Now we see a mounting effort to affirmatively indoctrinate children with the secular progressive belief system — a new official secular ideology.” Critical race theory “is, at bottom, essentially the materialist philosophy of Marxism, substituting racial antagonism for class antagonism.” On crime: “The left’s ‘root causes’ mantra is really an excuse to do nothing.” (Barr’s only complaint about mass incarceration is that it isn’t mass enough.) Barr loathes Democrats: President Obama, a “left-wing agitator, … throttled the economy, degraded the culture and frittered away U.S. strength and credibility in foreign affairs.” (Barr likes Obama better than Hillary Clinton.) Overall, his views reflect the party line at Fox News, which, curiously, he does not mention in several jeremiads about left-wing domination of the news media.Barr is obviously too smart to miss what was in front of him in the White House. He says Trump is “prone to bluster and exaggeration.” His behavior with regard to Ukraine was “idiotic beyond belief.” Trump’s “rhetorical skills, while potent within a very narrow range, are hopelessly ineffective on questions requiring subtle distinctions.” Indeed, by the end, Barr concludes that “Donald Trump has shown he has neither the temperament nor persuasive powers to provide the kind of positive leadership that is needed.”Barr’s odd theory about Good Trump turning into Bad Trump may have more to do with his feelings about Democrats than with the president he served. “I am under no illusion about who is responsible for dividing the country, embittering our politics and weakening and demoralizing our nation,” he writes. “It is the progressive left and their increasingly totalitarian ideals.” In a way, it’s the highest praise Barr can offer Trump: He had the right enemies. More