Turley: Could The Arrest Of FBI Agent Undermine The Whitmer Kidnapping Case?
Authored by Jonathan Turley via jonathanturley.org (emphasis ours),
The arrest of an FBI agent would always be newsworthy. Richard Trask of Kalamazoo has gone from making cases to being a case for prosecution. He faces up to ten years for allegedly assaulting his wife with intent to do great bodily harm. However, Trask was also key to the arrest of men in the alleged plot to kidnap Michigan Gov. Gretchen Whitmer. Those defendants — and some observers — have criticized the FBI for entrapping the men by pushing them into the conspiracy and facilitating their efforts. The question is whether Trask’s arrest could undermine those cases. The answer is yes.
There are legitimate concerns over the role of the FBI in the planning and preparation for this alleged conspiracy. As a criminal defense attorney, I have long been a critic of the degree to which the FBI often pushes defendants to take actions to trigger criminal charges. However, it is very difficult to make a case for entrapment and the agents know that.
In the Michigan case, six men are charged with a conspiracy that involved kidnapping Whitmer but news outlets like BuzzFeed News have raised serious concerns over how much of the conspiracy was directed and facilitated by the FBI. At every critical juncture, agents like Trask appear to push the effort along, even overcoming reluctance of the alleged conspirators. That includes calling meetings where the conspirators first met and structuring the planning stage for the crime. The FBI even paid for room and foods to keep the planning going. Reportedly, the FBI informant ultimately rose to second in command of the conspiracy.
Courts look to two elements in entrapment cases. While the government can encourage criminal conspirators, the courts ask whether the offense was induced by a government agent and whether “the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” In Jacobson v. United States, 503 U.S. 540 (1992), the Court ruled that a Nebraska man convicting of receiving child pornography through the mail was entrapped.
This was a strong case for entrapment but was still a close vote. Writing for the 5-4 majority, Justice Bryon White ruled that
“by waving the banner of individual rights and disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials, the Government not only excited petitioner’s interest in sexually explicit materials banned by law, but also exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights . . . convincing him that he had or should have the right to engage in the very behavior proscribed by law.”
These cases have raised a long debate over whether the test should be subjective or objective. In Sorrells v. United States, 287 U.S. 435 (1932), the Court followed a subjective test in showing the defendant had a “predisposition” to commit the crime. Some states follow the objective standard advocated by figures like Justice Felix Frankfurter in Sherman v. United States, 356 U.S. 369 (1958), in showing that the crime would not have occurred with the involvement of the law enforcement officials.
So that brings us back to Trask, 39. Trask’s affidavit was used to arrest the men in the Michigan case. He and other agents are accused to prodding the alleged conspirators and ultimately organizing the effort. The FBI emphasizes that Whitmer’s home was “cased” before the arrests, showing a clear intent of the defendants to move forward with the plan.
The question is whether a federal judge will be open to the entrapment defense at trial. In any case, Trask will be key to any proceedings as the author of the key affidavit. However, Trask may decide that he is at odds with his former colleagues now that he is persona non grata at the Justice Department. He could cooperate with the defense through admissions or otherwise damaging testimony. He could even invoke his Fifth Amendment right to remain silent in fear of self-incrimination. While the prosecutors could force his testimony with an immunity grant, they would risk testimony that could undermine the case by highlighting the reluctance of defendants to go forward with their alleged conspiracy.
Notably, Trask was charged by the Kalamazoo County Sheriff’s Office in Kalamazoo County District Court, not federal court. Those prosecutors may not be unduly concerned about his testimony in the federal case. However, federal prosecutors may be interested in reducing his exposure to keep him from becoming a liability in a major case. Federal and state prosecutors often confer on such cases.
The problem is that the allegations are pretty dramatic and serious — and there is no entrapment issues. Trask and his wife were reportedly returning from a “swinger’s party” at an Oshtempo Township hotel when they argued over his wife’s saying that she did not enjoy the party. Once home, Trask is accused of jumping on top of his wife in bed and slamming her head into the nightstand. She reportedly resisted and he choked her. She says that she was able to force him off and seek aid. Police describe her as covered in blood and bruises. He was arrested but then released on bond.
As the author of the key affidavit, Trask could do considerable harm to the federal case. Even without such testimony in favor of the defense, his current status as an accused felon will likely be raised with the court. A judge could conclude that the two cases are unrelated and disclosure to a jury would be prejudicial and immaterial. However, the defense could argue that the pending charges could influence his testimony. He could seek to satisfy his former federal colleagues in the kidnapping case to improve his position in seeking a plea bargain with their state counterpart. Such testimony could also be cited to mitigate any sentence or charged the assault case.
Any entrapment defense carries a very heavy burden that defendants can rarely shoulder successfully in federal cases. The advantage remains with the government in this case. However, this case has a credible claim of entrapment and one of the core witnesses for the government has suddenly become a liability. The Widner case is one o the “matinee” prosecutions of the Biden Administration but one of its stars may have just gone off-script.
Sun, 07/25/2021 – 10:30
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