Bijan Rafiekian, a former business partner in Lt. Gen. Michael Flynn’s now-defunct consultancy firm, has been acquitted of acting as an agent of the Turkish government without informing the U.S. government and two related charges.
U.S. District Judge Anthony Trenga said in a Sept. 24 opinion that “the evidence was insufficient as a matter of law for the jury to convict Rafiekian.” He also conditionally granted Rafiekian a new trial if his acquittal is later vacated or reversed, “because the verdict was against the heavy weight of the evidence and because of other issues pertaining to the conduct of that trial.”
Rafiekian was convicted July 23, but continued to fight the verdict, claiming multiple issues, including weak evidence, prejudice, and a flawed indictment. His lawyers have also argued that the prosecutors have been interpreting the law too broadly.
Trenga’s opinion, which sided with the defense on multiple points, may have significant consequences, as it pushed back on the prosecutors’ broad interpretation of who is an “agent of a foreign government.”
The statute used to charge Rafiekian—Section 951—stipulates that “an individual 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 informs the Attorney General.
The prosecutors argued, in substance, that “direction or control” means somebody “agrees or is willing to do something the foreign principal requests,” even in cases where the foreign principal has no “control over how that person goes about performing a contractual undertaking” or where the person is under no obligation “to follow the directions of the foreign principal,” Trenga said.
But such a reading of the law is “unwarranted,” he said, as “the word ‘agent’ has a well-established common-law meaning” that includes “the power of the principal to give directions and the duty of the agent to obey those directions.”
He went on to say that “there is no substantial evidence that … the Turkish government [or its alleged intermediaries] exercised the requisite direction or control” over Rafiekian.
Phone Call and Op-ed
Flynn, a former national security adviser to President Donald Trump, founded his consultancy firm, Flynn Intel Group (FIG), in 2014 after he left the post of the head of the Defense Intelligence Agency. Rafiekian, a former board member of the U.S. Export–Import Bank, was his partner.
In 2016, FIG was hired by Ekim Alptekin, a Turkish businessman and former chair of the Turkey-U.S. Business Council, to do research and lobbying focused on an Islamic cleric living in exile in Pennsylvania named Fethullah Gulen, who runs a group that Turkish President Recep Tayyip Erdogan blamed for an attempted 2016 coup.
The lobbying job, in the end, produced two things: One phone call by Rafiekian to then-Rep. Dana Rohrabacher (R-Calif.) and an op-ed published in The Hill on Nov. 8, 2016, arguing for Gulen’s extradition. Rafiekian said the op-ed was unrelated to the job, while the prosecutors said otherwise.
FIG first registered under the Lobbying Disclosure Act, which covers lobbying for foreign commercial clients. After some prodding from the Justice Department because of the op-ed, FIG also registered under the Foreign Agents Registration Act (FARA), which requires more thorough disclosures and covers lobbying for foreign governments or lobbying that principally benefits a foreign government.
Rafiekian acknowledged that he and others from FIG met with Turkish officials to discuss Gulen, but his lawyers said that “there is no evidence that Turkey gave any binding direction to Rafiekian or FIG.”
On the contrary, both the defense and the judge cited examples where Rafiekian and FIG rejected Alptekin’s requests.
“Alptekin wanted FIG to get ‘dirt’ on Gulen, conduct video and audio surveillance on Gulen and his associates, and prove that Gulen was a ‘terrorist,’” the defense said in a Sept. 20 filing, referring to the testimony of one of the government’s witnesses, Brian McCauley.
All of those requests were rejected by FIG, the court was told by McCauley, a former deputy assistant director for international operations at the FBI who left the bureau in 2015 and later consulted FIG on the Gulen job.
Trenga’s opinion isn’t a binding precedent for higher courts or those in other jurisdictions. It may be, however, cited in future cases to convince judges that the common-law definition of agent applies to Section 951.
On one hand, that may curb the government’s power to punish stealthy foreign interference. On the other, it may lower the chance that Americans are thrown in prison for innocent political speech based on informal contacts with foreign officials.
It may also make it harder for the government to spy on Americans.
Former prosecutor Sidney Powell, who is now Flynn’s lawyer, suggested that the government has been using its broad definition of an “agent of a foreign government” under the Section 951 to obtain spying warrants under the Foreign Intelligence Surveillance Act (FISA), which allows the government to obtain the electronic communications of anyone the secret FISA courts determine to be an “agent of a foreign power.”