The Justice Department is pressing forward with its criminal case against a former business partner of Michael Flynn, despite Attorney General William Barr’s controversial decision to seek to abandon the prosecution of the former national security adviser to President Donald Trump.
Prosecutors seeking to revive the convictions of Flynn’s former colleague, Bijan Rafiekian, filed a brief with a federal appeals court Sunday.
The filing makes several mentions of Flynn’s integral role in the work that led to the two foreign-agent-related felony charges against Rafiekian and maintains the government’s position that Flynn was a co-conspirator in his business partner’s crimes — a curious stance as the government seeks to drop the criminal case it brought against Flynn more than two years ago.
The 53-page brief filed with the 4th Circuit Court of Appeals in Richmond makes no mention of the Justice Department’s extraordinary decision to jettison the case special counsel Robert Mueller’s office brought in December 2017 as part of a plea deal with the former Defense Intelligence Agency chief and key foreign policy adviser to Trump’s 2016 presidential bid.
While that case focused on Flynn’s statements to the FBI in January 2017 about his dealings with the Russian ambassador, it also included an admission by Flynn that he signed off on inaccurate Foreign Agent Registration Act filings about the project that led to Rafiekian’s prosecution: a $600,000 contract Flynn signed for his Flynn Intel Group at the height of the presidential campaign in 2016 to lobby on behalf of a Dutch firm, Inovo BV.
Prosecutors contend that Inovo was actually a front for the Turkish government and that the lobbying and messaging campaign Flynn and Rafiekian had no real business element, but was aimed at a prominent opponent of the Turkish government, cleric Fetullah Gulen.
When the Justice Department submitted its unusual request last month to dismiss the case against Flynn, it was entirely silent on his Turkey-related admissions. Another federal appeals court, the D.C. Circuit, is set to hear arguments Friday on whether Flynn is entitled to have the case dismissed immediately or a judge can entertain arguments that Flynn’s guilty plea in the case should not be disturbed.
Flynn’s lead attorney, Sidney Powell, blasted the government’s decision to keep prosecuting Rafiekian, a former Trump transition team adviser. Asked by POLITICO about the move, she replied by email: “Wrongful and wasteful use of scarce taxpayer resources.”
One prominent Virginia defense attorney, Edward MacMahon, said Sunday that Rafiekian appears to be the victim of a double standard.
“There is a different kind of justice that is offered to people like Gen. Flynn than is offered to this guy. So, Flynn is the darling of Fox News and this guy is discardable?” MacMahon said.
A lawyer for Rafiekian, Robert Trout, declined to comment on the new filing against his client. However, about two weeks ago, Rafiekian’s defense wrote to the U.S. Attorney that Barr appointed to review the Flynn case, Jeff Jensen, to ask that Rafiekian’s case get a similar review.
“The prosecution of Rafiekian is a direct consequence of the government misconduct uncovered in your review of Flynn’s guilty plea,” Rafiekian’s lawyers wrote in a May 22 letter first reported by the New York Times. “Rafiekian does not have the same recognition nor enjoy the same public support of the President of the United States as Flynn. But political notoriety and the affection of the President must not influence — much less play the dispositive role in — how the Department of Justice makes decisions.”
Spokespeople for the Justice Department and for the U.S. Attorney’s Office in Alexandria, which handled much of the case against Rafiekian, declined repeated requests for comment on the case and on whether Jensen’s review examined the Turkey-related allegations against Rafiekian and Flynn. A Justice Department spokeswoman would only say that Jensen’s work is ongoing.
Rafiekian’s case is an unusual posture. While the defense is almost always the side appealing in a criminal case, prosecutors find themselves seeking the appeals court’s intervention after the district court judge who handled Rafiekian’s trial ordered his acquittal despite the jury finding him guilty on both counts after a few hours of deliberations last July.
Judge Anthony Trenga said the guilty verdicts went against the overwhelming weight of the evidence in the case. During the trial, he repeatedly indicated that he thought the government’s evidence was very weak when it came to showing actual Turkish government control of the lobbying and public relations project Flynn and Rafiekian undertook.
Flynn was originally expected to be the star witness at Rafiekian’s trial and to testify that he and his former partner were well aware that the project was operating at the direction of the Turkish government.
However, weeks before the trial, Flynn dropped his D.C. lawyers and picked up a new, more combative crew led by Powell. She soon found herself in a heated discussion with ex-Mueller prosecutor Brandon Van Grack, who accused Flynn of backing away from his earlier testimony and his admissions in the 2017 deal.
Prosecutors then abandoned their plans to have Flynn take the stand and instead declared him to be a co-conspirator, prompting both the judge and Rafiekian’s defense to express irritation at the last-minute shift.
The 4th Circuit has not yet scheduled arguments in Rafiekian’s case. Officially, the developments in Flynn’s case are not part of the record of the appeal, but the intense media attention to the Justice Department’s reversal means the judges are likely to bring the issue up anyway if prosecutors don’t act on it by then, lawyers following the case said.
“In my experience, the court of appeals takes notice of these things,” MacMahon said. “There’s zero chance that does not come up — because it should come up.”
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