Defense straddles strategies as trial opens for Flynn business partner

By Josh Gerstein

The defense for Gen. Michael Flynn’s former business partner seems not to have decided yet whether they’ve come to bury Flynn or to praise him.

Just a few short weeks ago, defense lawyers for Iranian-American businessman Bijan Rafeikian were intent on trashing Flynn as a serial liar whose word about the Turkey-related lobbying and PR work the pair embarked upon at the height of the Trump presidential campaign could not be trusted.

But after a startling series of developments leading up to the opening arguments in Rafiekian’s trial Monday, including the prosecution’s decision to drop Flynn as a witness, the Flynn partner’s defense team seems to be hedging its bets.

In his opening statement, Rafiekian lawyer Robert Trout referred repeatedly to Flynn’s credentials as a senior Army general and as top intelligence official.

“He was a very senior leader in the Pentagon,” Trout noted. “Taking the lead in this case was a former three-star general — a retired three-star general and former director of the Defense Intelligence Agency. ... You will find out all of the people involved in this enterprise were solid citizens.”

Trout did hint at some aspects of Flynn’s history that might not sit well with some of the seven women and five men chosen earlier Monday to serve as a jury in the case. He cast a bit of shade in Flynn’s direction, painting him as a kind of carnival barker for Donald Trump during his 2016 presidential bid and noting that the pair’s Turkey-related work preceded the notoriety Flynn achieved leading chants at the 2016 Republican National Convention.

“This was well before General Flynn became famous for his ‘Lock her up!’ warm-up act during the Trump candidacy,” the defense lawyer said. “To everyone’s surprise, Trump won and Michael Flynn went from being a warm-up act to becoming an incoming national security adviser for the Trump administration.”

The tack seemed intended to leave the option for Rafiekian’s defense to call Flynn as a witness themselves, to revert to blaming him for any failings relating to the pair’s Turkey-related influence drive, or to argue that Rafiekian was some kind of a patsy in a secret deal Flynn cooked up with the Turks.

Trout’s reference to everyone being surprised by Trump’s 2016 victory obscured a possible darker view of the Flynn case: that Turkey paid and retained the senior Trump adviser in a deliberate attempt to curry favor in the event Trump did win, or at least to inject its views into the presidential campaign.

Isolated evidence supporting that view spilled out publicly earlier this year. A court filing by prosecutors in May showed that the Turkish businessman orchestrating the Flynn-Rafiekian effort, Ekim Alptekin, complained to one of the pair’s aides that Trump wasn’t being supportive enough.

“Republican Presidential candidate has not defended subject’s home country publicly. He should specifically ask questions about subject’s operations and funding,” Flynn aide Mike Boston wrote, summarizing comments from Alptekin. The “subject” appears to refer to the dissident Turkish cleric who was the focus of the lobbying and PR campaign, Fethullah Gulen.

Trout did make a brief reference at the end of his opening to a cryptic statement prosecutors unveiled in the case Friday. In what appeared to be a judge-approved summary of classified evidence relating to the case, prosecutors told the defense that the government has “multiple independent pieces of information” about Alptekin’s “engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign.”

The defense attorney read the confusing statement to jurors, offering little in the way of conclusions except to declare that “the kicker” was that prosecutors admit they have no evidence Rafiekian was aware of this direct interaction with Flynn.

In the criminal case stemming from special counsel Robert Mueller’s investigation, Rafiekian is charged with acting as an unregistered foreign agent for Turkey in the United States and conspiracy related to that offense as well as causing false statements in a FARA filing.

“Bijan never conspired with anyone to violate the laws of our country,” Trout insisted, in one of many references to his 67-year-old client by his first name alone.

Prosecutor John Gibbs told jurors that Rafiekian and an unidentified list of associates deceived the U.S. government about their activities undertaken for Turkey.

“Mr. Rafeikian and his colleagues lied. They lied by not disclosing they were acting on behalf of Turkish officials,” Gibbs said. “They falsely disclosed they were acting on behalf of a Dutch company. That is why we are here today.”

Gibbs led the jurors through some recent history explaining why Turkish officials were so eager to influence U.S. policy in the summer of 2016. The government of President Recep Tayyip Erdogan had just been the target of a coup attempt, which officials in the country blamed on a dissident cleric living in exile in Pennsylvania, Fethullah Gulen.

“Three years ago today, the nation of Turkey erupted in violence,” Gibbs said, doing his best to add some drama to a case largely about foreign-agent registration filings and an op-ed piece little read before Flynn wound up mired in controversy about his foreign dealings.

Gibbs recited to jurors a long, chronology of emails and Skype messages detailing what he described as proof that Turkish officials were involved in approving the influence campaign. The prosecutor also noted various efforts to maintain secrecy about the project and that Turkish officials were intently focused on Flynn, demanding “a full” curriculum vitae for the retired general and complaining when the Flynn partner offered up a shorter bio.

And while Gibbs did not use the word kickback, he described an unusual aspect of the arrangement that had Flynn Intel Group sending back to Alptekin about 20% of the roughly $600,000 it was paid for about three months work.

While the defense suggested that as far as Rafiekian knew, Alptekin or his businesses were paying for the lobbying, the prosecutor’s implication was that the money must have been coming from elsewhere because Alptekin was siphoning some of it off.

While Flynn’s new lawyer recently disparaged the prosecution of Rafiekian as revolving entirely around the Election Day op-ed, Gibbs seemed unapologetic about staking the case on that publication, emphasizing to jurors that Rafiekian celebrated that op-ed in an email to Alptekin, declaring: “A promise made is a promise kept.”

Among the figures on hand in the courtroom gallery for the opening of the trial Monday afternoon in Alexandria federal court: Flynn’s new lead lawyer and frequent Mueller team critic Sidney Powell and former Mueller prosecutor Brandon Van Grack, who now heads up foreign-agent enforcement for the Justice Department. Also present for a time: the U.S. Attorney in Alexandria, Zachary Terwilliger.

Coming less than two months after Mueller announced the end of his high-profile investigation of foreign influence on the Trump presidential campaign, the trial is one of most notable courtroom tests for the Mueller team’s work.

Flynn and Rafiekian declared the project publicly in September 2016 as routine commercial lobbying 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 that 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.

The prosecution of Rafiekian has encountered several setbacks in recent weeks. 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, but Flynn’s 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,” Powell said during the June 27 conference call, according to notes from one of her colleagues.

“No one is asking your client to lie,” Van Grack reportedly shot back, then adding, according to the notes: “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.

While Flynn is not expected as a government witness, prosecutors have signaled plans to call as a witness one of his sons, Michael G. Flynn, who worked as an assistant to his father and allegedly handled some correspondence related to the Turkey work. While prosecutors say they now consider the elder Flynn a co-conspirator in the case, neither the elder nor the junior Flynn have been charged with a crime in connection with the lobbying and PR effort.

During jury selection earlier Monday, about 100 potential jurors filed into a ninth floor courtroom to be questioned by the judge. Almost a dozen prospective jurors said they’d heard something about the case.

One man said he was aware of it from reading the Mueller report. “I’m one of the few people that have, I guess,” he said. He was later excused.

When Trenga asked members of the group whether they had a view of Flynn, several responded that they viewed him unfavorably. “I do have a somewhat negative opinion,” one potential juror said.

Flynn’s son Michael appeared to be less well known. When the judge told jurors there might be references to him in testimony, no one said they knew him or had any opinion about him.

Kian’s case is the second criminal prosecution linked to Mueller’s investigation to go to trial. The first was a tax evasion and bank fraud-focused case against former Trump campaign chairman Paul Manafort, which was heard in the same Alexandria courtroom where the jury was being selected Monday.

That trial resulted in eight felony convictions for Manafort and 10 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.