Whitmer kidnap trial focus turns toward entrapment

The focus of a trial in Michigan has quickly turned to the question of whether the FBI tricked and cajoled four defendants into agreeing to a plot to kidnap Gov. Gretchen Whitmer.

During the initial round of opening statements to jurors, lawyers on Wednesday tiptoed around whether agents induced the men to commit crimes they wouldn’t have contemplated on their own, known as entrapment.

But U.S. District Judge Robert Jonker subsequently took the unusual step of allowing them to speak again to the jury to specifically address an entrapment defense after hearing them allude to it earlier.

Prosecutors were expected to present more testimony Thursday to show that the four — Adam Fox, Barry Croft Jr., Daniel Harris and Brandon Caserta — were poised to get Whitmer before their arrests in October 2020.

"If the defendant was already willing to commit the crime, that is not entrapment," Assistant U.S. Attorney Jonathan Roth said. "These defendants were willing and eager, if not already preparing, to commit this crime long before law enforcement got involved."

But Croft’s lawyer said informants secretly recorded the men when they were "stoned, absolutely out-of-your-mind stoned." He said their drug-addled state led to fantastical ideas, including placing Whitmer on a kite to transport her.

"They knew it was stoned-crazy talk and not a plan," Joshua Blanchard said, referring to the FBI.

Entrapment is a rare, high-risk defense because it’s a concession that crimes may have been committed. Lawyers seek acquittals based of claims of excessive influence and manipulation by agents and informants.

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But Roth said the evidence, which will include messages, videos and social media posts, would prove their desire to commit violence apart from anything that informants did or suggested.

"Listen to them," Roth told jurors. "Read their words, listen to their statements."

He said the men, angry about COVID-19 restrictions imposed by the Democratic governor early in the pandemic, recruited militia members and were prepared to break into Whitmer’s home, tie her up and kidnap her.

Prosecutors played a Facebook video of Fox intermittently laughing and cursing the government while waving two AR-style assault rifles at a camera.

"We have the numbers. We have the arms. We have the ammunition ... that we need to just go take our country back," Fox said in a broadside that didn’t mention Whitmer.

In another recording, Fox was heard saying he’d rather not resort to violence in response to oppressive government policies.

But, he added, "the only way to defend yourself against it is to get more evil than they are."

Fox, who had been looking straight at jurors, suddenly averted his eyes downward and feverishly took notes as prosecutors introduced that first batch of evidence.

Harris’ attorney, Julia Kelly, said the former Marine infantryman was attracted to an FBI informant called "Big Dan" because he held himself out as a gun training instructor.

"Big Dan was the leader," she told jurors. "How do I shoot out of a vehicle? Yeah, you go ask Big Dan. That’s what Daniel was looking for in the summer of 2020."

Kelly said Dan told his FBI handlers at one point "that these guys are just wasting my time. ... They’re more worried about the world coming to an end."

Caserta’s attorney, Michael Hills, said attack training in Michigan and Wisconsin were "fed-sponsored events."

Fox’s attorney, too, told jurors that Dan pressured him during visits to a Grand Rapids-area vacuum shop where Fox lived as a "misfit" in the basement.

"Dan had a lot of credibility with the people he dealt with in this case. They wanted to please him. They perceived him to be a superior, a leader, someone they looked up to," Gibbons said. "They didn’t want to say no.

"The point is everything that moves this case forward, everything that gets us up to October and these guys are taken down in a parking lot in Ypsilanti — it’s the government moving all of it," Gibbons said.

The four men are accused of taking critical steps to carry out their plans, including a night drive to northern Michigan to scout Whitmer’s vacation home and figure out how to blow up a bridge, according to the government.

Investigators stopped a "tragedy" when the men were planning to acquire a bomb to destroy the bridge to stop police from quickly responding to the planned abduction, Roth told jurors.

"These were not people who were all talk," he said. "These were people who wanted to separate themselves from people who were all talk."

Jurors will hear from two critical insiders, Ty Garbin and Kaleb Franks, who pleaded guilty to the conspiracy and will testify for the government.

Roth described Fox and Croft as masterminds of the plot, and said the four wanted to create a "war zone here in Michigan."

In 2020, Whitmer was trading taunts with then-President Donald Trump over his administration’s response to COVID-19. Her critics, meanwhile, were regularly protesting at the Michigan Capitol, clogging streets around the statehouse and legally carrying semi-automatic rifles into the building.

The FBI said it thwarted the kidnapping plot with the arrests of six men in October 2020.

Whitmer, who is seeking reelection this year, rarely talks publicly about the case and isn’t expected to attend the trial. She has blamed Trump for stoking mistrust and fomenting anger over coronavirus restrictions and refusing to condemn hate groups and right-wing extremists like those charged in the plot. She has said he was also complicit in the deadly Jan. 6 Capitol insurrection.