Michael Flynn’s New Brief Shines Sunlight On Prosecutor’s Tactics

The defense team for former National Security Advisor Michael T. Flynn has submitted a filing to the Eastern District of Virginia fighting the government’s most recent proposal to ask the Court to deem Flynn a “co-conspirator” in the case against his former partner. The designation is solely for the purpose of obtaining the admission of one document the government itself claims is already admissible under a different rule, according to a brief filed by Flynn’s defense team.

The substantial briefing was filed in just the last few days in the case the government filed against Bijan Rafiekian, Flynn’s former consulting firm partner. It was only unsealed Tuesday. Flynn’s own filing is the most recent—after just receiving the government’s filing at 9 pm last night.

The evidence collected by Flynn’s current defense Attorney Sidney Powell, who recently replaced Flynn’s former defense attorney Robert Kelner, sheds new light on the extraordinary tactics used to target and retaliate against Flynn, according to the filing.

Further, Powell’s submission to the court also reveals that Flynn and his attorneys were under extreme pressure to file a Foreign Agents Registration Act in February, 2017 by David Laufman, the former head of the National Security Division.

Flynn was forced to file his FARA registration in February 2017, “under extreme and unprecedented pressure from extensive interactions with the National Security Division including then- NSD head David Laufman.” Laufman resigned shortly after on Feb. 8, 2017, during DOJ Inspector General Michael Horowitz’s investigation into the FBI’s probe of Hillary Clinton’s use of a private server to send classified emails.

Further, Flynn’s former counsel had advised prosecutors that “Mr. Flynn did not know and did not authorize signing the FARA form believing there is anything wrong in it. He honesty answered the questions his former counsel posed to him to the best of his recollection, and some with the benefit of hindsight.”

The government’s case against Rafiekian, 66, and Kamil Ekim Alptekin, 41, a Turkish national, involve Flynn’s former security firm Flynn Intel Group. Rafiekian, who goes by the last name Kian, and Alptekin were indicted December, 2018, on conspiracy, and acting in the United States as illegal agents of the government of Turkey. Notably that indictment came just in time to provide any encouragement Flynn might have needed to cement his guilty plea in Judge Emmet Sullivan’s court.

The pair were also charged with making false statements to the FBI, according to the Department of Justice. According to the charges, Rafiekian, is charged with “conspiracy and acting in the United States as an illegal agent of the government of Turkey.” Basically, they are charging Kian with violating the Foreign Agents Registration Act, which is rarely prosecuted. According to Ms. Powell’s brief, the government has recently been insistent that Flynn admit that he knowingly and intentionally allowed FARA documents to filed on behalf of his former security firm Flynn Intel Group by his former counsel at Covington and Burling.

“The prosecutors have been adamant that Mr. Flynn testify that he authorized the filing of the FARA form knowing and intending that it contained false statements. Mr. Flynn cannot give that testimony because it is not true.”

Flynn, who has been cooperating with the government throughout its investigation, has given hundreds of hours of interviews and information at great personal expense in time, travel and attorneys fees. Still, the government prosecutor, Evan Turgeon, was not satisfied, according to the defense filing. So much so, that the prosecutors re-interviewed Flynn’s former attorney Kelner about the FARA filing. 

“The prosecutors have been adamant that Mr. Flynn testify that he authorized the filing of the FARA form knowing and intending that it contained false statements,” the defense filing states. “Mr. Flynn cannot give that testimony because it is not true.”

Flynn’s former counsel, Kelner, admitted they had to make difficult judgement calls regarding the filing because of the extreme pressure and they did so with the advice of the National Security Division, the filing states.

However, during trial on June 28, Judge Anthony Trenga, who is presiding over the case against Kian, pressed prosecutors nearly half a dozen times to explain what laws were violated, regarding an op-ed that was published by the firm and the issue of lobbying.

“That’s what I’m having trouble understanding here,” the judge said, as reported by Politico. “It’s a convoluted statute.”

Powell contends in the filing that the government cannot now designate Flynn a coconspirator in Kian’s case, because prosecutors stated in open court on June 13 that Flynn is not a coconspirator and made numerous identical representations to Flynn’s new attorneys. Flynn has been a cooperating witness for the government and continues to cooperate fully with the government, she states in her brief. The court has not ruled on the government’s request and could even wait until trial to make the decision.

In fact, prosecutors stipulated “that Mr. Flynn is not a coconspirator in the case before the court.” The defense team notes that this is not a mere ‘Correction of the Record” that the government sought, but a complete and unwarranted “about-face.”

Powell’s recent filing with the Eastern District of Virginia was in response to a government filing that the defense team was made aware of only on July 7. According to the filing the government prosecutors are requesting that the court now designate Flynn as a coconspirator in their case against Rafiekian. Prosecutors stated that the request was based on a document that the government itself concedes can be submitted without designating Flynn a coconspirator.

The question is why would the government want to all the sudden do an ‘about face’ on Flynn? It appears to be in response to their failure to strong-arm Flynn into telling them what they want to hear, rather than the truth. In fact, government prosecutors stipulated numerous times to the court that Flynn was a full cooperating witness and the defense filing makes that clear as well.

“The government’s ‘about face’ is not a correction of the record,” states the defense. “There is no misstatement or typographical error which can simply be ‘corrected.’ The prosecutors made deliberate and affirmative admissions to counsel and this court” that constitute judicial admissions binding under the law.