It has been clear to me from beginning that enemies of President Trump and General Flynn induced him to make the statements that form the basis of criminal charges against him. In common parlance, we might call this entrapment.
It’s not clear, though, that the government’s conduct rises to the level of entrapment in the sense required to establish a legal defense. This statement by the Department of Justice sets forth the two elements of the entrapment defense:
(1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct.
The DOJ provides the following discussion of the two elements:
Inducement is the threshold issue in the entrapment defense. Mere solicitation to commit a crime is not inducement. Nor does the government’s use of artifice, stratagem, pretense, or deceit establish inducement. Rather, inducement requires a showing of at least persuasion or mild coercion; pleas based on need, sympathy, or friendship, ibid.; or extraordinary promises of the sort “that would blind the ordinary person to his legal duties.” See 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.” 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.
(Some citations omitted)
I question whether Gen. Flynn has a good entrapment defense under this analysis. Indeed, I question whether it’s possible to entrap an honest and sophisticated person into lying. I should add, however, that FBI agents who interviewed Flynn weren’t convinced he was trying to deceive them.
It surprises me that someone savvy enough to be the National Security Adviser would allow himself to be snared by his political enemies in the way Flynn was. He should have brought the interview to an early end or, better yet, refused to schedule it to begin with.
Nonetheless, the politically vindictive aroma coming from this affair reeks so strongly that the Justice Department would be justified in dismissing this case in the interests of justice. Factoring in Gen. Flynn’s decades of distinguished service to the country and suggestions of prosecutorial misconduct by the government, including the withholding of potentially exculpatory material, I think dismissal is called for. This is true, notwithstanding Flynn’s guilty plea.
I think it’s distinctly possible, though perhaps not probable, that the DOJ will dismiss the case against Gen. Flynn. If not, it seems almost certain that President Trump will pardon him, though maybe not until after the election.