The decision is another blow to efforts by the Justice Department to crack down on unregistered lobbying for foreign governments. Former White House counsel Gregory B. Craig was recently found not guilty at a trial of lying about his work for Ukraine, and this week prosecutors closed an inquiry into two other high-
profile lobbyists who did work there.
Trenga had signaled his skepticism throughout Rafiekian’s trial, ruling that there was not enough evidence to establish a conspiracy between him, Flynn and a Dutch Turkish businessman named Kamil Ekim Alptekin.
“Bijan and his family are relieved and looking forward to getting on with their lives. We are all grateful to the Court,” defense attorney Mark MacDougall said. “Our system is still sturdy, and in this case justice has been done.”
Flynn, President Trump’s onetime national security adviser, ran a consulting firm with Rafiekian called the Flynn Intel Group. Alptekin paid the firm to advocate for the extradition of a dissident Turkish cleric named Fethullah Gulen. A jury found in July that Alptekin was a cutout for the Turkish government and that Rafiekian conspired with him while acting as an illegal lobbyist.
The project culminated in an op-ed published in the Hill on the day of the 2016 election, in which Flynn disparaged Gulen.
At a hearing this month, Trenga noted that there was “no evidence of who exactly asked for the op-ed” at trial. While Rafiekian emailed the piece to Alptekin, calling it a “promise kept,” Trenga noted that “he didn’t say who made the promise.”
He found there was overall “a lack of direction or control” showing Turkey was behind the Flynn Intel Group’s work and a lack of “agreement” proving a conspiracy. Alptekin’s comments about interactions with the Turkish government, as well as payments by FIG to Alptekin, were not enough, he said.
“There is no evidence of any statements by Rafiekian that would allow a rational juror to find that Rafiekian had agreed to operate as an agent of the Turkish government, or that he thought he was acting as a Turkish agent,” the judge wrote.
His own jury instructions, Trenga said, did not make clear that statements from Alptekin could not be taken as truth, that Flynn could not be considered a co-
conspirator and that Rafiekian had to know what he was doing was not legal.
Trenga pointed to the fact that Flynn was not charged or implicated by prosecutors until the eve of trial as “particularly telling.” Flynn had been set to testify for the prosecution until the government learned he planned to say he had never intended to lie about the Turkey project. He was deemed unreliable by prosecutors and was not called to the stand.
In a statement, a spokesman for the Eastern District of Virginia said prosecutors are “reviewing the Court’s opinion” and “do not have any further comment at this time.”
To appeal the decision would require approval from the Office of the Solicitor General. Trenga ruled that should the 4th Circuit Court of Appeals find the evidence for conviction was sufficient, Rafiekian still deserves a new trial given his concerns with the jury instructions. While the appeals court also can overturn that ruling, a federal judge has broader discretion in ordering a new trial than in overturning a jury verdict.