Less than two months after former special counsel Robert Mueller announced the end of his high-profile investigation of foreign influence on the Trump presidential campaign, his office’s work is facing one of its most notable courtroom tests as a former business partner of Gen. Michael Flynn fights foreign-agent-related charges stemming from Mueller’s probe.
Jury selection is set to open Monday morning in federal court in Alexandria, Va., for Bijan Rafiekian, an Iranian-American businessman facing two felony charges connected to a short-lived lobbying and public-relations campaign Flynn and Rafiekian undertook in 2016 that targeted a dissident Turkish cleric living in Pennsylvania, Fethullah Gulen.
Flynn and Rafiekian declared the project publicly in September 2016 — while Flynn was serving as a top adviser to Republican presidential nominee Donald Trump — as a routine commercial lobbying project for a Dutch business.
However, as Flynn’s connections to Russia and other foreign countries came under intense scrutiny in early 2017 during his short stint as Trump’s national security adviser, FBI agents and prosecutors concluded that the lobbying was actually being done at the direction of Turkey’s government.
In March 2017, attorneys for Flynn and his Flynn Intel Group made a belated, “retroactive” filing under the Foreign Agents Registration Act, acknowledging that the work Flynn and Rafiekian did trying to get Gulen expelled from the U.S. “could be construed to have principally benefitted the Government of Turkey.”
When Flynn pleaded guilty to a single felony false-statement charge in December of that year, the central allegation he admitted to was lying to the FBI about his dealings with the Russian ambassador during the presidential transition.
But Flynn also admitted to the court, under oath, that the registration for the Turkey-focused project contained a series of falsehoods and omissions that minimized its connections to Turkey’s leadership.
Now, Rafiekian, better known as Kian, is set to go on trial on charges of acting as an unregistered foreign agent for Turkey in the United States and conspiracy related to that offense and of making false statements in a Foreign Agents Registration Act filing. He faces a maximum possible sentence of 15 years in prison if convicted on both charges, although he’d likely receive a much shorter term under federal sentencing guidelines.
The case against Kian, now being handled by prosecutors from the Alexandria U.S. Attorney’s Office and the Justice Department’s National Security Division, has encountered major obstacles in recent weeks that have raised more doubts about whether Kian will be convicted.
An acquittal in the case will almost certainly be portrayed by Mueller’s critics — including Trump—as more evidence that the special counsel’s investigation was unwarranted and that his prosecutors overreached in their efforts to target Trump’s inner circle.
One of the biggest challenges facing the prosecution in Kian’s case stems from an acrimonious falling-out between prosecutors and a new legal team recently retained by Flynn.
Flynn — who agreed to cooperate with authorities as part of his 2017 plea deal — had been expected to be the government’s star witness against Kian, but defense lawyers signaled late last month that Flynn was planning to testify that he never intentionally lied in the registration for the Turkey-related work and that he never read the submission before signing it.
Notes submitted to the court by Flynn’s lawyers say prosecutors became livid upon hearing of Flynn’s current version of events and accused him of going back on what he admitted to in 2017 and reaffirmed at another court hearing last year. Flynn’s lawyers insisted there was no reversal and complained that prosecutors were trying to get him to alter his best recollection of what happened.
“You are asking my client to lie,” Flynn lawyer Sidney Powell said during the June 27 conference call, according to notes from one of her colleagues.
“No one is asking your client to lie,” prosecutor Brandon Van Grack shot back, the notes say. “Be careful about what you say.”
About a week later, prosecutors declared that they were dropping plans to call Flynn as a witness at Kian’s trial. In an email to lawyers involved in the case, prosecutors said they had doubts about the truthfulness of his testimony.
Prosecutors suffered another setback in the case last week as U.S. District Court Judge Anthony Trenga ruled that he had not seen sufficient evidence of Kian’s involvement in a conspiracy in the case to allow the prosecution to let jurors see out-of-courts statements Flynn made about the Turkey-related work. Those statements—some made in emails—would ordinarily be inadmissible hearsay, but could be shown to jurors if the court finds proof of a conspiracy between the men.
Flynn’s lawyers hailed the ruling as an indication their client never broke the law in connection with the Turkey-related lobbying and an Election Day op-ed Flynn published calling for Gulen’s expulsion from the U.S. However, Trenga did not exonerate Flynn, but simply said prosecutors never handed over to him any proof about Flynn’s role.
In a court filing Saturday, prosecutors said they plan to ask Trenga to revisit the issue during the trial as evidence of Flynn’s connection to the case is presented to the jury.
Over the weekend, prosecutors and Kian’s lawyers engaged in last-minute legal jockeying over what jurors would or could be told if Flynn doesn’t testify in the case. Defense attorneys want to be able to argue to jurors that Flynn’s absence shows the fundamental weakness of the government’s case.
“It is no exaggeration that without Flynn’s cooperation, there would be no case against the Defendant at all,” Kian’s attorneys wrote. “Flynn is also highly motivated to assist the Government because his sentencing in his own criminal case is still outstanding. The fact the Government has now decided not to call Flynn, its once-central witness, is a damning indictment of the Government’s case, and the jury should be permitted to consider it.”
Prosecutors want the judge to foreclose any such argument, noting that the defense has the power to subpoena Flynn or any other witness it thinks may have testimony useful to Rafiekian’s case.
Kian’s lawyers also made a last-ditch effort to try to require prosecutors to show that Kian knew acting for Turkey in the U.S. was a violation of U.S. law. The statute Kian was indicted under last year typically doesn’t require such a showing.
The Kian case’s close ties to Mueller’s investigation were confirmed again Sunday as prosecutors publicly filed copies of a pair of grand jury subpoenas issued to Flynn’s firm in 2017. One issued in April of that year bears the name of a prosecutor in the U.S. Attorney’s Office in Alexandria, William Sloan.
However, another issued two months later carries the name of Van Grack, who handled the Flynn case as part of Mueller’s team and has continued to do so as he took a new job earlier this year overseeing foreign-agent enforcement for the Justice Department.
Still unclear is how the tumult surrounding the Kian trial will impact Flynn’s sentencing, which remains unscheduled after being repeatedly delayed to allow for Flynn to complete his now-unlikely testimony in the case.
As the battle between prosecutors and Flynn’s team escalated last week, Flynn’s attorneys leveled what appeared to be serious, if vague, claims of impropriety in Mueller’s investigation.
“While new counsel for Mr. Flynn has barely scratched the surface, counsel has identified crucial and troubling issues that should concern any court,” Powell and other Flynn lawyers wrote in a submission to Washington-based U.S. District Court Judge Emmet Sullivan.
Prosecutors handling Flynn’s case have yet to indicate whether they regard the breakdown of their relationship with the retired general and ex-national security adviser as so serious that it would cause them to change their earlier recommendation that he serve no jail time.
Prosecutors told Sullivan last week that once Kian’s trial is over they plan to “reassess” their position on sentencing and advise the court whether the earlier, lenient recommendation still stands.
Kian’s case is only the second criminal prosecution linked to Mueller’s probe to actually go to trial. The first was a tax evasion and bank fraud focused case against former Trump campaign chairman Paul Manafort heard in an Alexandria courtroom two floors above where Kian’s trial will take place.
That trial resulted in eight felony convictions for Manafort and ten counts where the jury could not reach a unanimous verdict. Manafort later pleaded guilty to two other charges in a separate case Mueller brought in Washington and was sentenced to about seven-and-a-half years in prison.
All of Mueller’s other cases against individuals resulted in guilty pleas or were filed against Russian citizens who have never appeared in court. One Russian business is still fighting a felony conspiracy charge of involvement in a campaign to interfere in the 2016 U.S. presidential election through social media posts and organizing grassroots activism by Americans who were unaware they were being targeted by Russian provocateurs.
Article originally published on POLITICO Magazine