However, U.S. District Court Judge Anthony Trenga — who presided over the trial — soon became convinced that the guilty verdicts were not justified by the evidence prosecutors presented. He set aside the verdicts two months later, prompting years of additional litigation that included two trips to the 4th Circuit Court of Appeals.
The notice the Justice Department submitted in federal court in Alexandria, Va., signaling an end to the case, was terse and offered little insight into the decision to throw in the towel. But it said the appellate court’s stance played a role in prosecutors opting to give up.
“After carefully considering the Fourth Circuit’s recent decision in this case and the principles of federal prosecution, the United States believes it is not in the public interest to pursue the case against defendant Bijan Rafiekian further,” prosecutors from Justice’s National Security Division and the U.S. attorney’s office in Alexandria wrote.
A Justice Department spokesperson declined to comment further.
Rafiekian’s attorneys hailed the move, but lamented the years their client spent battling the case.
“The Justice Department has finally conceded that this case should never have been indicted,” defense lawyer Mark MacDougall said in a statement Monday.
“Mr. Rafiekian has been the target of baseless federal prosecution for the past five years, only because he made the poor decision to be in business with Michael Flynn. Along with his family and his lawyers, Bijan is particularly grateful to the Court for its unwavering commitment to equity and for ensuring that justice would be done,” MacDougall added.
Back in 2021, the Richmond-based 4th Circuit sided with prosecutors and overturned Trenga’s ruling throwing out Rafiekian’s convictions, but left the door open for the judge, an appointee of President George W. Bush, to grant the defendant a new trial.
Trenga did just that in March 2022, holding that the evidence introduced at trial allowed only “the weakest inference” that Rafiekian acted at Turkey’s behest as he and Flynn carried out a plan to build the case for the U.S government to deport a Turkish cleric and dissident, Fethullah Gülen.
When prosecutors returned to the 4th Circuit, the court issued a 2-1 decision in May of this year allowing Trenga’s new-trial ruling to stand.
At a July hearing following that loss, prosecutors indicated they planned to proceed with a retrial, and Trenga had set that to begin Oct. 30.
Rafiekian, who served as a Senate-confirmed member of the Overseas Private Investment Corporation on a nomination from Bush, was an adviser to the Trump transition team in 2016 but also worked as Flynn’s partner in a consulting firm called Flynn Intel Group.
Initial stages of the foreign-agent investigation into Flynn and Rafiekian’s work related to Turkey were handled by federal prosecutors in Alexandria, but the inquiry was later folded into special counsel Robert Mueller’s broader probe. That office eventually sent the case back to the Alexandria-based prosecutors for trial.
Rafiekian’s saga also became an illustration of the often-haphazard application of justice during the Trump years.
In 2017, Flynn cut a deal with Mueller’s team to plead guilty to a single, felony, false-statement charge and, through that, end his potential criminal exposure in a variety of matters including his firm’s $850,000 contract for the pro-Turkey work while he served as the top foreign policy adviser to candidate Trump.
Flynn, who served as national security adviser for 24 days at the outset of the Trump administration before being fired, had been expected to be a key witness at Rafiekian’s trial. He had been expected to offer testimony that would incriminate his former partner in a scheme to avoid disclosing that the Flynn Intel Group’s lobbying and public relations effort was actually directed and controlled by Turkish government officials.
However, just weeks before the trial, an acrimonious row broke out between prosecutors and a new set of attorneys Flynn retained. That led to an abrupt decision by the government to drop Flynn as a witness and instead declare him a co-conspirator.
The reversal came just after Flynn signed up a new, combative defense lawyer, Sidney Powell. Powell, who would later attain wide notoriety for her role in Trump’s efforts to overturn the results of the 2020 presidential election, insisted the former Defense Intelligence Agency chief and Army lieutenant general was the victim of prosecutorial misconduct and a set-up by the FBI.
After a review, Attorney General Bill Barr moved to drop the prosecution of Flynn. Eventually, a judge agreed. But there was no similar move for Rafiekian, and the proceedings against him continued.
As the then-president continued to fight his loss at the polls in November 2020, Flynn scored a broadly worded pardon from Trump that appeared to absolve him of all criminal liability related to the pro-Turkey project and other matters Mueller explored. However, there was no pardon for Rafiekian, who fought on in court until the government relented on Monday.
In the new filing, prosecutors called for the case against Rafiekian to be dismissed “with prejudice,” meaning it could not be re-filed. The dismissal requires Trenga’s approval, but such motions are routinely granted.
Technically, the foreign-agent case brought in 2018 will remain open even after the charges against Rafiekian are dropped. A Turkish native, Ekim Alptekin, was indicted alongside Rafiekian and accused of using a shell company to act as an intermediary for the Turkish government.
On social media, Alptekin has maintained his innocence and painted the case as a form of persecution, but he has never come to the U.S. to face the charges.