The January 6 indictments don't suggest FBI entrapment

Being a CI is dangerous, unpleasant work. Ruthless criminals kill people they suspect of betraying them, so informants worry constantly about their safety. They are often guilt-ridden because they inevitably form personal bonds with some of the people they are deceiving. Rarely does an adventurous, law-abiding civilian volunteer for that kind of work — those people become cops. CIs tend to assume the risks of spying for the government only because they have no better options. Most of them have been caught committing crimes; they work for the FBI in exchange for leniency. As explained above, the term “confidential informant” generally refers to this kind of person, who poses as a participant in an ongoing conspiracy, in order to gather real-time evidence for investigators.

But there is another kind of informant: a person who “flips” after being publicly charged with committing a crime. Such a person is usually not in a position to infiltrate ongoing criminal activity. He may be in custody, and even if he were released, everyone who knew that he had just been arrested would suspect him of cooperating with investigators. To get leniency from prosecutors, then, his only alternative is to become an accomplice witness. This is the Schaffer situation we discussed above: the former conspirator who pleads guilty and gives prosecutors damning information about his own and his confederates’ criminal activities. Such testimony shores up the prosecution and may even uncover previously unknown evidence and offenders. It is testimony, though, that relates what has happened in the past; it does not report what is happening in the present.

Sometimes other arrested conspirators know the accomplice is cooperating. Often, however, the government tries to keep the cooperation under wraps for as long as possible, to ensure the accomplice’s safety. The accomplice will thus be referred to as a “confidential informant” — because the fact that he is informing is being kept confidential. But that does not make him a CI in the usual sense of that term — i.e., one who pretends to participate in ongoing, real-time crimes in order to gather information at the FBI’s direction.