It's hard to work up much sympathy for the members of congress who were convicted in the ABSCAM operation. It's especially hard in the case of Richard Kelly, the former Florida congressman who was videotaped stuffing $100 bills into his pockets.
But U.S. District Judge William B. Bryant's recent ruling wasn't about sympathy. Nor was it about Kelly's morality. It was about government-manufactured crime, and his honor let it be known that the government ought to find another line of business.
"A person corrupted under circumstances which only police officials can create, or by a process which only the authorities are licensed to use, has been made into a criminal by his own government," Judge Bryant said in overturning Kelly's conviction.
The judge , though "disappointed and chagrined" that Kelly yielded to the FBI-sponsored temptation, and roundly rejecting the ex-congressman's "bizarre, nearly farcical" contention that he had been conducting his own investigation of shady characters, nevertheless ruled that Kelly had been entrapped into criminality by government tactics "so outrageous that it transcends any standard of fundamental fairness."
That is precisely how it struck me when the ABSCAM cases first broke. The ABSCAM caper was fundamentally different from other traps law-enforcement officers have set for suspected crooks. In the two famous "sting" operations conducted here, for instance, the FBI and local authorities set up a phony fencing operation and spread the word that they were paying top dollar for stolen merchandise. They did not recruit specific thieves, but let the thieves recruit themselves.
Even so, there was some question as to whether some of the thievery may have been induced by the establishment of the fencing operation. In ABSCAM, there seems to be no question that the crimes would not have been committed but for the FBI. If the authorities had set up their operation, spread the word and then sat back to wait for greedy legislators to walk into the trap, I'd have no complaint. It didn't happen that way. Rather, government agents, posing as oil-rich sheiks, approached the congressmen and offered them huge sums of money in exchange for legislative favors. If a congressman declined the offer, they agents tried again and again.
The way the scheme was run raised two obvious questions, neither of which the government has answered. First, what was the point of the operation? And second, how did the government come to choose which members of congress would be subjected to the extraordinary temptation and which would be left alone?
Judge Bryant's ruling raises a less obvious point:
"Where the government's overtures to the defendant fail substantially to model real-world behavior, the results of government conduct, while satisfying the technical elements of the bribery statute, constitute a crime which never otherwise would have occurred. I do not believe that testing virtue is a function of law enforcement. But this personal belief aside. . . the method of testing must be fair. If after an illegal offer is made, the subject rejects it in any fashion, the government cannot press on.
"In ordinary real-life situations, anyone who would seek to corrupt a congressman would certainly not continue to press in the face of a rejection for fear of being reported and arrested. The FBI, of course, had no such restraints in this case."
It's possible to agree with the judge's ruling (which will, no doubt, be appealed) without nominating Richard Kelly for sainthood--or even another term in congress. The situation, as I see it, is much like that of a financially strapped woman who, after hours of persuasion and offers of a lot of money, finally agrees to go to bed with an undercover cop. I wouldn't want to marry her, but I'm not sure I'd send her to jail for prostitution.