On September 24, 2019, Judge Anthony J. Trenga of the U.S. District Court Eastern District of Virginia issued a 39-page opinion, overturning the conviction of Bijan Rafiekian, the former business partner of Michael Flynn, the first national security adviser of United States President Donald J. Trump. On September 23, the United States Department of Justice notified Tony Podesta, a Democratic power broker, and Vin Weber, a Republican former congressman, of the closing of its investigation for violations of the Foreign Agents Registration Act.
On July 23, 2019, after a six-day jury trial, Rafiekian was convicted for conspiracy under 18 U.S.C. § 371 and acting in the United States as an unregistered agent of a foreign government, namely the government of Turkey, in violation of 18 U.S.C. § 951.
On September 12, 2019, the Court held a hearing on Rafiekian’s Motion for Judgment of Acquittal Under Federal Rule of Criminal Procedure 29 and Motion for a New Trial.
Judge Trenga granted the Motions for Acquittal and conditionally granted the Motion for New Trial.
With respect to the conviction for acting as an unregistered agent of Turkey, Judge Trenga found there is no substantial evidence that Rafiekian agreed to operate subject to the direction or control of the Turkish government. Additionally, Judge Trenga found no evidence of any actual or implied agreement between Rafiekian and the government of Turkey or any official of the government of Turkey.
A contract existed between the Flynn Intel Group (“FIG”) and Alptekin, a Turkish businessman who is the owner of Inovo, BV, a Dutch company located in the Netherlands. Alptekin was previously the Chairman of the Turkish-American Business Council.
On September 8, 2016, Flynn, on behalf of FIG, and Alptekin, on behalf of Invovo, entered into a written agreement, titled “the Independent Advisory Services Agreement.”
The work was to focus on Fethullah Gulen, including his ideology, influence, and relationships with American political leaders. The government of Turkey had tried unsuccessfully to persuade the U.S. government to extradite Gulen.
On September 19, 2016, Alptekin arranged a meeting in which Rafiekian, Flynn and others participated. Also participating was then-Turkish Minister of Energy and Natural Resources Berat Albayrak, President Erdogan’s son-in-law. The meeting mostly consisted of the Turkish officials expressing their negative opinions concerning Gulen.
On November 2, 2016, Rafiekian prepared an op-ed to be published under Flynn’s name. On November 6, 2017, Flynn returned the op-ed to Rafiekian “with substantive changes.” The op-ed was published under Flynn’s name in The Hill newspaper. It was entitled Our Ally Turkey Is In Crisis and Needs Our Support.
Following the publication of the op-ed, the FARA Registration Unit of DOJ sent Flynn a letter, asking about the op-ed and FIG’s relationship with Alptekin and Inovo, so it could determine whether FIG, Flynn, or anyone else should file a registration statement under FARA. After Covington, the lawyers for FIG, conducted an investigation, Covington ultimately decided to file a complete FARA registration statement . The statements listed Inovo, and not the government of Turkey, as the foreign principal.
On December 1, 2017, Flynn pled guilty in a separate case to unrelated charges. He agreed to cooperate with the government.
Section 951 Conviction
Judge Trenga’s opinion observed that mothering about the structure of GIG’s contracts with Inovo and Alptekin or the payments made pursuant to those contracts gives rise to a reasonable or rational inference that Rafiekian had acted or agreed to act as an agent of the Turkish government. The evidence at trial was insufficient to conclude that Rafiekian had agreed or act subject to Turkey’s director or control. The opinion reasons that no evidence exists that the Turkish government required the op-ed, either directly or through Alptekin.
The opinion finds insufficient evidence to convict Rafiekian of conspiracy to (1) act as an unregistered agent of a foreign government in violation of Sec. 951; and (2) make willful and material false statements and omissions in a FARA filing in violation of 22 U.S.C. § 618(a)(2). The opinion underscored Rafiekian’s efforts to comply with any registration or notification requirements, including his consultations with two law firms concerning FIG’s registration obligations, FIG’s filing under the Lobbying Disclosure Act on the advice of a lawyer, and his voluntary disclosure to U.S. authorities on September 28, 2016 concerning the FIG engagement arranged through Alptekin “as a business contact” who had “senior level contracts in the Turkish government.”
Notice of Closing the Investigation of Podesta and Weber
The decision to end the investigation of Podesta and Weber followed weeks after a federal jury found former White House counsel Gregory B. Craig not guilty of lying to the DOJ about his media contacts concerning his Ukrainian work. The investigation of Podesta and Weber grew out of the investigation of Manafort and Craig. The Podesta Group and Mercury, for whom Vin Weber worked, reported on their FARA filing that they had represented the European Center for Modern Ukraine, a Brussels-based nonprofit group. Prosecutors alleged the real client was the government of Ukraine.
The current issue of the IELR will discuss in more detail the implications of the Rafiekian acquittal and the close of the investigations against Podesta and Weber.