Added on August 23, 2021  Sara Swanson

Missteps plague Whitmer kidnapping case. Despite evidence, it’s no ‘slam dunk’

by Jonathan Oosting (Bridge Michigan)

LANSING — Federal agents compiled more than a thousand hours of covert recordings of men accused of trying to kidnap Michigan Gov. Gretchen Whitmer, but as their cases head to trial, a series of setbacks could undermine the prosecution.

Attorneys defending the militia activists accused in the plot have signaled plans for a vigorous defense, arguing their clients may have been coaxed into criminal behavior by as many as 12 confidential human informants and two undercover FBI agents, a charge prosecutors deny.

But complicating matters for the government: an FBI agent who played a key role in the investigation was recently arrested on unrelated assault charges, another FBI agent was recorded describing efforts to confuse defense attorneys and an early FBI informant was indicted on gun charge, signaling he’s no longer cooperating with prosecutors.

Attorneys defending the five men facing federal charges and eight others facing state charges have an “obligation to try to exploit” errors by prosecutors, said Michael Rataj, a Detroit attorney who successfully defended Hutaree militia members a decade ago.

“It’s not a slam dunk case by any stretch of the imagination,” Rataj said of the federal case against kidnappers set for trial in October.

It’s a case with national significance, as authorities aim to stem the tide of homegrown violent extremism, which FBI Director Christopher Wray has said is “metastasizing” in the U.S. and poses a more imminent threat than international terrorism.

Bridge Michigan is investigating state-level extremism with grant support from the Fund for Investigative Journalism.

Alleged ringleader Adam Fox and colleagues stand accused of orchestrating a scheme to kidnap Whitmer, including paramilitary training exercises and surveillance of her vacation home in northern Michigan in September of 2020 — less than a month before authorities arrested them in an undercover sting staged as an explosives sale.

Prosecutors allege militia activists associated with the plot — members of the state-based Wolverine Watchmen and national Three Percenters movement — discussed killing the governor, attacking police officers, and storming the Michigan Capitol amid frustration with government lockdown orders during the COVID-19 pandemic.

The kidnapping trial will be the first major militia-related case prosecution in Michigan since 2012, when a judge dismissed sedition charges against members of the Hutaree religious sect, ruling prosecutors failed to prove defendants went beyond discussing their hatred for authority.

Convictions in the Whitmer kidnapping case could “bolster confidence and provide a roadmap for future prosecutions of domestic terrorism,” said Barb McQuade, a former U.S. Attorney for the Eastern District of Michigan who had prosecuted the Hutaree members.

Such cases pose unique challenges because they entail “First Amendment concerns about free association and free speech that are more acute when it comes to domestic groups,” McQuade said. “Of course, no one wants to criminalize thoughts and beliefs in politics.”

Missteps and one conviction

Federal prosecutors already have one conviction in hand: In January, Wolverine Watchmen member Ty Garbin of Hartland pleaded guilty to a kidnapping conspiracy charge and agreed to cooperate with authorities as part of a plea deal for a potentially lighter sentence.

But prosecutors suffered a setback last month when police arrested FBI agent Richard Trask, 39, of Kalamazoo who helped thwart the alleged plot and wrote the affidavit that led to the militia arrests.

He is now accused of assault with intent to do great bodily harm less than murder during a domestic altercation with his wife after a swingers’ party.

Trask is “no longer working FBI matters” while the agency conducts an internal review of the allegations, special agent and public affairs officer Mara Schneider told Bridge Michigan last week.

In January, Trask testified in a pre-trial hearing against alleged kidnapping plotter Barry Croft of Delaware, but his suspension calls into question whether he’ll be able to take the stand in an October trial.

At the very least, defense attorneys are likely to use the incident in an attempt to undermine Trask’s credibility, said Andrew Arena, former director of the FBI’s Detroit field office.

“It’s about the last thing you really want to happen,” Arena said. “Hopefully, they have other agents who can testify as to what he was going to testify to, but certainly the defense is going to use that to cast doubt on the case.”

In recent court filings, defense attorneys for several of the accused plotters have made clear they plan to accuse the government of entrapment — essentially enticing the defendants to move beyond angry rhetoric that is protected by the First Amendment.

Evidence suggests FBI informants “coaxed” and “played on the sympathies and friendships” they had developed with defendants to try to get them to discuss a kidnapping plot, defense attorney Scott Graham argued in a motion filing last month.

Graham is representing Kaleb Franks of Waterford Township in Oakland County, who was known as “Red Hot” in group chats. He is accused of participating in the September 2020 nighttime surveillance of Whitmer’s home, among other things.

Franks is asking the court to force the FBI to disclose any and all information about informants that aided the investigation, including a man known only as “Dan,” who joined the Wolverine Watchmen through a private Facebook group and later became a key FBI source.

“When Kaleb Franks set out to train in weaponry and tactics, enjoy time outdoors, and spend a Midwestern summer trying to find respite from the cares of professional and personal obligations and demands, he had no thoughts of harassing the government, staging a coup, or ending up on the national stage as an alleged ‘terrorist,'” his attorney wrote.

“Only through the diligent efforts of government informants and undercover agents did Mr. Franks end up framed as a lawless agitator.”

Franks initially told colleagues he was “not cool with offensive kidnapping,” but he nonetheless “actively continued to participate” and was armed with a Glock 19 semi-automatic pistol during a surveillance mission at Whitmer’s vacation home, according to federal prosecutors.

The accused plotters weren’t entrapped because they were “predisposed to join the kidnapping and explosives conspiracies,” prosecutors said last week in a new filing.

Barry Croft of Delaware, for instance, brought an improvised explosive device to a June 2020 meeting with militia activists from multiple states and referred to himself as a “terrorist” who was going to “burn motherf***ing houses down, blow shit up,” prosecutors said in court documents.

There, before the kidnapping plot took shape, prosecutors allege militia activists “proposed attacking” the governors of multiple states, including Whitmer, Democrat Ralph Northam of Virginia and — as alleged for the first time last week — Ohio Gov. Mike DeWine, a Republican.

Prosecutors allege Fox, the accused ring leader, was also at that meeting. And the following month, in his first meeting with an undercover agent, Fox told the undercover agent his group was “moving forward man” and “actively planning some missions,” according to the new filing.

The “consensus” at that time, Fox allegedly said, was “takin’ the f***in’ capitol. By force. Like, with extreme heavy f***in’ prejudice towards are f***in’ governing officials.”

‘Maximize attendance’

As they build their likely entrapment case, defense attorneys are asking U.S. District Court Judge Robert Jonker to force the government to provide specific information about government informants, including full forensic images of phones used by “Dan” and two FBI agents.

Such disclosure is warranted because an undated text message in which FBI agent Henrik Impola appeared to encourage the informant to try and “maximize attendance” at a “recon” mission, possibly the surveillance of Whitmer’s home, according to a recent filing.

“I default to getting as many other guys as possible,” Impola wrote in a text message to the informant that was provided to the defense in what attorney Michael Hills speculated was an “accidental disclosure” by the government.

Hills represents Brandon Caserta of Canton Township, who did not help colleagues to surveil Whitmer’s vacation home.

But “it was clearly not for lack of FBI effort,” Hills wrote in a recent filing, accusing the FBI of trying to “create evidence of an agreement regarding a conspiracy.

Likewise Croft, the Delaware defendant accused of creating two incendiary explosive devices in furtherance of the kidnapping plot, is asking the court to order prosecutors to provide an early list of potential witnesses they plan to use at trial.

That’s justified because Impola, the FBI agent, is on tape telling an informant the government may be able to keep his identity secret by trying to “cloud the water” and “create utter confusion and chaos” with an over-inclusive witness list, defense attorney Joshua Blanchard wrote in a recent filing.

In the same recording, from December, Impola described defense attorneys as “paid liars” whose job is to “take the truth and portray it in a different sense,” according to the filing.

Comments like that by an FBI agent are “just stupid” and could be used against Impola in court, said Rataj, the Detroit attorney who defended Hutaree members a decade earlier but is not involved in the Whitmer kidnapping case.

“As a defense attorney, you’re going to turn over every rock, and you’re going to make every play you can make,” Rataj said. If it looks like Impola tried to “manipulate” evidence, that could be a significant problem for prosecutors, he added.

But defendants still face an uphill climb in trying to prove they were entrapped by FBI informants or undercover agents, said McQuade, the former U.S. attorney who is now a University of Michigan professor and legal analyst for NBC News and MSNBC.

“Entrapment defenses are frequently raised in any case that involves the sting operation or undercover agents, but they are rarely successful because prosecutors structure the investigation from the get go to avoid creating an entrapment problem,” McQuade said.

WTF. Kill them

In investigations that use confidential informants or undercover agents, the FBI typically takes special care to ensure they’re not “orchestrating the activities,” said Arena, the former head of the Detroit field office.

“It could happen,” he acknowledged, so “you have to be cognizant of that and be sure the informants and undercovers are not being overzealous.”

Court documents suggest only two of the FBI informants played a central role in the investigation, but the 12 informants described by defense attorneys is an unusually large amount, Arena said.

But unlike the Hutaree case a decade ago, in which sedition charges were dismissed because prosecutors did not prove the religious sect planned imminent action, experts say the government should have an easier path to conviction in the Whitmer case because they charged a more specific crime: kidnapping conspiracy.

And, perhaps more importantly, they have more than 1,000 hours of audio and video recordings, thousands of pages of social media content and what a defense attorney described as more than 400,000 direct electronic messages.

“Entrapment requires the defense to show that the defendant was not predisposed to commit the crime, and that his will was overborne by the government,” McQuade said.

“As long as the ideas are coming from the mouth of the defendant, then typically there’s not going to be an entrapment problem.”

Federal prosecutors have hinted at the strength of their evidence in court filings, routinely citing new and potentially damning recordings of the defendants, including a recent filing arguing defendants cannot argue entrapment because they were predisposed to the crime.

Daniel Harris of Lake Orion, for instance, allegedly offered explosives expertise to the Wolverine Watchmen in May of 2020, before the Whitmer kidnapping plot began to take shape, according to court documents.

“I can make things go boom if you give me what I need,” Harris wrote in a message disclosed by the government. “I think I have the algorithm for timing (detonating) cord somewhere in my office.”

If the Founding Fathers of the United States “saw how shit was being run, they’d be looking at us like ‘wtf, kill them,” Harris allegedly added.

Later, prosecutors say Harris helped Croft construct and test explosives at training exercises in Wisconsin and Luther, Michigan. The men were allegedly developing bombs to use on a bridge near Whitmer’s vacation home to slow any police response to the kidnapping.

A decade after a federal judge said prosecutors failed to prove Hutaree members did anything more than talk about their hatred for authority, the Whitmer kidnapping case is heading toward trial in a significantly different climate, said McQuade, the former federal prosecutor.

“People are more inclined to take seriously a group of guys who are shooting guns in the woods,” she said. “I think it used to be that we could dismiss them as a bunch of goofballs, but now I think people are aware that they could possibly pose a threat.”