This article about the death of the FBI’s informant program should be read in conjunction with my July 2023 article titled The Infamous FBI 1023. I won’t review everything from it but essentially, I expressed concerns about how a then unknown FBI informant’s information was acquired, and how it was being described in the media. Not patting myself on the back too hard, but much of what I wrote has come to pass. We now know much more from the public filing of an indictment and detention motion last week by DOJ Special Counsel David Weiss concerning Alexander Smirnov, aka, the informant.
Recall David Weiss was the U.S. Attorney in Delaware, appointed by President Trump, but acceptable to both state’s democrat U.S. Senators – that’s how U.S. Attorney appointments work. He was responsible for the investigation of President Biden’s son, Hunter Biden, concerning allegations of tax fraud, weapons violations, and potentially, the Foreign Agents Registration Act. After allowing two of the most serious allegations regarding Hunter Biden to expire past the statute of limitations, (something an Assistant U.S. Attorney working for Weiss could be fired for,) he negotiated what many legal scholars described as a “Sweetheart Deal” where Hunter Biden would be charged with two misdemeanors and given immunity for any other federal violations he may have committed.
When a federal judge in Delaware saw through the deal and ordered it rewritten, Weiss complained he lacked authority outside Delaware, and was appointed Special Counsel status by AG Merrick Garland. (Against the DOJ appointment regulation because he was not from “outside” DOJ, but irrelevant for this discussion.) In late 2023, Hunter Biden was charged with gun and tax charges and has plead not guilty.
The Grand Jury Indictment
Now back to Alexander Smirnov, who had been an FBI informant since 2010. Up until last week he was described by the FBI as highly reliable, and his reporting, according to Weiss, was used in several criminal investigations. In 2017, he reported to his FBI handlers about corruption and other matters concerning public officials and businessmen relating to Ukraine. Much of this reporting went back as far as 2015. The information was memorialized on an FBI form FD-1023. In 2020, allegations of corruption surrounding both Hunter and Joe Biden, and Ukraine/Burisma began to surface. Recall, Hunter Biden had been appointed to a Board seat on Burisma at between sixty and eighty thousand dollars a month, despite having no experience in energy.
Then AG William Barr ordered U.S. Attorney Scott Brady to look into the allegations, partially in conjunction with Weiss’ investigation of Hunter Biden. Brady asked Smirnov’s FBI handler to recontact Smirnov and review the reporting from 2017. This contact, in 2020, about previously reported events from 2015 – 2017, became the basis for the infamous FD-1023 that came into the possession of Congress through a whistleblower. And, according to the indictment of Smirnov, (https://s3.documentcloud.org/documents/24429120/240214-smirnov-indictment.pdf) it is the basis for the charge of lying to the FBI, (18 USC – Section 1001). I’m not saying it is a qualified defense, but a substantive criminal charge based on a phoned-in interview the government set in motion, seems like a potential perjury trap. You can be sure Smirnov’s lawyers will argue this at trial.
I expressed concern in my July article that the informant interview appeared to have been conducted by telephone. Not only was this true, the “interview” also included text messages between Smirnov and the handling agent that Weiss included in the indictment. Telephone calls and text messages are terrible techniques for interviewing a witness/informant about allegations concerning a then candidate for President, (or anyone else for that matter.) I speculated the reason for the telephone interview was the informant – Smirnov, was overseas. I was wrong there. According to the indictment, he was in California. I can tell you from experience, FBI agents fly around the country (and the world) on far less significant matters.
Lastly on the 2020 interview and accompanying FD-1023; I have seen analysis from several smart lawyers I trust on social media that the information Smirnov provided in 2020, reflecting on his 2017 reporting about events in 2015, may not be lies at all; That Weiss is misinterpreting dates and locations Smirnov was referring to in two different interviews, three years apart, which his lawyers will prove in court are not lies. Even giving Weiss the benefit of the doubt, and he can prove Smirnov was intentionally lying, this is incredibly weak beer to charge an informant with the federal felony of lying to the FBI. While all FBI informants are routinely admonished about telling the truth, many, if not most of them also routinely shade, embellish, puff, do the James Brown, pick your adjective - about the truth of their reporting. Dealing with fact vs. fiction is a standard part of an FBI agent’s job in handling informants.
The signal to current and potential FBI informants with a high-profile indictment like this is that shading the truth, or even outright lying to FBI agents will result in prosecution, is a death knell for even having an informant program. For many informants, it’s dangerous enough to cooperate with law enforcement and the Intel Community for a host of reasons. Worrying that a prosecutor who has made a number of bad politically-charged decisions in a case might well decide to indict you for, in his view, lying, is a bridge many of them are not willing to cross.
I will also note here that a stand-alone federal charge of 1001 is incredibly rare. The charge usually accompanies any number of more serious substantive offenses, or it’s offered as an inducement to plead guilty in lieu of more serious offenses. FBI lawyer Kevin Clinesmith plead guilty to a similar, (false documents) charge and received probation. George Papadopoulos of Russia Collusion fame pled guilty to a single 1001 count (he wished in retrospect he did not,) and got fourteen days confinement.
Recent, high-profile stand-alone 1001 cases that have gone down in flames include Trump National Security Advisor Michael Flynn – dismissed, (albeit at the request of DOJ,) and Michael Sussmann and Igor Danchenko, who were found not guilty. For all the risk/reward in destroying the FBI informant program by charging Smirnov with a crime he may not even get prison time for – the case against him is not a slam dunk.
Speaking of slam dunks, those were the words used by then CIA Director George Tenant to describe the likelihood there were weapons of mass destruction in Iraq. Recall that significant intelligence in that case came from a CIA/ DIA informant codenamed Curveball. We went to war on that intelligence. And yet, I’m not hearing anything from 51 former intelligence officers who signed a letter in the runup to the 2020 election that the Hunter Biden laptop was Russian disinformation, (it wasn’t) including two former CIA Directors, that informants like Curveball who provide false information should be charged with crimes. Some of those same 51 former intel officers are now claiming, ridiculously, that the information in the Smirnov indictment and motion to detain, vindicate them as right about the Hunter Biden laptop being Russian disinformation. More on that below, but one had nothing to do with the other. The point is, charging FBI informants and Intelligence Community assets with lying is a terrible idea.
The Detention Motion
What Weiss wrote in his thirty-seven-page indictment was gratuitous and meant to send a message, it could have been just one paragraph saying the Grand Jury found probable cause, period. He chose to destroy the FBI informant program to score political points, and he doubled down on his points in a lengthy motion to detain Smirnov. This, in a case in which IF Smirnov is convicted, he’s likely to get zero time in custody. Though, as we’ve seen in other recent DOJ prosecutions, the government will probably seek the maximum five years.
In an attempt to have Smirnov detained without bail, Weiss wrote a twenty-four-page motion, of which six full pages had twelve paragraphs of what was only months ago, highly likely classified information before it was declassified to put in the motion. I know what informant information on foreign officials and intelligence officers in FBI reporting looks like, and it is always classified. Below are just two examples of what Weiss wrote. By the way, the markings (U//FOUO) probably replace the previous classifications markings and stand for “Unclassified//For Official Use Only,” which means only authorized government officials should see and use them. Since they are now on the Internet, every foreign intelligence service in the world can now see them. (https://www.documentcloud.org/documents/24436244-smirnov-release-filing).
6. (U//FOUO) (Document 6)
a. (U//FOUO) In or about November 2023, SMIRNOV reported the following information:
i. (U//FOUO) SMIRNOV learned from sources, including RUSSIAN OFFICIAL 1, that a particular individual, RUSSIAN OFFICIAL 3, is the representative of the former head of a particular unit of a Russian Intelligence Service, RUSSIAN OFFICIAL 4.
ii. (U//FOUO) SMIRNOV provided information about RUSSIAN OFFICIAL 4’s chain of command. SMIRNOV named three individuals who have direct, immediate access to the highest levels of the Russian government, including the father of RUSSIAN OFFICIAL 1.
7. (U//FOUO) (Document 7)
a. (U//FOUO) In or about December 2023, SMIRNOV reported the following information (which is also reported in Document 6).
i. (U//FOUO) SMIRNOV learned from sources, including RUSSIAN OFFICIAL 1, that a particular individual, RUSSIAN OFFICIAL 3, is the representative of the former head of a particular unit of a Russian Intelligence Service, RUSSIAN OFFICIAL 4.
Lest you are consoled that the identities of these foreign officials and intelligence officers is somehow masked by calling them RUSSIAN OFFICAL 1, etc., less than forty-eight hours later Internet sleuths have already filled in the blanks of who they are. As I wrote on X (Twitter) earlier, they are going to have to start building more windows in Moscow for all the officials David Weiss has identified as allegedly cooperating with an FBI informant.
Here are the last three points on this intelligence Weiss included in his detention motion. Smirnov reported this information to FBI agents in October and November of 2023 about potential election interference in 2024. Not 2020 as some of the 51 former intelligence officers are now claiming credit for in their ability to predict the future. As I said above, it was highly likely classified and known only to the FBI and the Intel Community until Weiss plucked it out and put it in a public filing.
Predictably, some in the media have picked up and spun the story that Smirnov is “actively peddling new lies that could impact U.S. elections after meeting with Russian Intelligence officials.” ( https://www.nbcnews.com/politics/joe-biden/ex-fbi-informant-charged-false-claims-fueled-biden-hunter-joe-burisma-rcna139587#) Wait? Who’s peddling new lies? Smirnov is not on social media and has granted no interviews, so how is he peddling new lies? He reported potential intelligence to the FBI, period. If anybody is peddling new lies, it seems to be David Weiss.
Speaking of lies, how rich is it for Weiss to charge Smirnov with the federal felony of lying to federal agents, only to turn around in his request to keep him detained, claim that his statements about Russian intelligence are now true? I believe the legal saying is Falsus in uno, falsus in omnibus; false in one thing, false in everything. It’s the legal principle that a witness who falsely testifies about one matter is not credible to testify about any matter.
Regardless of the outcome in this case, the Department of Justice, in the person of David Weiss (and his team,) has done tremendous damage to the FBI’s (and potentially to the entire Intelligence Community’s) ability to recruit and run informants and assets, and nobody at the FBI can be happy about what he’s done. It wasn’t worth it and looks like DOJ and Weiss playing partisan politics with the FBI’s chips.
What I’m Working On: I will have a major announcement coming this week about the summer release of DEPARTMENT ECHO - AN FBI-CJ HAWK THRILLER. This is a book three years in the making that recently cleared the FBI’s Pre-Publication Review process. I’ll have the cover reveal, story details, and how to pre-order out soon. Keep checking my website www.fxregan.com and X (Twitter) and Instagram @fxregan for details.
Just a thought. The Salem Witch hunt got a lot of innocent people burned at the stake. Could Weis have released this info knowing the KGB would pick up on the people outed even though they could be innocent?