Mike Flynn’s Flip: You Don’t Need Your Cooperator to Testify If the Conspiracy Was All Conducted over Email

Perhaps the most remarkable language in the Bijan Kian indictment appears in both the conspiracy 18 USC 371 and the 18 USC 951 foreign agent counts. In both, the indictment alleges that Kian (referred to by his legal name Rafiekian here) and Kamil Ekim Alptekin both acted, themselves, and caused others to act as unregistered foreign agents.

To knowingly act and cause others to act in the United States as an agent of a foreign government without prior notification to the Attorney General, in violation of 18 U.S.C. § 951;

[snip]

From approximately July 2016 through approximately March 2017, in the Eastern District of Virginia and elsewhere, the defendants, BIJAN RAFIEKIAN, a/k/a “Bijan Kian” and KAMIL EK.IM ALPTEKIN, knowingly acted and caused others to act in the United States as an agent of a foreign government, that is, the Government of Turkey, without prior notification to the Attorney General, as required by law. [my emphasis]

While not explicitly stated, the reference to Mike Flynn throughout the indictment as Person A — the only unindicted co-conspirator so identified — makes it clear that the government believes that’s what Flynn was doing, acting as an agent of Turkey. And the timeline for the conspiracy goes up to March 2017.

One of Trump’s top foreign policy advisors and, for almost a month, his National Security Advisor, was an agent of Turkey.

That fact, and the indictment as a whole, raises further questions about why Flynn got off so easy: a false statements charge for which he’ll do no time, unlike the 15 years his business partner is facing (though he won’t get that). And that outcome has raised still other questions about how Flynn could be useful to prosecutors, having admitted he’s a liar, yet having escaped all consequences for his actions. How can Flynn testify, commentators wonder, given that he was not charged for his role in the conspiracy?

Aside from quipping “flip early and often,” I think the Kian indictment provides clues — clues that I’ve long suspected have parallels in the Mueller investigation.

The indictment focuses just on the op-ed purportedly authored by Flynn that appeared in The Hill on election day, though we know Flynn’s company did more than that for Turkey. By focusing on the op-ed, DOJ can trace what happened with language Kian used to describe Fethullah Gulen. It was used in early August, before the conspirators started hiding the role of Turkey in the project.

On or about August 4, 2016, RAFIEKIAN sent an email with the subject “Truth” to ALPTEKIN and Person A stressing the need to begin work on the Truth Campaign. Referring to Iran’s Ayatollah Khomeini, RAFIEKIAN said:

Let me give you a real life experience: 1978: A soft spoken cleric sitting under an apple tree in Neauphle-le-Chateau in France looked so harmless. Spoke of equality and spirituality, declared that if he were to gain power, he would go to a religious shrine and will not get into politics and governance. Sound familiar? Well, the world neglected to take the layers off the ink blot in 1978. One year later, from the place under the apple tree, The soft spoken spiritual man led the Islamic Revolution in Iran ….

The indictment then shows how the apple language appears in talking points for a key September meeting with Turkish officials.

On or about September 18, 2016, in preparation for the meeting with the Turkish officials, RAFIEKIAN sent ALPTEKIN a document entitled “Background and Talking Points,” which contained approximately twenty talking points for the meeting, all of which concerned the Turkish citizen, the Turkish citizen’s movement, or the Turkish citizen’s charter schools in the United States.

RAFIEKIAN’s “Background and Talking Points” contained the same “apple tree” comparison of Khomeini and the Turkish citizen that RAFIEKIAN had used in his email to ALPTEKIN (paragraph 13) when the project was still called the “Truth campaign” and in the “playbook” (paragraph 23) when RAFIEKIAN referred to the Turkish citizen as “X.”

And then the same language shows up in both a draft of the op-ed Kian wrote for Flynn to slap his name onto, and in the op-ed as it appeared in The Hill.

The apple language serves as the marker showing the continuity between the project originally explicitly backed by Turkey, at the time ironically named “Truth,” and the project after it got renamed “Confidence” as part of an effort to hide Turkey’s role by using Alptekin’s company as a cut-out.

And virtually every step of that process was conducted over email or other communication methods that the FBI could easily collect.

Flynn’s genius co-conspirators — at least in this particular foreign agent conspiracy — even sent emails that noted that they were hiding details in other written documents.

ALPTEK.IN further told RAFIEK.IAN, ”Needles [sic] to tell you but he asked me not to read in anyone else for the time being and keep this confidential.”

[snip]

RAFIEKIAN promised to send ALPTEKIN a contract, but noted that it “will not entail operational details for obvious reasons.”

DEAR FBI, they might as well have written, LOOK HERE FOR THE SEKRITZ.

At least as laid out, virtually all the evidence needed to convict the co-conspirators is written down. As noted, much of this was in emails (the word appears 33 times in the indictment). There were two conversations via Skype, a Section 702 provider, as well as one text sent via Skype. Flynn sent one text memorializing a meeting with Alptekin referencing one of the Turkish Ministers who were their real clients. There were multiple financial wires.

The only overt acts described in the indictment that could not have been captured by the FBI or collected after the fact were one meeting, some lobbying activities, and some weekly phone calls.

On or about the evening of September 19, 2016, Person A, RAFIEKIAN, ALPTEKIN, and other members of the project met in New York City with Turkish Minister #1 and Turkish Minister #2. The conversation centered on the Turkish citizen and the Turkish government’s efforts to convince the U.S. government to extradite the Turkish citizen to Turkey.

[snip]

In or about September and October 2016, RAFIEK.IAN and others involved in the project visited with and lobbied a member of Congress, a Congressional staffer, and a state government official in an attempt to depict the Turkish citizen as a threat who should be returned to Turkey and to persuade them to hold Congressional hearings concerning the Turkish citizen.

[snip]

On approximately a weekly basis during the project, RAFIEKIAN, Person A, and other Company A team members had telephone conference calls with ALPTEKIN to update ALPTEKIN on the progress of the project. [my emphasis]

All of those, however, also included other team members, members who didn’t lie to the government and aren’t being charged as co-conspirators.

That leaves one other key piece of evidence the government might have needed help to collect: communications with the lawyers who filed the false FARA filings.

From approximately January 2017 through approximately March 2017, outside attorneys for Company A gathered information to determine whether Company A or any of its employees had an obligation to register under FARA based upon Company A’s work on “Operation Confidence.” During this process, RAFIEK.IAN and ALPTEKIN knowingly provided false information to Company A’s attorneys in an effort to hide from the attorneys – and ultimately from the FARA Unit – the involvement of Turkish government officials in the project.

While Mueller was able to get a crime-fraud exception to get communications from the lawyer who did Paul Manafort’s false FARA filings, once Flynn flipped he could have voluntarily waived privilege to make those documents available to the government. Indeed, I wonder if that’s what’s hidden in a key redaction in Flynn’s cooperation addendum.

In other words, there is a non-liar witness (or document) for every overt act in this indictment. They don’t need Flynn to sit on the witness stand and describe the conspiracy, as laid out. They can just have his service providers provide authentication of all the communications and have his former colleagues testify, along with his lawyers, now freed of any privilege obligation.

Critically, for a national security investigation like this one (and, I assume, for the Russian one as well), I’m sure Flynn described at more length everything else that went on. But the government doesn’t need that information to prosecute these crimes (except insofar as his cooperation would have made it very easy to get warrants for the information Flynn didn’t hand over himself — and his own sentencing memo makes it clear he did hand over much of it). It needs that information for counterintelligence purposes.

And that’s why they were able to move towards sentencing without his testimony in court: because he may not need to give testimony in court. The government has secured other, more reliable witnesses for that testimony.

As I said, I’ve long suspected this was true of Flynn’s cooperation on the Mueller investigation, as well. When the government, in describing his cooperation, said his decision to flip “likely affected the decisions of related firsthand witnesses to be forthcoming with the SCO and cooperate” (which is followed by the last, entirely redacted, sentence in the memo), they are probably describing how by pleading guilty to lying himself, he led to their ability to get better, more reliable witnesses for much of the relevant testimony.

Update: Took out a reference to NSA; Alptekin may be a green card holder; if he is, he couldn’t be a legal 702 target.

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54 replies
  1. Avattoir says:

    Yep.

    This is not exactly unfamiliar territory for those who’ve prosecuted criminal organizations. The way into them may well be paved by members of them who’ve turned informant, but years, even decades of conscientious labor for mob bosses inevitably will leave stains that simply can’t be washed out.
    So when putting one of these Come to Jesus types on the stand before a jury, it can be awfully important to
    a) make an opening statement that lays out the theory of the prosecution with as much emphasis and loving attention on documents, transcripts of wiretapped conversations, and unimpeachable John Q. Public witnesses as possible, so that
    b) when the informant with all his baggage takes the stand, the jury watches with knowing satisfaction as each and every event in his narrative is tied into such a document, passage from such transcript, or such a detail from an unimpeachable witness, and then
    c) when it comes to the closing argument, all a prosecutor really has to left to do is read the jury’s body language for the all the otherwise un-articulated high fives.

    This is how Mueller’s team tried to work the trial in EDVA, using Gates as pretty much a tour guide. And not even the interference of Judge Ellis was able to stop it from working.

    • emptywheel says:

      Well, it did work to some degree. But I’m not even sure if they will put Flynn on the stand for this one (even aside from the fact that the indictment seems to be an invitation for Kian to plead to the conspiracy).

      • Avattoir says:

        IAE, we may find that any such problem doesn’t come to a head.

         

        I don’t agree with you on the use of Gates in Manafort’s trial in EDVA. The phenomenon of the single compromised or crazy jury hold-out is something that arises from time to time, and there are procedures to deal with it. That the presiding judge wasn’t open to any of them is more a political defect than a legal one.

        Of course, at the rate which Pope Leo is managing to find lifetime sinecures on the bench for ABA rejects & Federalist doorknobs, that political issue threatens to emerge as a systemic failure.

    • David Karson says:

      Exactly IMHO.  Also, my previous personal experience is that even when the informant has been flipped, then destroys evidence, then buys cell phones for employee but uses it to warn others of the investigation, and also had a history of submitting fraudulent documents to the court, and is also a repeat offender, while the defense attorney said this person would make a terrible witness on the stand and that he would crush said person (my words but correct gist) the prosecution put said person on the stand and the jury apparently believed every word given a quick verdict. So when some in the media say Cohen won’t be a good on the stand, I disagree, as long as part “A” and “B” from above are done.  IMHO.

    • Trip says:

      Knowing Trump, probably none. Think Khashoggi slaughter. Or Helsinki with Putin. He seems to be on an unstoppable collision collusion course, maybe off the rails for the quo.

    • pablo says:

      If I were Gulen, I’d head to the Canadian border and plead for asylum. He’s being threatened with certain death.

      • e.a.f. says:

        If he asks for political asylum, he might get it.  Even if he doesn’t the appeal process could be so long he could die of old age.  He can go to a border point or just walk in at one of the “unofficial” places where people walk into Canada.  Some of these “unofficial” posts are staffed by the RCMP, who will assist him in crossing if he has mobility issues..    The U.S.A. is still considered as a “safe country”, so I’d recommend one of our “unofficial” crossings.     I’m sure Trump would turn him over to Turkey, if Turkey would just burn all the tapes they have of Mr. Khoshoggi being murdered or perhaps some of the Trumps are being offered money.  With this weird group its hard to tell.

        There must have been a ton of money to be made in all of this.   I’m not an American.  However, if a Canadian did what Flynn did, in Canada, I’d call them a traitor.   What causes a 3 star Marine General to go to work for a foreign government the way he did?   Oh, well as they say with the Americans its always about the money.  With the British it was always about sex.

        Between watching this on t.v. and reading blogs on the topic, really you can’t make this up.

        • Barry says:

          ” What causes a 3 star Marine General to go to work for a foreign government the way he did?  ”

           

          The right in the USA has been spending several decades openly and deliberately delegitimizing the Democratic Party, and all who vote for it.  At this point most of the right has been primed to be traitors.

        • P J Evans says:

          I wonder if it’s similar to cuy (in Peru and Ecuador). A friend tried it (roasted) and said it’s a lot like rabbit ( which he’d know: his mother raised rabbits for food.)

        • AndTheSlithyToves says:

          WHITE RABBIT
          One pill makes you larger
          And one pill makes you small
          And the ones that mother gives you
          Don’t do anything at all
          Go ask Alice, when she’s ten feet tall

          And if you go chasing rabbits
          And you know you’re going to fall
          Tell ’em a hookah smoking caterpillar
          Has given you the call
          To call Alice, when she was just small

          When the men on the chessboard get up
          And tell you where to go
          And you’ve just had some kind of mushroom
          And your mind is moving slow
          Go ask Alice, I think she will know

          When logic and proportion have fallen sloppy dead
          And the white knight is talking backwards
          And the red queen’s off with her head
          Remember what the dormouse said
          Feed your head, feed your head

          Thanks for the recipe, Punaise! ; ^ )

    • scribe says:

      Because it is a suit against the president in his official capacity.  Also because it deals with whether the conduct does, or does not, violate the Constitution.

      In every administration there are literally thousands of suits filed against the president in his official capacity (and very few meritorious suits filed in his personal capacity).  The DoJ defends the official capacity suits as a matter of course.

    • Drew says:

      The Emoluments Clause only pertains to Trump in his official role as President. Thus the DOJ defends the office of the President.

      In this case, they are probably in a losing battle, but I’m sure that all presidents of the U.S. want to have some room to maneuver in this area, so there’s legitimate reason.

    • Alan says:

      I don’t know the law on DOJ defending government employees, but an analogous situation is lawsuits against corporate officers or directors.  The company’s bylaws typically require the corporation to defend the officer until wrongdoing is found by a court.  This prevents the officer from suffering financial harm when they have done no wrong.  If the officer has done wrong, they may have to repay the cost of their defense.

      So the analogy is that if Trump were not President, he would not face the emoluments lawsuit, and he should not have to incur the cost of defending it if he has done no wrong, or at least until it is proven in court that he has done wrong.

      • Trip says:

        True. But if he were not the president, no one would be staying in his hotels to curry favor for influence in policy.

        • Alan says:

          I don’t disagree, but how do you sort out the meritorious claims from the thousands of frivolous lawsuits?  That’s the job of the court, and until they find he’s done something wrong, he shouldn’t have to pay.  If it were the other way around, a person with average financial resources could not afford to be President, or they would have to have a patron to pay their legal bills and that would lead to corruption, and most people would not be in favor of that outcome.

          • Trip says:

            There’s elements of truth there, but I kinda had to snicker at a person with average financial resources being the president. When was the last time that happened?

            • Alan says:

              ok, I’ll amend that–if the President had to pay to defend lawsuits against him, then no one could afford to be President–it would become a game of financial warfare with million of opponents lining up to fund lawsuits against him, while millions of supporters lined up to fund his defense. At least this way there’s no financial warfare aspect to suing the President because we all have to pay for his defense, through our taxes. Obviously no one like paying for things they don’t support (whether it’s warfare or welfare), but the only way to make the system work is for everyone to fund the recognized (and hopefully duly-elected) government.

  2. scribe says:

    The emails provide a sweet little way to work around any potential Bruton problem.  (Bruton prohibits the government from compelling one co-conspirator to testify against another – it’d violate the testifying co-conspirator’s rights against self-incrimination to compel his testimony because by giving testimony implicating the co-conspirator he’d be implicating himself.)  Even in the absence of any co-conspirator flipping, the emails say what they say.

    You’re quite right on this one, EW.  The flip was more valuable on a CI basis than for effecting any prosecution.

    • bmaz says:

      Don’t think Bruton is going to be a problem here given how things have played out so far. Mueller has been very careful to avoid such an issue. Cohen and Weisselberg are both available.

  3. pseudonymous in nc says:

    I’d guess this is what’s redacted in Section A of the SCO’s Flynn sentencing addendum.

    The indictment cites Flynn until November 8th and the subsequent FARA inquiry, but doesn’t mention him again, though we know from the WSJ’s reporting and James Woolsey’s account that the 21 Club meeting involving Flynn (and Junior Flynn) took place in mid-December. There’s enough in the emails for the prosecution to go forward, and including that meeting would probably require Flynn as a witness.

  4. cd54 says:

    I wish you would use the words “spy” and “spying” in cases such as the Flynns and others. It may be anachronistic or dated, but it is more powerfully descriptive for the general public (and kneecaps FOXbots as well).

    • NorskieFlamethrower says:

      Yes indeed, thanks. I understand the reason not to use “treason” to describe the actions of conspiracy against the US in this (these) case(s) but unless there is a legal definition of spying that doesn’t apply here, particularly in the case of Butina and her “John” Erickson, I wonder why we can’t use it. Any legal beagles wanna address this?

  5. chromiumbook0000 says:

    One part that i can’t quite figure out: If you’re Alptekin, why use a company with some fairly obvious ties to organized crime as your decoy end client (I’m assuming Ratio Oil is the Company B client referenced in Count Three?)?  Seems like an odd approach if you’re trying to avoid further probing, unless there is some ulterior purpose for bringing them into the fray.

  6. BobCon says:

    I’m really curious what Obama told Trump when he tried to warn him away from Flynn. How specific did he get? And will the contents of this warning ever show up in court?

    Not surprisingly, the Nunes/Grassley crowd has never made an issue of bringing it to light.

    • Alan says:

      looks like they were interested in some context and wanted to understand the history of Flynn’s relationship with Kislyak and the contact between the two

  7. gabrielle hamill says:

    DEAR FBI, LOOK HERE FOR THE SEKRITZ is the funniest sentence ever!

    Thank you for your incredible reporting and thanks to all your insightful commentators.

    I am a longtime lurker by which I mean I check this blog about 2 dozen times a day and have been doing so for a long time. But really want to express my appreciation for your work. Thank you Marcy and crew!

  8. Willis Warren says:

    I may be thinking about this too much, but if the 302 goes back to Obama… and this Turkey thing was all in emails… and the FBI were saying how Flynn was compromised…

    I keep thinking those things are related.

  9. Marinela says:

    This is what I call draining the swamp. Muller and DoJ are fulfilling a Trump campaign promise.
    More importantly, Trump getting elected, caused Muller position as SC, so waiting for Trump to take credit for the tremendous progress Mueller is making in draining the swamp.

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