Federal Judge Anthony Trenga is considering throwing out the conspiracy and foreign lobbying charges that Michael Flynn’s ex-lobbying partner faces because the evidence prosecutors have presented at trial this week has been “very, very circumstantial.”
“Much of it’s very speculative,” Trenga, a federal judge in the Eastern District of Virginia, said Thursday.
If Trenga were to toss the charges against Flynn’s partner Bijan Kian, it would be an enormous boon to Flynn and a shocking blow to a Justice Department effort, spun off from the Mueller investigation, to crack down on foreign influence.
Flynn had admitted under oath to illegally filing a false foreign lobbying form for the Flynn Intel Group regarding its 2016 work for Turkey — also an issue in this case. That admission became part of a deal he cut with prosecutors from special counsel Robert Mueller’s office in December 2017 to plead guilty to lying to federal authorities.
At the time of his guilty plea, he became a key cooperator in the Mueller investigation, and also helped prosecutors build their case against Kian. But he has not yet been sentenced for his crime, and his legal team publicly split with the federal prosecutors as the Kian trial approached. He could still face jail time — but has also drawn the public support of President Donald Trump.
Prosecutors from the US Attorney’s Office in northern Virginia rested their case against Kian Thursday afternoon. They had spent three days calling 15 witnesses to testify and showing the jury emails, business proposals and Skype messages between Kian, the Flynn Intel Group partner, and his Turkish-Danish client Ekim Alptekin and others.
That’s when Kian’s defense team asked the judge to acquit Kian before the jury could deliberate. The request is a standard one to make during a trial, but it’s rare for a judge to agree the case should be thrown out.
Kian’s defense team has maintained the Flynn Intel Group in summer and fall 2016 was working for Alptekin and his company Inovo, which wanted to advance a smear campaign about a Turkish political dissident living in the US, and not for the Turkish government knowingly. But prosecutors have tried to prove an agreement between Alptekin and Kian to help the Turkish government win extradition of the dissident, Fethullah Gulen.
“There was no testimony that anyone was controlling FIG’s actions,” James Tysse, a Kian defense lawyer, argued, calling Flynn and Kian’s firm by its acronym.
No emails or texts presented at the trial revealed Kian agreeing to a conspiracy to secretly work for the Turkish government, he said. Kian had sought out lawyers’ advice to properly register FIG’s lobbying work with the government, he added. And witnesses who attended or heard about a much-discussed meeting in New York City in September 2016 between Flynn, Kian and Turkish government officials hadn’t described discussion of an agreement either, Tysse said.
One witness, however, testified on Thursday that Alptekin — upset with FIG’s lack of provoking congressional hearings, major news stories or a federal investigation into Gulen– said “What do I tell Ankara?” at a November 2016 meeting at the Flynn group’s offices.
It was one of the few moments in the trial’s latter half that furthered prosecutors’ main points. Some of the witnesses didn’t have clear impressions of what Alptekin wanted until near the project’s end, when he pushed a print-out version of their work back to them at the meeting because he was so displeased.
“I almost fell off my chair,” the witness, Jim Courtovich, testified. “What he was talking about was something completely independent from what we were hired to do in size and scope.”
FIG had brought in Courtovich’s firm Sphere Consulting to make a biased documentary video about Gulen and his supporters. The documentary was never made.
The witnesses’ testimony may not have lined up, prosecutor Evan Turgeon argued to the judge Thursday, but “co-conspirators actions and statements did line up,” he said, implying they had coordinated lies.
The biggest hole in prosecutors’ presentation appears to have been the lack of testimony from Flynn, who initially had agreed to help prosecutors and then was dropped as a witness earlier this month. Prosecutors had lost faith in Flynn after a new set of lawyers said he couldn’t say under oath that he intentionally made the false foreign lobbying filing.
Flynn was on many of the emails shown at trial, and may have provided a fuller narrative for the prosecutors’ case than the collage of consultants who testified about efforts and decisions in the Flynn Intel Group. Flynn’s former attorney Robert Kelner had notably testified as a witness for the prosecution on Tuesday.
Trenga took a 45-minute break to consider acquitting Kian in the mid-afternoon Thursday. When he returned, James Gillis, the lead prosecutor on the case, launched into one last, impassioned argument to save the case. “This is as close as you’re going to get to an agreement,” Gillis told the judge.
Trenga could still decide later on whether to acquit Kian.
Even if Kian were cleared, Flynn may not be out of the woods. Prosecutors had hit back at him last Friday, handing to Kian’s team a still-unexplained statement that said Flynn had another arrangement with Alptekin because of his “relationship with an ongoing presidential campaign,” which the US government deemed to be part of the Turkish government’s effort to influence US policy.
Flynn’s attorney Sidney Powell declined to comment on what Thursday’s developments will mean for Flynn.
Closing arguments for the trial will likely be Monday. Flynn almost certainly will not be called to testify on Kian’s behalf.