By: Jaime Rosenberg
The Department of Justice keeps touting its focus on FARA prosecutions—even if it is having a hard time winning them.
In late March 2022, U.S. District Court Judge Anthony Trenga granted a new trial to a former business partner of President Donald Trump’s National Security Adviser Michael Flynn again. The judge found that a jury’s 2019 guilty verdict in Bijan Rafiekian’s trial was “against the great weight of the evidence.” This decision could make it harder for the Department of Justice to prove a principal-agent relationship under the Foreign Agents Registration Act (FARA), 22 U.S.C. 611 et seq.
This post is a follow-up to a two-part series I wrote last year. Part 1 discussed the history of FARA and when the statute applies. Part 2 covered FARA enforcement and exceptions to the statute.
FARA requires certain agents of foreign principals who engage in political or other activities specified under the statute to register with the DOJ within 10 days of becoming, or agreeing to become, such an agent—and the registration must happen before engaging in any registrable activity.
The government accused Mr. Rafiekian, working with Flynn Intel Group, of arranging a $600,000 contract with Dutch company Inovo BV to carry out a project directed by the Turkish government. The DOJ charged Mr. Rafiekian under FARA with acting as an agent of a foreign government.
Here are some important procedural facts:
- In 2019, a federal jury in Alexandria, Virginia convicted Mr. Rafiekian of illegally lobbying for Turkey while working at the Flynn Intel Group.
- Mr. Rafiekian is Michael Flynn’s former business partner and a court found Mr. Flynn guilty of acting as an unregistered foreign agent in 2016.
- Mr. Flynn was supposed to testify against Mr. Rafiekian, after Flynn admitted in D.C. federal court that he lied to the FBI, but Mr. Flynn withdrew that plea, and the government did not call him to the stand. President Trump pardoned Mr. Flynn.
- Judge Trenga threw out the 2019 jury verdict and ordered a new trial, stating that the evidence against Mr. Rafiekian was not strong enough.
- The U.S. Court of Appeals for the Fourth Circuit overturned Judge Trenga’s ruling calling for a new trial, stating that Judge Trenga ordered a new trial without enough justification.
- On March 25, 2022, Judge Trenga stated that he reviewed the case again and ultimately came to the same conclusion that the evidence was too weak to sustain the verdict.
Judge Trenga granted a new trial pursuant to Rule 33, finding that the prosecutor’s use of classified material concerning Mr. Flynn’s dealings with the Turkish government, not Mr. Rafiekian’s, was improper and improperly swayed jurors to find Mr. Rafiekian guilty. There was no evidence of an express or implied agreement between Mr. Rafiekian and Turkish officials that would trigger FARA requirements of agent registration. Judge Trenga stated that “[t]hat person must do more than act in parallel with a foreign government’s interests or pursue a mutual goal. As there must be clear evidence that the agent agreed to operate subject to the direction or control of a foreign government.”
What does this mean for future FARA cases?
Judge Trenga’s rulings set a precedent that makes it a lot more difficult for prosecutors to bring cases under FARA. What constitutes as “agent” activities that would trigger registration under FARA is now harder to prove and is a complex issue that not even the courts can agree on. This standard is different from what the DOJ lays out in the DOJ FARA Materials discussed in Part 1, which state that a formal relationship with the foreign principal is not required to prove agency under FARA, but merely that the conduct and activities be undertaken on behalf of a foreign principal. Judge Trenga set the standard that there must be evidence of an express or implied agreement between an “agent” and a foreign government to trigger agent registration under FARA, limiting the scope of who constitutes as an agent under FARA.