Judge Trenga’s Bijan Kian Decision May Hurt, Not Help, Mike Flynn

As expected, Judge Anthony Trenga has overturned the conviction of Mike Flynn’s former partner, Bijan Kian. Trenga has long expressed doubts about the way the government charged this case. And when Flynn reneged on a part of his plea colloquy, it made him useless as a witness but — following a ruling from Trenga — did not make his statements available as a co-conspirator.

While a lot of people are seeing this (accompanied by the news that Vin Weber and Tony Podesta won’t be charged) as a blow for DOJ’s new FARA prosecution practice, I think Trenga’s opinion has greater repercussions for 18 USC 951 prosecutions than it does for FARA, because he finds (convincingly) that Congress intended the standards for the former to be significantly higher than for the latter.

That said, a central part of Trenga’s ruling derived from his decisions regarding Flynn’s role in this and was, in part, a result of Flynn’s decision to renege on his plea colloquy. Because the government couldn’t call him to testify but neither could rely on his statements as a co-conspirator, it made the most important evidence fairly useless at trial.

There was no competent evidence from which the jury could find that Alptekin acted as the type of “intermediary” the Government contends. In fact, the only evidence of any association between Alptekin and the Turkish government in connection with FIG’s retention is reflected in the hearsay statements of Alptekin to Rafiekian, which were admitted not as proof of Alptekin’s relationship or role relative to Turkey, but solely as evidence of what Alptekin told Rafiekian. Accordingly, the jury had no evidence of what Alptekin’s actual relationship or role was relative to the Turkish government, and because of that absence of evidence could not find for its purposes in deciding the case that Alptekin was, in fact, operation as an agent, alter ego, representative, “cut-out”, or any other type of “intermediary” for the Turkish government.”

That’s not the only basis for Trenga overturning the conviction. He also points to Alptekin’s disappointment with what FIG delivered to support a ruling that FIG was not working at the direction of Turkey (as required under 951 but not FARA). But the Flynn head fake is a key part of this.

So while a bunch of Flynn frothers who ignore all the very public ways that Sidney Powell’s claims about Flynn’s prosecution are horseshit are celebrating this decision, unless Emmet Sullivan finds any of Powell’s claims persuasive, this decision is likely to hurt Flynn. The government has already said they’re going to write a new sentencing memo, and this opinion will provide compelling reason to argue that Flynn ultimately did not cooperate.

Trenga’s decision is, given the facts of the case, quite compelling. But that says nothing about what Sullivan’s decision in upcoming months will be.

11 replies
  1. Frank Probst says:

    Aaaaaaaaaand I got it wrong again. And I think this may be the worst of all possible worlds for Flynn, because the jury’s verdict makes it pretty clear that the evidence against Bijan Kian wouldn’t require much testimony from Flynn to adequately connect the dots here. I’ll probably be wrong on that, too, but if I were one of the prosecutors involved in either of their cases, I’d be pretty pissed off right now. If Flynn’s prosecutors try to have his cooperation agreement thrown out, does that end up in front of Sullivan, or was there some earlier judge that it would go back to?

  2. Savage Librarian says:

    Thanks for the update. Now that the Speaker has endorsed an impeachment inquiry, will this make it more difficult for Trump to pardon Flynn?

    • Pajaro says:

      IMO, until and if Trump is successfully impeached and constitutionally removed from office, he still has all his executive privileges, including presidential pardons. Not sure those can be undone retrospectively.

  3. Yogarhythms says:

    Rewriting sentence memo based on head fake. A second draft of original or recapitulation with zeal or totally new? Asking for a friend.

  4. bmaz says:

    As to the root point, it may be that Trenga made the right decision to vacate the verdict (I think he did), but I was, and remain, dubious about the thought that it was expected. Judges rarely go back and admit that they should have never let a case go to trial, and even more rarely admit they should have not let it go to the jury after the government’s case in chief. That should never be expected, and it rarely (that is being kind to the word rarely) occurs, because they don’t want to admit their indiscretion, and are loathe to go behind a jury verdict. And, frankly, courts “should” be loathe to go behind jury verdicts except in the most extreme cases. That the court did here is correct; give Trenga some credit, it took balls to do this.

    • PSWebster says:

      I don’t see how this can go good for Flynn. They probably will stack it all on him this time for double crossing them and wasting their time and money.

      Too bad; so sad. Bye, bye, Mikey.

      • bmaz says:

        No, Marcy is exactly right on that. It is very much not good for Flynn. It ought be the nail in to his supposed “cooperation”. It was the Kian case that sentencing was delayed to accommodate further cooperation on. Sid Powell has malpracticed in my eye, but that is clearly what Frothy Flynn desired. So be it.

        That being said, not sure Sullivan will throw the book at Flynn. But some time is in the serious offing.

  5. Yette says:

    One take away at a macro level from the Mueller investigation, aside from Manafort, many of these folks are walking away with little or no penalty. Sends a strong signal that these white collar crimes are not dealt with harshly by a very docile federal court system.

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