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'Unmasking' Steele dossier source: Was confidentiality ever part of the deal?

'Unmasking' Steele dossier source: Was confidentiality ever part of the deal?
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The news that Christopher Steele’s primary subsource of information for the Steele dossier has been identified shed new light on the role of sources in high-profile FBI investigations and what confidentiality means to them. On July 25, the New York Times reported, based on information from his attorney, that Russia-trained attorney Igor Danchenko was this source for Steele. Danchenko said he provided Steele with information from his own network of sources about then-candidate Donald TrumpDonald John TrumpObama slams Trump in Miami: 'Florida Man wouldn't even do this stuff' Trump makes his case in North Carolina, Ohio and Wisconsin Pence's chief of staff tests positive for COVID-19 MORE’s alleged contact with Russians in the run-up to the 2016 election. 

Danchenko claims the FBI violated a confidentiality agreement with him and that information released in a previously-classified, 57-page FBI report contributed to his identification. He claims he is now in danger. So who does the FBI consider to be a source, and what does that actually mean?

Historically, the FBI has had three categories of sources. Criminal informants comprise a majority of them — the classic criminal informants, or “CIs,” whose identity the FBI would move heaven and earth to protect. Think of a well-placed mafia member who is secretly reporting to the FBI, usually for money, about the inner workings of a crime family. Armed with “lead” information from the source, the bureau would attempt to develop independent evidence of the informant’s reporting in order to prosecute crimes by mafia members. Most CIs are promised up front that, as long as they live up to their end of the bargain — such as not lying or being involved in criminal activity themselves — the FBI will try to ensure their identity will not be revealed. Typically, the bureau does not bring a case to the U.S. Attorney if they cannot make the case without burning the informant.  

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The next category of informants is cooperating witnesses, or “CWs.” Typically, but not always, they are jammed up themselves and agree to cooperate in exchange for either not being prosecuted, or having their cooperation made known to the court for consideration toward eventual punishment. The main characteristic of a CW is confirmation by both parties that the CW might someday have to testify. For example, if an informant agrees to wear a wire, they acknowledge they might have to testify. They typically are not paid, since that would be a relevant factor that would come up during trial and could make it appear they made things up for money. The FBI endeavors to keep a CW’s identity secret until he or she must testify, but it’s not a promise.

Assets are the third category of sources, always associated with national security cases such as international terrorism or counterintelligence. Since these cases usually are classified and rarely involve an asset’s testifying, his or her identity almost always is considered literally “secret.” After 9/11, the FBI looked toward becoming an intelligence-driven agency and started referring to all categories of sources as confidential human sources, or CHS, in a nod to the lingo used in the intelligence community. There are policies regarding the use of different categories of confidential sources, based on how and what they report on. This includes the level of confidentiality they can expect to maintain in the future.  

A former British spy, Steele first became affiliated with the FBI during the criminal investigation into corruption at FIFA, soccer’s international governing body. Since we think he was paid for his work, and the FBI had multiple other streams of evidence, he probably was an informant. He likewise probably was still considered an informant when he started providing his “dossier” information to the FBI in 2016, because again, he was being paid; he referred to himself in this matter as a contractor. Regardless, when he started providing the same information to the news media, the State Department and Department of Justice officials, he violated the terms of his agreement with the FBI and quickly became none of the above. 

Danchenko was another matter. The FBI first interviewed him in late January 2017 after he was identified as Steele’s subsource. His interview was documented on an electronic communication, or EC, an internal FBI communication, and not on an FD-302, which is used to document interviews of witnesses. Nor was it logged on a specific source report form. Since it was made under a proffer agreement with his attorney present — meaning nothing he said could be used directly against him in court — Danchenko must have believed he was in legal jeopardy. This would make him not a traditional source, and certainly not someone who would be promised confidentiality indefinitely. If he continued cooperating with the FBI after the initial interview, he would have been considered a cooperating witness. Yes, the FBI would try to protect his identity, but no promises would be made — and not forever.

Critics who claim that Attorney General William BarrBill BarrPolice accountability board concludes that Seattle police officers used excessive force during encounters with protesters Trump hasn't asked Barr to open investigation into Bidens, McEnany says Seattle, Portland, NYC sue Trump administration over threat to pull federal money MORE has recklessly declassified this FBI electronic communication, putting Danchenko and other sources — and future source operations — in peril are wrong. Steele was a “non-U.S. Person,” and not an FBI source when he was de facto working for the Democratic National Committee and the Hillary Clinton campaign to develop opposition research against Donald Trump. Steele subcontracted this work to Danchenko, also not a government agent or source, who, by his own admission during the FBI interview, provided what he categorized as “bar talk over beers” back to Steele. The fact that this kind of information in an FBI communication was classified as “secret” in the first place is unexplainable. How is bar talk by a collection of drinking friends a threat to the national security of the United States, the very description of what constitutes “secret” information?

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The information that Danchenko provided was the last nail in the coffin of the Steele dossier, and it created a serious dilemma for the FBI. A substantial portion of the Russia collusion narrative, and all of the evidence used in a Foreign Intelligence Surveillance Act (FISA) warrant against former Trump campaign adviser Carter Page, was no longer viable. 

How this all ends will be determined largely by Connecticut U.S. Attorney John DurhamJohn DurhamTrump remarks put pressure on Barr Trump demands Barr investigate Hunter Biden Juan Williams: Trump's search for dirt falls flat MORE’s investigation and pending report into the origins of the failed Russia collusion story, a report that is expected to be released soon.

James M. Casey was a police officer and FBI agent for 32 years. He served on the National Security Council in 2004-2005, and retired as the Special Agent in Charge of the FBI’s Jacksonville Division in 2012. He is president of FCS Global Advisors, a private investigative and crisis management firm.