A former Trump transition team member found guilty of recruiting Michael Flynn for a Turkish government influence operation had his convictions reinstated on Thursday, as a federal appeals court criticized a judge for overruling a jury verdict finding him to have been a foreign government agent.
“A federal jury found Rafiekian guilty of acting as an undisclosed agent of a foreign government and conspiring to do so,” Raj Parekh, the Acting U.S. Attorney for the Eastern District of Virginia, wrote in a statement. “We are pleased that the Fourth Circuit thoroughly reviewed the government’s case and found that the jury’s verdict was amply supported by the evidence. The Court’s careful legal analysis confirmed the broad scope and importance of the disclosure requirements for individuals acting within the United States at the direction of foreign governments. This case is a reminder to those who act covertly within our country on behalf of a foreign power that they face criminal consequences for their conduct.”
In July 2019, a jury found Bijan Rafiekian guilty of acting as an agent of Turkey in a conspiracy that involved Flynn and Turkish businessman Ekim Alptekin, only to have those findings vacated by the judge presiding over the case following the trial.
Trial Judge Anthony Trenga, a George W. Bush appointee, had found insufficient evidence tying Rafiekian to the crimes charged, but a three-judge panel—with jurists tapped by both Democratic and Republican presidents—unanimously found that prosecutors had “lassoed enough stars to reveal a distinct constellation” of information inculpating Rafiekian, who is sometimes also known as Kian for short.
“Viewing the above facts holistically, as we must, we are convinced that the jury heard sufficient evidence that Rafiekian acted as ‘an agent of a foreign government,'” Fourth Circuit Judge James Wynn Jr., a Barack Obama appointee, wrote for the panel. “Under our deferential standard of review, we must uphold the jury’s verdict if ‘any trier of fact could have found that the evidence—either direct, circumstantial or a combination of both—along with any reasonable inference[s]’ established the essential elements of the crime beyond a reasonable doubt.”
After a failed coup attempt against Turkish strongman Recep Tayyip Erdoğan on July 15, 2016, the Turkish government blamed an Islamic preacher named Fethullah Gülen, a U.S. green card holder living in self-imposed exile in rural Pennsylvania. Gülen, a former Erdoğan ally turned foe, denied any role in the plot, and the Turkish government has failed to yield evidence to support his extradition for nearly half a decade.
As a former general, intelligence official and anti-Turkey hawk, Flynn initially applauded the aborted putsch against Turkey’s authoritarian ruler, but he quickly changed his tune once approached by Rafiekin and Alptekin. Court papers show that the duo planned to meet with the general before the end of that month and that they eventually signed a $600,000 deal with Flynn Intel Group to discredit Gülen.
The money passed through Alptekin’s Dutch company Inovo BV, and Flynn’s company eventually received $530,000, federal filings showed.
Alptekin, who remains a fugitive from the charges in Turkey, slammed the decision as “political” in a direct message to Law&Crime.
“This is a political decision that violates every principle of justice and will prolong the injustice our families have already been suffering for years,” Alptekin said in a statement. “They weaponized the justice system to penalize everyone that dares investigate a criminal Islamist cult with ties to the Clinton family.”
Once an ally of the Turkey’s current leader before being designated a state enemy there, Gülen has never been accused of any crimes by the United States, and the preacher characterizes his own movement as a spiritual one emphasizing education. The political right in both the United States and Turkey has trumped up his supposed ties to Clinton based on that president’s praise for Gülen as a moderate and a “friend” in 2008, when the cleric was also allied with Erdoğan.
“I wish Bijan continued strength in this difficult period,” Alptekin added.
Working closely with Turkey’s foreign and economic ministers, the alleged operatives dubbed their smear campaign “Project Truth,” and Flynn published an anti-Gülen op-ed describing him as a “radical cleric” in The Hill on Election Day in 2016, which prosecutors claim was effectively ghostwritten by his Turkey-tied handlers. Flynn, who also peddled the same Gülen-Clinton talking point in that op-ed, would later admit that he lied on Foreign Agent Registration Act forms to disguise these dealings during his guilty pleas during the Mueller investigation.
After Trump’s election, Rafiekian was appointed to the Trump transition team, where he helped advise the 45th president on candidates to lead the CIA and Director of National Intelligence.
The Fourth Circuit Court of Appeals noted that direct evidence of the scheme was slim. Flynn, originally slated to be a witness, backed away from his guilty plea, and the government struck him from the anticipated witness list before Rafiekian’s trial. Since Alptekin also eluded the long arm of U.S. law enforcement, Rafiekian had been kept safe from testimony from his closest accused confederates.
“The list of evidence that the Government did not produce at trial is long,” the 40-page opinion states. “No emails or phone calls between Rafiekian and any Turkish official. No bank records tracing the flow of funds back to governmental accounts. No direct evidence clarifying Alptekin’s role vis-à-vis Turkey. No live testimony from Rafiekian, Flynn, or Alptekin.”
“But in a § 951 case, such evidence can be hard to come by,” it continues, referring to the statute criminalizing being an undisclosed agent of a foreign government. “Savvy operatives cover their tracks. So, if the prosecution is to prove that a defendant acted as an ‘agent of a foreign government,’ it may need to rely on circumstantial evidence and reasonable inferences to make its case—as it is entitled to do. […] And here, the Government lassoed enough stars to reveal a distinct constellation.”
Circuit Judges Paul V. Niemeyer, a George H.W. Bush appointee, and Barbara Keenan, an Obama appointee, also signed the decision.
Rafiekian’s attorney James Tysee, from the firm Akin Gump, did not respond to an email requesting comment.
Though the goal of the campaign was to sway U.S. public opinion and win Gülen’s extradition, the Wall Street Journal quoted ex-CIA chief James Woolsey as claiming that Flynn, Alptekin and Rafiekin met with Turkish ministers to discuss the possibility of “a covert step in the dead of night to whisk this guy away,” referring to the cleric. The other alleged participants in the discussion denied it took place. The plan never occurred, and this was never charged by prosecutors.
Update—March 18 at 1:11 p.m. Central Time: This story has been updated to include comment from the U.S. Attorney for the Eastern District of Virginia.
Update—March 18 at 3:18 p.m. Central Time: This story has been updated to include Alptekin’s comment and add context.
Read the ruling below:
(Photo of Rafiekian from the Export-Import Bank of the United States)
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