The five men accused of plotting to kidnap Michigan Gov. Gretchen Whitmer have lost their bid to have the case dismissed, clearing the way for the prosecution to move to trial.
The defendants had argued that they were pushed into the alleged conspiracy by confidential informants and their FBI handlers in what amounted to “egregious overreach” on the part of the government and a textbook example of entrapment.
In a ruling on Tuesday, however, Judge Robert A. Jonker rejected that notion, stating that the defendants “fail to carry their burden” of showing indisputable evidence of entrapment before trial. It is exceedingly rare for cases to be dismissed in this manner, Jonker noted, saying that the question of entrapment “is decidedly disputed as it almost inevitably is at this stage of the case” and instead should be determined by a jury.
As a result of his denial, the case against the five federal defendants can now proceed to trial starting March 8, where the increasingly bitter disagreements between prosecutors and defense attorneys over matters of fact can be decided.
Attorneys for the five defendants in the federal case, which also includes weapons of mass destruction and weapons charges, could not be reached for comment, although some had previously indicated they did not expect their dismissal motion to prevail. A sixth man, Ty Garbin, previously pleaded guilty in the matter and is expected to testify on the government’s behalf. Eight other men are charged with related crimes in Michigan state court.
The sharp differences of opinion in the courtroom have spilled into the public arena, where the high-profile case has taken on ever-greater significance among those who see the defendants as exemplars of the rising threat of domestic terrorism on one side and, on the other, those who characterize the prosecution and FBI as agents of a deep state intent on crushing dissent. And that political froth, in turn, has begun flowing back into the legal arena.
Earlier this month, for example, the attorney for defendant Kaleb Franks asked permission to raise questions at trial about the role of the FBI in the Jan. 6 Capitol insurgency, pointing specifically to allegations made by Sen. Ted Cruz and journalist Glenn Greenwald about whether undercover assets were secretly responsible for the events of that day.
“The fact remains: legislators are demanding accountability from the FBI,” the attorney, Scott Graham, wrote, drawing parallels to the alleged misconduct of the bureau in the Michigan case.
In a response to that motion filed Tuesday, prosecutors responded caustically, calling Jan. 6 “irrelevant” to their case and disparaging the attempt to “put the FBI on trial, and ask the jury to decide this case on the basis of inflammatory and irrelevant partisan debate and the media coverage of it.”
The government also scoffed at a demand from the defense to grant immunity to a number of potential witnesses at trial, including three FBI agents and an informant, so that they may testify freely about the case without feeling compelled to invoke their Fifth Amendment rights against self-incrimination.
In recent months, the Justice Department said it would not call three of the principal FBI agents from the investigation to testify in the wake of allegations related to possible misconduct on their part. Nonetheless, prosecutors wrote late on Monday, none of those agents will invoke the Fifth Amendment if called by defense attorneys as witnesses.
Stephen Robeson, a confidential informant at the center of the probe, is another story, the government attorneys noted. Earlier this month they described him as a “double agent” and in their Monday filing said he “might plausibly” invoke the Fifth if called because of a series of potentially illegal actions on his part, including “aiding and abetting the defendants, and conspiring with them to kidnap the Governor.”
Specifically, they said that Robeson deliberately didn’t tell his FBI handlers about a recording of suspects; that he called defendant Barry Croft on the day of the arrests in the case to warn him he was wanted by the government; and that he tried to destroy recordings and other possible evidence, including a rifle fitted with a projectile launcher that he instructed someone to throw in a lake.
That conduct is in addition to a firearm charge Robeson was indicted for in federal court last March and for which he later pleaded guilty, and a fraud charge he currently faces in Wisconsin state court. The conduct alleged in both of those cases took place while Robeson was working as a paid FBI informant.
If defendants call Robeson as a trial witness, prosecutors said, they will refuse to grant him immunity, out of concern that “could falsely testify that he deliberately attempted to entrap” the five men accused in the conspiracy. If that were to happen, they added, “the government would have no recourse but to try Steve for perjury.”
Regardless of whether Robeson or the three FBI agents are called as witnesses at trial, the defense’s primary endeavor will be to convince the jury their clients were entrapped by a government desperate to make a case.
To do that, Jonker emphasized in his ruling, they’ll have to not only prove that the government “induced” or persuaded the defendants to act using “excessive pressure,” but also, critically, demonstrate that the five men were not predisposed to violence.
And that second prong may be a particularly tall order given the extensive library of incendiary rhetoric prosecutors have documented in the hundreds of hours of clandestine recordings made by the FBI’s informants in the case.
It is “neither ‘undisputed’ nor ‘patently clear’ that defendants were not predisposed to commit the crimes charged," Jonker wrote in his opinion.