Wednesday, July 24, 2019

The Flynn Intel Group Conviction

Yesterday a federal jury in the Eastern District of Virginia convicted Bijan Rafiekian on charges of conspiring to act as an agent of a foreign government, conspiring to make false statements and willful omissions in a FARA filing, and acting as an agent of a foreign government. Read the DoJ press release here.

CTH covers the story with a simply idiotic lede: U.S. Attorney General Bill Barr Successfully Convicts Flynn Intel Group – Sentencing October 18th. It's the type of hysterical reaction at CTH that I've decried in the past--despite the great services CTH has performed for conservatives.

I won't presume to provide a tutorial on the federal criminal justice system, but the simple fact is that Bill Barr didn't indict Rafiekian and didn't prosecute him. When a subject is indicted by a federal grand jury and prosecution is undertaken by a local US attorney--who is a presidential appointee--there is very little an attorney general can do. In fact, other authorities, other branches of the US government, are also involved. For example a US attorney must seek the leave of the court to dismiss an indictment. Overall, the overall principle of federal prosecution, as set out by the Justice Manual, which sets forth Department of Justice policy, and which delegates broad authority to US Attorneys, is this:

The United States Attorney, within his/her district, has plenary authority with regard to federal criminal matters. This authority is exercised under the supervision and direction of the Attorney General and his/her delegates.
The statutory duty to prosecute for all offenses against the United States (28 U.S.C. § 547) carries with it the authority necessary to perform this duty. The USA is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.

 I won't pretend to address all the complexities of these matters--I'm not competent to do so. Suffice it to say, that Barr would have been a fool if he had sought to terminate this prosecution in these circumstances. And Barr isn't a fool. In these matters, however, sundance IS a fool, and does his readers a real disservice.

This story isn't over. The following is Sidney Powell's (Flynn's lead lawyer) statement regarding the conviction of Bijan Rafiekian (edited from Powell's twitter feed):

A jury in Alexandria just returned verdicts of guilty against Mr. Rafiekian for "conspiracy & acting as an unregistered agent of Turkey." We note:  General Flynn has cooperated with the government for two years. Obviously they did not need his testimony to get a conviction.

2.  Significantly, the judge never even found enough evidence of a conspiracy to admit coconspirator hearsay. I remain very concerned about the government's abuse of power and over- criminalization of innocent business conduct. No one understood the statute, and Covington lawyer-

3. who did the #FARA filing with substantial coordination with the #DOJ--described the area of the law as "murky." 
The government could not articulate the elements of the offense, nor did it have any evidence to support it's own definition of what was "material."

4. This case is ripe for reversal by the district court or on appeal. It will not withstand scrutiny. 
In any event, General Flynn fulfilled his cooperation agreement with the government."


  1. Mueller and Weissmann have a history of spectacular reversals in the appellate review of their most noteworthy convictions. This case is ripe for the same treatment.

    In a sane and just world, failures such as this would result in professional opprobrium and reputational disgrace. Sadly, in political DC, it gets you kicked up the ladder.

  2. "Why didn't you file this paperwork and admit your lobbying was for Turkey's benefit?"
    "Because I wasn't working for Turkey."
    "Your client is Turkish."
    "Yeah. He's Turkish. So what?"
    "We've been told to prosecute everybody who worked with anybody who worked with Donald Trump, that's 'So what'".

    1. In its essence. I'll be interested in the review--presuming there is an appeal.

  3. Like Mike above, I think there is no chance this stands on appeal. The government in the late filings basically admitted that they were still working out how to interpret the statutes, and if at that time they couldn't figure it out, how in the world is someone supposed to obey the same laws?

    1. In addition, hopefully the courts have taken notice of how FARA has been abused in the jihad against Trump, and will thus be hostile to the government's interpretation.

  4. Sundance jumped the shark today with his Twitter feed at 10:35 AM today (Jul 24).

    "Robert Mueller is not a truthful man; in fact, he is remarkably dishonest (in the very literal sense); and intensely political in nature. Yet, this same Mueller and current AG Bill Barr are admittedly very close friends... what does that say about Barr?"

    This was a foolish comment. But I will answer his question on what it says about Barr.

    What it says about Barr is that he sets aside friendship when the friend is wrong, especially criminally wrong.