The Twilight Zone.
How vague laws and unethical prosecutors put a target on our backs.
As I stated in a recent article, "One of the oldest instruments of oppressive regimes is the enactment of convoluted laws that, in the words of Cotton Mather: “what laws they made it was as impossible for us to know, as dangerous for us to break,” thereby rendering every citizen a criminal. Our forefathers were right on the mark: The purpose of ambiguous and obscure laws is no other than to subject every citizen to the possibility of being prosecuted for violations of law that citizen was in no position to understand, let alone comply. Never mind that inanity invoked by Sally Yates. FARA legislation also falls into such description. So much so, in fact, that Judge Anthony Trenga, in open court on June 28, 2019, was forced to state that he needed further study because 'That’s what I’m having trouble understanding here, it’s a convoluted statute.' making any interpretation of it a difficult exercise."
If a Federal judge has trouble interpreting a statute, and teams of lawyers cannot agree on its meaning and application, the rest of us are doomed to be pawns of unprincipled prosecutors and subject to their will."
Nearly one month and reams of paper since Judge Trenga made the comment above, we have arrived a a singular junction in which our collective Liberty is at stake.
Before we get into the nitty gritty, let's take a look at the legislation at play.
The Foreign Agents Registration Act (FARA) was enacted in 1938, that glorious era of American Fascism, in which American citizens could be forcibly sent to "internment camps." Dozens of thousands of Japanese, Italian and German Americans were forcibly confined, and hundreds of thousands more routinely harassed, their homes searched and their movements limited.
Jewish refugees were being denied entry to the US and sent back to concentration camps in Germany and, worse, the US was exerting its influence to deny them access in Canada and Cuba as well while the State Department, as Treasury Secretary Henry Morgenthau Jr. showed in 1944, was busy obstructing even the most modest rescue and relief efforts in Europe while silencing information about the mass killing of Jews in Nazi Death Camps.
It was in this context that the abomination we know as FARA saw the light of day in 1938, brought to us by the same people who gave us the War Relocation Authority.
Then, to complete the picture, we have FARA's retarded sister, the Lobbying Disclosure Act of 1995 (LDA).
The legal quagmire created by this two punches in the face of reason (FARA and LDA) set the scene for judicial abuse in a scale not seen since Stalin's Soviet Union. A law so arcane and loosely written as to make it impossible to determine who should register and how, his fate to be determined by judges and lawyers who do not understand how it applies and juries who cannot be expected to fill that legal void.
In consequence, the statutes were seldom invoked and even more rarely brought to trial. Until the Democrats lost the election in 2016, that is. Then, of course, it suddenly became a matter of National Security!
"In September 2016, DOJ’s Inspector General issued a report suggesting that the Department’s enforcement of FARA was too lax, pointedly noting the rarity of prosecutions, and recounting FBI field agents’ complaints that it was too hard to secure DOJ approval to file FARA charges."
"FARA is written so broadly that, if read literally, it could potentially require registration for even routine business activities of law firms, lobbying and public relations firms, consulting firms, nonprofit advocacy groups, charitable organizations, ethnic affinity organizations, regional trade promotion groups, think tanks, universities, media Election and Political Law, White Collar Defense and Investigations2 organizations, trade associations, U.S. subsidiaries of foreign companies, and other commercial enterprises.
- There does not need to be a foreign government client.
- There does not need to be a written contract.
- There does not need to be any payment of a fee.
A mere “request” from a foreign person or entity (such as a foreign government official or, in some circumstances, even a foreign private sector individual or company) for help setting up meetings with U.S. government officials could trigger registration.
A request from a foreign person or entity to provide advice regarding how best to influence U.S. policy or U.S. public opinion could trigger registration.
There are exceedingly few cases or published advisory opinions clarifying FARA’s broadly worded provisions. This leaves prosecutors ample room to bring novel test cases, and lawyers who are new to the statute ample room to misjudge its boundaries."
One might say, even experienced lawyers are bound to screw the pooch, as Covington is finding out now. And to judge by Judge Trenga's comments time and again, even judges can't figure this one out. And yet, here we are.
US v. Rafiekian
There are two charges in this case:
"From at least July 2016, through at least March 2017, in the Eastern District of Virginia and elsewhere, the defendant, BIJAN RAFIEKIAN, together with others known and unknown, knowingly and intentionally conspired:
(1) To knowingly act and cause others to act in the United States as an agent of a foreign government without prior notification to the Attorney General, in violation of 18 U.S.C. § 951; and
(2) To willfully make in a document filed with or furnished to the Attorney General under the provisions of the Foreign Agents Registration Act (FARA) a false statement of a material fact, and to willfully omit from the document a material fact required to be stated therein, and to willfully omit from the document a material fact or a copy of a material document necessary to make the statements therein and the copies of documents furnished therewith not misleading."
"From approximately July 2016 through approximately March 2017, in the Eastern District of Virginia and elsewhere, the defendant, BIJAN RAFIEKIAN, knowingly acted and caused others to act in the United States as an agent of a foreign government, that is, the Government of Turkey, without prior notification to the Attorney General, as required by law."
Let's take a look.
Charge 2, of course is a rehash of Charge 1. Both hinge on "knowingly" acting and causing "others to act in the United States as an agent of a foreign government without prior notification to the Attorney General." With the addition in charge 1 of making "a false statement of a material fact, and to willfully omit from the document a material fact required to be stated therein," and adding the foreign power in charge 2 "that is, the Government of Turkey."
Alas, after months of legal manuvering and days of testimony at trial, the prosecutors failed to prove any of the allegations in the indictment. Not that Mr. Rafikian acted, much less that he caused others to act as agents for the Republic of Turkey or any other foreign power, for that matter. Not that he made any MATERIAL misrepresentations or omissions of any kind in any filing.
Even if one were to consider all evidence presented by the prosecution at face value, including hearsay and speculation, we are left with nothing.
For instance, the government alleged that Inovo AB, the Dutch company that contracted the services of FIG, was supervised or under the control of the Turkish government. Yet, they provided NO evidence to that effect, and the government's own witness, Mr. McCauley, clearly stated that Turkish officials at a New York dinner on September 19, 2016, did NOT provide ANY directions, and that Ekim Alpetkin who may have had Turkish government connections was sorely disappointed by the work done by FIG. “This is what I paid for?” He said. And even then there is no proof of any control, direction or supervision by any person or entity in the Turkish government. Let alone any financial information tying payments to any but Inovo.
All the prosecutors were able to provide was proof that, indeed, Inovo was a client of FIG, a fact clearly stated in the LDA registration of September 2016 and in the FARA registration of March 2017.
It all boiled down to the instructions to the jury. And here's where we enter…
The Twilight Zone.
"It's important for the jury to be instructed what conduct constitutes a violation of FARA. We really haven't figured out the best way to go about doing that. But the number one concern of ours is that the jury cannot be instructed that to find that the conduct was in violation of law and, therefore, was not a legal commercial transaction, that there's any sort of willfulness requirement there." Cackled the prosecutor, Mr. Turgeon last Friday.
He went on:
"Now, under 54A, it says, In order to find that the defendant conspired to violate Section 951 for Count 1, the government must also prove beyond a reasonable doubt that the defendant conspired to violate FARA. That's simply not the law. We don't need to prove any separate conspiracy for the reason I just stated and also because an individual violation of FARA would be enough to render the conduct – not even an individual violation of FARA, but simply any conduct that was in violation of the FARA statute, whether or not prosecuted or prosecutable, renders that conduct not a legal commercial transaction."
"That's because if the defendant were to have acted on behalf of Alptekin and if Your Honor were to find that that conduct – or if the jury were to find, rather, that that conduct was not for the principal benefit of the government of Turkey, that's still a FARA violation. It doesn't have to be just the government of Turkey."
In other words: We are accusing Mr. Rafiekian of conspiring to act on behalf of the government of Turkey. We have not proven that there was a conspiracy, nor that the government of Turkey was a beneficiary, but it matters not. There does not even have to be a crime, prosecutable or not. It does not need to be for the benefit of Turkey. We can just find the guy guilty because we don't like his hairstyle!
The judge, scratching his head, asked: "Well, they disclosed they were acting on behalf of Inovo, which is Alptekin, right?"
"The LDA exception is not available if the conduct was for the principal benefit of a foreign government or a foreign political party [which we have unable to prove but what the heck]. So even if the defendant were acting on behalf of Alptekin, if that action was for the principal benefit of the government of Turkey, that's still a violation of FARA, Your Honor." [aparently, so is sneezing].
Mr. Murphy, for the defense, finally got a word in: "Having to show a legal commercial transaction just begs the question: What is that illegal commercial transaction?
THE COURT: Right.
MR. MURPHY: And the jury does need to be informed as to what that is. The fact the government is here now and hasn't been able to articulate any sort of standard, you know, really creates a significant problem of notice. If the government can't articulate it now, how is the defendant supposed to figure that out on his own back in 2016? It's clearly a very complicated standard, and there are some significant notice concerns there.
MR. MURPHY: So Section 951 contains the requirement of a legal commercial transaction. The word "legal" or "illegal" just simply begs the question: What is the legal or illegal act?
THE COURT: Right. What makes it illegal?
MR. MURPHY: Exactly. What the government is essentially saying here is that the defendant can be prosecuted for something that was not itself a violation of FARA, that he can be prosecuted for something that essentially doesn't require a mens rea. We think that the requirement of an illegal commercial transaction implies that there's some mens rea component to that and the mens rea is willfulness under the statute, Your Honor. With respect to the government's objection to Instruction No. 54A, to the first element that the defendant acted in the United States as an agent of a foreign principal, specifically in this case the government of Turkey, I think it's very strange that the government is objecting to that language. Their theory of the case for the entire case has been that the defendant was engaged as an agent of a foreign principal, the government of Turkey. They have categorically rejected any suggestion the defendant was acting on behalf of Inovo or Alptekin. If the jury doesn't think that the defendant was acting as an agent of the government of Turkey, well, he can't be found liable under Section 951 at all. So we think this is an entirely appropriate addition."
A little further down, we had this exchange:
"THE COURT: Explain to me how conduct could be unlawful or prohibited by law in the absence of a mens rea aspect to it.
MR. TURGEON: That's because, Your Honor, there's a distinction between whether a defendant can be prosecuted for something and whether the conduct itself is lawful or unlawful. For example, there are labeling requirements in FARA. There are requirements to disclose in advance of lobbying the fact that you're lobbying for a foreign principal. There are requirements to file copies of –
THE COURT: Right. We're talking about a specific part of FARA, that is the failure to disclose.
MR. TURGEON: Failure to register, Your Honor.
THE COURT: Failure to register.
MR. TURGEON: With respect, I disagree with that because the conduct at issue is not simply failure to disclose. The conduct the defendant in this case was doing was a violation of FARA whether or not it was intended to be one."
You get the idea. You and I can be found in breach or FARA by, say, buying a Renault Clio, since the French government owns 15% of the car maker and whether it was our intention or not, such purchase benefits the government of France. A manager for Airbus landing a contract with Delta Airlines? Prosecute him! it matters not that the transaction is legal. That doesn't enter into it. It benefits foreign powers, and the prosecution does not even have to prove it did! Write an op-ed defending the sale of military equipment to, say, Israel or Saudi Arabia? Foreign agent! Your opinion may benefit a foreign power!
Every action. Every expression of opinion even, whether criminal or not, whether there is the intention or willingness to commit a crime or not…can be prosecuted.
"Here is the fundamental problem with the government’s case: It is bereft of evidence that would allow a reasonable jury to conclude Rafiekian agreed with anyone else to commit a crime. The record reveals that Turkey may have been aware of FIG’s work; that Turkey also may have been aware of FIG’s retention by Inovo; and that Rafiekian hoped to be engaged by Turkey and was working toward that goal. But no aspect of that statement is a crime, and it certainly does not meet the elements of the crime with which Rafiekian was charged—which was conspiring to (a) act as an agent of a foreign government and then (b) hide what he was doing from U.S. government."
This case is absolute nonsense and should have never been prosecuted. This judge should have never allowed this travesty to get to a jury. No material evidence was presented to support ANY of crime, much less that there was any agreement by anyone to violate any laws. And yet, here we are. With a jury expected to decide what lawyers cannot understand, the prosecution cannot articulate and the judge finds vague and convoluted.
In the jury's deliberations today, one could only hope that they would be the last line of defense for Reason.
Who can blame them with instructions like this:
"For purposes of Count One, a statement is “material” if it has a natural tendency to influence a governmental action or is capable of influencing a governmental action. It is not necessary for the government to prove that the statement here charged actually did influence a governmental action."
Who cares about materiality, right?
"In Count One, the government has also alleged that a second object of the conspiracy was to knowingly act or cause others to act in the United States as an agent of a foreign government, that is, the Government of Turkey, without prior notification to the Attorney General. For Count One, the government does not have to prove that the defendant committed this crime;"
"In this case, the government has alleged that the Government of Turkey, Kamil Ekim Alptekin, and Inovo B.V. are foreign principals. It is for you to determine whether any of these entities are foreign principals."
Right. It is up to the jury to determine if a foreign government is a foreign principal, or that a foreign corporation, duly noted as such in the registration is a…wait for it…foreign corporation! This is how we spend taxpayer money nowadays.
"Thus, if you find that FIG engaged in lobbying, that its lobbying did not principally benefit the government of Turkey, and that is lobbying also was not done at the request, order, direction or control of the government of Turkey, and that FIG registered under the Lobbying Disclosure Act, you should find that the Lobbying Disclosure Act Exception applies as to the requirements listed in numbers five though eight of Jury Instruction number __ (“Legal Commercial Transaction”).
However, if you find that FIG lobbied on behalf of government of Turkey, that the government of Turkey was the principal beneficiary of FIG’s lobbying, or did not register under the LDA, then the Lobbying Disclosure Act Exception does not apply to the requirements listed in numbers five though eight of Jury Instruction number __ (“Legal Commercial Transaction”)."
Now, this reads like a scene from Monty Python's The meaning of Life.
"Now, before I begin the lesson, will those of you who are playing in the match this afternoon move your clothes down onto the lower peg immediately after lunch, before you write your letter home, if you're not getting your hair cut, unless you've got a younger brother who is going out this weekend as the guest of another boy, in which case, collect his note before lunch, put it in your letter after you've had your hair cut, and make sure he moves your clothes down onto the lower peg for you…"
In their first day of deliberations, the jury found Mr. Rafiekian guilty as perhaps, should have been expected. After all, the government did not have to prove that Mr. Rafiekian committed this or any other crime. Based on the evidence presented at trial, if the jury found any action by FIG under the direction of Turkey or any other government, they should be tested for drugs. But that was not necessary at all. Damned if you did, damned if you didn't.
Sentencing is scheduled for September 18, to be dispensed by the same judge who found the prosecution failed to present any evidence of a conspiracy to admit co-conspirator hearsay and for an offense the elements of which the Government could not articulate, under a statute no-one seems to understand.
In the meantime, and irrespective of this jury's determination, just remember that any of us can be put into Mr. Rafiekian's position for any statement we ever make, publicly, in a private dinner or in the press that "may benefit" any foreign government or entity, or understood to potentially be interpreted as being of benefit to any such, or of no benefit at all, acting under their direction or no direction at all with or without intent and whether the activity is legal or not. Whether buying clothes, selling planes, expressing an opinion or eating cheeseburgers. Nothing is exempt.
Welcome to Soviet America, the heart of the Twilight Zone.