To date, the technique for collaring the politicians involved in Abscam has withstood assaults of varying intensity from defense attorneys, at least at the trial level.
But now, in US Federal District Court in Brooklyn, N.Y., the Justice Department's investigatory method may be facing its closest scrutiny yet.
Judge George Pratt, who has presided over seven Abscam trials so far, has convened a "due process" hearing to determine whether the right to the Abscam defendants to due process of law has been violated by federal investigators.
Judge Pratt has ordered federal officials to turn over to defense lawyers thousands of hitherto confidential documents relating to Abscam tactics. Already, chief Abscam prosector Thomas Puccio has testified that investigators on his staff were highly critical of the techniques of Melvin Weinberg, a top Abscam operative. Weinberg is a convicted- felon-turned-government informer whose credibility has repeatedly been attacked by defense lawyers throughout the series of Abscam trials.
During the Abscam trials over which he presided, Pratt ruled that the question of entrapment was not to be considered by the jury in rendering a verdict. Instead, he decided to hold a separate hearing on the issue to determine whether the defendants' constitutional rights to due process under the law had been violated.
Defense lawyers have charged that Weinberg went so far as to "coach" US Sen. Harrison A. Williams (D) of New Jersey, who has been indicted in connection with Abscam and is awaiting trial, on what to tell FBI agents posing as representatives of a fictitious Arab sheikh.
Judge Pratt's ruling would affect seven people, including three former members of Congress and one current member, US. Rep. Raymond Lederer (D) of Pennsylvania. Representative Lederer, whose defense also hinged on entrapment, was convicted earlier this month of accepting a $50,000 bribe from FBI agents posing as representatives of a wealthy Arab businessman who was looking for political favors.
Two Philadelphia city councilmen already have won reversals of their convictions on grounds that they were "entrapped," although the government is appealing this decision. Federal district court Judge John P. Fullam said in Philadelphia that "the defendants are entitled to judgments of acquittal on the grounds of governmental overreaching amounting to a violation of due process of law."
But law Prof. Stephen Gillers of New York University, one of the nation's foremost authorities on entrapment, says it is little short of ridiculous to believe that a highly intelligent government official of long experience could be trapped into saying or doing something he knew was wrong.
"What [the defense] is saying to the court, in effect," says Professor Gillers, is "these are just country bumpkin politicians who were led astray by flashy FBI agents or operatives."
The taped conversation between Weinberg and Senator Williams was entered as evidence of entrapment in the Lederer trial, in which defense attorneys claimed the Pennsylvanian was lured into taking $50,000 in cash by slick-talking FBI agents promising the bogus sheikh would invest nearly $1 billion in the port of Philadelphia.
Law Prof. Richard Uviller of Columbia University, another expert who had studied the Abscam issues throughout the trials, notes: "However distasteful or unwise people may feel these strategies or tactics may be on the part of law- enforcement officials, they were not illegal; it's not entrapment by all previous legal precedent.
"It's all very well to warn government about this sort of thing in the future ," he continued, "but basically I don't think it constitutes entrapment.Under the law, you [law-enforcement officials posing as someone else] can make yourself look like a fat, juicy target and tempt public officials. That may be offensive to see -- government agents tempting government officials to corruption -- but that's the name of the game."
Throughout the Abscam trails, defense lawyers have argued to varying degrees that investigators targeted public officials without first having "probable cause" that they were "predisposed" to commit bribery or conspiracy by virtue of previous convictions or other actions.
However, according to current law, says Professor Gillers, investigators don't require probable cause before being able -- legally -- to try to tempt public officials, although he, for one, would like to see the US Supreme Co urt eventually rule that probable cause is required.