Former National Security Adviser Michael Flynn was absent from the trial of his business partner, Bijan Rafiekian, who worked for his consulting firm while Flynn served President Donald Trump. | Alex Wroblewski/Getty Images legal Defense puts absent Michael Flynn front and center at business partner’s trial

The defense for Michael Flynn’s ex-business partner on Monday focused squarely on Flynn’s absence from the witness stand, suggesting that prosecutors left a gaping hole in their foreign-agent case by failing to call the retired Army general, who spent 24 days as national security adviser to President Donald Trump and later pleaded guilty to a felony for lying to the FBI.

Mark MacDougall, an attorney for Bijan Rafiekian, led off his closing arguments in the federal trial by posting a photo of the absent Flynn on TV monitors in and around the jury box.


“Where is Michael Flynn?” MacDougall asked rhetorically. “He hasn’t been in this courtroom. … You never heard from Michael Flynn.”

MacDougall didn’t explicitly mention that Flynn’s guilty plea was obtained by special counsel Robert Mueller for Flynn’s statements relating to contacts with Russia, but the defense lawyer said the retired general has a “deep” cooperation agreement that would have made him readily available to the government.

“Mr. Flynn is a wholly owned subsidiary of the prosecution, but we haven’t seen him here — except for his picture,” MacDougall added as the jurors peered at a photo featuring Flynn in sunglasses and surrounded by TV cameras — apparently at a court appearance.

Rafiekian is on trial in Alexandria, Va., on two felony charges stemming from Turkey-related public relations and lobbying work he did at Flynn’s Alexandria-based consulting firm, Flynn Intel Group, during the 2016 presidential campaign as Flynn was serving as a top national security and foreign policy adviser to Trump.

Flynn escaped charges in the case as part of his plea deal with Mueller’s office, but he admitted to submitting misleading information to the Justice Department in a belated, March 2017 Foreign Agent Registration Act filing about the Turkey-related project. A Turkish businessman who claimed to be the sponsor of the Flynn group’s $600,000 contract, Ekim Alptekin, was indicted along with Rafiekian but remains at large.

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The case against Rafiekian has drawn attention because of Flynn’s role and as an outgrowth of Mueller’s investigation into Russian interference in the 2016 campaign. It is only the second case investigated by Mueller to actually go to trial, although the prosecution was handed off to lawyers at the U.S. Attorney’s Office in Alexandria and at the Justice Department’s National Security Division.

A loss for prosecutors in the case would be certain to be seized on by Mueller’s critics as more evidence that the special counsel’s inquiry was mismanaged and overreached to bring charges against Flynn, his allies and others in Trump’s circle.

Prosecutors originally planned to prominently feature Flynn in their case, but dropped him after newly retained attorneys for the retired general suggested that his testimony would not be as favorable as prosecutors hoped.

Several members of Flynn’s new legal team, including lead counsel Sidney Powell, have been observing Rafiekian’s trial throughout and looked on impassively in the courtroom on Monday as the attention turned to their client.

It’s unclear how Flynn’s ultimate role as a key part of the narrative at the Rafiekian trial, but without him ever taking the stand, will affect Flynn’s sentence on the false-statement charge. Prosecutors have suggested that Flynn is shifting from his previous admissions to them and judges, but haven’t said whether his latest tack will affect the government’s previous recommendation that he serve no jail time.

Although Flynn didn’t testify, some disclosures brought about by the Rafiekian trial could prove problematic for Flynn.

In his closing, MacDougall repeatedly turned to one of those potential problems: a cryptic statement that prosecutors issued just before the trial, suggesting that the U.S. government has various kinds of undisclosed, classified evidence that the Turkish government reached out to Flynn through Alptekin “because of Michael Flynn’s relationship with an ongoing presidential campaign.”

“What about Mr. Flynn’s mysterious relationship with Mr. Alptekin?” MacDougall asked jurors, noting that prosecutors declined to present publicly any of the evidence alluded to in the carefully worded statement. “Read that carefully. It makes your head spin. … Don’t let that go.”

While MacDougall made a series of passing remarks about some of the more checkered aspects of Flynn’s history, including that he was fired from the White House “in disgrace — by many accounts,” the defense attorney never leveled any specific allegation at Flynn related to the Turkey-linked lobbying campaign.

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Notably, MacDougall did not argue to jurors that Rafiekian was a fall guy for Flynn. Instead, the defense attorney insisted there was nothing to take the fall for because no crime was committed in connection with the Turkey-related lobbying carried out in the summer and fall of 2016.

MacDougall insisted that the project was properly reported to Congress in September 2016 as a lobbying effort for Alptekin’s Dutch company, Inovo BV. The later foreign-agent filing may not have been required, but added even more detail, the defense attorney said.

“It’s all there. The whole story is all there, signed by Mr. Flynn,” MacDougall maintained.

The prosecution said the defense’s focus on Flynn was a diversion intended to distract the jury from Rafiekian’s culpability.

“Why are we talking about Flynn?” prosecutor Jim Gillis asked before skewering the defense’s argument as “Don’t look at my guy … Go look at Flynn. Keep your eye here while I pick your pocket.”

Gillis raised his voice and grew heated as he noted that Rafiekian’s defense could have subpoenaed Flynn to testify but chose not to.

“He could’ve called him,” Gillis shouted as he gestured at the defense table. “Why didn’t they call him? They apparently didn’t think it would be of any use to them.”

Gillis said the statement about undisclosed evidence relating to Flynn’s connection to the Turkish businessman was irrelevant to Rafiekian’s guilt or innocence.

“It says nothing. It really says nothing at all, folks,” the prosecutor said. Gillis suggested that investigators had some interest in Flynn before they stumbled on Rafiekian’s role, but that it was of no significance in the current case.

Gillis also said the disclosures in the FARA filing in March 2017 were incomplete and amounted to a grudging concession, long after the defendant agreed with Alptekin to keep secret the Turkish government’s role in the lobbying effort. “The fat was already in the fire,” Gillis said.

After dropping Flynn as a witness, prosecutors unsuccessfully sought to designate him as a co-conspirator to ease admission of evidence in the case. The judge turned down that motion and at one point seemed on the verge of throwing out at least part of the case for lack of evidence. He still has that motion under advisement, but will have to revisit the issue only if the jury finds Rafiekian guilty on one or both counts.

In front of jurors on Monday, Gillis was vague about whether prosecutors think Flynn was part of the alleged conspiracy or when he joined it, but at one point alleged that the former Trump adviser was working for Turkey and might have even been on its payroll.

“Michael Flynn and the defendant are being paid and directed by the government of Turkey,” Gillis said. He quickly added that while prosecutors believe the project was funded by Turkey, evidence that the effort was controlled by Turkish officials is sufficient to make Rafiekian guilty of acting as an unregistered agent for that country, regardless of who paid the bill.

Rafiekian did not take the stand in his own defense at the trial, which began a week ago. Lawyers for the Iranian-American businessman and former Export-Import Bank board member called a few witnesses to testify about his reputation and about overt lobbying the Turkish government made through a law firm that registered under FARA from the outset, Amsterdam & Partners.

Both that firm and Flynn’s team focused on Turkey’s desire to get the U.S. to expel or extradite the cleric Fethullah Gulen, who has lived in exile in the U.S. for more than two decades. President Recep Tayyip Erdogan of Turkey was once allied with Gulen, but now blames him for unrest in the country, including a failed coup attempt in July 2016.

Jurors are expected to begin deliberations in Rafiekian’s case on Tuesday morning.