Legal Commentary

In the Portland bomb sting case (about which I've got a series of blog posts at my home blog), there has been an interesting recent development involving the defense motion for a gag order against Attorney General Eric Holder.

To recap, in this case, Mohamed Osman Mohamud, a 19-year-old student, was arrested and charged with attempted use of a weapon of mass destruction in violation of 18 USC s 2232a after being ensnared in an undercover sting operation.  The night after Thanksgiving, at the annual Christmas tree lighting ceremony in downtown Portland, he repeatedly pressed a button on a cell phone, expecting to blow up a vehicle packed with explosives.  The "bomb" was inert, though, and his colleagues turned out to be undercover FBI operatives.

After Mohamud was arraigned, his public defenders told the press that they were going to look into whether Mohamud had been entrapped.  That in turn prompted Holder to make a number of public statements, including the following:

I make no apologies for the how the FBI agents handled their work in executing the operation that led to Mr. Mohamud's arrest.  Their efforts helped to identify a person who repeatedly expressed his desire and intention to kill innocent Americans.  As you may have read ? and as the affidavit alleges ? Mr. Mohamud chose the target location months in advance; provided FBI operatives with bomb components and detailed operational instructions; and repeatedly refused to change course when he was reminded that a large crowd ? including children ? would be in harm's way. 

Because of law enforcement's outstanding work, Mr. Mohamud is no longer plotting attacks.  He is now behind bars.  And he will be brought to justice.

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Those who characterize the FBI's activities in this case as ?entrapment? simply do not have their facts straight - or do not have a full understanding of the law.

Hmm. . . .  So the defense attorneys do not have their facts straight or do not understand the law if they think there is an entrapment issue?  Ironically, if anyone does not have a full understanding of the law, it appears to be Holder, who has also said that Mohamud could not have been entrapped because "he had numerous chances to walk away."  If that were true, entrapment would never succeed, since a defendant can always choose not to commit the crime in question.

In any event, the defense moved to gag Holder based on these public statements, and while the district court denied the motion, it did find that three of Holder's comments were improper.  Holder went beyond commenting about the nature of the charges to offering his personal assessment of the defendant's intentions and motivations.

I think this was something of a compromise ruling.  I have a hard time seeing the district court issuing a gag order against a Cabinet official (although District Judge Royce Lamberth has, if I recall correctly, repeatedly held Interior Department Secretaries in contempt of court, so you never know), but Holder's comments crossed the line and merited some sanction, even if solely in the form of a judicial finding of improper conduct.  That the gag order was denied means that the government won't appeal the ruling, so the real impact is just a judicial spanking of the Attorney General.