Commentary: With Estey sting, more shame on Harrisburg - and the FBI

By Bruce S. Marks

We have yet another scandal in Harrisburg. This one not only uncovered a corrupt lobbyist but exposes the FBI, which began a curious "pay to play" sting operation when Republicans controlled Pennsylvania state government in 2009. So far, though, only a Democratic power broker, who received a financially lucrative deal and apparently leniency to wear a wire, has been snared.

Based on the known facts, the sting operation appears to be a classic example of the federal government threatening our liberties and making things worse, not better.

The Inquirer reported Sunday that in 2009, the FBI created a fake company - Textbook Bio-Solutions, with a fake website, business plan, and executives - to pay real money to real Harrisburg lobbyists to pass laws requiring schools to use certified recycling centers to dispose of unwanted textbooks. On its face, it sounded like a meritorious pro-environmental proposal. The FBI tasked its agents to engage a lobbying firm with long-standing connections to Republican legislators.

From all reports, the Republican lobbyists did their job representing the FBI-fabricated company, and senators supported bipartisan legislation based on sound public policy. The result - after the FBI spent $135,000 on lobbying fees - was a bill that the Senate passed unanimously.

As part of the process, according to court documents, Democratic operative John H. Estey, former chief of staff to Gov. Ed Rendell, was given $20,000 by undercover agents that he promised to pass along as campaign contributions. Estey kept $13,000 of that money, according to court records, with the rest going to undisclosed lawmakers, violating state laws that ban corporate campaign contributions and false reporting.

Once confronted by federal officials in 2011, Estey agreed to wear a wire - apparently for years - as part of a sting operation that allows recording of private conversations without a court-approved search warrant. Meanwhile, the criminal allegations against Estey were concealed from the Hershey Trust Co., where he was a top official, allowing him to continue to earn more than $700,000 annually. When his part in the sting was disclosed last month, he was immediately fired.

The U.S. Supreme Court has long decried government attempts to entrap citizens.

In 1932, Sorrels v. United States held that the "duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite and create crime for the sole purpose of prosecuting and punishing. . . . t is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it."

In 1992, in Jacobson v. United States, the Supreme Court repeated, "In their zeal to enforce the law, however, government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute."

The Estey case differs from that of Democratic former state Treasurer Rob McCord, who is awaiting sentencing on attempted-extortion charges. He reportedly wore a wire for a short period after being confronted with the evidence against him and then resigned from his office. Estey kept his Hershey job for years, which would not have happened if his deal had been disclosed sooner. The FBI thus created a perverse incentive by encouraging Estey to entrap colleagues in order to earn his lucre.

Ironically, the sting operation did not capture its likely intended targets - Republican legislators and lobbyists who controlled Harrisburg under Republican Gov. Tom Corbett from 2009 through early 2015. Instead - so far - it has only caught Democratic insider Estey.

Regardless of who was caught, the case reveals a fundamentally flawed approach to criminal justice. Under the dubious guise of investigating "pay to play" in Harrisburg, the FBI helped provide "pay" - more than $700,000 annually to Estey - to "play" him into recording fellow Pennsylvanians.

Public corruption is rotten. But using Estey to spy on legislators and lobbyists, and providing him with a vast incentive to manufacture more corruption, is even worse. These actions threaten our basic freedoms, including the ability to conduct private conversations without government surveillance, absent court-approved search warrants.

Estey pleaded guilty Tuesday to one count of wire fraud. The federal judge should not only require him to return his salary to the Hershey Trust, but should also admonish the Department of Justice not to provide financial incentives that risk informants invading our privacy, imperiling the independence of the General Assembly and engaging in entrapment.

Bruce S. Marks is a former Republican state senator from the Second District in Philadelphia. marks@mslegal.com