Judge overturns guilty verdicts against Trump transition adviser on foreign-agent charges

The Justice Department’s drive to crack down on violations of foreign-agent laws suffered another blow Tuesday as a federal judge overturned guilty verdicts a jury returned against a business partner of Gen. Michael Flynn over work the pair did for Turkish interests during the Trump presidential campaign in 2016.

U.S. District Court Judge Anthony Trenga, who presided over the weeklong trial of Bijan Rafiekian in July in Alexandria, Virginia, ruled that prosecutors put forward insufficient proof to sustain the jury’s finding that Rafiekian knowingly operated as a Turkish government agent and intentionally failed to notify U.S. officials about his work.

“There is no substantial evidence that Rafiekian agreed to operate subject to the direction or control of the Turkish government,” Trenga wrote as he ordered the acquittal of the 67-year-old Iranian-American businessman and former board member for the U.S. Export-Import Bank.

“There is no evidence of any statements by Rafiekian that would allow a rational juror to find that Rafiekian had agreed to operate as an agent of the Turkish government, or that he thought he was acting as a Turkish agent,” the judge added.

The ruling, which prosecutors could appeal, is the second serious defeat this month for an effort by Justice Department officials to step up enforcement of the Foreign Agent Registration Act and other laws aimed at checking foreign influence on the U.S. political system.

On Sept. 4, a jury in Washington took less than five hours to return a not guilty verdict for former Obama White House Counsel Greg Craig on a charge of lying to Justice’s FARA unit about his work for Ukraine on a legal project arranged by Paul Manafort, the longtime GOP political consultant and international campaign adviser.

The losses in both cases are also sour notes for special counsel Robert Mueller’s investigation of ties between the Trump campaign and Russia. Mueller’s office was deeply involved in probing both the Rafiekian and Craig cases, but eventually transferred the matters off to other prosecutors.

In a sense, the Mueller team never completely handed off the cases, however, because one of its prosecutors — Brandon Van Grack — was named by the Justice Department earlier this year to oversee FARA enforcement. He was also spotted in the courtroom at times during both trials.

The case against Rafiekian, who served as an adviser to the Trump transition team, appears to have grown out of investigators’ interest in Flynn and in his foreign ties during his time working as a senior aide on the Trump campaign and during his brief tenure as national security adviser before being fired by President Donald Trump in February 2017.

It was not immediately clear how the failure of the government’s prosecution of Rafiekian would impact the complex legal saga involving Flynn, who is tentatively set to be sentenced Dec. 18 by U.S. District Court Judge Emmet Sullivan in Washington. Flynn had been slated to be a key prosecution witness against Rafiekian with Flynn’s attorneys even seeking a delay in Flynn’s sentencing last year so that he could take the stand in the Rafiekian trial.

But after a heated exchange with a new legal team for Flynn just prior to Rafiekian’s trial, prosecutors dropped plans to call Flynn. Instead, they told the judge they would argue Flynn was an uncharged co-conspirator in Rafiekian’s alleged crimes.

In his 39-page opinion, Trenga detailed that shift and noted that Flynn was “in some aspects” more involved than Rafiekian in the project, which urged the U.S. government to expel a dissident Turkish cleric who has lived in Pennsylvania for years named Fethullah Gulen. The judge called “particularly telling” the government’s insistence for months that Flynn was not part of the alleged conspiracy, only to abruptly reverse course days before the trial and assert that he was.

If Sullivan views Flynn as responsible for the demise of the government’s case against Rafiekian, the former national security adviser could wind up with a stiffer sentence than he might otherwise expect.

However, if Sullivan sees Trenga’s opinion as undermining the notion that there was anything illegal about the work Rafiekian and Flynn did for Turkish interests or their failure to register as Turkish agents, Flynn might benefit. The ruling may even be a boon to arguments from Flynn’s new legal team that Mueller’s team bamboozled him into pleading guilty to a false-statement charge by exaggerating his exposure to criminal liability on various fronts, including from the Turkey-related project.

Flynn’s attorneys did not respond to messages Tuesday night seeking comment on the decision.

Much of Trenga’s ruling is devoted to disputed legal issues in the case, including what makes one an agent of a foreign government under the statute prosecutors used to charged Rafiekian.

The judge, who expressed doubts about the adequacy of the government’s evidence on several occasions before and during the trial, also seemed to be searching for an explanation of why jurors convicted Rafiekian in just three hours on evidence the judge considered lacking.

Trenga, an appointee of President George W. Bush, suggested that one possibility is that jurors concluded that the Turks were controlling the project based on emails the jury saw from Ekim Alpetkin, an absent co-defendant in the case and an alleged intermediary between Rafiekian and the Turkish government.
In one of the messages, Alptekin said he had a “a green light” from top Turkish officials “to discuss confidentiality, budget and the scope of the contract.”

The judge allowed the jury to see those emails as evidence of what Rafiekian was told, but jurors were not supposed to use them to draw conclusions about what Turkish officials had actually done or approved. Trenga said his instructions may not have adequately emphasized that critical nuance.

“Those statements were not competent evidence upon which to find any involvement of the Turkish government or that Alptekin had any particular relationship or role relative to the Turkish government,” the judge wrote.

Trenga also raised concerns about a cryptic statement prosecutors provided to the defense just before the trial that the U.S. government had various kinds of undisclosed, classified evidence that the Turkish government reached out to Flynn through Alptekin “because of Michael Flynn’s relationship with an ongoing presidential campaign” — evidently, Trump’s White House bid.

Jurors heard about that statement from both sides at the trial, but the judge said there were “substantial issues” raised by the defense about whether Rafiekian’s lawyers should have been told more about the classified evidence earlier in the process.

If Trenga’s ruling stands, Rafiekian could not be retried. However, the judge said that if an appeals court overturns his rulings about the evidence, he would still grant the defendant a new trial.

Prosecutors did not immediately indicate whether they’d appeal the ruling.

“The U.S. Attorney's Office is reviewing the Court's opinion vacating the jury's verdict in the Rafiekian matter. We do not have any further comment at this time,” a spokesman for federal prosecutors in Alexandria said Tuesday afternoon.

Rafiekian’s legal team, which seemed stunned by the quick verdict two months ago, hailed the judge’s decision as a triumph for their client and the rule of law.

“Bijan and his family are relieved and looking forward to getting on with their lives,” the defense attorneys said. “We are all grateful to the Court. Our system is still sturdy and, in this case, justice has been done.”