President Trump and his supporters seized on newly disclosed documents to argue Thursday that his former aide Michael Flynn was railroaded into pleading guilty as part of the FBI investigation into the 2016 campaign and Russian interference, but legal experts said the material is unlikely to convince a judge that agents entrapped the former national security adviser.
“These notes raise questions about the investigation, and it is not surprising that Flynn’s defense team is pressing the defense of entrapment,” said Robert Mintz, a former federal prosecutor now in private practice. “But entrapment is a high bar. It is not enough simply to show that government agencies solicited a criminal act from a defendant. The critical issue for the defense is proving that investigators induced the defendant to engage in criminal conduct that the defendant would not otherwise have committed.”
“In order to succeed here,” Mintz continued, “the defense will have to prove not merely that the FBI anticipated that Flynn might lie during the interview, but that the FBI encouraged him to lie and induced him to commit a crime that he otherwise would not have committed.”