By Andrew P. Napolitano
August 06, 2021"Information
Clearing House" -In October of 2020, 14
people were arrested in Michigan and accused of
being participants in a plot to kidnap Gov. Gretchen
Whitmer. The governor had imposed draconian
restrictions on religious, travel a nd commercial
activities as a means, she claimed, to stem the
spread of COVID-19. All of her restrictions were
eventually found by courts to be unconstitutional
under both the Michigan and the U.S. Constitutions.
Sixteen plotters were supposedly planning to try
the governor in a makeshift court and, if convicted,
to impose some sort of punishment. Before the
plotters could spring into action, the FBI arrested
14 of them. Two plotters were not arrested since one
of them was a paid FBI informant and the other was
an undercover FBI agent.
In pleadings filed in federal court last week,
the defendants revealed that the FBI enticed,
cajoled and manipulated them into this plot, and
even trained them and paid their expenses.
Can the government get away with planting the
seeds of a crime in the minds of innocent folks,
providing them with the means for the crime,
arresting them before the crime takes place and then
charging them with a crime that never occurred?
Here is the backstory.
The FBI has perfected the art of the sting. In
the years immediately following the attacks on 9/11,
FBI agents regularly found young Arab American males
in the US who were essentially loners, disenchanted
with life, and talked them into fantastic plots. The
FBI supplied what the loners thought were explosives
– for the New York City subway system and the
Brooklyn Bridge, for example – and then heroically
arrested them before the inert explosives could be
detonated.
These FBI-manufactured plots happened dozens of
times to unlucky and unwary targets. The targets
were identified by gender and ethnicity – both
characteristics that federal law prohibits the
government from using as the sole or even a
significant basis for prosecutorial decisions.
But the FBI repeatedly gets away with this
because of wrongheaded Supreme Court decisions that
permit law enforcement to lie, deceive and talk
persons into committing crimes so long as they were
predisposed to criminal acts before law enforcement
came along. So, the typical sting begins with a
street-level or barroom or internet conversation
between an undercover agent and a target, during
which the agent’s job is to elicit the target’s
predisposition to commit a crime.
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Independent Media
Once that predisposition has been established,
the government knows that whatever else it does is
fair game and when the target is made to look like a
participant in a crime that never comes to pass, he
can be arrested and prosecuted. This breaks down for
law enforcement when the defendant rejects a plea
offer and the case goes to trial. That is what is
happening in the fake plot to kidnap Whitmer.
The government hates this, as it must reveal its
sources and methods to an often incredulous jury.
So, to avoid a jury trial, the government will
grossly overcharge the defendant, exposing him to
life in prison and terrifying him and his lawyer
into accepting a guilty plea to a lesser charge,
with a finite jail term, far less than life.
All this is typically done for a crime that never
took place.
There are numerous moral and constitutional
problems with this behavior. The first is the
illicit use of government assets to entrap an
innocent person. How does the government decide whom
to entrap? Add to this the absence of due process.
The feds fear due process. They fear a jury saying,
"Enough is enough," hence the overcharging and
guilty plea scenario.
The government will claim that the defendant was
a conspirator – a person who agreed with others to
commit a crime, where at least one of them took a
material step in furtherance of the crime. In order
to fortify its case against the unwitting defendant,
the government usually has him take the material
step in furtherance of the plot by having him
deliver what he believes is an explosive, but in
truth is not, to the place of its intended
detonation only to arrive and find his fellow
plotters there to arrest him.
I have interviewed FBI officials about these
techniques. On the record, they acknowledge that no
one was harmed and no one was in danger by their
government-created plot. They also argue that they
took a bad person, predisposed to crime, off the
streets. Yet, being bad and having a criminal
predisposition are not crimes; they are states of
mind protected by the First Amendment.
What they will never acknowledge is that these
schemes are concocted to make the FBI look like
heroes who swooped in to save the public at the last
minute.
Before the courts began permitting this behavior
by law enforcement, every definition of crime used
the word "harm." Eventually, "harm" became "wrong."
At common law, the only crimes were malum in se,
acts that are wrong in and of themselves, such as
aggression against a person or property. Eventually,
crimes became malum prohibitum, wrong because they
are prohibited.
The former is the natural law, the nonaggression
principle that prohibits all – even the government –
from initiating or threatening force or
interference. The latter is big government run wild,
which defines whatever it wants as wrong – even a
mythical FBI-created plot to kidnap a public
official that could never have come to pass.
The Constitution only defines two crimes; treason
and debasing the monetary unit. Yet as government
grew, it rewarded its patrons and punished its
enemies, and it made unlawful whatever it deemed
wrong at the moment. Today, there are 4,400 federal
criminal statutes, and some of them permit the feds
themselves to commit crimes.
Is this the government the framers of the
Constitution gave us? Regrettably, this is what the
government they gave us has become.
Andrew P. Napolitano, a former judge of the
Superior Court of New Jersey, is the senior judicial
analyst at Fox News Channel. Judge Napolitano has
written seven books on the US Constitution. The most
recent is
Suicide Pact: The Radical Expansion of Presidential
Powers and the Lethal Threat to American Liberty.
To find out more about Judge Napolitano and to read
features by other Creators Syndicate writers and
cartoonists, visit
www.creators.com.
COPYRIGHT 2021 ANDREW P. NAPOLITANO –
DISTRIBUTED BY CREATORS.COM
In October of 2020, 14 people were arrested in
Michigan and accused of being participants in a plot
to kidnap Gov. Gretchen Whitmer. The governor had
imposed draconian restrictions on religious, travel
and commercial activities as a means, she claimed,
to stem the spread of COVID-19. All of her
restrictions were eventually found by courts to be
unconstitutional under both the Michigan and the
U.S. Constitutions.
Sixteen plotters were supposedly planning to try
the governor in a makeshift court and, if convicted,
to impose some sort of punishment. Before the
plotters could spring into action, the FBI arrested
14 of them. Two plotters were not arrested since one
of them was a paid FBI informant and the other was
an undercover FBI agent.
In pleadings filed in federal court last week,
the defendants revealed that the FBI enticed,
cajoled and manipulated them into this plot, and
even trained them and paid their expenses.
Can the government get away with planting the
seeds of a crime in the minds of innocent folks,
providing them with the means for the crime,
arresting them before the crime takes place and then
charging them with a crime that never occurred?
Here is the backstory.
The FBI has perfected the art of the sting. In
the years immediately following the attacks on 9/11,
FBI agents regularly found young Arab American males
in the US who were essentially loners, disenchanted
with life, and talked them into fantastic plots. The
FBI supplied what the loners thought were explosives
– for the New York City subway system and the
Brooklyn Bridge, for example – and then heroically
arrested them before the inert explosives could be
detonated.
These FBI-manufactured plots happened dozens of
times to unlucky and unwary targets. The targets
were identified by gender and ethnicity – both
characteristics that federal law prohibits the
government from using as the sole or even a
significant basis for prosecutorial decisions.
But the FBI repeatedly gets away with this
because of wrongheaded Supreme Court decisions that
permit law enforcement to lie, deceive and talk
persons into committing crimes so long as they were
predisposed to criminal acts before law enforcement
came along. So, the typical sting begins with a
street-level or barroom or internet conversation
between an undercover agent and a target, during
which the agent’s job is to elicit the target’s
predisposition to commit a crime.
Once that predisposition has been established,
the government knows that whatever else it does is
fair game and when the target is made to look like a
participant in a crime that never comes to pass, he
can be arrested and prosecuted. This breaks down for
law enforcement when the defendant rejects a plea
offer and the case goes to trial. That is what is
happening in the fake plot to kidnap Whitmer.
The government hates this, as it must reveal its
sources and methods to an often incredulous jury.
So, to avoid a jury trial, the government will
grossly overcharge the defendant, exposing him to
life in prison and terrifying him and his lawyer
into accepting a guilty plea to a lesser charge,
with a finite jail term, far less than life.
All this is typically done for a crime that never
took place.
There are numerous moral and constitutional
problems with this behavior. The first is the
illicit use of government assets to entrap an
innocent person. How does the government decide whom
to entrap? Add to this the absence of due process.
The feds fear due process. They fear a jury saying,
"Enough is enough," hence the overcharging and
guilty plea scenario.
The government will claim that the defendant was
a conspirator – a person who agreed with others to
commit a crime, where at least one of them took a
material step in furtherance of the crime. In order
to fortify its case against the unwitting defendant,
the government usually has him take the material
step in furtherance of the plot by having him
deliver what he believes is an explosive, but in
truth is not, to the place of its intended
detonation only to arrive and find his fellow
plotters there to arrest him.
I have interviewed FBI officials about these
techniques. On the record, they acknowledge that no
one was harmed and no one was in danger by their
government-created plot. They also argue that they
took a bad person, predisposed to crime, off the
streets. Yet, being bad and having a criminal
predisposition are not crimes; they are states of
mind protected by the First Amendment.
What they will never acknowledge is that these
schemes are concocted to make the FBI look like
heroes who swooped in to save the public at the last
minute.
Before the courts began permitting this behavior
by law enforcement, every definition of crime used
the word "harm." Eventually, "harm" became "wrong."
At common law, the only crimes were malum in se,
acts that are wrong in and of themselves, such as
aggression against a person or property. Eventually,
crimes became malum prohibitum, wrong because they
are prohibited.
The former is the natural law, the nonaggression
principle that prohibits all – even the government –
from initiating or threatening force or
interference. The latter is big government run wild,
which defines whatever it wants as wrong – even a
mythical FBI-created plot to kidnap a public
official that could never have come to pass.
The Constitution only defines two crimes; treason
and debasing the monetary unit. Yet as government
grew, it rewarded its patrons and punished its
enemies, and it made unlawful whatever it deemed
wrong at the moment. Today, there are 4,400 federal
criminal statutes, and some of them permit the feds
themselves to commit crimes.
Is this the government the framers of the
Constitution gave us? Regrettably, this is what the
government they gave us has become.
Andrew P. Napolitano, a former judge of the
Superior Court of New Jersey, is the senior judicial
analyst at Fox News Channel. Judge Napolitano has
written seven books on the US Constitution. The most
recent is
Suicide Pact: The Radical Expansion of Presidential
Powers and the Lethal Threat to American Liberty.
To find out more about Judge Napolitano and to read
features by other Creators Syndicate writers and
cartoonists, visit
www.creators.com.
COPYRIGHT 2021 ANDREW P. NAPOLITANO –
DISTRIBUTED BY CREATORS.COM
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