Bijan Kian's attorney said that Kian’s case would have been resolved “civilly or administratively” but for the fact that Kian worked with Michael Flynn. | Jacquelyn Martin/AP Photo Legal Flynn business partner facing prosecution complains he was singled out

A lawyer for Iranian-American businessman Bijan Kian told a federal court Friday that Kian would never be facing prosecution for an illegal foreign-agent scheme if he was not a business partner of former Trump national security adviser Michael Flynn.

During a hearing in Alexandria, Virginia, Kian attorney Mark MacDougall told Judge Anthony Trenga that Kian’s case would have been resolved “civilly or administratively” but for the fact that Kian worked with Flynn, who is cooperating with special counsel Robert Mueller’s office after pleading guilty last year to a false statement charge.


Prosecutor James Gillis vigorously contested MacDougall’s claim, arguing that the actions by Kian, sometimes called Rafiekian, were so egregious they would have been pursued criminally, regardless of any link to Flynn.

“Even if Mr. Rafiekian did not have any business partner in this case, it would have been brought,” insisted Gillis, an Assistant U.S. Attorney based in Alexandria.

Gillis said Kian’s case was serious because the lobbying he engaged in was secretly undertaken at the direction of “high-level officials” in the Turkish government.

MacDougall noted the rarity of prosecutions under the Foreign Agents Registration Act, saying there have been just seven prosecutions in recent years. The argument echoed complaints from lawyers for former Trump campaign chairman Paul Manafort, who also claimed he was singled out over foreign-lobbying because he had the misfortune of coming into Mueller’s crosshairs.

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However, Gillis noted that Kian is charged not only with conspiring to violate FARA but a more serious offense of acting in the U.S. as an unregistered agent for a foreign government. Those charges are typically brought in cases considered closer to espionage, but there need not be any military or national security secrets at stake.

The hearing of nearly a half hour on Friday morning yielded further confirmation that Flynn has provided information in connection with a variety of ongoing investigations, but there were few details about those probes. Prosecutors had asked the judge to delay Friday’s hearing to allow those investigations to advance further, but Trenga ordered both sides into court anyway.

The dispute before the court was over the defense’s request for access to 15 FBI reports known as 302s on Flynn’s interviews in connection with those other investigations, including the central question Mueller is investigating of illicit Russian influence on the 2016 Trump presidential campaign.

Gillis said Friday that the prosecution has shown Kian’s defense the reports on Flynn’s interviews relating to the secret lobbying for Turkey, but is reluctant to allow the defense to see the reports on Flynn’s statements on Russia and other matters federal prosecutors are probing.

At one point, Gillis said the reports not only cover matters investigated by Mueller’s office but also at least one other U.S. Attorney’s Office. However, after consulting with a colleague, Gillis said he probably shouldn’t be too specific.

“There are other investigations that would be or could be hampered by disclosure,” Gillis said. “What we object to is just a frolic through everything else the Special Counsel produced.”

The prosecutor said the government’s reluctance to show the defense those 302s was driven by a desire to protect those investigations. He called the additional reports “completely, completely unrelated” to the charges against Kian and insisted that the defense would be told of any facts relevant to Kian’s case or to Flynn’s credibility even if the actual FBI reports were not disclosed.

“We’re not trying to hide the ball, at all, here,” Gillis added.

MacDougall said it was dubious that Flynn is still playing an active role in other probes, since Mueller’s office sent a judge in Washington a report this week saying cooperation by the retired Army general is “otherwise complete,” beyond the expectation that he will be a key witness in Kian’s case.

MacDougall also stressed that press reports indicate that Flynn lied to investigators about a variety of matters, including his contact with the Russians, and that he received illegal payments for work for foreign governments without seeking the official permission required of retired military officers.

Kian’s defense team also complained that to access the 302s, the prosecution proposed that the defense agree to waive various objections they could raise at trial, including to admitting emails or texts related to the work Flynn and Kian did on Turkey. MacDougall said it would be “malpractice” for the defense to agree to those terms.

At the conclusion of the hearing, Trenga said he was having trouble getting a grip on exactly what the two sides were fighting about, but he said he was “concerned” that the government was insisting that the defense waive its rights in order to get access to records Kian is constitutionally entitled to.

That prompted Gillis to get up from his seat and declare that he hadn’t done that and would never do so and that the only conditions he proposed were related to the defense’s effort to gain “wholesale” access to the government’s files on Flynn.

Trenga said he planned to issue a written order related to the dispute.

Kian, who has pleaded not guilty in the case and is free pending trial, was not present at Friday’s hearing. His trial is set to open July 15.

A Turkish national also charged in the case, Kamil Alptekin, is at large.