Thread by @bradheath

Mike Flynn's lawyers signaled today that they plan to ask a court to dismiss the charges against him because of what they allege is outrageous government conduct. That's a very high hill to climb, and it's worth a minute to consider exactly how high it is:

The Supreme Court posited that such a defense might exist in 1973. The idea is that the government might behave so badly that even if the defendant committed the crime, allowing it to bring charges would offend due process. That's United States v. Russel, 411 U.S. 423 (1973).

But in Russell, the court emphatically said that the defense wouldn't apply, so the whole thing might be dicta. And it's never issued an opinion finding a due process violation on that basis.

The result is that federal courts are split on this. Some circuits, like the 9th, recognize outrageous government conduct claims. Others, like the 6th, say they can't be brought at all. See United States v. Tucker, 28 F. 3d 1420 (6th Cir. 1994).

The D.C. Circuit, whose rulings would control the outcome of Flynn's case, appears not to have weighed in.

But there's an interesting 10th Cir. decision that goes through where the circuits stand on this, which called it "something of a curiosity" and argued that it had actually been invalidated by a later decision.

The author was then-Judge Gorsuch.
ca10.uscourts.gov/opinions/12/12…

Even in circuits that recognize an outrageous government conduct due process claim, the bar is quite high and success is rare. In its opinion that laid out the elements, the 9th Cir. found only two reported decisions upholding such a claim.
cdn.ca9.uscourts.gov/datastore/opin…

And the reality is that even in places where defendants can bring an outrageous conduct claim at all, courts have been very reluctant to make that finding. Let's take a tour of one brief the Justice Department filed a couple years ago:

Once, the gov't offered two college students with no real connection to crime $200,000 to engage in a drug transaction, and made "gangland threats" if they didn't go through with it. A court said this was not outrageous.

What about if a police officer targets a bar owner without suspecting him of doing anything illegal, and persuades him to start selling stolen food stamps, and directed much of the criminal activity? This too turned out to not be outrageous misconduct.

What if the FBI hires a "heroin addicted prostitute" to get close to a suspect, "become sexually intimate" with him, and persuaded him to sell drugs to undercover officers? That too turns out not to be sufficiently outrageous to throw out his conviction.

But what if the government decides to "create a pedophilic organization, advertise for members, and encourage those
members to create child pornography?"

Surely that's outrageous, right? Turns out, no.

The brief, as it happens, was filed in a case in which the FBI seized control of a massive child pornography site and kept it open for two weeks, distributing child porn all the while, so it could plant malware on users' computers, using an invalid warrant. This also was OK.

Here's the brief. It's a compelling illustration that whatever you're arguing about now, the government has gotten away with worse. And it cites cases holding that police conduct can be "neither appealing nor moral" but still lawful.

assets.documentcloud.org/documents/2696…

So would a court find it outrageous - and so outrageous that it violates fundamental due process - for the FBI to plot to question a government official without a lawyer and without putting him on guard? It's a hard argument to make.

Even in circuits where the law is comparatively defendant-friendly, courts say it's outrageous for the government to direct a crime from start to finish, but not when it creates the circumstances - even fictional ones - where he commits the crime himself. From the 9th Cir.:

Here's the case, which lays out the multi-factor test.

cdn.ca9.uscourts.gov/datastore/opin…

And here, for those who missed it, is Flynn's complete filing, from @usatoday's @big_cases bot, which posts new filings in that and other cases ->

https://twitter.com/big_cases/status/1187575493035528198