Next Tuesday, a federal judge in Washington, D.C., is scheduled to hold a long-awaited hearing in the saga of Lieutenant General Michael Flynn. At stake: Can Attorney General Bill Barr dismiss a criminal charge against Flynn—for lying to F.B.I. agents—notwithstanding Flynn’s 2017 guilty plea?
But there’s an intriguing, underreported subplot to this drama.
The fate of another man would seem inextricably tied to Flynn’s. Yet that individual—who, unlike Flynn, isn’t a friend of the president’s—is getting no special treatment from Barr.
In July 2019, a jury convicted Bijan Rafiekian—Flynn’s business partner—of acting in 2016 as a clandestine agent for a foreign government, Turkey, while Flynn was then presidential candidate Donald Trump’s national-security adviser. Flynn and Rafiekian allegedly tried to gain extradition to Turkey of Fethullah Gülen, a Turkish imam who lives in Pennsylvania and whom Turkish president Recep Tayyip Erdoğan considers an enemy.
Flynn’s involvement in this project “paralleled, and in some respects, exceeded” that of Rafiekian, according to the judge who presided over Rafiekian’s trial. Rafiekian is an Iranian-American businessman and former director of the Export-Import Bank of the United States.
Last September, that judge overturned Rafiekian’s jury conviction on grounds of insufficient evidence. The government is appealing. “Rafiekian and Flynn agreed to perform these activities under the direction and control of the Turkish government,” federal prosecutors wrote in their appellate brief in January 2020. Those prosecutors, led by U.S. Attorney G. Zachary Terwilliger of the Eastern District of Virginia, are now awaiting oral arguments before the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Virginia, which will decide whether to restore Rafiekian’s conviction.
The case poses a quandary for those who side with the rule of law. If Attorney General Barr grants shady favors to Trump’s cronies, should we be outraged—or relieved—when he refuses to extend those favors to the cronies’ alleged co-conspirators?
At this point, we all know a portion of Flynn’s peculiar case. For a period of at least 18 months, the former national-security adviser admitted the crime of having lied to F.B.I. agents in January 2017. He pleaded guilty in December 2017 and then again, a second time, before a different judge, in December 2018.
In mid-2019, however, he switched lawyers. His new attorney, the tireless Fox News personality Sidney Powell, concluded that Flynn’s admissions had been a tragic mistake. She soon convinced Barr’s Justice Department of the same thing. While, yes, Flynn had lied to the agents, the lies had never been sufficiently “material” to constitute crimes, the government argued this past May in its shocking motion to dismiss Flynn’s case. Or the agents should never have asked Flynn the questions that prompted the lies. Or they should have given him a warning first. Or something.
If Attorney General Barr grants shady favors to Trump’s cronies, should we be outraged—or relieved—when he refuses to extend those favors to the cronies’ alleged co-conspirators?
Here’s the less-known part. Flynn actually admitted making three sets of false statements. The first two are the famous ones: the denials that he coached Russian ambassador Sergey Kislyak on how Russia should respond to President Obama’s sanctions for interfering in the 2016 presidential election, and his mischaracterizations of conversations with Kislyak about a U.N. Security Council vote.
But a third set implicated people besides Flynn. These were falsehoods Flynn made to the Justice Department in March 2017 in a filing on behalf of his firm, Flynn Intel Group. The filing had been submitted retroactively, after Justice Department officials became suspicious that Flynn’s group had spent months—between July and November 2016—acting as an undisclosed agent of Turkey.
Flynn’s submission under the Foreign Agents Registration Act (FARA) contained multiple “materially false” statements, Flynn admitted as part of his 2017 guilty plea.
And Flynn still admits that. But since retaining Powell, in June 2019, Flynn has remembered that he never actually read the FARA submission before signing it. So none of the false statements in it were made “willfully” and, therefore, weren’t crimes. (Robert Kelner, Flynn’s lawyer at the time of his guilty pleas, has testified that Flynn did read the FARA submission.)
Now here’s where it gets perplexing. Flynn pursued this project with the co-founder of his firm, Rafiekian. In December 2018, Flynn testified against Rafiekian before a federal grand jury in Alexandria, Virginia, and the grand jury indicted Rafiekian for, among other things, conspiring to violate FARA. Also charged was Kamil Ekim Alptekin, a Turkish-Dutch dual citizen who allegedly acted as the intermediary between Turkey and Flynn’s firm.
Flynn has remembered that he never actually read the FARA submission before signing it. So none of the false statements in it were made “willfully” and, therefore, weren’t crimes.
Flynn was the “engagement lead” on the project for which Rafiekian was indicted. The false statements Rafiekian allegedly made were in a document signed by Flynn. And Flynn’s original prosecutors in the Washington, D.C., case have said that, in exchange for Flynn’s cooperation against Rafiekian, they agreed not to charge Flynn alongside his former partner.
The case against Rafiekian, according to prosecutors, is as follows. In July 2016, after an attempted coup in Turkey, Turkish president Erdoğan accused Imam Gülen of orchestrating it. Turkey sought Gülen’s extradition, and the Obama Justice Department refused.
At that point, Turkish officials hired Flynn’s group to discredit Gülen in the U.S. The firm was to lobby members of Congress and produce an anti-Gülen documentary, with the goal of winning his extradition. Turkey approached Flynn’s group through Alptekin. Alptekin told Rafiekian and Flynn that he had had several meetings with high-level Turkish officials about the project.
Instead of registering the project under FARA—as required of lobbyists for a foreign government—the firm registered under a different law for lobbyists for foreign businesses. Rafiekian did this, he explained to a subordinate, because he wanted to keep the project “under the radar”—which is precisely what FARA is designed to stop. In that registration, Flynn’s firm claimed that its client was Alptekin’s Dutch shell company, Inovo, and that the representation related to two defense-spending bills, neither of which had anything to do with Gülen.
In August 2016, Alptekin told Rafiekian during a Skype chat that he was meeting with “no 1 tomorrow” for “final instructions.” He described this person as Turkish foreign minister Mevlüt Çavuşoğlu’s “boss… not direct boss but u know who”—a veiled reference to Erdoğan, prosecutors suggested.
The following month, Flynn, Rafiekian, and Alptekin met in New York with Çavuşoğlu and Turkish energy minister Berat Albayrak, who is Erdoğan’s son-in-law. The meeting occurred at 10 P.M. in a hotel—not the Turkish consulate. Çavuşoğlu spent the meeting describing Gülen as a terrorist and blaming him for the July coup attempt, according to testimony of people present.
On the brink of the U.S. presidential election in November, Alptekin came to a meeting at Flynn’s firm in Alexandria. Alptekin was extremely disappointed with progress on the assignment. He had been hoping for congressional hearings vilifying Gülen. Instead, the firm had provided information that Alptekin was already aware of, while a subcontractor had put together a “Gülenopoly” board game. According to witnesses, Alptekin flung some documents across the table, asking, “This is what I paid for? What am I going to tell Ankara?”
Later that day, Rafiekian drafted an anti-Gülen op-ed for Flynn’s signature. He e-mailed it to Alptekin with a note saying, “A promise made is a promise kept.” Alptekin replied, “The general is right on target,” and corrected two spelling errors.
According to witnesses, Alptekin flung some documents across the table, asking, “This is what I paid for? What am I going to tell Ankara?”
The op-ed ran in The Hill, the inside-the-Beltway political-news-and-opinion Web site, on Election Day, November 8. It drew media attention as reporters looked into possible connections between Flynn and Turkey. On November 30, the Justice Department’s FARA unit wrote Flynn asking questions.
Flynn’s firm hired a lawyer, Kelner. Flynn and Rafiekian told him that, while Turkey had proposed a project in July 2016, it later backed out, and that the firm ended up pursuing a different project on behalf of the Turkish business community. Its goal was to improve Western confidence in the Turkish “investment climate” and to promote “tourism.” Flynn and Rafiekian told Kelner that Flynn’s op-ed had nothing to do with the project.
Alptekin told another story. He claimed that the project had been done for an Israeli client, and that he’d known nothing about Flynn’s op-ed before it was published.
In March 2017, Flynn signed the FARA submission, which had been drawn up by Kelner on the basis of his interviews with Rafiekian and Flynn. Flynn later admitted, in a document filed in connection with his guilty plea, that the submission contained “materially false statements,” including that his firm “did not know whether or the extent to which the Republic of Turkey was involved” in the project; that the project “was focused on improving the U.S. business organizations’ confidence regarding doing business in Turkey”; and that Flynn’s op-ed in The Hill was written “at his own initiative.”
In June 2019—the month before Rafiekian’s trial began—Flynn changed lawyers, hiring Powell. She stunned prosecutors by telling them that Flynn claimed he hadn’t read his FARA submission when he signed it, and that he’d therefore never realized that anything in it was false. Apparently regarding Flynn’s new position as incredible—and inconsistent with his admissions at the time of his guilty plea and with his grand-jury testimony against Rafiekian—prosecutors dropped Flynn as a witness.
On July 23, 2019, it took a jury just four hours to convict Rafiekian. (Alptekin never showed up to defend the indictment; prosecutors regard him as a fugitive.) John Demers, the assistant attorney general for national security, hailed the importance of the case: “Through misrepresentations in his FARA filing,” Demers said, “Mr. Rafiekian attempted to deceive the public and influence key leaders on behalf of Turkey.”
But in September 2019, the trial judge overturned the verdict on a variety of grounds, including insufficient evidence of Turkey’s involvement in the project.
The government appealed. “Rafiekian, Flynn, and Alptekin conspired to lie on the registration statement,” it argued in its appellate brief. The appeal is pending. Just last month prosecutors notified the federal appeals court in Richmond, Virginia, of the dates they’d be available to argue the appeal.
The lesson is heartening in a way. While Attorney General Barr may shower favors on Trump’s cronies, the favors will evidently be strictly confined to the cronies themselves. The cronies’ cronies are on their own.
Roger Parloff is a writer based in New York City