The status of the Eastern District of Virginia case against former partner of Michael Flynn, Bijan Rafiekian is bizarre.
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:…
(Source legal motion h/t Techno Fog)
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.
Nothing.
Zippo.
Zilch.
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.
Confused?
You should be.
This is Lawfare.
BREAKING: Defense Motion to Dismiss.
LikeLiked by 8 people
Very compelling arguments.
It takes a strong judge to take a case away from a jury per a motion to have the case dismissed. Assuming the evidence is as described in the motion, however, this might be a case for the court to make the right decision. If the court does not dismiss the case, the outline of the defense closing argument is right there. All it needs is a voice.
LikeLiked by 4 people
Basically in its Motion to Dismiss the Defense says that the lack of evidence to support the FARA violation charge will require a jury to purely speculate in order to reach a verdict.
Seems a rather precarious case by the DOJ. Will be interesting to see how the judge responds.
LikeLiked by 4 people
Team Mueller doesn’t care if the case gets booted. They got what they wanted. Bad PR for Flynn, having painted him as in the service of Turkey while receiving classified briefings. The media will barely cover the dismissal. Same with the Concord case that appears to be crashing and burning
The conspiracy to violate FARA, as well as having violated it was no doubt the leverage they used to get Flynn to cop a plea. Have always wondered what they had on his kid…bet it was this phony FARA case
LikeLiked by 2 people
https://brassballs.blog/home/hillary-clinton-trump-brian-maccauley-behavioral-operations-group-white-canvas-ekim-alptekin-bijan-kiani-kian-rafiekian-kristen-verderame-cia-
Horrible news
LikeLike
Ouch. That’s going to sting.
LikeLiked by 1 person
LOL.
Summary: The need to prove EACH of FOUR points, yet they arguably FAIL to prove ANY of them!
Essentially the same with the other count.
LikeLike
“Then last Friday … Rafiekian’s attorney disclosed … that before the start of the proceedings, the government had handed him a one-sentence statement: The United States government is in possession of multiple independent pieces of information relating to the Turkish government’s efforts to influence United States policy on Turkey and Fethullah Gulen, including information relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign without any reference to the defendant or FIG.”
The government’s note implies that Flynn was already the target of electronic surveillance BEFORE he was hired, and therefore PRIOR to when a FARA issue would have existed as a justification for a FISA warrant. Should Sydney Powell demand disclosure of exactly when her client became the target of an investigation and surveillance, when a FISA warrant was issued, a copy of the application, and all evidence collected?
LikeLiked by 3 people
They used Halper’s Russia nonsense etc. to get a FISA on Flynn probably. Its probably more crooked than the Carter Page one.
LikeLiked by 1 person
Could Sidney Powell subpoena the DOD contracts with Halper?
LikeLike
The point is that Obama DOJ/FBI was covertly using the secret interpretation of FARA to get FISA warrants, all the while overtly maintaining FARA violations are administrative technicals. IMHO, (just informed speculation here) however, in the instance of Flynn, he was being illegally spied upon, since McCabe had an axe to grind, and the present prosecution of the Flynn partner, and any FISA warrant on Flynn et. al. was hindsight desperation (read insurance policy) to get a retroactively effective FISA warrant. It can not be repeated enough, the retroactive nature of a FISA warrant (the so called “parallel construction”) is the heart of the matter. In other words, they were doing massive illegal surveillance, pt cite the 99 page FISA order, and all this thin ice prosecution and fraudulent FISA filings, is a massive CYA, to get the FISA court to make that which was unlawful, lawful. Hopefully, at some point, one of these Federal Judges will have seen enough, case in point here – directed verdict.
LikeLiked by 2 people
It would be interesting to see a year by year bar graph of all FARA investigations and prosecutions from, say the year 2000 to present.
A significant spike during the obama years would suggest abuse and compel an ethical AG to look more closely. Particularly for party affiliation and an ability to influence policy or court judgements in DC.
LikeLike
being on the receiving end of a Rule 29 motion is not fun, or pretty
it means, if they succeed, that the government is liable in full for the defense’s legal fees
then things get interesting because OLC has to dissect who EXACTLY was responsible for making Uncle Sam cough up money and this is the type of thing where if OLC isn’t “busting balls” for the unexpected outflow of money someone’s head has to roll
I’ve said elsewhere (twitter) that it looks to me that Flynn’s attorneys at his prior firm were complicit in the set up. they and the prosecutors in this case should have a fun life post-law because none of them should be practicing anymore.
this is the type of malpractice that brings down entire law firms (private sector) because the underwriters on the malpractice claims tend to have written into their policies things like clearing conflicts as the basics for coverage to work
Unfortunately, for DOJ there is no such thing as malpractice and no way to tank the entire thing with an act like this, but arguably it should with the screw up is this big or at least it should end a few prosecutors’ legal careers when the gvt has to cough up several million dollars in legal fees.
LikeLiked by 2 people
Weisman could not be reached for comment. That guy should have been defrocked years ago, but appears to have been promoted instead. Guess you were just not partizan enough.
LikeLiked by 2 people
AFAIK, Weissman is wearing a sweater vest, smoking a pipe, and preparing for the Fall Term in Manhatten. No fancy silk suits for Andy. Coincidence? Who knows.
LikeLike
I’d like to think Mr Barr told Andy there was no place for him at the DOJ OR Team Mueller going fwd. I believe he left the Special Counsel before the report was issued?
Would not be surprised if he hadn’t already had the report written by the time Barr was sworn in
LikeLike
The DOJ is operating like the Communists that they are. This is disgusting.
LikeLike
I was an alternate on a jury. I was dismissed before deliberations. Defense lost. They reached out to me because they thought I would have found for the defendant and held out.
I told them that they were right on most counts, except I hadn’t seen the jury instructions.
They matter. After seeing them, under the narrow instruction I would have had no choice but to find defendant guilty …even though he was railroaded. BIG TIME.
Defense really needs to fight for dismissal. Even if the jury has a few people that are not dunder heads…that narrow finding of fact role can cross up even the most sympathetic defendant.
LikeLiked by 1 person
DOJ intentionally lost the case. I am a former prosecutor. It happens from time to time. Usually when a new prosecutor is elected or appointed.
LikeLike
If this holds then the Podestas are GUILTY
“Under this theory there is potential 951 criminal culpability for a minor FARA violation, such as late registration or the omission of facts.”
LikeLiked by 1 person
They never thought she would lose.
This never was supposed to come out.
LikeLiked by 4 people
Yo,
Aren’t these clowns from the US Attorneys Office for the Eastern District of Virginia the same political activists who charged and convicted former Virginia Governor Bob McDonald with tons of nonexistent Federal crimes that were overturned by the Supreme Court? Swamp Rat Boente was in charge of that one. Who is in charge of the current fiasco? Shouldn’t Barr clean house there?
LikeLike
This is the polar opposite of what Comey said about intent in relation to Hillary’s email server.
LikeLiked by 1 person
When it comes to political or ideological allies then “intent” is used as a legal shield to not prosecute. When it comes to political or ideological enemies then selective legalistic prosecution is used.
LikeLiked by 1 person
I guess this is what Holder ment about ‘prosecutorial discretion’. 🙁
LikeLike
Legalistic bureaucrats running amok.
LikeLike
The use of law for political purposes by politicised bureaucrats is a US national tragedy.
Hard to see how that ever changes.
They have the power so they use it.
I think they justify it by claiming in their minds that their political enemies are immoral and that makes any corrupt use of their powers just A OK. If you don’t agree with them you are to be disposed of by any means.
LikeLike
Thank you Conservative Treehouse for posting this lengthy piece. I have been watching George Webb’s somewhat rambling unbelievably long videos on the trial. He even filmed himself outside the courthouse as the various players left the building. Please interview him. Webb has traced Mueller’s connections to a host of elites. There is so much more to the coup to take down Trump than even touched on here. I get lost following the videos and need text. No one is covering Flynn’s story. Gulen alone is a 6 part hour long documentary and possibly a 3 volume book. My friends don’t have the patience to even listen to a summary (assuming I can summarize it all). Eyes glaze over when they hear legal terms. Please Conservative Treehouse readers, wake your friends and neighbors and family if you can.
LikeLike
I like the closing comment in this Motion to Dismiss … it says so very much:
‘Nuff said. (I, for one, am ready to see the “Lawfare, Inc.” people start being forced to swallow their own potion – that they are nothing more nor less than “legal quacks.”)
LikeLiked by 1 person
I’d say the Flynn legal team will be all over this should the judge dismiss the charges. I believe it was the FARA violation that was threatened against Flynn Jr that got Flynn Sr to plead guilty.
But even more interesting is the possibility that the Obama DOJ was investigating Flynn Sr because he disagreed with Obama’s characterization of ISIS as the JV. Clearly, McCabe had motive to “f**k” Flynn, who as Director of the Defense Intelligence Agency had supported SA Robyn Gritz’s sexual discrimination charges against McCabe and others at the top of the FBI. If they used a FARA violation charge against Flynn Sr to obtain a FISA warrant on him, then no one is safe.
LikeLike