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Without testimony from Michael Flynn, judge is skeptical of case against ex-business partner

Michael Flynn leaves federal court last month in Washington. (Patrick Semansky/AP)

A federal judge said Thursday that he is skeptical that there is enough evidence to convict Michael Flynn’s ex-business partner of illegally lobbying for Turkey after the former national security adviser failed to testify. 

“There are very substantial issues as to the sufficiency of the evidence,” Judge Anthony J. Trenga said in Alexandria federal court. “It’s all very, very circumstantial. Much of it is very speculative.”

Despite his comments, the judge declined for the moment to throw out the case against Bijan Rafiekian, an Iranian American businessman who ran a consulting firm with Flynn called the Flynn Intel Group (FIG). But the judge can revisit the concerns he expressed after hearing all the government’s evidence, before or after the case goes to a jury.

“There has to be some evidence” of an agreement, the judge said.

Flynn was expected to testify that he hid Turkey’s involvement in the campaign he and Rafiekian performed with Dutch Turkish businessman Ekim Alptekin to get dissident cleric Fethullah Gulen extradited from the United States. But late last month, Flynn told prosecutors he would say only that his statements were false “in hindsight” and that he never intentionally lied. Prosecutors declined to call him to the stand, a decision that may affect his sentence in Washington for lying to the FBI.

The witnesses from FIG and its partners who did testify said they were under the impression that Alptekin’s firm, Inovo, had hired them to help restore business confidence in Turkey by blaming Gulen for a 2016 attempted coup.

It was left to Assistant U.S. Attorney Evan Turgeon to argue that it was clear the three were “acting in concert,” because their “lies . . . line up almost perfectly.”

Flynn, Rafiekian and Alptekin all claimed, according to testimony, that a September 2016 meeting in New York City with Turkish officials had nothing to do with the anti-Gulen project, nor did an op-ed critical of Gulen published under Flynn’s name on the day of the presidential election. The three made inconsistent statements about payments from FIG back to Alptekin, at points calling them refunds or consulting fees without much evidence supporting either proposition.

FIG employees and contractors said Alptekin was focused on “dirt” that would incriminate Gulen and lead to his extradition — a goal that had no clear benefit for a private company. FBI agent Bryan Alfredo testified that in reviewing emails and Skype conversations between Alptekin and Rafiekian, Turkey’s business climate was never raised.

Former FBI agent Brian McCauley, hired by FIG as an investigator, said Alptekin asked whether he had access to classified information on Gulen; McCauley said no. He and several others testified that Rafiekian wanted to keep the Gulen project under the radar. When Rafiekian said he found a way to avoid filing under the Foreign Agent Registration Act, McCauley testified that he emphatically advised against it.

James Courtovich, a partner at a public relations firm hired by FIG to help publicize the anti-Gulen campaign, said that at a meeting on Nov. 2, 2016, Alptekin expressed frustration with the pace of the work and asked, “What am I going to tell Ankara?”

That same day, Rafiekian sent Alptekin an email that included a draft of the op-ed critical of Gulen, adding, “A promise made is a promise kept.” Courtovich’s firm, Sphere, helped place the op-ed in the Hill newspaper on Election Day.

That editorial was what first drew the interest of the Justice Department — and the counsel for the Trump campaign, Bill McGinley, who Courtovich testified called FIG the next day, asking whether Flynn wrote the article for a private client.

Courtovich said he expected Rafiekian to say Alptekin’s firm paid for the op-ed — it was an “easy answer.” Instead Rafiekian said Flynn wrote it on his own because “he was passionate about the issue.”

Courtovich said he thought he should contact his own attorney, prompting McGinley to say, “I think we have a conflict here — let’s hang up.”

Defense attorneys dismissed Courtovich’s testimony along with other evidence as ambiguous.

“There are simply too many gaps,” argued James Tysse of Akin Gump.

Prosecutors asked the judge to at least wait until after a jury verdict before deciding on the merits of the case. If the jury convicts but the judge deems the evidence insufficient, the Justice Department can appeal to a higher court.

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