The federal trial for four men who say they were coaxed by overzealous FBI informants into plotting to kidnap Michigan Gov. Gretchen Whitmer because of her restrictive COVID-19 policies begins Tuesday with jury selection.
Attorneys for the defendants, Adam Fox, Brandon Caserta, Barry Croft Jr., and Daniel Harris, have previously presented evidence in court filings that they say proves the FBI and its confidential informants “conceived and controlled every aspect” of the plot to kidnap the Democratic governor, but they face an uphill battle to prove their clients were entrapped by the government after a series of setbacks in the weeks leading up to the trial.
Most notably, a fifth defendant who was slated to go on trial flipped and pleaded guilty to kidnapping charges in early February. A plea agreement signed by Kaleb Franks on Feb. 6 said explicitly that neither he nor the four remaining co-defendants were entrapped by government informants in the lead-up to their October 2020 arrest.
GRETCHEN WHITMER KIDNAPPING: CRACKS FORMING IN FEDERAL CASE
“The defendant frequently heard Fox and Croft initiate conversations about fighting government authority and kidnapping the Governor without prompting,” the signed plea agreement stated.
“During all their months of training together, the defendant never heard Fox, Croft, Harris, or Casterta say they were doing anything because” confidential FBI informants had advocated it, Franks’s plea agreement added.
Franks and Ty Garbin, another individual involved in the kidnapping plot who pleaded guilty in January 2021 and was later sentenced to six years in prison, are expected to be star witnesses for the government during the trial. Prosecutors said Franks and Garbin would testify during the trial “that none of the defendants were entrapped by law enforcement,” BuzzFeed News reported.
Dozens of witnesses and over 400 pieces of evidence are expected to be examined during the trial, which will take more than a month to complete. The defendants, who are members of the Three Percenters and Wolverine Watchmen anti-government militia groups, face maximum penalties of life in prison if convicted.
At least 12 confidential FBI informants and even more undercover FBI agents were involved in the Whitmer kidnapping investigation.
An attorney for Fox, the defendant who has been described as the ringleader of the kidnapping plot, said in a court filing his client would have never engaged in the scheme had he not been encouraged by undercover FBI informants. The attorney, Christopher Gibbons, said the FBI informants and agents were the “binding force and catalyst for every event, impassioned speech and nearly every suggestion of criminality.”
Joshua Blanchard, the defense attorney for Croft, added: “The agents and snitches recruited the defendants, arranged meetings, paid for travel, paid for hotels, rented cars, produced promotional videos demonstrating explosives, purchased equipment, vetted new members, hatched the ideas and directed the operations.”
Franks pleaded guilty just days after Judge Robert Jonker ruled that the defense will not be able to present information during the trial that defense attorneys had signaled would be core to their entrapment argument.
Jonker ordered on Feb. 2 that the defense would not be able to discuss a private security company owned by FBI Special Agent Jayson Chambers, who served as a handler for an informant during the kidnapping investigation, during the trial.
Defense attorneys had previously suggested in court filings that Chambers had pushed FBI informants to entrap the defendants in an effort to parlay his law enforcement experience into multimillion-dollar private contracts for his now-shuttered security firm, Exeintel.
Marketing materials for the firm show that Chambers boasted about the company’s “online undercover techniques,” such as the use of “undercover online personas” in attempts to earn business. Chambers sought a private security contract valued at $6 million in a November 2019 business proposal that identified Chambers as the CEO of Exeintel.
Jonker said the facts showed that the Exeintel business proposal was “clearly in its exploratory stages” and that there was “no indication from the proposal that Chambers is trying to leverage his existing role as FBI agent, or the resources of the FBI more broadly, in any way.”
Additionally, Jonker prohibited the defense from citing during the trial unsubstantiated allegations that a second FBI handler in the case, Henrik Impola, had committed perjury on the witness stand in an unrelated case.
The judge also prohibited the defendants from citing some of their own out-of-court statements that were captured in audio recordings and text messages that they wanted to cite during the trial as proof they never intended to kidnap Whitmer. Jonker said the defendants’ own out-of-court statements “qualify as hearsay … when offered to support the defense theory.”
It hasn’t all been bad news for the defense.
Jonker authorized defense attorneys to introduce out-of-court statements made by FBI agents involved in the case, as long as the statements were “made within the scope of their duties as FBI agents on a matter within the scope of their official duties.”
In addition, Stephen Robeson, a key FBI informant in the case who was paid over $19,000 for his work helping organize meetings and finance travel expenses for people linked to the kidnapping plot, will be unlikely to invoke his Fifth Amendment right to avoid self-incrimination if called to testify following his sentencing in early February to time charged for an unrelated gun possession charge, BuzzFeed News reported.
Prosecutors said in a January court filing that Robeson was a “double agent often working against the interests of the government” during the investigation.
While Robeson served as their informant, the FBI said, he violated his agreement to avoid committing “unsanctioned crimes.” Specifically, prosecutors said Robeson used a charity under his control to purchase weapons and offered his drone to plotters to aid in acts of domestic terrorism. Prosecutors added that Robeson failed to record “pertinent conversations and events” during the investigation.
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Defense attorneys have cited Robeson’s conduct while he served as an FBI informant as proof their clients were entrapped by the government, but prosecutors have countered, arguing that the government cannot be held accountable for the actions of an informant who went off the rails.
