4th Circuit judge James Wynn acknowledged that the evidence against Rafiekian was far from overwhelming, but said jurors were free to convict the defendant based on circumstantial evidence and inferences.
“We are convinced that the jury heard enough evidence that Rafiekian acted as ‘an agent of a foreign government’,” wrote Wynn. “Based on the evidence presented, a rational judge could conclude … that the Turkish government was, in fact, behind the project; whereas, through Alptekin, Turkey has communicated general and specific instructions; and that Rafiekian followed these instructions throughout the life of the engagement – all without notifying the Attorney General. “
Flynn was never charged in the case, although as part of a bargain with the office of Special Counsel Robert Mueller, the former national security adviser has admitted that he has approved false reports on the work that have been submitted to the Department of Justice. Flynn later insisted that he did not know that the information was false and that he never examined the documents closely.
Although the 4th Circuit’s opinion essentially concluded that the project carried out through the consulting firm Flynn Intel Group was an illegal and unregistered lobbying effort for the Turkish government, Wynn was interrupted in his opinion when declaring that Flynn had been involved in criminal work-related activities.
“We refrained from drawing conclusions regarding Flynn’s alleged participation,” wrote Wynn.
Trenga said jurors were not “adequately educated” about Flynn’s role, but the appeals court said that since Rafiekian’s lawyers did not raise this issue in his motion to overturn the verdicts, Trenga should not have considered this.
Flynn’s legal guilt is now a moot point. Amid protracted legal disputes over Flynn’s guilty plea in a false statement charge in the Mueller investigation, President Donald Trump issued a sweeping pardon to Flynn last November that appears to extinguish any potential criminal liability arising from the Turkey-related lobby or supposed efforts to hide it US authorities.
Prior to his pardon, Attorney General William Barr ordered an unusual internal review of the investigation and prosecution against Flynn. Barr concluded that the effort was deeply flawed and moved to withdraw the case. A judge had not ruled on the motion at the time Trump granted Flynn a pardon. Justice Department officials declined to say whether the review covered Turkey-related lobbying issues, but pressured the case against Rafiekian.
During the work related to Turkey, Flynn was one of the main advisers of Trump’s presidential campaign. After the election, Rafiekian became adviser to Trump’s transition team.
The 40-page opinion of the appeals court appears to distort at least one important fact related to the Flynn-Rafiekian saga. Wynn said that just before the 2019 Rafiekian trial in Alexandria, Va., “Flynn changed his mind about testifying against Rafiekian.”
However, lawsuits say prosecutors were the ones who decided not to call Flynn as a witness after a highly contentious exchange with his lawyers, who signaled that his testimony may not be as favorable to the government as prosecutors had hoped.
Rafiekian could ask the entire court of the appeals court to take the case or seek review in the Supreme Court. Without further intervention, the case will return to Trenga for Rafiekian to be convicted. He faces a maximum possible sentence of 15 years in prison, but sentences in similar cases are usually well below the maximum.
A Rafiekian lawyer did not immediately comment on the decision or the next steps.
Some aspects of the 4th Circuit’s decision may complicate future prosecutions against foreign agents. Wynn considered the government’s interpretation of the term “agent” to be very broad under a law often used to prosecute these cases.
The appeals court noted that prosecutors said that someone could be guilty of actions not registered by a foreign government at any time who “are willing to do something the principal foreigner requests”. But Wynn said that Trenga “correctly rejected” that view.
The decision on this point may make it more difficult for the government to use the criminal law of the foreign agent in question, known as Section 951.
The decision leaves prosecutors with the option to prosecute these individuals under the best-known Foreign Agent Registration Act, but criminal prosecution under that law is more difficult because a conviction requires proof that the defendant knew of his obligation to register and ignored it. . This proof is not required by section 951, which is more similar to a traditional espionage statute.
Wynn said that Trenga went too far in suggesting that Rafiekian should be receiving daily instructions from a foreign government or entity to act as a foreign agent. However, the appeals court said that activities that only coincide with the interests of a foreign government or that seek to obtain favors from it do not make someone an agent.
“The line between an ‘agent’ working under the ‘control’ of a foreign government and one who, instead, agrees to operate subject to a more direct form of ‘direction’ – as an independent contractor – could – can be a foggy. Still, we found no reason to believe that Congress sought to exclude the latest variety of [Section] 951 range, ”wrote Wynn.
“Given the rigid penalties for a [Section] 951 violation, we refuse to infer the intention of Congress to move away from this base and impose the requirement of disclosure of the statute to each aspiring emissary in the absence of explicit language for that purpose ”, wrote the judge of the appeals court.
Wynn supported the government on another disputed issue in the case: whether prosecutors had to show, beyond any reasonable doubt, that Rafiekian’s work was not part of a “legal business transaction” or whether the defense had to show that it was to defeat the prosecution. The appeals court said prosecutors were not required, as part of their case, to prove that Rafiekian’s actions were not ordinary commercial activities.