By Ben Solis
Staff Writer
Posted: March 14, 2022 9:06 AM

The long-awaited trial of alleged conspirators in the plot to kidnap Governor Gretchen Whitmer began last week, more than a year since state and federal charges were issued against the accused.

Ahead of the trial's state date, two former U.S. attorneys discussed the case with Gongwer News Service.

Defendants Adam Fox as well as Brandon Caserta, Barry Croft and Daniel Harris are standing trial for their involvement in the plan, which federal prosecutors aim to show was devised in response to coronavirus restrictions put in place by Ms. Whitmer and her administration, and that while the group did not achieve its goal, it did take several steps to further the plot. That includes training, creating explosives, planning to use them on infrastructure, surveilling the governor's vacation home and other actions.

That excludes, however, conspirators Ty Garbin and Kaleb Franks, both of whom have since agreed to plead guilty while also offering to cooperate with federal investigators.

The four men are being tried before Chief U.S. District Judge Robert Jonker of the Western District of Michigan at the federal courthouse in Grand Rapids. Public access to the trial has been granted with in-person options for limited seating and an audio-only feed via telephone.

While the federal government, through the use of a confidential informant, believes it has gathered sufficient evidence to show that criminal conspiracy took place throughout 2020, the defendants are leaning heavily on the First Amendment, arguing in previous hearings that communications shared between and planning done by the group amounted to tough talk but was just that. Their attorneys emphasized this argument in briefs and proceedings before the judge that also noted they did not go through with the plan.

Investigators have indicated that they arrested the six men when they did because the plan's execution was imminent.

The defense has also raised an entrapment claim, arguing that they were led down the path toward kidnapping Ms. Whitmer by the very informant who helped crack the case – another argument that the federal government said was preposterous.

One of those on the case when it started was Matthew Schneider, a former U.S. attorney for the Eastern District and now an attorney with the Honigman law firm.

In an interview with Gongwer News Service, Mr. Schneider was asked at what point does tough talk cross the line and become a criminal conspiracy, or rather, what element would be needed to show that was the case. The attorney said displays of overt action are the key.

"This certainly isn't the first time that either that type of charge or that type of defense has been raised … and what the government is going to try to show is what the actual overt acts were. So if you look at the superseding indictments, it says there was a conspiracy, there was an agreement and you took these certain steps," he said. "(The federal government) is saying, yes, but you did do surveillance on the governor's house. You did go and look at that bridge. And those are overt acts. … When you get out of your car, and you drive to her house and observe it, that's not talk. That exceeds talk."

That kind of defense has been used in cases across the spectrum of violent crimes or even in drug cases, with Mr. Schneider pointing out that one might argue they never had an intent to distribute cocaine or rob a bank, but they had possession of five pounds of the substance or had a gun in their hand as they approached the hypothetical bank. Even if one chickened out, so to speak, the intent and agreement to commit a crime still existed.

On the entrapment claims, Mr. Schneider said those same claims did not work in the state case – which involves a different group of men who provided support to the plot and were aligned with domestic terror group Wolverine Watchmen – as the judge overseeing that case in Jackson County said the defendants hadn't satisfied elements of entrapment.

However, Mr. Jonker is allowing that defense to be raised.

"There's a lot of different parts to that, and there are some parts that are helpful to the defense and some that are helpful to the government. But I have to tell you, where the idea came from, I mean, that's a very critical part, but it's not the only part," Mr. Schneider said. "There's other parts of the entrapment instruction. Just one of them is who came up with this idea. They can argue their case however they want and if they want to argue this entrapment defense, they can do it. So that's what's going to be interesting and what remains to be seen. Will they do that? Or will they try some other defense?

In a separate interview, former U.S. attorney Patrick Miles, who now works with firm Barnes & Thornburg, said much of the same when asked what element was essential to prove a criminal conspiracy and distinguish it from "tough talk."

"The two key factors in the charge of an attempted kidnapping, or any attempt to commit a felony, are having the intent to commit the crime and taking a substantial step toward committing the crime. So the government brought its criminal case because these defendants did more than talk about kidnapping the governor and committing violent acts," Mr. Miles said. "They took substantial steps to do those things such as planning, scouting, practicing, gathering weapons, and perhaps assigning tasks. We will see that evidence come out at the trial. Federal agents monitoring and working on a case like this must be careful to gather evidence of the intent so the prosecution can get a conviction, but of course not let it go so far as the violent acts occur and someone gets hurt."

When asked about the entrapment claims, Mr. Miles noted as Mr. Schneider did that while the judge overseeing the case denied the dismissal of charges on those grounds, he did allow for that defense to be raised before the jury. The question becomes, did law enforcement "plant a criminal design in the mind of otherwise law-abiding citizens" or did law enforcement merely provide an opportunity to commit a crime they were already predisposed to commit?

"Because two of the defendants, Ty Garbin and Kaleb Franks, pled guilty before trial, we can reasonably presume as part of their plea agreement they are cooperating with the prosecution and will testify that the other defendants in this trial both had the intent to commit these crimes and took substantial steps to fulfill the intent of the conspiracy regardless of the undercover agents' involvement," he said. "Their testimony will help show it was more than these guys talking or texting about wanting to do something bad, it will show they were taking meaningful steps and what those were."