A case that was once an undercard during the Russia investigation has turned into the main event in its aftermath—and an apparent battle over the fallout from the Mueller Report.
Federal prosecutors this week begin the trial of Bijan Kian, Michael Flynn’s former business partner, on charges that he illegally lobbied on behalf of the Turkish government. But President Trump’s former national security adviser and the Russia investigation have overshadowed the trial, as the lobbying case turns into a proxy battle over whether Flynn will conclude his role in the Russia investigation as the government’s penitent cooperator with a probation sentence or a defiant MAGA martyr risking jail time.
Flynn, chastened and a model cooperator during Special Counsel Robert Mueller’s tenure, now appears to feel the wind at his back and has turned combative since the Mueller Report was published, threatening to upend the case against Kian. And prosecutors who once praised Flynn’s cooperation now appear to be playing hardball with their former star witness, putting a question mark over the lenient sentence they had advocated for him.
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By pushing back against prosecutors, Flynn is playing “a dangerous version of Turkish Roulette with the government,” former federal prosecutor and George Washington University law school professor Paul Pelletier told The Daily Beast. “While smart prosecutors typically use the grand jury process to ‘lock in’ important testimony of cooperating witnesses to prevent this kind of situation, they still hold all the cards.”
Even if the government can’t get Flynn to cooperate to its liking in the Kian case, Pelletier said, it can still use his reluctance to seek a stiffer sentence against him on charges that he lied about his communications with Russian officials.
Flynn’s attorney, Sidney Powell, did not respond to requests for comment from The Daily Beast.
Flynn first cut a deal with the Special Counsel’s Office in December 2017 on charges that he lied to the FBI about his conversations with the former Russian ambassador to the U.S. To date, he remains the most senior member of the Trump orbit to have flipped on his former boss. In a sentencing memo, prosecutors praised Flynn’s cooperation with the government as “particularly valuable” both because of his seniority in the Trump campaign and because his early decision to cooperate likely influenced other witnesses in the case to do the same.
In the last paragraph of his plea agreement, Flynn admitted that he made “materially false statements and omissions” in his lobbying paperwork and lied to the Justice Department when he said he wasn’t aware of whether the Turkish government was involved in his work.
The Turkey aspect of his plea agreement seemed like a footnote until prosecutors in Virginia charged Kian. As part of Flynn’s plea deal, he was expected to testify against his former business partner in the Flynn Intel Group with the same helpfulness that had so pleased the Special Counsel’s Office in its Russia investigation.
Prosecutors charged Kian with having “conspired covertly and unlawfully to influence U.S. politicians and public opinion” about Fetullah Gulen, a dissident Turkish cleric living in Pennsylvania. The Erdogan government has accused Gulen of masterminding a 2016 coup attempt in Turkey and has long sought his extradition.
At the heart of the case is a metaphor Kian allegedly concocted for Gulen as a Khomeini-like radical cleric sitting in exile under an apple tree and waiting to install a radical Islamist regime in his home country. The U.S. government claimed that Ekim Alptekin, a Dutch-Turkish businessman, acted as an intermediary between Kian and the Turkish government, and hired Flynn’s firm to smear the Turkish government’s enemy, Gulen, in hopes of securing his extradition.
Prosecutors say Kian allegedly sought and received approval from Turkish officials to his cleric-under-a-tree metaphor use in lobbying activities and ultimately secured Flynn’s help in using the talking point in a pre-election opinion piece that argued for the U.S. to extradite Gulen.
In addition to the crafted talking points, Kian also allegedly lobbied congressional staff about the Gulen extradition issue. As The Daily Beast reported, the Flynn Intel Group summoned congressional staffers for what they thought would be a presentation on encryption technology in October 2016 only to receive what one staffer called “a sloppy, uncompelling presentation” from Kian on the Gulen issue. The indictment of Kian references meetings with an unnamed member of Congress and state government official, as well as congressional staff “in or about September and October 2016” as part of Kian’s alleged illegal lobbying activities.
Prosecutors also charged Alptekin in the case, but Alptekin, a Turkish citizen, lives in Turkey beyond the reach of U.S. law enforcement and remains at large.
Flynn’s participation in the trial appeared to be a slam dunk, at least until the Mueller Report was published. Shortly afterward, Flynn fired his defense team and hired Sidney Powell, a former federal prosecutor who had spent months blasting the Special Counsel’s Office and peddling conspiracy theories about its prosecutors.
With the change in lawyers came a change in Flynn’s take on the Kian case and his culpability in it. Flynn’s lawyers told prosecutors that while their client had accepted responsibility for the false statements and omissions in his belated lobbying filings made under the Foreign Agents Registration Act (FARA), “he was not aware at the time that he signed the FARA filing” that it was false and would testify to that effect, prompting the government to remove him from the witness list.
Flynn’s combativeness appears to have spurred prosecutors into their own get-tough tactics. In early July, prosecutors suddenly announced a “correction to the record” stating that they intended to ask the court to find “that Flynn was a co-conspirator” of Kian’s in the lobbying charges—a move that could affect Flynn’s sentencing in his still pending case over lying to the FBI.
In another move announced last week, prosecutors indicated they intended to call Flynn’s son, Michael Flynn Jr., to the stand, exposing a particularly sensitive point for Flynn Sr. The Special Counsel’s Office reportedly scrutinized Flynn’s son before his father cut a deal. Flynn Jr. worked as chief of staff to his father at the Flynn Intel Group when Kian allegedly lobbied on behalf of the Turkish government, and associates told CNN that his father was concerned about his son’s potential legal exposure in the early days of the Russia investigation.
And on Friday, the government appeared to acknowledge that it had evidence about other work Flynn allegedly performed on behalf of the Turkish government, more so than it had originally let on. Kian’s defense attorneys quoted from a letter from the prosecutors hinting that they were sitting on evidence of other communications between Flynn and Alptekin, which could be classified.
Looming in the background of how far Flynn will take his fight with the government is the talk of presidential pardons. Long before the former national security adviser cut a deal, former FBI Director James Comey said Trump had asked him to go easy on Flynn. It’s a lenient attitude that has continued even after his cooperation. “I don’t want to talk about pardons now,” Trump told Fox News’ Sean Hannity when asked about a pardon for Flynn, but called his treatment by the Special Counsel’s Office “so sad on so many levels.”
—Erin Banco contributed to this report
