A federal judge came close to throwing out the government’s entire foreign lobbying case against Michael Flynn’s ex-business partner Bijan Kian, according to reports on the trial of Kian from CNN, Washington Post and Politico.
The judge appeared skeptical of the prosecutors’ evidence, which hints at the gaping hole Flynn’s absence from the witness stand left in the government’s case, outside legal experts told TPM.
U.S. District Judge Anthony Trenga, of the Eastern District of Virginia, said Thursday afternoon that he was not tossing the case for now, but in announcing that decision, suggested he could do so later on in the proceedings.
“There are very substantial issues as to the sufficiency of the evidence,” Trenga, a Trump-appointee, said, according to the reports. “It’s all very, very circumstantial. Much of it is very speculative.”
Harry Sandick, a former federal prosecutor, told TPM that, from a prosecutor’s perspective, the judge’s comments were “concerning.”
From the judge’s criticisms, Sandick said it sounded like “it’s exactly that kind of case where you’d want a cooperating witness to draw the connections to tell the jury what the evidence means.”
Kian — who also goes by Rafekian — was charged in December 2018 alongside another Flynn associate for failing to disclose, under the Foreign Agents Registration Act, a foreign lobbying campaign led by his and Flynn’s company, allegedly on behalf of Turkey.
Flynn admitted to filing the false FARA forms when he pleaded guilty to lying to the FBI in 2017 and was expected to be the star witness at Kian’s trial. But a dispute has arisen between prosecutors and Flynn’s newly-hired legal team, which includes prominent critics of special counsel Robert Mueller’s investigation, over what exactly Flynn has admitted with regard to the false forms.
His new lawyers told the government that he would not testify at Kian’s trial to knowing the forms were false when he filed them, apparently prompting prosecutors to reverse their plan to put him on the stand. Flynn’s lawyers say the current assertions about the form submissions are consistent with what Flynn previously told the government. The Justice Department has said it does “not necessarily agree” with these characterizations.
Trenga’s comments seem to trace back to the repercussions of this shake-up in Flynn’s cooperation.
“No doubt Flynn’s backtracking on his knowledge and intent harmed the government’s case,” said Barbrara McQuade a former U.S. Attorney, in an email to TPM.
“In any white collar case, intent is the most difficult element to prove,” she said. She noted, however, that “prosecutors obviously believe they still have enough evidence to prove guilt” and that juries are told to “rely on the totality of the circumstances, including circumstantial evidence.”
Though Trenga declined to throw out the case on Thursday, he will have other opportunities to do so — both before it is sent to the jury and after, if a jury returns with a conviction for Kian, who has also been charged with conspiracy. Trenga said on Thursday he intended to “reserve” on the issue, according to Politico.
A former federal prosecutor, who spoke to TPM on background because of his current job, said that Trenga’s remarks were a “a pretty big deal” because “it definitely indicates that he could throw the case out, and the judge could now do it in a way that would not be appealable.” The government can appeal such a decision if it comes after a jury returns a verdict, but not if the judge throws it out before it is sent to the jury.
“Judges can sometimes give an initial opinion like this but when he reviews it more carefully he may decide that the case should go to the jury,” the former prosecutor said.
Sandick warned that if there is an acquittal in the case, it could come back to haunt Flynn when he himself is sentenced by U.S. District Judge Emmet Sullivan, who previously delayed the sentencing so Flynn could finish his cooperation in Kian’s case
“If [Sullivan] finds out there was acquittal, Flynn’s testimony could have made a difference, but he wasn’t usable because he kept changing his story, that’s going to be very bad for Flynn’s sentencing,” Sandick said.