FBI informants and the entrapment defense
Here’s a piece in the NY Post about FBI informers entitled, “The FBI is made of snitches, often trapping Americans into committing crimes.” Very timely, for obvious reasons. An excerpt:
[The FBI has] become an organization of snitches and spies, borderline entrapping the angry and the weak-minded into committing crimes. Nearly a decade ago, New York Times’ David K. Shipler listed a series of would-be terrorist plots thwarted by the FBI — only to find that the vast majority of them were facilitated by agents and informers posing as terrorists themselves. They even chauffeured some of the suspects to the would-be crime scenes themselves, only to foil the “plot” at the last minute.
Note, by the way, that back then it was a liberal outfit like the NY Times that seemed aware of the strong possibility that the plot would not have been fleshed out but for the FBI, even though at this point the Times seems to be ignoring the issue. The reason for the switch is obvious. Back then the victims were Muslim terrorist wannabees, and now they are Trump supporters.
I recall that back then, sometimes it seemed to me that the accused might have been led in their plots by the FBI. That was disturbing, but at the time I assumed – wrongly, I now believe – that the FBI was only doing this to people who were determined to commit such crimes on their own and that the agency was probably not overstepping for the most part.
The legal defense of entrapment for defendants is skewed towards empowering the authorities and making it very very hard for the accused to use it as a defense. See this:
A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two elements, predisposition is by far the more important.
Inducement is the threshold issue in the entrapment defense. Mere solicitation to commit a crime is not inducement. Sorrells v. United States, 287 U.S. 435, 451 (1932). Nor does the government’s use of artifice, stratagem, pretense, or deceit establish inducement. Id. at 441. Rather, inducement requires a showing of at least persuasion or mild coercion, United States v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985); pleas based on need, sympathy, or friendship, ibid.; or extraordinary promises of the sort “that would blind the ordinary person to his legal duties,” United States v. Evans, 924 F.2d 714, 717 (7th Cir. 1991). See also United States v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984) (inducement shown only if government’s behavior was such that “a law-abiding citizen’s will to obey the law could have been overborne”); United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989) (inducement shown if government created “a substantial risk that an offense would be committed by a person other than one ready to commit it”).
Even if inducement has been shown, a finding of predisposition is fatal to an entrapment defense. The predisposition inquiry focuses upon whether the defendant “was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.” Mathews, 485 U.S. at 63. Thus, predisposition should not be confused with intent or mens rea: a person may have the requisite intent to commit the crime, yet be entrapped. Also, predisposition may exist even in the absence of prior criminal involvement: “the ready commission of the criminal act,” such as where a defendant promptly accepts an undercover agent’s offer of an opportunity to buy or sell drugs, may itself establish predisposition. Jacobson, 503 U.S. at 550.
My interpretation of this – and granted, I’m not an expert – would be that “predisposition” would be deemed to have been present even if that predisposition was only a bunch of bragging hot air blather that would never have turned into an act but for the organizing help and motivation provided by FBI agents. Yes, undercover agents need to be able to infiltrate terrorist groups, but they shouldn’t be the movers and shakers therein, egging the other participants on.
And yet I believe that happens all too often. And now that the left is in the driver’s seat in the FBI and the DOJ, it’s being used to silence and intimidate and punish their political enemies on the right.
I’ll give the last word to the Babylon Bee, which has an article with this title: “FBI Discovers Building Full Of Dangerous Extremists Organizing Acts Of Terror Across Country”:
In a shocking twist, the organization is headquartered right in Washington, D.C., at the J. Edgar Hoover FBI building.
The group was uncovered after FBI agents began tracing most of the terror plots in this country back to one giant organization. “This is bigger than any of us realize,” said the founder of the FBI, Bob FBI. “It’s all connected. Pretty much every terror plot of the last few decades was being encouraged in secret by this one giant, shadowy organization. But rest assured, we’re going to make sure these guys pay for what they’ve done to our country. No one hatches terror plots under our watch.”
Funny, but sad.
I have a post on my blog on the subject of snitching: https://lesbates.blogspot.com/2021/02/in-stock.html
The FBI can no longer be reformed, but should be razed to the ground and reconstructed on a solid, non-ideological, non-partisan foundation, not that there is any likelihood of this happening, nor will the equally necessary defunding of our system of higher (mis)education ever occur. But, sadly, the corruption is all-pervasive and ubiquitous; just today, PayPal, in collaboration with the ADL, announced a new program (according to an article in USA Today) which will provide so-called information on the financial networks used by “extremist” groups advocating “hate” to law enforcement and policy-makers. One need hardly wonder whether anyone will ever choose to examine the funding of Antifa, BLM or any Islamist/Salafist group.
They may barely adhere to the letter of the law but they rape the hell out of the spirit of the law. And in doing so, they render the rule of law null and void.
As I mentioned in the Open Thread, since 9-11 the FBI’s budget has tripled — most of that justified by anti-terrorism.
Now we all know the principle of bureaucratic organizations is never to let the budget decline. That money must go somewhere and must, however feebly, be justified.
Islamic terrorism has been pretty well beaten back — no thanks to those who regularly denigrate the neocon stand on the matter.
However, money is money and the FBI has to spend on it on something. For political reasons, that can’t be BLM and Antifa, so, like Hollywood, they have turned to “white supremacists” as the existential threat facing America.
I’m reminded of that classic bit from “The Right Stuff” (1983) for much better, nobler purposes:
___________________________________________
Gordon Cooper: You boys know what makes this bird go up? FUNDING makes this bird go up.
Gus Grissom: He’s right. No bucks, no Buck Rogers.
https://clip.cafe/the-right-stuff-1983/you-boys-know-what-makes-bird-go-up/
___________________________________________
Damn, that was a good movie. Book, too. Bless Tom Wolfe.
I agree with what “j e” said in the second post: it’s time to close the FBI (and the Department of Education). I am certainly ready for that, but don’t see it happening under Biden.
Oh come on now. I remember when they sent Martha Stewart up the river. I slept so much better after they got that dangerous felon off the streets. I say to myself, where do they find such men?
that was that upstanding young man, james comey, funny thing that happened not long after, he had a temper tantrum, about a surveillance net, much narrower than today’s panopticon, and he had it shut down temporarily, the date he did so was march 10. 2004, you know what happened the next day, the madrid train bombings that killed 130 and effectively toppled the spanish government
“Islamic terrorism has been pretty well beaten back — no thanks to those who regularly denigrate the neocon stand on the matter.”
The obliviousness in that statement is powerful enough to run the entire world electrical grid for a month. At best it is like praising the arsonist for putting out the fires he set, but only after those flames have consumed the entire block and killed most of the people who lived there.
Mike
Mike,
Please be kind enough to clarify the “obliviousness” of that statement for those of us too obtuse to be certain of your meaning.
comey, has a talent for letting actual terrorist outrages happen, while pursuing small fry, the stewart job, was his entree to the big time, he collaborated with mueller and pat fitzgerald, on the whole plame shame
At best it is like praising the arsonist for putting out the fires he set, but only after those flames have consumed the entire block and killed most of the people who lived there.
Evidently Bunge thinks William Webster’s FBI set up the Hezbollah.
Nominal federal outlays in FY 2018 exceeded those in FY 2001 by a factor of 2.2. The FBI’s nominal outlays exceeded them by a factor of 3.3. So, the FBI’s budget has been growing faster than total federal outlays to the tune of 2.4% per annum. We’ve certainly needed more manpower devoted to immigration enforcement, but that’s outside the FBI’s usual book of business.
There are two issues here and I think we need to take care to keep them separate.
The first issue is whether the defendants will be able to claim an entrapment defense. From what I’ve read the answer to that question is no. I don’t think it makes sense to challenge this one. When it comes down to it, these defendants agreed to participate in a conspiracy to kidnap a sitting governor and took action in furtherance of that conspiracy. Even if the FBI informant instigated, the actions that these defendants actually took are indefensible.
The second issue is whether the FBI is instigating conspiracies that wouldn’t have happened but for the actions of the FBI operatives. This is the big problem. Especially when the FBI-prompted conspiracies further one party’s narrative, and indeed may be the only evidence of that narrative.
The left would like nothing more than to claim that the right are terror sympathizers Kidnapping an elected official would be terrorism.
We need to be careful to criticize the FBI, when warranted, without apologizing with the folks who agreed to help kidnap a governor.
The first issue is whether the defendants will be able to claim an entrapment defense. From what I’ve read the answer to that question is no. I don’t think it makes sense to challenge this one. When it comes down to it, these defendants agreed to participate in a conspiracy to kidnap a sitting governor and took action in furtherance of that conspiracy. Even if the FBI informant instigated, the actions that these defendants actually took are indefensible.
You need to tell your handlers that you’ve lost your audience because you’re too predictable.
Bauxite,
The totality of the FBI’s actions and refusal to act against the left are compelling evidence that it cannot be reformed. Sometimes you just have to start over and clearly, the entire federal government now falls within that category. Humpty Dumpty can’t be put back together again.
As far as I can see and tragically, that’s only going to result in the aftermath of a civil war or military coup. And even in those cases, the wrong side may well win.
Internal rot has often led to civilizational collapse and I know of no example of having a positive outcome in the aftermath. Future generations are facing having a boot stomping on their face, forever. And many of today’s generations are facilitating it.
Two questions I haven’t yet heard mooted:
1. Is the motivation of the “mole” weighed? Is any tendency toward either self-preservation or aggrandizement on the part of the mole taken into consideration in determining entrapment? I.e., might the mole feel that he must encourage action, either to avoid perhaps dangerous exposure, or to enhance his reputation within his “real” employing organization?
2. Is it legal theory that the awareness of the existence of moles:
a) deters criminal behavior, or
b) does not usually exist among perpetrators, and merely assists in the addressing of criminality.
Art Deco – And there’s the trap, though. Argue that the FBI is politicized and out of control and you might get somewhere. Argue that the folks who planned to help kidnap a governor shouldn’t go to jail and people will think you’re OK with kidnapping governors.
Nor does the government’s use of artifice, stratagem, pretense, or deceit establish inducement. Id. at 441. Rather, inducement requires a showing of at least persuasion or mild coercion, …
In the Whitmer kidnap caper, the FBI people who were potentially “inducing” were in a position of authority within the targeted organization. In cases of sexual harassment and impropriety within the workplace, the position of authority over a subordinate automatically carries a perception of coercion.
Argue that the folks who planned to help kidnap a governor shouldn’t go to jail and people will think you’re OK with kidnapping governors.
People are routinely excused from liability and punishment due to government misconduct. No, I don’t care what ‘people will think’ if I point that out.
Stopped Clock and all but Art+Deco is correct here.
You don’t fight these people on their own terms and hope to win. You make your own terms and aim to force the other side to submit to them.
Just as you don’t preface statements with “I am not a Racist, but…” or “I am not an Anti-Semite, but…” Just say what you want to say and don’t concede the moral framework to your opponent before you even begin to argue.
Not hard to understand. Just the reflection of the “So, is it true that you beat your wife?” attack smear.
Ray+Van+Dune,
I can’t imagine that the mole(s) aren’t in communication with their handler(s) from whom they’re getting frequent guidance and direction. I imagine that some of the handlers are quite skilled at ‘legal’ entrapment.
Bauxite,
“Argue that the folks who planned to help kidnap a governor shouldn’t go to jail and people will think you’re OK with kidnapping governors.”
That’s certainly the spin prosecutors will argue before a jury and/or judge to shape their perception of the defense. And what the jury and/or judge thinks matters very much indeed.
TommyJay,
Excellent point and IMO, that would be a useful argument for the defense to make. It bolsters the entrapment angle. A smart defense attorney might argue that by the time their client realized that the people at the top were truly serious and not just venting, they feared that if they abandoned the conspiracy too early, their life would be in great danger as the people in charge would see them as a grave security risk. That they planned to back out at the last minute by faking a sudden bout of food poisoning. Obviously they couldn’t prove that but would have introduced ‘reasonable doubt’.
Zaphod,
If by “make your own terms and aim to force the other side to submit to them”… you mean to choose the ground and circumstances upon which you fight… I agree. As at Agincourt.
Art Deco – I see your point. I completely agree that our system of justice requires some otherwise guilty people to go free if the government abuses its power. If you play it that way, though, this issue is a sure loser.
For one thing, it doesn’t seem like these defendants have a strong entrapment case under the law. It will harm your credibility when courts almost certainly rule that they don’t. Given that conservative judges generally follow the law instead of making up politically convenient jibberish, there’s a good chance that at least one and maybe more than one Trump appointee will rule against these defendants. Then you end up looking like a fool like Trump does when he attacks his own appointees.
For another, every Republican candidate who expresses what you propose will have ads run against them suggesting that they’re ok with the vigilante kidnapping of elected Democrats. Those ads will be wildly unfair, but they will resonate with the suburban folks who voted for Biden because they wanted to get back to “normal.” Most of those folks couldn’t be bothered to actively seek out the news stories they would have to read to figure out what’s actually going on. They’ll just hear the Republican arguing that the people who got caught trying to kidnap the governor of Michigan shouldn’t go to jail. Remember when Republicans made a lot of political hay in the 70’s and 80’s by blaming Democrats for Warren court expansions of defendants’ rights like Miranda and the exclusionary rule? Democrats will gleefully turn the tables, and it will work.
There’s a lot of real estate between GOPe-Marquis of Queensbury Republicanism, on the one hand, and going to foolish extremes, on the other. We need to find the sweet spot.
@GB:
“If by “make your own terms and aim to force the other side to submit to them”… you mean to choose the ground and circumstances upon which you fight… I agree. As at Agincourt.”
I was thinking more Albigensian Crusade 😛
Glass Half Full: We surely agree on some of my less extreme positions.
@Bauxite:
“We need to find the sweet spot.”
To be found in-between slow-strangulation and inadvertent decapitation.
Make it Snappy. Don’t mess it up. Don’t be Jack Ketch. Refer to the Official Table of Drops.
https://en.wikipedia.org/wiki/Official_Table_of_Drops
Also Very Interesting:
https://www.loc.gov/rr/frd/Military_Law/pdf/procedure_dec-1947.pdf
As a theoretical matter, maybe both sides could be prosecuted. The feds for inciting/inducing kidnapping and for illegal entrapment. Maybe, if the chumps go to prison, they could still civilly sue.
I’m not seeing the DoJ doing this, but a campaign of outraged comparison in public might have some political energy.
As in, “Yeah, these guys talked nuts but they didn’t have the resources or determination to do anything until the feds set them up. Let’s hear from the feds about how bad these guys would have been without “”help””. Anybody?”
Lots of people are really annoyed with the government at any time. Say something not even particularly nuts and the feds are going to be looking at you as another entry on the c.v. Unless you’re a known criminal, of course.
With proper handling, this case could be a lesson to the public, the imbalance between the loudmouths and the feds being so gross and obvious.
Zaphod – That’s a funny joke, but inadvertent decapitation is pretty much exactly what we’re going through now because of Trump throwing away a winnable election and kissing off two Senate seats in Georgia. The pain will continue if we make Republican candidates express sympathy for violent plots.
Here’s how I would like to see Republican candidates play the issue:
“I have no sympathy for the defendants in the Whitmer case. Participating in a violent plot is wrong, and quite possibly criminal. We’ll let the courts decide whether the defendants have a valid entrapment defense.
The larger issue, though, is the politicizing of law enforcement in general and federal law enforcement in particular. We have violent leftists firebombing federal property and getting away with it, while at the same time the FBI is creates plots on the right that would never have happened otherwise and then throws the book at the poor saps who get caught up in it.
This raises serious questions about whether the FBI cares more about fighting crime or manufacturing political narratives for Democrats. We need an FBI that stays out of politics and treats both the left and the right the same.”
Zaphod – if a statement like that is too GOPe for you, then I submit that you are the one who’s actually measuring the rope for all of us.
@Bauxite:
We’re going to have to respectfully (more or less hehe) agree to differ. I believe that your approach gives the Woke too much say in the terms of the debate. No matter what you do, they’re going to shift the goal-posts so that the Right is morally wrong. Therefore a pox on Good Behaviour. With some subtleties and caveats for sure.
But anyway we should all of us here be of Good Cheer and drink damnation to the Woke. Pax.
For one thing, it doesn’t seem like these defendants have a strong entrapment case under the law.
Five conspirators and 12 people on staff or retainer at the FBI (and they the ones in leadership positions). You be you.
For another, every Republican candidate who expresses what you propose will have ads run against them suggesting that they’re ok with the vigilante kidnapping of elected Democrats.
The last 6 years have taught us that the sort of cravenness you’re advocating actually injures a candidate’s chances of prevailing electorally.
One would do well to assume that the FBI could always use the old “They forced us to entrap them” defense/offense; while the Capitol Police could, similarly, use the “They forced us to provoke them (and goad them, and attack them)” version.
(Meanwhile, behind the curtain, Pelosi is furiously marshaling her loyal troops…as the corrupt media is busy scribbling their “in-depth” diatribes in advance of the gleefully anticipated bloodbath to come….)
Zaphod – We can agree to disagree. The woke are lost. Conservatives are not a majority. Scary as it it is, whichever side can win the votes of the squishy middle will carry the day.
Art+Deco – The last six years of Trump-style candidates have seen three national elections. The right has prevailed in one, and that was against perhaps the worst presidential candidate in American history and with a big (inadvertent) assist from Jim Comey. I’m not sure that history tells us what you think. We shouldn’t run flakes (figuratively or literally), but other than that running agressive loud-mouthed partisans really hasn’t worked out all that well.
One more point – Obama was an extreme partisan who shifted the paradigm for partisanship from presidents, but his style was such that he came off to the squishy middle as a reasonable moderate. Biden won with the same moderate schtick. They use it because it works.
OTOH, Romney LOST “with the same moderate schtick (sic)”…
So, um, maybe just maybe there’s something else at work here?
(Jus’ sayin’…)
Bauxite,
Except at least one of those elections was a blatant sham. Biden didn’t win with a moderate schtick. He “won” because of Stalin’s Election Maxim.
Given: The DOJ is a fascist organization. The FBI is the DOJ’s Gestapo.
Herr Doktor Garland and the smooth-talking, well-tailored Ofay Wray are running the show with Teutonic precision.
Late to the party, but here’s a relevant youtube stream from Sunday. Among other things, they discuss the Whittmer Kidnapping plot, and that of the 18 people involved, 12 had ties to the FBI, either as informants or UC.
https://youtu.be/ODb64CnsYx8
Art+Deco – The last six years of Trump-style candidates have seen three national elections. The right has prevailed in one, and that was against perhaps the worst presidential candidate in American history and with a big (inadvertent) assist from Jim Comey.
The notion he was ‘assisted’ by James Comey (because Comey did not stonewall a request for information from a congressional committee) is a whine characteristic of partisan Democrats who frequent talking-point mills. Comey let her slide on criminal charges so Loretta Lynch’s ghastly crew wouldn’t be faced with the embarrassment of refusing to prosecute someone who was manifestly guilty of a raft of crimes, among them spoilation of evidence.
“The worst presidential candidate in history” is who the Democratic electorate favored. The Democrats run crummy candidates as a matter of course. The last non-crummy candidate was Michael Dukakis. Their base doesn’t mind.
but his style was such that he came off to the squishy middle as a reasonable moderate. Biden won with the same moderate schtick. They use it because it works.
There is no strategy there. They have the media in their shirt-pocket. That’s a reality every Republican candidate has to confront. Another reality: widespread vote fraud, which wasn’t much of a problem 25 years ago.
Bauxite:
I think your extreme dislike for Trump is closing your eyes to political reality at this point. Trump didn’t throw away an election or kiss off anything. He campaigned harder than I’ve ever seen a president campaign. He also, you may recall, got COVID in the stretch, and had to take some time off to recover (I don’t think he took enough time off, actually, but that’s certainly not a sign of “throwing away” an election).
The MSM and nearly every communication gatekeeper were determined to defeat him, and they threw away every principle they supposedly had to do so. In addition, there may indeed have been enough cheating in the election to have defeated him; we may or may not ever have a definitive answer on that.
What’s more, any Republican candidate, however “moderate,” will face the same character assassination as Trump did – and Romney did. I think a fighting spirit and non-moderate stand is necessary. I happen to think at the moment that De Santis would make a good candidate. Like Trump, he doesn’t pull his punches, nor is he a moderate. But he is more polite than Trump in his remarks, without being squishy or moderate. The MSM, etc., will try to destroy him – they’re already trying – but I think he has the requisite cojones to withstand it.
It’s all moot, though, if the Democrats can cheat successfully in 2024.
Barry Meislin – Can you think of another candidate who has ever won with an “in your face” partisan persona like Trump? Maybe Reagan, but he was much more subdued than Trump.
So you have a fluky election in 2016 that Trump won with a smaller percentage of the vote than Romney had won 2 years earlier. That’s it for the proposition that you don’t even need to pretend to be a sober moderate to win.
I’m not suggesting in any way that a moderate persona is all you need to win. I am suggesting that having the opposite persona is probably an impediment. I’m also pointing out that you can have a moderate, sober persona without being a milktoast nerd on policy. Obama was a radical on policy but still came across as a moderate to those who weren’t paying close attention. The press certainly helped Obama in a way that a Republican can never expect, but the man did have political talent. Give me Trump’s fight combined with Obama’s polish and I think we’d have a candidate we could both like.
The first time I heard someone suggest that the FBI should simply be shut down, I confess that my first thought was, “But then who would be there to enforce federal law?” Since then, I’ve reflected on the initial instinct, and have begun to ask myself why it would be a bad thing if federal law wasn’t enforced. There is no question that the federal government has gone far beyond anything the Founders ever intended, and most of the crimes the FBI might investigate are already offenses under state law. Unfortunately, the one area where the kind of federal law enforcement the FBI is supposed to provide still makes sense has to do with terrorism, the very area where the agency’s abuses are most evident. Can anyone think of a way to preserve legitimate anti-terrorism functions while abolishing the FBI itself?
DeSantis/Noem 2024.
Be of stout heart Neo.
Hmm, what do we have here (from almost one year ago to the day)…
https://www.wnd.com/2020/07/4840397/
Well the fellow has good instincts, but he flubbed the COVID write-in ballots bonanza, the election night hanky-panky and the massive fake ballot counting. A basically decent man, he could not possibly imagine how brazenly corrupt and criminal the party he supports would be. I.e., IS.
But that was months BEFORE the election.
Here’s the icing on the cake…. Or if you prefer “WHAT ICING? WHAT CAKE??”:
https://www.bitchute.com/video/Wkdap1RUzRmQ/
https://stillnessinthestorm.com/2020/12/huge-wi-usps-contractor-drops-bomb-100000-ballots-allegedly-went-missinghostile-anti-trump-bosses-ordered-employees-to-backdate-ballots-received-after-election-deadline/
https://www.ammoland.com/2020/11/undeniable-mathematical-evidence-election-being-stolen/
https://www.naturalnews.com/2020-11-17-massive-influx-biden-votes-georgia-proves-stolen-election.html