The top ranking Republican of the House Judiciary Committee introduced legislation today that would compel the Justice Department to confer with the Director of National Intelligence and the secretary of Defense before deciding if a suspected terrorist should be tried treated as a civilian.

Lamar Smith (gov)

Rep. Lamar Smith (R-Texas) criticized the Obama administration’s decision to allow FBI agents to interrogate Umar Farouk Abdulmutallab and read the Nigerian his Miranda rights when he was captured after he allegedly tried to ignite explosives in his underpants on a Dec. 25 Detroit-bound airplane flight.

“Giving terrorists constitutional rights ignores the seriousness of the threat from al-Qaeda — these are acts of war, not isolated incidents of crime,” Smith said in a statement. “All terrorists should be interrogated by intelligence experts to obtain crucial information about future attacks. Anything less risks the safety and security of the American people.â€�

DOJ spokesman Matthew Miller defended the decisions, saying in a statement last week that the DOJ consulted national security officials before Abdulmutallab was charged in federal court. But it is still unclear exactly when in the decision-making process the DOJ consulted the nationaly security officials on Abdulmutallab.

Yesterday, Senate Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (I-Conn.) and the panel’s ranking Republican, Susan Collins of Maine, asked Attorney General Eric Holder to remove Abdulmutallab from federal custody to military detention.

Smith’s bill is co-sponsored by 17 Republicans: John Boehner, Ohio; John Carter, Texas; Buck McKeon, California; Peter King, New York; Ileana Ros-Lehtinen, Florida; Jim Sensenbrenner, Wisconsin; Howard Coble, North Carolina; Elton Gallegly, California; Daniel Lungren, California; Trent Franks, Arizona; Louie Gohmert, Texas; Jim Jordan, Ohio; Jason Chaffetz, Utah; Tom Rooney, Florida; Roy Blunt ,Missouri; Hal Rogers, Kentucky; and Don Manzullo, Illinois.

The son of acting U.S. Attorney for the Western District of Louisiana William J. Flanagan was arrested and charged with trying to interfere with phones at Sen. Mary Landrieu’s office in New Orleans.

Robert Flanagan, 24, along with conservative activist James O’Keefe, 25, Joseph Basel, 24, and Stan Dai, 24 were charged with entering federal property under false pretenses for the purposes of committing a felony.

Main Justice has learned that Flanagan worked as an intern for Rep. Mary Fallin (R-Okla.) from January to April of last year. Kathryn Bruns, a press representative for Fallin, said she could only confirm that an intern of the same name worked in the office. She said she could not confirm that it was the same Robert Flanagan who was arrested, and declined to say if she knew whether the intern was from New Orleans or if his father was a federal prosecutor. She declined to comment on the arrest (Updated: 6:23 p.m.).

As first reported by the Associated Press and The Hill, Flanagan is the son of William J. Flanagan, who is the acting head of the U.S. Attorney’s Office in Shreveport. O’Keefe was in the news last year for his part in making secret videos in several offices of the community organizing group ACORN (Association of Community Organizations for Reform Now).

Fallin was one of the Republican representatives who introduced a bill that said the nation owed O’Keefe a debt of gratitude for his undercover videos.

According to an affidavit, Flanagan and an accomplice said that they were repair technicians from the telephone company and were there to fix problems with the phone system, according to an affidavit from an FBI agent. A witness said they were wearing white, hard construction hats, a tool belt, a fluorescent vest and denim pants and tops.

O’Keefe was stationed inside the reception area and was holding a phone to record Flanagan and Basel talking to Landrieu staffers, the FBI said. They manipulated the telephone system at the reception desk and then went to another office in the building to access the main telephone system, investigators said. They told government employees that they left their credentials in their vehicle, according to the FBI.

The Eastern District of Louisiana is handling the case.

UPDATE: 4:55 p.m. A spokesperson from the U.S. Attorney’s Office in the Eastern District of Louisiana tells Main Justice that the four defendants were arrested yesterday. They made their initial court appearance today and were released on $10,000 unsecured bonds. The spokesperson declined to say if the office would seek the maximum penalty if the defendants are found guilty.

UPDATE: 6:15 p.m. Former U.S. Attorney for the Western District of Louisiana Donald Washington told Main Justice that he has met Flanagan, who he called a fine young man.

UPDATE: 7:10 p.m. Media Matters reports:

The Times-Picayune reported that “Robert Flanagan’s attorney, J. Garrison Jordan, said he believes his client works for the Pelican Institute.”

Robert Flanagan is a frequent blogger for The Pelican Post, where he has written about Landrieu.  The Pelican Post is the blog of The Pelican Institute for Public Policy, “a non-profit research and education institution that conducts scholarly research and analysis of Louisiana public policy. The Institute’s mission is to advance sound policies based on the principles of free enterprise, individual liberty, and limited government.”

UPDATE: 11:54 p.m. Flanagan removed his Facebook and Linkedin profiles.

Andrew Ramonas contributed to this report.

Here is the FBI press release:

Four Men Arrested for Entering Government Property Under False Pretenses for the Purpose of Committing a Felony

NEW ORLEANS—JOSEPH BASEL, age 24; ROBERT FLANAGAN, age 24; JAMES O’KEEFE, age 25; and STAN DAI, age 24, were charged in a criminal complaint with entering federal property under false pretenses for the purpose of committing a felony, announced the United States Attorney’s Office for the Eastern District of Louisiana.

According to the complaint, which was unsealed earlier today, the arrest of FLANAGAN, BASEL, O’KEEFE, and DAI took place after BASEL and O’KEEFE attempted to gain access to the New Orleans office of United States Senator Mary Landrieu on January 25, 2010, while posing as telephone repairmen. According to the complaint, FLANAGAN and BASEL were each dressed in blue denim pants, blue work shirts, light green fluorescent vests, tool belts, and construction-style hard hats when they entered the Hale Boggs Federal Building, located at 500 Poydras Street, New Orleans, Louisiana 70130. Once in the building, FLANAGAN and BASEL sought access to the offices of Senator Landrieu. O’KEEFE was already present in the office, holding a cellular phone so as to record FLANAGAN and BASEL. Once inside Senator Landrieu’s reception area, FLANAGAN and BASEL told a member of Senator Landrieu’s staff that they were telephone repairmen, and they requested access to the main telephone at the reception desk. FLANAGAN and BASEL then manipulated the telephone system. FLANAGAN and BASEL next requested access to the telephone closet because they needed to perform work on the main telephone system. They were directed to the main office of the United States General Services Administration, also inside the Hale Boggs Federal Building, where they again represented themselves to be employees of the telephone company and stated that they needed to perform repair work in the telephone closet. Both FLANAGAN and BASEL stated that they had left their credentials in their vehicle. In addition, the complaint alleges that O’KEEFE and DAI assisted FLANAGAN and  BASEL in the planning, coordination, and preparation of the operation. The men were apprehended by the United States Marshal’s Service soon thereafter.

If convicted, FLANAGAN, BASEL, O’KEEFE, and DAI each face a maximum term of 10 years in prison, a fine of $250,000, and three (3) years of supervised release following any term of imprisonment.

The United States Attorney’s Office reiterated that the complaint is merely a charge and that the guilt of the defendant must be proven beyond a reasonable doubt.

The investigation is being conducted by Special Agents of the Federal Bureau of Investigation and Deputy Marshals with the United States Marshal’s Service. The case is being prosecuted by Assistant United States Attorney Jordan Ginsberg.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said another hearing on the nomination of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel would be superfluous, but didn’t directly refuse to hold a second hearing, according to a Jan. 21 letter to the panel’s ranking member, Jeff Sessions (R-Ala.), and obtained by Congressional Quarterly.

Patrick Leahy (Getty Images)

Leahy scheduled a committee vote on Johnsen for Thursday, despite a request from panel Republicans to hold a another hearing on the nominee, who was re-nominated last week after the Senate returned her nomination to the White House on Dec. 24.

“If there are senators who disagree, they can vote against her nomination, and should make clear their reasons,” Leahy wrote in the letter.

By leaving a second hearing on the table, Democrats might be able to bargain with Republicans for a confirmation vote for Johnsen on the Senate floor, according to CQ. But another hearing might not be enough to bring her up for a vote before the full Senate.

The Judiciary Committee held an initial confirmation hearing on  Johnsen on Feb. 25, 2009. After the Senate panel endorsed her nomination and sent it to the Senate floor last March, Johnsen spent almost a year waiting for a vote in the full Senate as conservative senators raised concerns about her attacks on the George W. Bush administration’s national security policies and her past work for an abortion rights group.

Sessions, who opposes Johnsen, told Main Justice that a second hearing might help “break that logjam” that kept Johnsen stalled in the Senate last year. He said he planned to request a postponement on the panel’s consideration of Johnsen. Committee rules allow senators to delay a vote on a nominee for a week.

Truthout’s Jason Leopold has this story on the ever-elusive internal Justice Department report on the lawyers who authorized the Bush administration’s interrogation program.

A possible reason for its delayed release: health care.

Two senior aides to Democratic senators told Leopold that the White House pressured the Justice Department to hold on to a report a while longer, so as not to jeopardize Republican support for the health care legislation (which never materialized). Attorney General Eric Holder said in November that the report, by the Justice Department’s Office of Professional Responsibility, would be complete by the end of the month.

In a nutshell, according to Truthout, a Web publication:

[T]he aides said in December, a couple of weeks after Holder testified, they participated in an informal meeting about the possibility of holding hearings when the report was released. During the discussion, someone raised questions about why the report was not yet released as Holder had promised.

The aides said that an unnamed senator then disclosed that he was told by senior White House officials that if the report were released as planned it would have hurt the administration’s efforts to get a health care bill passed and impact the possibility of trying to win Republican support for the legislation, which never came to pass.

So, in early December, the senator claimed, according to the account given by the aides, the administration told the DOJ to delay releasing it.

A Justice Department spokeswoman disputed the aides’ accounts.

“That is absolutely untrue,” Tracy Schmaler told Truthout. “One thing has nothing to do with another.”

Two Justice Department officials told Leopold the career prosecutor assigned to review the final version of the report was hospitalized in December for pneumonia. But they said prosecutor’s illness doesn’t explain why the report has still not been released. The officials imputed the delay to “politics.”

The Truthout account comes on the heels of a lawsuit filed last week by the American Civil Liberties Union seeking the report, which explored whether lawyers in the Office of Legal Counsel violated professional standards in blessing controversial national security programs. A draft of the report is said to have been harshly critical of Jay Bybee, the former head of the Office of Legal Counsel, and John Yoo, a former deputy.

In deciding the fate of dozens of inmates at Guantanamo Bay, federal judges have been thrust into the position of crafting law that could end up governing U.S. detention of terror suspects around the world.

With so much at stake, Attorney General Eric Holder has relied heavily on the Justice Department unit that contemplates the executive branch’s thorniest legal questions, the Office of Legal Counsel, giving way to an unusual system where advisers are editing the work of the advocates.

OLC is enmeshed in more than 100 cases initiated by Guantanamo Bay detainees who are challenging their confinement in federal court in Washington. OLC lawyers review and revise virtually every brief filed in the cases, a break with tradition that has created some friction between the office and lawyers who defend the government’s positions in court, said several current and former Justice Department officials.

OLC acts as outside counsel for the president and the agencies, and its advice, often memorialized in opinions, is expected to represent the best reading of the law, but not necessarily the most popular. Rarely does the office concern itself with litigation, in part because it must be neutral to be effective, said one former OLC official.

Peter Shane (Ohio State University)

“OLC is generally not an advocacy unit,” said Peter Shane, a law professor at Ohio State University and a former OLC lawyer during the Carter administration. “A large part of the office’s credibility has been based on the notion that it has kind of a quasi-adjudicative role.”

The office worked closely with the task force that recently completed a yearlong review of the Guantanamo Bay detainees. The task force determined that of the 198 detainees at the military-run prison, about 50 are unprosecutable but thought to be too dangerous to transfer, underscoring the importance of the habeas corpus cases — the chief means for testing the Obama administration’s detention regime.

The Supreme Court’s 2008 decision in Boumediene v. Bush recognized the right of Guantanamo Bay prisoners to challenge the legitimacy of their detention. But the high court left it to the lower courts to shape the proceedings, and the Obama administration has not asked Congress to intervene. (Interestingly, several judges overseeing the cases have spoken publicly about need for a guidance from Congress.)

Absent legislation, the habeas cases have become vehicles for hashing out questions about the scope of the government’s detention authority, the admissibility of evidence extracted through coercion, and the burden of proof required to hold prisoners indefinitely, among others.

Current and former officials said the cases play to talents of the OLC, jokingly referred to as “finishing school” for Supreme Court clerks, and they pointed out that several other Justice Department offices are involved in the effort.

The Civil Division’s Federal Programs Branch and Appellate Section, which have primary responsibility for the habeas cases, also collaborate with the offices of the Solicitor General, Associate Attorney General, Deputy Attorney General, and Attorney General, as well as the National Security Division.

“These cases present questions that have not been faced by the department or this administration previously,” said a senior Justice official.

New Responsibilities

In first months of the Obama administration, some legal experts questioned whether OLC was losing influence. They pointed to several signs.

The White House counsel’s office, for one, began in 2009 with about two dozen lawyers, a higher headcount than in OLC. The president, typically OLC’s biggest client, seemed to be building his own law firm.

Then, in April, a report emerged that the Attorney General had overridden OLC’s judgement that a District of Columbia voting rights bill, which Holder supports, was unconstitutional. The Attorney General went to the Solicitor General’s Office for a second opinion, and lawyers there told him they could defend the legislation if enacted.

It made OLC appear as if its advice were dispensable.

Complicating matters, the Obama administration has been unable to install a Senate-confirmed Assistant Attorney General in the office. Law professor Dawn Johnsen’s nomination has been held up in the Senate for nearly a year over Republican opposition to her vocal criticism of the Bush administration’s national security policies and her past work for an abortion rights group.

But far from ceding ground, the office has taken on new responsibilities, including guiding the Guantanamo Bay task force’s thinking on which detainees should be prosecuted, transferred or held indefinitely — and then seeing that its recommendations are executed in court.

Jones Day partner Gregory Katsas, a former Assistant Attorney General in the Civil Divison during the Bush administration, said that collaboration was typical of high-profile cases, but that the degree of OLC’s involvement was not.

Gregory Katsas (Jones Day)

“When we had the detainee cases, we would talk informally between the litigators and the counselors,” said Katsas, who was the Civil Chief when the Supreme Court decided Boumediene. ”We gave OLC drafts here and there, but the practice of having OLC set up as an overseer of the Civil Division on a regular basis is very new.”

OLC officials referred a reporter to the Justice Department’s Office of Public Affairs, which declined to give a statement.

The culture of the office differs vastly from that of the Civil Divison. OLC, with roughly 20 lawyers, provides advice to the government on complex legal and constitutional issues, interprets statutes and mediates legal disputes among agencies.

The Civil Division’s more than 750 lawyers represent the government in federal courts across the country, working closely with the Office of the Associate Attorney General, which oversees the division, and the Office of the Solicitor General, which signs off on all appeals. (The acting head of OLC, David Barron, was a constitutional law professor at Harvard Law School; Tony West, the Assistant Attorney General for the Civil Division, was a litigation partner at Morrison & Foerster in San Francisco.)

In the past, Justice Department offices consulted OLC on pending litigation, if, for example, separation of powers or other constitutional questions arose. But the office shied away from litigation strategy to avoid conflicts and because it lay beyond OLC’s bailiwick, said one former OLC lawyer, who served in the Bush administration.

Butting Heads

OLC’s influence over Guantanamo Bay issues dates back to the Bush administration. The office worked closely with the National Security Division and the Pentagon on the military commissions.

In at least two cases — against Salim Hamdan, Osama bin Laden’s former driver, and Omar Ahmed Khadr, a Canadian citizen accused of killing an American soldier in Afghanistan — OLC lawyers made rare appearances before a military judge.  In pretrial hearings, they argued matters related to the Geneva Conventions, the post-9/11 Authorization for Use of Military Force and the Military Commissions Act. After the issues were briefed and argued, the OLC lawyers faded into the background.

The office, which had enjoyed relative obscurity prior to the Sept. 11 attacks, came to symbolize the Bush administration’s controversial national security policies, having blessed waterboarding, warrantless wiretapping and extraordinary rendition. The office’s work exposed divisions among the Bush administration officials over the legality of the programs, prompting the resignations of senior Justice Department officials.

By the time Bush left office, several OLC opinions had been withdrawn, and the Justice Department’s Office of Professional Responsibility was years into an investigation of former OLC officials John Yoo and Jay Bybee.

OLC in the Obama administration has been more active in Guantanamo Bay matters. Barron and Martin Lederman, an OLC Deputy Assistant Attorney General, were part of Obama’s Justice Department transition team, and they were heavily involved in detainee issues before they were appointed to lead the office, said one lawyer who worked on the transition.

Lederman, like Johnsen, had been a fierce critic of the office’s work during the Bush administration, and his support for habeas rights and positions on indefinite detention were well-known within the department before he returned. (Lederman was an OLC lawyer during the Clinton administration.)

Views are mixed as to whether OLC should be so heavily invested in the Civil Division’s affairs. Some Civil Division attorneys told Main Justice OLC’s work was helpful, because of novel questions raised in the litigation, while others said it amounted to a cumbersome layer of oversight that has strained the relationship between lawyers in the two components.

In a new study, co-authors Benjamin Wittes and Rabea Benhalim of the Brookings Institution and Robert Chesney of the University of Texas Law School appeared to make an argument for OLC’s involvement in describing the significance of the cases:

They are more than a means to decide the fate of the individuals in question. They are also the vehicle for an unprecedented wartime law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts acquire habeas jurisdiction. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts. They might, in fact, impact superficially-unrelated military activities, such as the planning of operations, the selection of interrogation methods, or even the decision to target individuals with lethal force.

“I’m not sure OLC can be faulted,” said one Civil Division lawyer. “It’s all new. The executive has had to come up with a way of dealing with these cases on the fly.”

But disagreements over the application of the Obama administration’s detention standards, which were devised by OLC, have been a source of friction. (The new standards, introduced in a habeas case in March, dispensed with the Bush administration’s “enemy combatant” designation and declared that Obama’s power to detainee suspected terrorists indefinitely flowed from the 2001 Authorization for Use of Military Force, as informed by law-of-war principles.) Civil Division lawyers chafed at OLC’s insistence that they drop certain legal arguments or abandon their defense in habeas case, the lawyers said.

The Civil Division lawyer said some on the habeas team feel OLC should have withdrawn after crafting the new detention standards, “to be consulted only as need be on resolving some big-ticket items.”

The relationship has steadily improved since the early days of the Obama administration, before the task force charged with determining the fate of Guantanamo Bay detainees hit its stride, the lawyers said. Questions about the government’s position in each case were answered at the task-force level, leaving little room for argument.

“There was a lot more head-butting going on before the task force process got fully underway,” said another Civil Division lawyer. “Now it’s a matter of defending the cases the task force is willing to defend. It has made things go more smoothly.”

The task force, led by prosecutor Matthew Olsen, recommended 35 detainees for prosecution in federal or military courts; at least 110 for release, either immediately or eventually; and nearly 50 for detention without trial.

The habeas cases, however, continue to wind through the U.S. District Court for the District of Columbia. Of the 41 decided habeas cases, 32 of them cut in favor of the detainee.

That number, however, includes 17 Chinese Muslims, known as Uighurs, who were ordered released in the U.S. by a federal judge in 2008. While the Bush administration eventually dropped the Uighurs’ “enemy combatant” designation, meaning the habeas petitions went unchallenged, the Justice Department appealed the release order.

The issue — whether federal judges have the power to release in the U.S. detainees  no longer deemed a threat — is before the Supreme Court. Arguments in the case, Kiyemba v. Obama, are scheduled for March 23.

The Justice Department has concluded its probe of the chairman of the House subcommittee that controls the DOJ budget, The Washington Post reported today.

Alan Mollohan (Gov)

Rep. Alan Mollohan (D-W.Va.), who chairs the House Appropriations panel’s Commerce, Justice and Science Subcommittee, was under investigation for directing about $250 million to several nonprofit organizations in his district that he has helped establish and fund. He will not face any criminal charges, according to The Post.

The U.S. Attorney’s Office for the District of Columbia had been overseeing the investigation. According to the Post, Mollohan’s office was notified this month that the investigation had been closed without criminal charges filed. Federal prosecutors declined to elaborate on what the investigation had found.

Ken Boehm, chairman of the National Legal and Policy Center, a conservative watchdog group, filed a complaint in 2006 with the DOJ regarding Mollohan’s rapidly increasing assets, as seen in his annual personal financial disclosure statements. Mollohan’s assets rose in value from $562,000 in 2000 to at least $6.3 million in 2004, according to The Post.

“For nearly four years, in the face of a politically-motivated assault on my character, I have continued to fight for jobs and the working families of West Virginia. With this behind me, I am more determined than ever to stand up for the people of the First Congressional District and fight for what matters,” Mollohan said in a statement to The Post.

Mollohan is running for re-election to a 15th term.

The guidelines that federal antitrust regulators use to evaluate mergers between two competitors will likely see some changes, according to Assistant Attorney General for Antitrust Christine Varney.

At the last in a series of five workshops to consider changes to the guidelines, Varney today said she expected to update the guidelines in a few areas. The first workshop was in early December 2009.

“A consistent theme running through the panels is that there are indeed gaps between the guidelines and actual agency practice,” Varney said today in remarks introducing the panel.

“Gaps increase uncertainty and thus can lead to unnecessary surprises,” she said, in prepared remarks. “We want to avoid that.”

The revisions are being considered, she said, to be more transparent so that businesses know when a merger will likely be scrutinized, and to provide a document for courts to use that better reflects how the agencies evaluate a deal.

In recent years, both the Federal Trade Commission and the Justice Department have lost cases in court, in part by having their hands tied by unclear or outdated guidelines they were committed to follow but that did not accurately reflect how the agencies built their cases.

For example, when the Justice Department tried in 2004 to block Oracle Corp.’s purchase of PeopleSoft Inc., a federal judge said the government’s definition of the relevant market was too narrow, and allowed the deal to go through.

Again in 2007, a federal judge rejected the FTC’s efforts to block a merger between Whole Foods Market and Wild Oats Markets, calling into question the government strategy of defining the market in which the two grocery chains competed as only organic and natural food.

The current guidelines require regulators to first define the relevant market when looking at a merger. Only if the market share of the combined firm meets a certain threshold can lawyers explore whether the firm might act as a monopolist.

The FTC’s case in the Whole Foods-Wild Oats merger, in essence, fell apart due to its own guidelines when officials were left with two poor choices: either argue for a gerrymandered organic foods market, or accept a larger market but concede any possibility that Whole Foods might raise prices or reduce quality levels after the merger. (Whole Foods later settled the case and agreed to terms that addressed many of the FTC’s concerns.)

In her remarks today, Varney suggested revising the guidelines to reflect a more integrated approach. “Defining markets and measuring market shares may not always be the best place to start,” she said.

While updating the guidelines to articulate an integrated rather than a sequential approach might help regulators in court, it would also better reflect avenues for merging firms to make their case. “A merger involving a new, disruptive entrant may well impact competition far more than market shares might suggest,” Varney said.

Other probable revisions Varney outlined are designed to reflect economic changes or developments in economic analysis since the last revisions almost two decades ago,  including raising the threshold that signals a market is concentrated enough for a merger to raise concerns, and adding newer types of evidence the agencies look at when assessing the anti-competitive effects of a merger.

Editor’s note: The following guest commentary was written by Dru Stevenson, a Professor of Law at South Texas College of Law (here). Stevenson has written several entrapment publications (here). It originally appeared on the FCPA Professor Blog written by Mike Koehler, an Assistant Professor of Business Law at Butler University, and has been reprinted below with permission.

To read the original post, click here. To see our story on last week’s undercover FCPA sting, click here.

Africa Sting – Entrapment?

By Dru Stevenson

There are two versions of the entrapment defense, the “subjective test� (which is the majority rule, and focuses on the defendant’s predisposition) and the “objective test,� (favored by the Model Penal Code and about 15 states, and focused on the egregiousness of the government’s conduct). Given that this “Africa Sting� case is in federal court (brought under a federal statute, the FCPA), the court will have to apply the subjective test, because the United States Supreme Court adopted this rule in a series of five cases spread over several decades.

All federal courts use the subjective test; so this case will focus on the defendant’s “predisposition� rather than the actual government conduct in the case. The conduct of the FBI or their agents (including non-agency individuals recruited to act as informants or recruiters for the sting operation) will matter only to the extent that it sheds light on how much persuasion was necessary to convince the defendant(s) to violate the law, because this is one factor in showing “predisposition.� The same is true for the “inducement� or enticement (in this case, substantial kickbacks or bribes) involved – it will not really matter except to the extent that it suggests the defendant would never have committed the crime “but for� the undercover agent’s inducement.

Other factors that can show “predisposition� by the defendant are a history of committing similar acts, the alacrity/resistance with which the defendant responded to the undercover agent’s proposition, and the amount of time it took to entangle the defendant in the illegal activity. The subjective test is really a “but-for� test: “but for� the government’s inducement, the defense must show, the culprit would never have pursued such a course of action. It is important to keep this idea distinct from the notion of opportunity. The subjective test does not ask whether it was wrong for the government to provide an opportunity, or even if the undercover agents were deceptive or somewhat unethical in the approach that they used. It is a question of the defendant’s predisposition, which relates to both character and willingness, not opportunity. The subjective test looks at the defendant’s subjective preferences, choices, and history.

This is an uphill battle for defendants in sting operations, because the sting itself was planned out ahead of time to catch the defendant “in the act� with plenty of documentation about the time, place, and manner in which the crime occurred (stings are often on video!). It takes a lot of creativity and charisma to convince a jury that the defendant was actually not inclined to commit the act that he did in fact commit. The conventional wisdom among defense attorneys and legal scholars is that the entrapment defense usually does not work, and there is empirical evidence suggesting that fewer and fewer defendants use it each year.

There is also a significant hazard with raising the entrapment defense in federal court: the defendant’s criminal history becomes admissible evidence at the trial, where it otherwise might be excluded completely. Normally, the federal rules of evidence prohibit prosecutors from introducing the defendant’s prior convictions, because this could be so prejudicial for jurors (they might punish the defendant again for his previous crimes, regardless of his guilt under the present charges). With the entrapment defense, however, the defendant has put his own “predisposition� into issue in the case, arguing that he would never have committed the crime but for the government’s pressure. This opens the door for the prosecutor to submit the defendant’s “rap sheet� or “priors� to rebut his assertion that he lacked the predisposition to commit the crime.

The entrapment defense is, in fact, our country’s primary way of regulating sting operations. On a secondary level, the internal, administrative regulation of sting operations comes from the U.S. Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations, which set rules for sting operations that the Federal Bureau of Investigation (the “FBIâ€�) may conduct. The rules (see here) are the subject of modifications every few years, at the discretion of the Attorney General, and the last modification occurred in 2002, under John Ashcroft, mostly in response to the 9/11 terrorist attacks and the reactionary “War on Terrorâ€� that ensued thereafter. These Guidelines help illuminate the type of planning that went into this sting operation, but provide no remedies whatsoever for a defendant who is the victim of entrapment. The Guidelines, however, are a contributing factor to the difficulty of prevailing with an entrapment defense – the FBI knows the rules, is required to plan the sting operation carefully before proceeding or obtaining funding, and will generally plan the operation so that they steer clear of providing a potential entrapment defense to their targets.

A final note that may be relevant for these FCPA cases: there is no such thing as “private entrapment,� and even the notion of “vicarious entrapment� gets little traction in the federal courts. By private entrapment, I mean solicitation to commit a crime by someone who is not working for the government – that is, a false friend setting you up to get caught committing a crime, or even a fellow criminal who makes an “offer you cannot refuse.� If the defendant was induced to commit the crime by a private actor, not working for the FBI, no entrapment defense is available. “Vicarious entrapment� is similar: this is the situation where a defendant was recruited to commit a crime by another defendant, who might actually have a valid entrapment defense. In other words, suppose the FBI really crossed the line and recruited otherwise-innocent Defendant A, who was not predisposed to commit the crime but was overwhelmed by the undercover agent’s pressure or enticements; Defendant A might have a valid entrapment defense. If, however, Defendant A went and recruited his ever-willing colleague, Defendant B, into the conspiracy, Defendant B does NOT have a valid entrapment defense. Defendant A’s entrapment claim is non-transferable.

As the trial of the alleged murderer of abortion doctor George Tiller continues in Kansas, abortion rights advocates are calling on the Justice Department to further investigate a network of anti-abortion activists who they say are tied to the case, reports The Kansas City Star.

“The Department of Justice needs to vigorously pursue not only a further investigation of Scott Roeder but of his connections to the extremist network that may have been involved in the furthering of this murder,� said Kathy Spillar, executive vice president of the Feminist Majority Foundation.

“We’re closely monitoring the state prosecution,” Assistant Attorney General for civil rights Thomas Perez told Main Justice on Friday. “We’ve been out in that area since shortly after the incident and we will continue to carefully monitor the case.â€�

Shortly after Tiller was killed in his church on May 31, the Justice Department announced an investigation into whether others were involved in the shooting. That investigation is continuing, but some abortion rights advocates want more assurances that the federal government is serious in that undertaking.

While Roeder has told reporters and said in a court filing that he killed Tiller, he has pled not guilty, arguing that it was necessary to save unborn babies.

Several of those in the audience at the trial, which was in its third day of testimony on Tuesday, have advocated violence against abortion doctors, reports The Star:

Among those attending have been Michael Bray, of Ohio, who spent four years in prison in the 1980s for a series of abortion clinic arsons and bombings; Dave Leach, of Des Moines, who once published the Army of God manual, a how-to book on abortion clinic violence; Jennifer McCoy of Wichita, who spent time in prison for two abortion clinic arsons in Virginia; Regina Dinwiddie of Kansas City, who calls Roeder a hero; and Joshua Graff, who spent three years in prison for a 1993 clinic arson in the Houston area.

“Many of this extremist network with whom Scott Roeder clearly has been involved are here in the courtroom. We can only hope that the network will be dismantled, and until it’s dismantled, we’re waiting for the next murder.�

Michele Leonhart (DOJ)

President Barack Obama will tap the acting administrator of the Drug Enforcement Administration to be the next presidentially appointed head of the agency, the White House announced.

Acting chief Michele Leonhart became a DEA agent in 1980, rising through the ranks to become deputy administrator in 2004 and the leader of the agency, which is within the Department of Justice, in November 2007. Read more about her here.

The Obama administration also interviewed FBI deputy director John Pistole, Southern District of New York Assistant U.S. Attorney Boyd M. Johnson III and former U.S. Attorney for the Southern District of California Greg A. Vega for the post.