Apparently U.S. Attorney General Bill Barr has not engaged into this case, and the current status is a mess.
The head-scratching FARA case was tenuous from the outset as the prosecution was arguing a rather odd legal interpretation of FARA statutes; and now the DOJ could be handed a dismissal, even if the jury returns a guilty verdict.
Yes, when you stretch legal interpretation beyond evidence, it’s a mess.
The current arguments surround jury instructions where the DOJ is requesting their earlier claims of Rafiekian as an “agent of a foreign government” be dropped (because there is no evidence); and simultaneously arguing that Rafiekian didn’t have to break the law surrounding FARA in order to be found guilty of breaking the DOJ interpretation of the law surrounding FARA. Confused? You should be. The judge is too:…
Despite an earlier filing, the DOJ prosecutor never did call Michael Flynn Jr as a witness, nor Michael Flynn himself. Additionally, after the prosecution finished their presentation, the defense informed Judge Anthony Trenga (in oral arguments) they also have no intention of calling Michael Flynn.
While the case is ongoing, in oral arguments about how to instruct the jury, the entire sketchy construct is being debated by the judge, prosecution and defense. Like I said, it’s a hot mess; and unfortunately while I have read the oral argument transcript, I can’t share the information (it’s embargoed).
Suffice to say the DOJ is arguing the Flynn Intel Group (FIG) is guilty of doing something even though the DOJ can’t prove the FIG intended to do something unlawful.
The argument around “mens rea” is intent. “Mens rea” is the mental element of a person’s intention to commit a crime; or knowledge that one’s action or lack of action would cause a crime to be committed.
In oral arguments (about jury instructions) the DOJ says they don’t need to prove the Flynn Intel Group was guilty of intent.
Indeed, the DOJ position is that Rafiekian did something wrong, without intending to do something wrong, in filing information about their Foreign Agent Registration Act (FARA) compliance forms.
The DOJ also admits the government took no action as an outcome of the accidentally wrong information; simply that the information itself was accidentally false – and therefore unlawful.
So the judge (“The Court”) is asking questions:
The government’s position is is tenable at best.
Here’s how Techno Fog sees it:
The DOJ’s position on Section 951(d)(4) is that the “legal commercial transaction” exception does not include (1) illegal activities; and (2) activities that are prohibited but technically not illegal.
Under this theory there is potential 951 criminal culpability for a minor FARA violation, such as late registration or the omission of facts.
Now consider the 2016 OIG report on the NSD’s enforcement of FARA, and how many lobbyists would have been exposed to Section 951 due to their sloppy registrations. (For example, 57% of the new registered agent contracts reviewed by OIG were not registered timely.)
My biggest takeaway is the DOJ’s position that the conduct need only be “prohibited.”
I’m assuming this is consistent with how they’ve applied Section 951 in the past. (If the 951/FARA/FISA theory is correct.) That would have included all the lobbyists doing work on behalf of foreign countries, foreign individuals, or foreign corporations who didn’t have airtight FARA paperwork. Not just the material omissions/lies alleged in the Rafiekian case.
The DOJ prosecutor basically admits this: “any conduct that was in violation of the FARA statute, whether or not prosecuted or prosecutable, renders that conduct not a legal commercial transaction.” [Key point being “whether or not… prosecutable”]
In my opinion the government’s DOJ-NSD position is specific and purposeful because they are trying to avoid later scrutiny about their use of FARA violations to gain FISA surveillance warrants.
That is to say…. the DOJ National Security Division, intentionally never prosecuted for FARA violations because they used the appearance of FARA violations to get FISA electronic surveillance warrants against any DC entity they wanted to watch. To get a FISA they have to assert evidence of “working as an agent of a foreign power.”
The Obama-era DOJ, applying the Lawfare ideology, used any/all technical FARA violations as the predicate to make claims to the FISA court. This allowed them to get surveillance authority over any target they identified. This is how the Obama DOJ and FBI assembled the files on their political opponents. This prior activity is what the collective “small group”, with the assistance of the Lawfare team, are now trying to justify.
In the event that any internal investigation calls their activity into question, the DOJ is positioning their justification strategy within this Rafiekian case. Does that make sense?
Now…. You might remember the promoted Special Counsel announcement that started the case against Flynn’s former Flynn Intel Group (FIG) partner Bijan Rafiekian, see below:
Well, on Friday, the day after the prosecution finished delivering all their evidence, the prosecution began arguing to remove that predicate claim.
The DOJ no longer wants any language in the jury instructions that mentions being an “agent of the government of Turkey”?
The reason the DOJ wants to strike the “agent of a foreign power” language is because they presented no evidence to prove it. Nor did the DOJ present any evidence to prove a conspiracy.
The prosecution is left arguing that any foreign engagement by the Flynn Intel Group, specifically Bijan Rafiekian, would constitute a FARA violation under their interpretation of law.
….”any conduct that was in violation of the FARA statute, whether or not prosecuted or prosecutable, renders that conduct not a legal commercial transaction.”
The action need not be prosecutable in order to define that action as not legal. Rafiekian didn’t have to break the law surrounding FARA in order to be found guilty of breaking the DOJ interpretation of the law surrounding FARA 951 statute.
You should be.
This is Lawfare.