Thread by @BBuchman_CNS

As we round out the week, let’s talk about Bijan Kian, Michael Flynn’s former business associate who was indicted by the U.S. gov’t on allegations that he caused Flynn Intel Group, the company they operated together, to falsify its FARA registration.
Tuck in.
THREAD:

What happened last month: during a status conference at USDC EDVA, where Kian will face trial in July, Kian won access to attorney files belonging to FIG’s former counsel at Covington & Burling.

The contention between the govt and Kian was that much of the information Kian wants to prepare for trial in July is protected by atty-client privilege, which belonged to Flynn and FIG.

But, Kian and Flynn were both directors, so, Judge Trenga agreed Kian was allowed access to the same records that Flynn might have access.
As one might imagine, this could snarl the govt in court by giving Kian’s team insight into strategy while also forcing the gov’t to...

...do the tedious work of extracting discovery for a case where records are interspersed with Flynn’s FBI interviews and his testimony to Mueller’s team while he was cooperating.

Judge Trenga put restrictions around the scope of evidence that and ordered Flynn’s attys need only turn over docs specific to the FARA filing. Nothing related to Flynn’s criminal activity elsewhere is included here.

But Trenga has not yet said whether the docs Kian gets will be admissible. He did rule, however, that the docs Kian’s attys have, should be put under a protective order until admissibility is resolved. They want the protective order because:

"It is virtually certain that these lawyers will be significant witnesses at trial—including, potentially, as hostile witnesses called by the defense—and it will be critical for Rafiekian to conduct complete, thorough and effective cross-examination of these witnesses."

This will be squared later.
So let’s move on to another moving piece here.
This piece centers on nuances the govt will lean on during trial: Kian and the nature of his alleged relationship to the Turkish govt.

Last wk: Kian's atty also filed a motion compelling govt to produce info it – or State Dept & other intel agencies – might have indicating that Turkish president Recep Erodgan has “ever been a member of or otherwise affiliated w/or sympathetic to Muslim Brotherhood.”

Kian also wants all info that shows Turkish govt officials, including Erdogan, would “disagree or disapprove of any comparison between Gulen and his followers of the Muslim Brotherhood.”
DOC here: documentcloud.org/documents/5986…
Why? Let’s go back to that Flynn-authored op-ed.

In the fall of ‘16, while Flynn was foreign policy adviser to Trump’s campaign, prosecutors allege Kian took $600K from the Turkish gov’t to spur the extradition of Fethullah Gulen, efforts which prosecutors say...

...were directed by Turkish businessman & lobbyist for Turkish gov’t, Ekim Alptekin. (Also indicted in EDVA.)

The pymt was allegedly routed through a company Alptekin ran to hide that it was Turkey who was paying for Flynn’s op-ed. Note: historically U.S. has pushed back any attempts to extradite Gulen.

Flynn’s op-ed did 2 things: it urged a closer U.S. relationship w/the gov’t of Turkey while also claiming that Turkey is America’s best ally against ISIS in Iraq/ Syria & it took aim at Gulen, the Muslim cleric residing in PA since Erdogan claims Gulen tried to launch a '16 coup.

Kian’s position on this, according to court docs: in general, when it comes to Gulen, Flynn and Kian “share common ground” with Erdogan but the “devil is in the details.”

“The op-ed deviates sharply from anything that President Erdogan and other Turkish officials would have approved,” the defense argues.
When Ekim Alptekin was interviewed by the FBI he told the FBI he thought it was a “terrible” idea to “equate Gulenists to the Muslim Brotherhood

...and when he asked Kian if he could make any changes to it, Kian refused, saying it would be “inappropriate.” Kian says his team has even gone so far as to identify specific details – in “obvious places” –where the gov’t could look to support this.

“Almost 2 yrs ago, and before formal charges were ever filed, the FBI Agents (and DOJ attys) were told by the person they allege to speak for the government of Turkey, that equating Gülenists to the Muslim Brotherhood was a terrible idea...

"...under the circumstances, the search for the requested exculpatory evidence is long overdue,” Kian’s atty writes.

They also argue, pointedly, that if one were to read the op-ed, they might think “the only force more insidious than Gülen is the Muslim Brotherhood. Yet it has been publicly reported that Erdoğan is an ally of and otherwise sympathetic to the Brotherhood, which if true...

"...would flatly contradict the core government hypothesis that FIG and its officers and directors Flynn and Rafiekian were acting under the direction and control of Turkish government officials.”

All right. Let’s layer on some context here.

Here are some things we know: the Trump admin expressed interest in designating the Muslim Brotherhood as a terrorist org as recently as last week, a situation that will likely cause international strain since, as widely reported, Erdogan has provided support to the Brotherhood..

over the years, including granting asylum to certain members/equipping with comms devices, radio stations and the like. Counter-extremist analysts cite Erodgan’s history with the org, which reaches as far back as the 70s, when he first met Brotherhood spox Hemal Al-Helbawy.

The men met at conferences organized by the World Assembly of Muslim Youth, an org based in Saudi Arabia that had alleged ties to Hamas and al-Qaeda. The relationship between Erdogan, Turkey and the Brotherhood has created friction with powers like UAE and Egypt.

In ‘17, when Erdogan was feeling heat for his ties to the Brotherhood, he told Saudi news outlet Al Arabiya the org was not an armed group but an “ideological organization.”

“There would be no tolerance for the Muslim Brotherhood in Turkey if they had to do with terrorism, and we have not seen or observed any action [from them] that indicates this,” Erodgan said.

Now. With this said – Kian is trying to break down the gov’t argument about his alleged relationship to Turkey. To prove their case, Kian argues, the govt must show that FIG was acting "under the direction or control of a foreign gov't official.”

“Evidence that FIG took action that the gov’t of Turkey or Erdogan would disapprove, flatly contradicts the allegation that FIG was acting under Turkey's direction and control,” court records say.

“It is probably true that this matter would never have come to the attention of the FARA unit in the DOJ if Flynn had not published an op-ed in The Hill newspaper on election day in 2016...

"...DOJ officials jumped to the conclusion that this op-ed must have been written under direction and control of President Erdoğan and Turkish officials loyal to him.”

Kian’s team wants to address this at a hearing on May 17 at 9AM.

Now, this phase of the Kian case has already been heavy on the fight for access. It’s getting a little grittier as we go.

Kian filed yet another a motion asking the govt to refrain from using the term kickback or other "perjorative terms" to describe the payments FIG made to Alptekin and Inovo BV.
In the indictment, the govt labels a $40K payments from FIG to Inovo as a “kickback.”

This is a “loaded term,” according to Kian and under procedural rules, courts usually bar parties from using the term kickback due to its prejudicial impact.
It “presupposes a legal conclusion adverse to Kian, that the payments from FIG to Inovo were illicit and improper.

Suggesting they were kickbacks has no probative value because the govt has not charged Kian with any crimes arising from these arguments nor does the govt contend that these payments were themselves illegal.

This would "distort the emphasis at trial away from the crimes covered by the indictment to those not so charged.
It would also suggest Kian was generally engaged in "shady business practices.”

The real issue of consequence here is whether Kian actually served as an agent of Turkey.

If the govt can refer to the payments as kickbacks, the jury might convict him because they would think his character was such that he frequently committed crimes rather than reaching a conclusion based on evidence supporting the actual charges against him.