Gen. Michael Flynn’s former lawyer testified Tuesday that Flynn’s business partner was upset by the decision to submit a foreign-agent filing for their Turkey-related work and even began talking about a heart condition when told of the plan to make the disclosure.
Prosecutors called ex-Flynn attorney Robert Kelner as a witness Tuesday at the trial of Bijan Rafiekian, 67, an Iranian-American businessman who was Flynn’s key counterpart in a lobbying and consulting firm the retired Army general opened after leaving government, Flynn Intel Group.
During about two-and-a-half hours on the witness stand in federal court in Alexandria, Va., Kelner appeared to do some damage to Rafiekian by telling jurors that the Flynn associate never shared key information about links between the lobbying work and Turkish government officials.
Kelner also said Rafiekian, better known as Kian, seemed upset by the lawyers’ recommendation in early 2017 that the firm make a retroactive filing about the work Flynn’s firm did to try to build support for the extradition from the U.S. of a dissident Turkish cleric, Fethullah Gulen.
“My recollection is that he was not happy about it. In part, he was not happy about the suggestion that FIG’s work primarily benefited the Government of Turkey,” Kelner said.
The Covington & Burling lobbying and election law expert also said he remembered a “late-night” phone call where Rafiekian indicated some aspect of the planned Foreign Agent Registration Act submission was affecting his health.
“I don’t remember in great detail what was said during that conversation. What I do know is that he was concerned about the FARA filing and he told me he had had a heart condition — had had a heart attack or cardiac event in the past and he was concerned about the FARA filing,” Kelner said.
Rafiekian is charged with acting as an unregistered foreign agent for Turkey and of a conspiracy to fail to register and to make false statements to the Justice Department’s foreign-agent watchdogs in a belated March 2017 filing detailing work Flynn’s firm did to try to build support for the extradition from the U.S. of Gulen.
Flynn was not charged in the case. As part of a plea deal cut in 2017 with special counsel Robert Mueller’s office, the government agreed not to prosecute Flynn for anything related to the Turkey-focused lobbying.
Flynn pleaded guilty to a single count of making false statements to the FBI during his brief tenure as President Donald Trump’s national security adviser, but also conceded that he made false statements and omissions in the belated foreign-agent filing.
Flynn’s firm reported that it was hired by Inovo BV, a Dutch firm controlled by Turkish citizen Ekim Alptekin. But there were several unusual aspects to the $600,000 arrangement, including at least two $40,000 payments back to Alptekin.
Prosecutors have suggested that the payments indicate funding for the project was coming from some entity other than Alptekin, perhaps the Turkish government. Kelner testified Tuesday that when Kian saw a draft FARA filing that described the payments as “kickbacks,” he wanted that language changed.
“These showed up as consulting fees” in Flynn’s firm’s accounting records, the attorney recalled. “He wanted that changed to refunds.”
Kelner never quite said he didn’t believe Kian, but did say his colleagues couldn’t find any indication that the money reflected services that were never provided. “We spent a lot of time trying to figure out what the payments were,” the Covington lawyer said. “We did not believe there was any evidence to support the proposition that these payments were refunds.”
Another unusual discovery by Kelner’s team in its inquiry into what the Flynn group called “Project Confidence” was that while Alptekin’s Dutch business was supposedly paying for and directing the work as part of an effort to improve U.S-Turkish business relations, everything Flynn and his colleagues did as part of the engagement focused on Gulen’s extradition. No other aspect of the U.S.-Turkey relationship was addressed.
“Did you identify any work product that was not about Gulen?” prosecutor Evan Turgeon asked.
“Not to the best of my recollection,” Kelner replied.
No real sparks flew during Kelner’s testimony, although there was evident friction during his cross-examination by Rafiekian defense attorney Mark MacDougall. Kelner often seemed to resist what MacDougall viewed as uncontroversial suggestions.
When MacDougall asked if Flynn was “very smart,” Kelner hesitated and appeared reluctant to offer a simple, “Yes.”
“I would say that he is someone who was very accomplished in life and very wise and I’d say very smart in the field he worked in,” Kelner said, referring to Flynn’s intelligence career and eventual role as head of the Defense Intelligence Agency.
The thrust of MacDougall’s cross-examination was aimed at showing that Kelner was the FARA expert and Kian was simply seeking advice, so was dependent on the sophisticated lawyers at Covington to decide who needed to register, under what law, and what details should go on the form.
“This is a murky area, is that right?” MacDougall asked.
“That’s right,” Kelner said.
There were also suggestions from the defense that any misstatements on the forms might have originated with Flynn and that Kelner’s loyalties primarily lay with the general, who was the key client.
In their opening statement to the jury on Monday, the prosecution accused Rafiekian and “his colleagues” of conspiring to violate U.S. law regulating lobbying activities on behalf of foreign governments, but no direct accusation was leveled at Flynn.
Technically, Kelner was not testifying against Flynn, because Flynn isn’t formally charged in the case. However, in the wake of their decision not to call Flynn as a witness, prosecutors have said they consider him a co-conspirator.
Flynn dropped Kelner and Covington last month, switching to a new legal team headed by Sidney Powell, a Texas lawyer who has been a frequent critic of Mueller’s team.
No public reason has been given for the switch, although Kelner said during questioning by MacDougall that some invoices Covington sent to Flynn’s firm were never paid. “Some of our bills are unpaid,” Kelner said, without elaborating.
While a defense lawyer testifying for the government is always a rarity, Kelner’s appearance seemed to take on extra awkwardness. The judge called Flynn’s new legal team inside the bar of the courtroom just after Kelner took the stand. The three new Flynn attorneys, including lead counsel Sidney Powell, sat just feet from Kelner as he testified.
They voiced no objections publicly, although they took part in some sidebar conferences that the public could not hear.
One notable moment came late in the day as MacDougall again told jurors about a mysterious statement prosecutors handed to the defense last week disclosing that the government has undisclosed evidence that Flynn and Alptekin interacted in ways unknown to Kian, and that Alptekin hired Flynn due to his role on the Trump campaign.
The defense attorney asked Kelner if he knew what the statement alludes to.
“Ummm….I would say no. I learned of that through a media report last week,” said Kelner, who represented Flynn through extensive negotiation and debriefing by Mueller’s team about very sensitive issues related to the Trump-Russia investigation.
MacDougall then asked if Flynn ever told Kelner about some back channel relationship with Alptekin. Kelner looked to the trio of Flynn lawyers sitting near him and said he was answering only because they’d made no move to assert attorney-client privilege.
“No, that’s news to me,” Kelner said.
In a related development Tuesday, the judge handling Flynn’s criminal case in Washington ordered Kelner to turn over Flynn’s complete file to the new set of attorneys.
U.S. District Court Judge Emmet Sullivan noted D.C. Bar rules don’t allow a lawyer to withhold client files due to unpaid bills when the client needs them to avoid incarceration. The judge ordered Kelner to attend the next hearing in Flynn’s case on Aug. 27 and also said he intends to invite a bar ethics lawyer to be there to address the files issue.
Kelner’s firm, Covington, issued a statement Tuesday night saying the most important Flynn-related files are already in the hands of his new lawyers. The firm said the transfer off all records should be complete by July 26 and it gave no indication it is holding back any files for financial reasons.
“Since the end of its representation of General Flynn six weeks ago, a team now consisting of 24 Covington lawyers has been collecting and transferring hundreds of thousands of documents to General Flynn's new counsel,” the statement said. “Covington has communicated extensively with his new counsel and prioritized the collection and transfer of files as directed by new counsel.”
Sullivan has not yet set a final sentencing date for Flynn.