The special counsel’s investigation was a sham controlled by the intelligence community. Evidence has long suggested as much, but testimony earlier this week from Michael Flynn’s ex-lawyer—that Flynn’s former legal team had not seen recently revealed information purporting to implicate Flynn in a conspiracy with a Turkish agent—confirms it.
This testimony came on Tuesday when Flynn’s former Covington and Burling lawyer, Robert Kelner, took the stand at the trial of Flynn’s former partner at Flynn Intel Group (FIG), Bijan Rafiekian. Rafiekian, who co-founded FIG with Flynn, is on trial for conspiring with his co-defendant Kamil Ekim Alptekin and others (unnamed in the indictment) to act as an unregistered agent of the Turkish government and conspiring to file a material false Foreign Agents Registration Act (FARA) statement. (Alptekin is a fugitive believed to be in Turkey.)
The government had planned to call Flynn as a witness at Rafiekian’s trial, but at the last minute prosecutors informed the court that Flynn would not testify. Instead, prosecutors notified the court that they viewed Flynn as an unindicted co-conspirator and that they intended to present hearsay evidence against Rafiekian—something allowed if Flynn had conspired with Rafiekian and Alptekin to file the false FARA statements.
Last week, presiding Judge Anthony J. Trenga held that the government had not yet presented sufficient evidence of a conspiracy to admit prior statements made by Flynn and Alptekin. Until prosecutors made a preliminary showing of a conspiracy at trial, Trenga ruled, the hearsay evidence would not be admitted, and even then the government may be bound by its prior admission that Flynn was not a co-conspirator.
Then last Friday came the revelation that the government possessed previously undisclosed information supposedly implicating Flynn in a separate conspiracy with Alptekin. Rafiekian’s attorney disclosed this shocker at the close of a pre-trial hearing, telling the court that before the start of the proceedings, the government had handed him a one-sentence statement. “If I may read it for purposes of the record,” Rafiekian’s lawyer continued:
The United States government is in possession of multiple independent pieces of information relating to the Turkish government’s efforts to influence United States policy on Turkey and Fethullah Gulen, including information relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign without any reference to the defendant or FIG.
(For more on Fethullah Gulen and Ekim Alptekin see this article.)
On Tuesday, while cross-examining Kelner, Rafiekian’s attorney asked Flynn’s former lawyer “if he knew what that statement alludes to.” According to Josh Gerstein, who is covering the trial for Politico, Kelner replied, “Ummm….I would say no. I learned of that through a media report last week.” Then, according to Gerstein, Kelner testified that Flynn had never told him about any “back channel relationship with Alptekin.”
Kelner’s testimony establishes two facts, both of which benefit Flynn and both of which the media has missed. First, while the press perceives the government’s recent disclosure of alleged communications between Flynn and Alptekin as damaging Flynn, Flynn’s current legal team is unconcerned with Kelner’s testimony, as demonstrated by the fact that it was Flynn’s waiver of attorney-client privilege that allowed Kelner to testify about their conversations.
Kelner made that point clear at trial, explaining to the jury that he was only answering questions about his conversations with Flynn, including those posed about his client’s reported communications with Alptekin, because Flynn had not asserted attorney-client privilege.
The second key take-away from Kelner’s testimony is not as straightforward, but it is extremely significant: Kelner’s lack of knowledge about the “multiple independent pieces of information relating to the Turkish government’s efforts to influence United States policy on Turkey and Fethullah Gulen, including information relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign,” establishes that the intelligence community viewed the special counsel “probe” as merely for show.
There is no other way to explain how Flynn’s lawyer did not know about that information. Prior to the recent falling-out between Flynn and federal prosecutors, Flynn met extensively with “the Special Counsel’s office and other components of the Government, totaling approximately sixty-two hours and forty-five minutes,” according to Flynn’s sentencing memorandum.
Yet not once during those meetings did the “multiple independent pieces of information . . . relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship” with the Trump presidential campaign come up. That is despite the fact that the Robert Mueller report made clear that Acting Attorney General Rod Rosenstein had “authorized the Special Counsel to investigate, among other things, possible criminal conduct by Michael Flynn in acting as an unregistered agent for the Government of Turkey.”
Now, arguably the special counsel’s office did not question Flynn about those “multiple independent pieces of information” because they already had enough to force a plea out of Flynn. But why not ask Flynn about that information to determine whether Rafiekian and Alptekin had committed any crimes?
That question was also expressly within the special counsel’s authority: According to Mueller’s report, in October 2017, Rosenstein “confirmed the Special Counsel’s authority to investigate Rafiekian and Alptekin because they ‘may have been jointly involved’ with Flynn in FARA-related crimes.” The answer is simple enough: The intelligence community did not share the “multiple independent pieces of information” concerning Flynn’s communications with Alptekin with the special counsel’s office.
We can surmise this because the federal prosecutors did not provide Rafiekian’s attorneys with notice that the government possessed the information supposedly implicating Flynn in a separate conspiracy with Alptekin until Friday. And the court had ordered the government to turn over all Brady and Giglio evidence by the end of May.
Brady material refers to evidence favorable to an accused, and Giglio evidence consists of evidence adversely affecting the credibility of the government’s witnesses. The government has an obligation to provide a defendant this evidence prior to trial. But, and significantly, while the prosecution must turn over any material exculpatory or impeachment evidence, disclosure is only required of information in the prosecution’s “possession or knowledge, whether actual or constructive.”
Criminal defense lawyer Leslie McAdoo Gordon, a principal at the D.C. firm of McAdoo Gordon and Associates, explained it this way:
Clearly one (or more) of the intelligence agencies had possession of the information recently identified in the pre-trial hearing. However, it’s not enough that some federal agency has information helpful to the defense. If the intelligence agency owning the information is not participating in the prosecution, or if its representative to the prosecution team doesn’t know about the information, then it isn’t a Brady or Giglioviolation that they didn’t give it to the defense attorneys.
In order words, as McAdoo Gordon told The Federalist, “The prosecution lawyers must query their team members for all information that could be Brady or Giglio. But they don’t have to make a search of the entire agency where prosecution team members like agents, investigators or technicians work.”
In Rafiekian’s case, then, if intelligence agencies did not share the information they had with those involved in investigating and prosecuting Rafiekian, the prosecution would have no duty under Brady/Giglio to hand it over. Obligations under Brady/Giglio are continuous, though, meaning that whenever exculpatory or impeachment material makes its way into the hands of the prosecution team, the government lawyers must alert the defendant’s lawyers.
So, the fact that the government attorneys had not previously provided Rafiekian notice of the “multiple independent pieces of information” concerning Flynn’s communications with Alptekin, means that no one involved in the criminal investigation and prosecution of Rafiekian knew of that evidence, including the special counsel office, which had “investigated” Rafiekian and Alptekin for four months before handing off the case. If they had, they had an obligation to provide it to Rafiekian’s attorneys on a timely basis and by the court established deadline.
But someone knew of those “multiple independent pieces of information”—or rather some “community.” And it is troubling that the intelligence community had no problem withholding the information from the special counsel’s office and the Eastern District of Virginia prosecutors who inherited the case from Mueller—and in turn Rafiekian’s attorneys—until Flynn became a persona non gratis.
In what appears to be a clear case of revenge, the intelligence community handed off their supposed intel on Flynn, knowing neither Flynn nor Rafiekian could adequately counter it because it was classified, and all Rafiekian’s attorneys would likely get would be a lousy one-sentence summary of the “multiple independent pieces of information.” That one-sentence summary would be made public and implicate Flynn in a criminal conspiracy.
After receiving this notice, Rafiekian’s attorneys argued to the court that the recently disclosed evidence is quite clearly Brady evidence and that “if Mr. Rafiekian is convicted without his counsel having access to this exculpatory evidence, we believe it will go right to the heart of his due process and confrontation rights.” But, as of yet, the court has refused to provide Rafiekian access to the intel (in a classified setting, of course).
There is no good excuse for intelligence agencies to have withheld this information from the special counsel team. There was a very bad excuse for it, though: The intelligence community knew the special counsel probe was a sham designed to take down a president and any other enemies of the deep-state status quo.
Flynn clearly fit the bill. Once he agreed to plead guilty and cooperated, that was good enough for the intelligence community. Their goal was accomplished, and the fact that Mueller had also been charged with investigating Rafiekian and Alptekin was of no matter.
How Many Other Times Has This Happened?
This pattern has likely repeated itself many times, which would explain why Mueller never addressed whether Russia interfered in the 2016 election by feeding Christopher Steele fake intel for his hit on Trump. Just as the intelligence community carefully guarded the information it believed it had on Flynn, the spies and spooks seeking to destroy the president likely kept a close grip on any information that exposed the Steele dossier as a Russian ploy (or a Hillary Clinton-funded lie).
That should be the lesson from the recent revelations related to Flynn—that the special counsel team never had access to the intelligence needed to properly investigate Rafiekian and Alptekin. In turn, this suggests the intelligence community withheld other evidence for Mueller’s team, such as intelligence showing Russia used Steele to interfere in the election.
There is only one reasonable explanation for this: The intelligence community viewed the special counsel’s investigation as an insurance policy meant to destroy Trump. And Flynn was just a means of getting to Trump.