OPINION: This article contains commentary which reflects the author's opinion
The federal government’s efforts to prosecute the suspects charged with plotting to kidnap Michigan Gov. Gretchen Whitmer may be facing a steep hurdle following the arrest of an FBI agent who was key to the arrest of those accused in the alleged plot.
According to legal scholar, commentator, and professor at George Washington University Law School Jonathan Turley, the arrest of agent Richard Trask could very well undermine the kidnapping case. As Turley observes, “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.”
Trask, who is center to the Whitmer kidnapping case, is a nine-year veteran of the FBI who testified in preliminary hearings last years about his role in helping lead the investigation into the alleged plot to kidnap Whitmer. He was arrested last Sunday in Kalamazoo, following an allegedly violent altercation with his wife in their home in Oshtemo.
According to MLive News, Trask got physically violent towards his wife after they attended a so-called “swingers” party at a hotel that day. Trask’s wife told police that she did not enjoy the experience and they argued about it on their way home. She informed police that after they got into bed, Trask got on top of her and “then grabbed the side of her head and smashed it several times on the nightstand,” per the affidavit.
Trask allegedly choked her with both hands, but she was able to escape the altercation. At that point, Trask left the home in his wife’s car, and she called the police thereafter. Police were able to confirm her allegations, recording multiple cuts to the side of her head, and severe bruising around her neck and head, chest, arms, and hands, and covered in blood.
As prosecution proceeds against Trask, the FBI has declined to release a statement on whether he will play a continued role in the Whitmer case going forward.
Jonathan Turley says that there are “legitimate concerns over the role of the FBI in the planning and preparation for this alleged conspiracy,” adding that “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 convicted of receiving child pornography through the mail was entrapped.
Turley points out that Trask, whose affidavit was used to arrest the men in the Michigan case, is accused – along with other FBI agents – of “prodding the alleged conspirators and ultimately organizing the effort.” He adds that the FBI has emphasized that Whitmer’s home was “cased” before the arrests, a point the FBI makes to show clear intent of the defendants’ plans to move forward with the kidnapping, that was ultimately foiled.
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.
Due to the serious charges against Trask, the agent “could do considerable harm to the federal case” as he is the author of the key affidavit against the defendants.
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. Finally, Trask’s FBI career is likely over even if he pleads guilty to a lesser charge. However, any chance to stay a federal employee could depend on his federal testimony — a motivation that the defense could highlight in rebuttal if the court allowed it.