By Chuck Ross
- A federal judge has rejected federal prosecutors’ efforts to classify Michael Flynn as a co-conspirator in a case involving his former lobbying partner.
- Prosecutors on the case told the judge earlier in July that they no longer planned to call Flynn as a witness at an upcoming trial against Bijan Rafiekian, who is accused of lobbying covertly for the Turkish government.
- Lawyers for Flynn and Rafiekian pushed back aggressively on the government’s about-face, though for different reasons.
A federal judge in Virginia on Tuesday struck down prosecutors’ efforts to characterize Michael Flynn as a co-conspirator with his former lobbying partner, who faces trial on charges that he secretly lobbied for the Turkish government.
Judge Anthony Trenga said in a court filing that federal prosecutors failed to provide enough evidence to show that Flynn acted as a co-conspirator with Bijan Rafiekian, a former executive at Flynn’s consulting company, Flynn Intel Group.
“The United States at this point has not presented or proffered evidence sufficient to establish by a preponderance of the evidence a conspiracy for the purposes of admitting against the Defendant the hearsay statements of alleged co-conspirators pursuant to Fed. R. Evid. 801(d)(2)(E),” Trenga wrote, citing the federal rule regarding the introduction of evidence at criminal trials. (RELATED: Prosecutors Reveal ‘Surprising Last-Minute Development’ In Case Against Michael Flynn’s Ex-Business Partner)
Trenga indicated that prosecutors could still rely on Flynn as an unindicted co-conspirator, if the government is able to present additional evidence at Rafiekian’s trial, which is set to begin July 15 in Alexandria, Virginia.
In a surprising move last week, federal prosecutors reversed course on their plans to call on Flynn to testify against Rafiekian, a former executive at Flynn’s consulting firm, Flynn Intel Group. At a June 13 court hearing, Assistant U.S. Attorney James Gillis said that prosecutors planned to call Flynn as a witness at Rafiekian’s trial, and that he was not considered a co-conspirator.
But in a July 3 court filing, prosecutors said they wanted to classify Flynn as a co-conspirator in the case in order to submit hearsay evidence from the former national security adviser. The about-face could leave Flynn in limbo, as he is still awaiting sentencing in a case that originated with the special counsel’s probe.
Flynn’s lawyers said that the maneuver would be “extremely prejudicial” for Flynn, who they said is still willing to cooperate with the government in its prosecution of Rafiekian. Flynn is cooperating with prosecutors in Virginia as part of a plea agreement he struck with the special counsel on Dec. 1, 2017.
Rafiekian’s lawyers accused the government of dropping Flynn as a key witness because they no longer consider him credible. In a filing calling Flynn a “convicted liar,” Rafiekian’s lawyers said that the reversal poses a problem for the government’s case, which the lawyers said relied heavily on grand jury testimony from Flynn.
Rafiekian and Flynn Intel Group’s client, Ekim Alptekin, were indicted on Dec. 12 and again May 23 on charges that they acted as an unregistered foreign agent of Turkey and conspired to do the same.
Through a Dutch shell company, Alptekin signed a $600,000 contract with Flynn Intel Group in August 2016 to investigate Fethullah Gulen, a Muslim cleric who Turkey’s president has accused of masterminding a July 2016 coup attempt. The Turkish government has sought Gulen’s extradition from the U.S., where he lives in exile.
Flynn Intel Group conducted an investigation of Gulen, and placed an op-ed in The Hill painting the cleric as a radical Islamist. The op-ed ran under Flynn’s byline on Nov. 8, 2016
In lieu of calling Flynn to the witness stand, prosecutors hoped to introduce an Oct. 22, 2016 email that Flynn sent to Rafiekian and others at Flynn Intel Group regarding a phone call he had with Alptekin. Flynn said that he provided Alptekin with a briefing on the firm’s social media analysis, and suggested that it could be reported back to a Turkish government minister.
The government is allowed to introduce hearsay testimony from unindicted co-conspirators under certain conditions.
Trenga also sided with Rafiekian on another matter, saying that prosecutors will not be allowed to argue in front of a jury that Turkey funded the Flynn Intel Group project. So far, prosecutors have not provided evidence that the Turkish government funded Alptekin’s firm, Inovo BV. Prosecutors will be allowed to lay out what information was provided to Rafiekian about Turkey’s involvement in the project.
Documents filed in the case show that Alptekin told Rafiekian and Flynn that Turkish government ministers had approved the Gulen project. Alptekin also arranged a meeting between Flynn Intel Group and two top Turkish government officials in New York City on Sept. 19, 2016. The Gulen project was discussed during the meeting.
Trenga did not side entirely with Rafiekian. The judge denied the former Flynn partner’s request to dismiss charges against him.
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