Posted on March 31 2019
Rafienkian & Alpeteki EDVA -update
Full Disclosure there had been a flurry of activity in this case, most of which slipped my radar. Like many of you, my bandwidth tends to be somewhat limited during the work week/day. Meaning it can be difficult to provide you with timely updates. Hence as a matter of standard form and practice, I wait until the evening or weekend to recap various judicial proceedings.
You might find this entry from a few weeks ago informative, as it sets forth the predicate for this week’s updates pertaining to the defense’s Giglio Materials and subsequent judicially approved subpoenas.
Also I know that some of you have unresolved frustrations with Judge Ellis and the Manafort matter. As a standard practice and out of actual professional deference, I rarely speak poorly about Judges or their actions. Admittedly I do tend to give Judges, particularly ones in a District that I’m very familiar with, a wide berth.
Sadly there are numerous false narratives out there about Judges. These are typically propagated and amplified by those who do not understand what jurisprudence really is. Or their motives that are driven by an alternative agenda. When political “pundits” or twitter-celebrities opined that “Judge Ellis is corrup” or “someone got to Judge Ellis” - for the first time I was actually grateful that I wasn’t on Twitter. Because I don’t know if I could have been a productive twerp (snort)
The reality is Judges are not infallible. They can and do make mistakes. The true jurisprudence test, for me at least, is what does the Judge do (curatively speaking) when a mistake is made. That said Judge Trenga is one of the smartest Judges I know. He has a knack of dismantling incredibly complicated cases and sticking to the facts and most importantly adhering to the Federal Rules of Criminal (and Civil) Procedure. That’s a good thing.
Bijan Rafiekian & Flynn 3/29/19 update
In an effort to make reading the various twist and turns of this case make sense, I’m going to break up the various filings based on the date of filing. As previously discussed a few weeks ago, entry found here I walked you through the defendants Giglio Material request and Judge Trenga’s order approving the Defendants Subpoena request.
A few days after the March 17th entry the Government filed a separate subpoena request (document # 54 on the docket). It is unclear if this is for witnesses and/or documentation.
Before we dive into documents 88, 89 and 94, respectively it might be worthwhile for you to read my previous Flynn-FARA entry, found here. You might also find my previous Flynn Sentencing Hearing write up, found here, informative as both will setforth a factual predicate of what the aforementioned documents detail
Motion to Quash Subpoena No 88
Document No 84 on the docket, it’s the defendants response to the Motion to Quash. The Defense argument appears to be based on the fact that Flynn Intel Group only had two officers and that Covington Burling, LLC aided Flynn in his previous FARA Filing.
Mr. Flynn, on behalf of FIG, contacted Kristen Verderame and later Covington in late December 2016 for legal representation in responding to that inquiry. On January 9, 2017, Covington issued an engagement letter undertaking to “provide Foreign Agents Registration Act Advice” to FIG, which engagement letter was countersigned on behalf of FIG
The Defense goes on to set forth his argument why Covington and Ms Verderame should be compelled to produce the subpoenaed materials. As I read it the main portion of their argument is one of the Defendants paid $55K towards legal expenses. Which could make for a an interesting legal fight as well as compelling argument that the “work performed by Covington” who “owns” the privilege and who’s privileged is it to waive.
“...was appropriate to file under FARA for the work they had performed over a three-month period in the fall of 2016 for Inovo, BV (“Inovo”)—a Dutch company owned by defendant Ekim Alptekin. In January and February 2017, Mr. Rafiekian contributed a total of $55,000 of his personal funds to pay for FIG’s ongoing expenses, including for Covington’s (and presumably Ms. Verderame’s) legal fees.”
Moreover the defendants are pointing to Covington’s March 2017 letter submitted when they retroactively filed their FARA 6404 Registration
From a factual standpoint I would like to point out that the Defendant’s statements that there were only two officers of Flynn Intel Group, Flynn (350K shares) and Bijan Rafiekin (300K shares) is not exactly accurate, as born out on page four of the aforementioned FARA Registration:
On page 2, second paragraph the Defendants take aim at the FARA versus LDA requirement and how “language” in Covington could be construed as setforth in the following section:
“could be construed to have principally benefitted the Republic of Turkey.” If that were true, the FARA exemption that otherwise would have applied when FIG registered under the Lobbying Disclosure Act (“LDA”) would not have been available under the applicable regulation...
And there it is, as suspected the Defendants are directly attacking Flynn’s credibility and “purported” incentives to fully and forthrightly cooperate with the Government as it is in both Flynn and the Government’s best interest. Again I’m not condoning this defense strategy all I am saying is we should have expected this was their front facing strategy (as previously discussed):
This is again laid bare on page 4, where the Defendant argues, again I’m not saying this is a great argument but they actually make a convincing case why Covington should comply with the subpoena...because Flynn’s December 2018 sentencing hearing was off-the-rails bad, as painfully described with the transcript found here.
“...made clear at Flynn’s aborted sentencing hearing this past December, Mr. Flynn’s ability to get the full measure of cooperation credit depends on his testimony for the government and against Mr. Rafiekian at the upcoming trial...”
And this is why I had previously questioned (I think it was on my original twitter account @Spicerlies RIP) that Flynn’s dissolution of Flynn Intel Group was done in a hasty manner and it didn’t not comport with FIG’s CC&Rs (Covenants Conditions and Restrions) and AOI (Articles Of Incorporation). As Flynn alone opted to dissolve FIG absent an actual Board meeting of the other shareholders, one of which is now a Defendant in this Criminal matter.
“Contrary to Mr. Flynn’s attestation, there was no notice to the directors or to the shareholders and there was no action by the board of directors or stockholders to dissolve the corporation”
I believe the actual dog fight here is that Defense contends that Attorney Client Privilege was (presumably improperly) waived by both Flynn & Covington and in doing so that “improper waiver” created two officers of the same company at odds, with their “interest”. Whereas one officer is an admitted Felon, who pleaded guilty to lying to the FBI and turned over evidence that served as the foundation to one of Flynn Intel Group’s other officer being criminally charged.
“As a result of the privilege waiver that it secured from FIG in June 2018, the government obtained evidence from FIG’s lawyers that led to allegations in the indictment that Mr. Rafiekian had lied to the lawyers who were deciding whether to register under FARA and what any such FARA registration would include.”
The Defendants argument are distilled down to these three areas of which Covington has raised as an argument why the Defense’s subpoena should be quashed:
Covington and Ms. Verderame in support of their motions to quash essentially boil down to three points:
(1) the attorney-client privilege,
(2) the Nixon standards, and
(3) undue burden.
The conflict between the Defense, Government, Covington et al is the defense argues that Covington already waived privilege and the Defendant paid $55K towards legal expenses related to the FARA advise and as an “officer of” Flynn Intel Group the documents he seeks, he should be entitled to. I don’t know how the Court will rule but I can see all sides of the argument here. But I do trust Judge Trenga’s judicial temperament and I have zero reason to believe he would rule in a way that would be favorable to one side versus another. Again you can read the Defense’s response to Covington’s Motion to quash (Document No 84) via this open source link found here. Essentially the Defense’s argument is they want the Court to deny Covington’s motion to quash...
Motion to quash subpoena Doc No 88
I feel obligated to once again disclose that I have an inherent bias against Mike Flynn. As someone who has a multi-generational family legacy of USMA graduates and decades of combined Army Officers in my immediate family, I find Flynn’s conduct unbecoming of a retired Army General. That said I will try to limit my personal bias and make every effort to solely stick to the facts as presented in Covington’s reply to the Defendants Motoon in Opposition to Quash their subpoena.
One Page Two, itemed noted as Fourth, I believe for the first time we learn as a matter of fact that the Flynn Intel Group was previously served two subpoenas:
FIG received two federal grand jury subpoenas, and General Flynn exercised his corporate authority to cooperate with the federal investigation of FIG by making a very narrow waiver of FIG’s privilege.
The subpoena’s breadth (it seeks thousands of documents generated by Covington over 27 months)
Covington does make a reasonable argument as to the “limited attorney client waiver” as to the undue burden. I’m not entirely sure that’s a persuasive argument. Given if you take the time to read the Flynn Intel Group’s Articles Of Incorporation one could in fact make serious argument that Mike Flynn did not have the Authority to dissolve Flynn Intel Group absent an actual meeting (the prerequisite Notification of said meeting) also full disclosure I’m not sure if there might be an amended Aricles of Incorporation but I do not see how Covington or Flynn can argue Flynn had the sole authority. But I could be wrong.
Returning to Covington’s motion, on pages 3 & 4 they present a reasonable counter argument as to why the Defendant’s subpoena should be quashed. In some respects I understand their position. Attoney Client privilege is the foundational pillar of at law firm and/or lawyer. To pierce that veil is a slippery slope, even if parties opt to “limit” the privilege. The point is once you piece the veil it is without equal trying to claw back that waiver.
“..combined with the limited relevance of the entire “file” and the risk that expedited production could cause inadvertent production of General Flynn’s confidences, requires quashing the subpoena. Covington has already produced to Defendant the FIG documents responsive to subpoena categories 1 through 7, as well as all FIG documents responsive to category 8 that Covington had previously provided to the government. The Court should quash the rest of the subpoena.
Covington goes on to argue how the Nixon Standard is applicable to them (and their individual attorneys. Admittedly they do make a reasonable and precedence based argument that may give them stronger footing. Over all I find that firms (by the way they all do) argue that the subpoenas are “unduly burdensome” it’s almost like a perfunctory argument that you expect opposing counsel to raise. On pages 5 and 6 Covington appears to be slicing the apple very thinly. Their reply brief reads very disjointed and at times seems like s linguistic hampster tunning on the wheel
For reference regarding Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver that the Defendants and Covington et al in the context of the subpoenas. Rule 502 reads in part:
“The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection....
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).
Essentially it boils down to the following:
Covington represents, yes both currently and past tense; Flynn Intel Group and Flynn. With respect to Flynn after reading the filings it appears Covington represents him in his dual capacity as the (former) President Of FIG and in his personal capacity. In the Fall of 2017 when the SCO’s came knocking, Covington and Flynn waived privilege, but in limited scope. As detailed Robert Kelner’s previous declaration, which was filed earlier this month. I highlighted the pertinent paragraphs and sentences for you:
Notice the reference by Covington via Kelner’s declaration that the Firm represented both Flynn Intel Group and Flynn...insofar as the “agreement” between the firm, the firm’s clients (I still think you could make a viable argument that Covington & the attorney representing both has unnecessarily created a separate layer of complexity and it would have been ethical to uncouple the representation, but I digress)...this is WHY you should always read the attachments, they tend to provide the underlying predicate for the current argument. There isn’t an open source (free) link is you’ll have to pay for the attachment via PACER by clicking on this link (which is behind a paywall) or simply review the letter below.
Conversely one could infer that both Covington and Flynn have made a “good faith effort” to comply with the Defendants subpoena but the real fight is Item 8 - the production of all Flynn Intel Group’s Covington client file. In my opinion the Defendants request appears to be overly broad and that’s likely the reason Covington continues to argue the “undue burden”. As evident in Covington’s March 2019 letter to defense counsel. Again no open source link but you can pay for it via this PACER link, Attachment D, respectively. or simply review the aforementioned letter below:
And now this brings us to Friday’s Filing, motion to continue:
Ahem👇🏻— Account will tweet as if Steve Bannon 4/4/2019 (@MaddogSpicy) March 30, 2019
(working on an update pursuant to the motion to quash and AC privilege with “narrow” waiver)
ETA tonight. Thought you should know 😉 pic.twitter.com/KO1VtBnoJ3
Oh and incidentally I made a few delightful videos because sometimes there’s far more than there originally appears to be:
YAF November 2016 Flynn...
YAF Nov 2016 Flynn Digital Soldiers...part II
To affirm the authenticity of this video (beyond my Cyron and accompanying music section), the YAF still has the video & Flynn biography on their website and lastly I’m going to point out that last week I published this entry regarding yet another YAF member Russell Taub, you should read this entry again...because I’m fairly certain there’s a link there, beyond they are both from Rhode Island and active members of the YAF... see accompanying twitter thread, Taub used other people’s money to pay for his hookers....no really it’s in the Criminal Information
Tucking this in right here...https://t.co/LMAC99339q— Account will tweet as if Steve Bannon 4/4/2019 (@MaddogSpicy) March 25, 2019
At any rate I hope this provided you with a more fulsome Flynn et al update because the EDVA case appears to be possibly on hold...Geee I wonder why. -SpicyFiles Out /snort (archived twitter thread) Just in case
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