LOBBYING LOOPHOLES
While Michael Flynn Lobbied for Turkey, His Firm Told Congress to Extradite Turkish Dissident
Months before he registered as a foreign agent, his company brought in House staffers to preview encrypted technology—then pushed them to send Turkey a wanted man living in the U.S.
The congressional staffers thought they were going to see a whiz-bang encrypted communications technology when they traveled to Old Town, Alexandria, for a presentation by the now-shuttered Flynn Intel Group.
It’s what came after that gave them pause: a half-baked, conspiracy theory-laden briefing alleging that Turkish cleric Fethullah Gülen is leading an Islamic extremist cultural invasion of the United States.
He’s a threat to us, and to our good friend and ally Turkey, Flynn representative Bijan Kian told the House Homeland Security Committee staffers, according to a congressional staffer familiar with the matter.
Kian asked the staffers to back the Turkish government’s demand to extradite Gülen, apparently not realizing their committee didn’t have jurisdiction over the matter, the staffer said.
“It was a sloppy, uncompelling presentation” that smacked of lobbying on Turkey’s behalf, according to a congressional staffer, sharing details not previously reported about the October meeting.
That view was only strengthened when retired Lt. Gen. Michael Flynn published an op-ed arguing for Gülen’s extradition, describing him as “a shady Islamic mullah residing in Pennsylvania whom former President Clinton once called his ‘friend.’”
Yet Flynn Intel Group only registered with the Justice Department as a foreign agent last week—acknowledging that his firm’s work may have benefited Turkey. The public disclosure came after he’d served the shortest term as national security adviser in U.S. history, stepping down after misrepresenting his contacts with the Russian ambassador to Vice President Mike Pence.
And now House Democrats on Thursday released documents detailing that Flynn was paid more than $56,000 in 2015 by three Russian firms with alleged Kremlin ties, including Russian President Vladimir Putin’s media mouthpiece RT and Kaspersky Labs.
That disclosure raises the specter that Flynn violated the U.S. Constitution’s Emoluments Clause, which bans retired general officers from accepting payments from foreign governments, according to House Oversight Committee Ranking member Elijah Cummings (D-MD), in a letter to the White House, Pentagon, and FBI.
Flynn spokesman Price Floyd said the retired general had informed the Defense Intelligence Agency of the paid speaking engagement for RT. “General Flynn informed and briefed the DIA before his trip to Russia and again upon his return,” Floyd told The Daily Beast on Thursday.
“Flynn properly reported his overseas travel for the December 2015 trip, in accordance with the regulations for people holding security clearances,” said DIA spokesman Jim Kudla on Thursday.
He reportedly did not file paperwork to report the payments to the U.S. Army, however. Army spokesmen did not immediately respond to requests for comment.
But Flynn’s multiple links to foreign concerns raise questions about how carefully the Trump administration vetted its senior staffers, as well as Flynn’s own instinct for what may be legal but not quite appropriate behavior for a retired flag officer.
They also highlight loopholes in Justice Department measures meant to require lobbyists to disclose their work on behalf of foreign governments. Proponents of reforms to those laws say Flynn followed the letter, if not the spirit, of existing rules on foreign governing lobbying, though Flynn’s spokesperson denied that that was the case.
But discrepancies in the firm’s various lobbying filings point to exactly the kind of gray area the Justice Department warned about in a report last fall. Justice officials tasked with enforcing the Foreign Agent Registration Act (FARA) told the department’s inspector general that foreign governments might be exploiting loopholes in U.S. lobbying disclosure laws to exert influence surreptitiously on American public policy.
“We are hoping that with this whole controversy surrounding Flynn, there will be a renewed interest in closing these loopholes,” said Lydia Dennett, an investigator with the Project on Government Oversight. The Flynn situation “is the perfect example of how things can fall through the cracks.”
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Last fall, Flynn disclosed to the Justice Department that he was lobbying for the Dutch company Inovo BV. Flynn’s initial lobbyist registration form last year said the Flynn Intel Group would “advise [Inovo] on U.S. domestic and foreign policy.”
He registered through a domestic disclosure process that requires far less information to be made public than when one registers as a foreign agent. And in the months that followed, as Flynn’s registration as a foreign agent essentially acknowledges, its push for Gülen’s extradition crossed the line from purely commercial work to lobbying for a major foreign-policy objective of the Turkish government.
His initial lobbying registration was a tacit claim that Inovo was independent of the Turkish government. But Inovo’s owner, Turkish businessman Ekim Alptekin, chairs a Turkish trade promotion group organized under the auspices of the country’s Foreign Economic Relations Board, whose members are government-appointed. And Alptekin told Turkish media that he had helped arrange a visit to the United States by President Recep Tayyip Erdogan last year.
Kian’s congressional presentation on the threat posed by Gülen and his American followers, and Flynn’s subsequent column, dovetailed with the interests of the Turkish government, which has blamed a failed July coup attempt on cleric Gülen and demanded his extradition.
That’s why Flynn’s lawyers decided to retroactively register him as a foreign agent “out of an abundance of caution,” a person close to Flynn told The Daily Beast, speaking anonymously as a condition of describing Flynn’s legal strategy.
His Inovo work, Flynn acknowledged in the filing, “could be construed to have principally benefited the Republic of Turkey.”
White House press secretary Sean Spicer said the White House had been unaware Flynn was about to make a FARA filing, but the person close to Flynn said his lawyers had notified the White House counsel’s office before and after the inauguration of President Donald Trump.
Kian did not respond to emails or telephoned requests for comment, nor did Flynn’s law firm, Covington & Burling.
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Yet for all that smoke, legal experts say Flynn was complying with the law as currently written—or enforced.
Disclosure requirements turn on the question of who benefits. Lobbyists whose work principally benefits a foreign government or political party must notify the Justice Department and register as a foreign agent.
But lobbyists for foreign companies and organizations, even state-owned ones, that are not controlled or directed by a foreign government can simply report their work as if they were working for a U.S. company.
That’s why Justice officials have warned that foreign state actors might seek to evade the heightened scrutiny of registering as a foreign agent by routing U.S. advocacy through ostensibly independent commercial entities.
Officials at the Justice Department's National Security Division (NSD), which administers and enforces foreign agent laws, warned the inspector general in a report last September that foreign governments might try to influence U.S. policy through private companies whose lobbyists manage to evade FARA’s heightened disclosure requirements. The inspector general agreed, and the Justice Department has since recommended that Congress close the loophole through legislation.
The Trump White House has accentuated shortcomings in lobbyist reporting laws, Dennett says, by narrowly tailoring ethics requirements surrounding foreign lobbyists to cover only those who register as foreign agents.
Trump administration appointees are required to pledge that they will never, after their time in the administration, engage in lobbying activity that “would require me to register under the Foreign Agents Registration Act.”
Dennett says that pledge leaves open the possibility of work on behalf of non-U.S. companies, some of which might have closer ties to foreign governments than they let on.
Craig Holman, a government affairs lobbyist with the group Public Citizen, considers the Trump administration to be a case study in the need for more stringent disclosure.
“The Trump administration is stepping into the White House with more foreign investments and conflicts of interest with foreign countries than we’ve ever seen before. So this is something that can become a very, very critical issue in the next four years,” he said in a January interview.
There is one upside to the potential controversy. “All our lobby disclosure improvements, and even the lobby disclosure acts themselves, have come in the wake of scandal,” Holman said.
“I’m fully expecting the new Trump administration to be one of the most scandal-ridden administrations in recent history,” he said, “and upon that scandal, we may be able to promote some sort of vast improvements” in foreign lobbyist disclosure laws.
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