DOJ Drops Charges Against Gen. Flynn’s Ex-Business Partner, Bijan Rafiekian

The Department of Justice in Washington on Jan. 14, 2020. Samira Bouaou/The Epoch Times

The Department of Justice (DOJ) has abandoned a stale prosecution of Bijan Rafiekian, a former business partner of Lt. Gen. Michael Flynn.

After being stuck in the appeals process for more than four years, the DOJ was facing the prospect of having to try the case in federal district court anew. Instead, on Sept. 11, it asked for it to be dismissed. District Judge Anthony Trenga granted the request later that day.

The case stemmed from the FBI’s 2016 investigation into associates of then-presidential candidate Donald Trump over allegations of collusion with Russia. Gen. Flynn, who previously headed the Defense Intelligence Agency in the Obama administration, was advising the Trump campaign and became a target of the investigation in August 2016.

Subsequent investigations concluded that the Russia probe wasn’t properly predicated and resulted in illegal surveillance of Trump campaign associate Carter Page.

Mr. Rafiekian was convicted in 2019 of acting as an unregistered agent of Turkey and conspiring to violate the Foreign Agent Registration Act (FARA) based on a 2016 lobbying job for Turkish businessman Kamil Ekim Alptekin. Judge Trenga tossed the verdict for lack of evidence. The DOJ appealed and the Fourth Circuit appeals court reversed the decision in 2021, but gave the judge a chance to instead make an argument for a new trial. The judge did so in 2022 and the Fourth Circuit affirmed the decision on May 18.

“Overall, the great evidentiary weight is that Rafiekian did not agree to act, or would not have understood that Alptekin was proposing that he act, or that he would be seen as having agreed to act, subject to the direction or control of Turkey,” Judge Trenga said in his 2022 opinion (pdf).

The new trial was set for Oct. 30 and the parties were scheduled to update the judge on their progress on Sept. 13. The DOJ moved to dismiss instead.

“After carefully considering the Fourth Circuit’s recent decision in this case and the principles of federal prosecution, the United States believes it is not in the public interest to pursue the case against defendant Bijan Rafiekian further,” the motion said (pdf).

The dismissal concludes one of the few remaining loose ends of the Russia probe.

Who’s Foreign Agent?

The Rafiekian case allowed the courts to weigh in on how far the DOJ can go to label Americans as foreign agents.

The prosecutors were trying to argue that merely agreeing to do “something the foreign principal requests” makes one an “agent” and that one could become such an agent even unilaterally “without a foreign government’s participation and assent.”

Both Judge Trenga and the Fourt Circuit rejected such a “broad expansive reading” of the law, the judge said.

The government needs to prove that a foreign official “directed or controlled” the agent’s actions and that the agent agreed to follow such direction. Being a “wannabe emissary” and “acting in accordance with foreign interests or by privately pledging allegiance” isn’t enough, he said.

Flynn Case

The process with Mr. Rafiekian is intertwined with the Flynn case, which is itself riddled with troubling occurrences.

Documents from the Russia probe indicate that the FBI asked the DOJ to examine whether the probe’s targets had any lapses in reporting foreign lobbying work. In November 2016, the DOJ questioned a job Gen. Flynn and Mr. Rafiekian did under their then-fledgling consultancy, Flynn Intel Group (FIG), for Mr. Alptekin.

Meanwhile, the FBI agents on the Flynn case concluded it was a dead end and moved to close it. In early January 2017, FBI leadership intervened to keep the case open on the legally questionable theory that Gen. Flynn violated the Logan Act, a virtually never enforced law prohibiting unsanctioned diplomacy.

The FBI interviewed Gen. Flynn on Jan. 24, 2017, and together with the DOJ told the White House that Gen. Flynn lied during the interview, prompting President Trump to fire him from the position of national security adviser.

Upon the DOJ prompt, the already defunct FIG retroactively registered under FARA in March 2017. When the FBI’s Russia probe was taken over by special counsel Robert Mueller in May 2017, Gen. Flynn was threatened with FARA violation charges. Internal communications of his lawyers showed that prosecutors conveyed to them an “unofficial understanding” that if Gen. Flynn continued to cooperate with the Mueller probe, they were “unlikely” to charge his son, who also worked on the FIG Turkey contract.

One of the FBI agents on the case later said the prosecution of Gen. Flynn was being used as a means to “get Trump.”

Facing the threat of both himself and his son facing FARA charges, Gen. Flynn pleaded guilty to lying to the FBI in 2017, but later moved to withdraw his plea, saying that he didn’t actually lie, at least not knowingly. The DOJ dropped the case in 2020 after Attorney General William Barr ordered an independent review of it.

The presiding judge refused to drop the case until President Trump pardoned Gen. Flynn.

Charges are still pending against Mr. Alptekin.