When the final report of then-special counsel Robert Mueller stated that it couldn’t establish that anyone from the Trump campaign had conspired with Russia, many Americans may have failed to realize how revealing a statement that was.
The recent conviction of a former partner in the now-defunct consultancy firm of Lt. Gen. Michael Flynn, former national security adviser to President Donald Trump, shows how easy it would have been for Mueller to bring charges even if he could piece together only a circumstantial case.
Yet he didn’t.
Despite its ominous sound, the federal charge of conspiracy has a low bar to clear. If two people agree to commit any federal crime and if they undertake any, however trivial, “overt act” to further the plan, they can be charged and sent to prison for up to five years, even if they never actually committed the contemplated crime.
“It is a low bar,” said David Duncan, criminal defense lawyer from the Boston law firm Zalkind Duncan & Bernstein. The “overt act” in particular can be something “minor or innocuous-looking,” he said.
If two people discussed a plan to rob a bank, for instance, and one of them went to buy duct tape that, in the government’s eyes, was to be used to tie people’s hands during the robbery, that could be an “overt act.” At the purchase of the duct tape, a charge of conspiracy to rob a bank could be forthcoming.
The case of Flynn’s former partner, Bijan Rafiekian, seems a prime example.
Flynn’s firm, Flynn Intel Group (FIG), was hired in 2016 by Ekim Alptekin, a Turkish businessman and former chair of the Turkey-U.S. Business Council, to do research and lobbying focused on Fethullah Gulen, an Islamic cleric living in exile in Pennsylvania who runs a group that Turkish President Recep Tayyip Erdogan blamed for an attempted 2016 coup.
Rafiekian, a former board member of the U.S. Export-Import Bank and the point man for the project, was convicted of a conspiracy to act as an agent of Turkey in 2016 without disclosing it to the U.S. government.
During the trial, Assistant U.S. Attorney James Gillis made clear that to establish a conspiracy, the government didn’t need to prove that Rafiekian ever did any lobbying or that Turkey paid for it, and it didn’t even matter that FIG eventually registered as a foreign lobbyist.
The evidence showed that Rafiekian knew that Alptekin consulted the project with Turkish officials and received a “green light” from them to discuss “budget” and “confidentiality.”
Alptekin claimed the project initially was supposed to be run by the Turkish government, but that they eventually dropped it and he hired FIG for a separate, but very similar project that he ran himself on behalf of Turkish businesses.
The fact that Rafiekian went along with this explanation meant that he agreed to share in a lie, according to Gillis.
Email Is Enough
The defense stressed there was only evidence that the project was discussed with Turkish officials after that—not that they directed it. But Gillis argued that the Turkish government suddenly dropping the project overnight was too incredulous a story and was sufficient circumstantial evidence that Ankara still pulled the strings behind the scenes.
The “overt act” seemed a mere formality then.
“An overt act can be anything completely legal, like sending an e-mail, like the one that the defendant sent to his team saying, hey, we’ve been hired by a bunch of Turkish businessmen,” Gillis said in his rebuttal of the defense’s closing argument.
The Rafiekian case demonstrated that the government “not only can indict a ham sandwich, but can convict it too,” commented Sidney Powell, a former prosecutor who is now Flynn’s attorney, riffing on the quote of former New York Chief Judge Sol Wachtler, who famously said in 1985 that government prosecutors have so much influence on grand juries, that “by and large” they could get them to “indict a ham sandwich.”
By that standard, it appears that if anyone on the Trump team had agreed to do anything in the United States that could be seen as stealthily acting on behalf of the Russian government and took any, however small, step to carry it out—even if nothing came out of it—the Mueller team would have brought charges, even if it couldn’t directly prove Moscow was behind it.
Yet no such charges were brought by Mueller.
Section 951 Interpretation
Rafiekian was charged under Section 951, which states that anyone who “agrees to operate within the United States subject to the direction or control of a foreign government or official” will face up to 10 years in prison unless he or she first notifies the attorney general.
The statute lists several exceptions, such as for diplomats and “any person engaged in a legal commercial transaction”—it doesn’t criminalize, for instance, delivering a pizza to the Russian embassy.
Still, the Mueller report offered a very broad interpretation of it, saying “acts of any type suffice for liability.”
Gillis further clarified that the exception for “a legal commercial transaction” wouldn’t apply if any law or regulation was broken in the process.
Technically, the Mueller team seemed to argue that if, for example, a cab driver drives a Russian official and runs a red light, he or she becomes an “agent of a foreign government” unless informing the attorney general of the cab ride.
Such an interpretation would be vulnerable to a constitutional challenge for vagueness, Duncan suggested.
“The Supreme Court has come down hard on vague statutes in the last 20 to 30 years,” he said.
Gillis has addressed this question, focusing on the congressional intent behind the law, citing a 1983 Senate report (pdf) that stated the law “is not intended to cover those individuals engaged in routine commercial matters but is intended to cover individuals who represent foreign governments in political activities.”
Powell argued that the government is using a broad interpretation of who can be marked a foreign agent in order to spy on people through the Foreign Intelligence Surveillance Act (FISA).
FISA allows the government to obtain electronic communications of any American the secret FISA court determines to be an “agent of a foreign power.”
The Justice Department’s National Security Division handles both the foreign lobbying registration enforcement and the FISA warrant applications and has been “collapsing” them “to the point where there’s no distinction between the two,” Powell said.
She called the Rafiekian case an “egregious abuse of government power … designed to cover [the Justice Department’s] own abuses of the surveillance system.”