USA 2020 Elections: Thread

grarpamp grarpamp at
Sun Jul 25 18:20:03 PDT 2021

> FBI Operatives Likely 'Unindicted Co-Conspirators', Organizers Of
> Capitol Riot: Report
> Tucker Carlson dropped several bombshells on his show Tuesday night,
> chief among them was from a Revolver News report that the FBI was
> likely involved in organizing the Jan. 6 Capitol 'insurrection,' and
> were similarly involved in the kidnapping plot against Michigan
> Governor Gretchin Whitmer.

Could The Arrest Of FBI Agent Undermine The Whitmer Kidnapping Case?

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

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

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.

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