The Justice Department has dropped the criminal prosecution of the Trump administration’s former National Security Advisor Michael Flynn because it acknowledges that the FBI acted outrageously in enticing him to commit perjury so as to charge him with a federal felony. An identical, if not greater, outrage was perpetrated by the FBI seven years ago against Orthodox Jews who wanted to assist women whose husbands cruelly left them unable to remarry after a civil divorce. When disclosures were first made in the Flynn case, a Wall Street Journal op-ed declared, “The FBI exists to investigate crimes, not to create them.” The lives of two rabbis are now in danger because of a crime the FBI “created.”
Rabbis Mendel Epstein and Jay Goldstein (aged 74 and 66) are now at the federal prison camp in Otisville, N.Y., under 10-year and eight-year jail terms imposed after the FBI perpetrated against them the same, if not more scandalous, injustice that it recently inflicted on Flynn. The rabbis were fooled by a meticulously orchestrated theatrical performance into believing that they would free a “chained woman” (agunah) with a trip to a New Jersey warehouse in October 2013. Because violence was a possibility (and was conjectured by Rabbi Epstein), Orthodox Jewish men recruited to assist in the performance of a religiously mandated duty were arrested and charged while they waited for the arrival of a fictional husband. According to the FBI’s script, the husband had fled to South America without giving his Orthodox Jewish wife a get, a religious divorce.
The two rabbis still serving prison terms have asked that they be released because their lives are endangered by the coronavirus. Federal judge Freda L. Wolfson, who presided at their trial and sentenced them, has refused to direct their immediate release, as she could do under two federal statutes. The judge’s justification is that neither rabbi has “exhausted administrative remedies.” The Bureau of Prisons, she says, “is uniquely situated to make determinations regarding eligibility for home confinement.”
It is too late today to drop charges against these victims of the FBI’s “sting.” U.S. But President Donald Trump had hinted that if the case against Flynn, who the FBI similarly lured to commit a federal crime, was not dropped, he would grant Flynn a presidential pardon. That remedy is owed to the men, including Epstein and Goldstein, who were encouraged by the FBI’s “sting” to travel to New Jersey to use violence, only if needed, to induce a fictional husband to authorize a Jewish divorce for a female FBI agent who had been trained to simulate an agunah.
I represented one of the men accused in the FBI’s prosecution. They were tried in federal court in Trenton, N.J. He joined the group that was filmed and recorded with no expectation of violence. He was ready to witness and sign the get that Epstein hoped would be authorized by the phantom husband who was a creature of the FBI’s drama. Judge Wolfson excluded at the trial any evidence of the religious motivation of the defendants because the prosecutors preposterously objected that such evidence would lead to “nullification” of the federal kidnapping law by the overwhelmingly non-Jewish jury. She sentenced my client to 39 months’ imprisonment. He is, thankfully, no longer at Otisville.
The FBI embarked on its “sting” with (1) front-office approval of a scheme to lure rabbis; (2) extensive training of two undercover agents at a FBI acting school in Quantico, Va.; and (3) fabrication of an authentic-looking ketubah, a Jewish marriage contract. Agents then lied to the Beth Din of America to obtain a rabbinic summons to the fictional husband and a rabbinic contempt decree against him. With these tools, the FBI’s scenario snared rabbis and colleagues who wanted to assist chained wives—a religious good deed.
They believed the FBI actress’ tale that her husband had relocated to South America without giving her a Jewish divorce, and that her brother, another FBI performer, would lure him to a New Jersey warehouse (thereby creating federal jurisdiction in a New Jersey federal court). The FBI rigged the warehouse with cameras and recorders, arrested all those who participated, including some, like my client, who never contemplated violence of any kind. They were criminally prosecuted, just as the FBI and the Robert Mueller investigation prosecutors recently attempted with Flynn.
The FBI can justify a “sting” where, as in the sale of drugs, neither party to an illegal transaction would be a complaining witness. Effective law enforcement may necessitate creating a false scenario in order to apprehend the more culpable party in an illegal transaction that both parties want to conceal. But recalcitrant husbands who are assaulted to coerce them to give a Jewish divorce can (and do) complain to the police. They cooperate in a criminal prosecution. The law against kidnapping or assault can be enforced by customary prosecution after the fact of anyone who commits the offense. In the Trenton trial, an incident of actual assault on a recalcitrant husband was also prosecuted. The jury—obviously repelled by the obnoxious victim—returned a not guilty verdict on that charge. It convicted the defendants who were victimized by the FBI’s fake tableau.
The elaborate production that the FBI devised to trap rabbis in 2013 was no more justified than the phony FBI interview of Michael Flynn in 2017. The FBI interviewers hoped that Flynn would lie when asked whether he had spoken to the Russian ambassador. The FBI hoped in 2013 that the Orthodox Jews would believe they were coming to New Jersey to help free an agunah. Those who rushed to Flynn’s side should urge immediate release of Rabbis Epstein and Goldstein from Otisville, and pardons for all the victims of the FBI’s “Gotcha” sting.
Nathan Lewin is a criminal-defense attorney with a Supreme Court practice who has taught at Georgetown, Harvard, University of Chicago, George Washington and Columbia law schools.
