On Tuesday morning, jury selection begins in the long-anticipated trial of four men accused of conspiring to kidnap Michigan Gov. Gretchen Whitmer in the run-up to the 2020 elections. To avoid potential life sentences, the defendants, who argue they were entrapped, will have to overcome a mountain of evidence including hours of their private, often graphic, conversations, as well as testimony from two other defendants in the case who have pleaded guilty and are now cooperating with the investigation.
But after nearly a year and a half of politically charged public scrutiny, prosecutors appear unwilling to take any chances and are going to extraordinary lengths to maximize their advantage by limiting what defendants can say, what evidence they can deploy — or, indeed, even see — and, in particular, whom they can call to the stand.
In recent weeks, they have persuaded Judge Robert Jonker to exclude from court hundreds of statements — culled from the government’s own secret recordings — that according to the defense prove there was no conspiracy. They’ve won a blanket prohibition on questions about whether one of the lead FBI agents perjured himself in a different case, and whether a private security business owned by the other lead agent presented a conflict of interest. And they’ve managed to keep almost all information about the battery of confidential informants used in the investigation completely out of the hands of defense attorneys.
The government’s bare-knuckle efforts haven’t been limited to evidence. Prosecutors have disparaged and threatened one of their own informants in a bid to keep him from discussing the case, made him sign a nondisclosure agreement, and even suggested he should be prevented from testifying at all. They’ve told one potential defense witness he’s being targeted for prosecution and convinced a grand jury to indict a second one. And they’ve sent FBI agents to hand-deliver subpoenas to numerous friends and associates of the defendants, only to tell them later their testimony wouldn’t be required but that the government's investigation was still open, a tactic several called intimidating.
“They are messing with people,” said James Kawasaki, who attended a June 2020 meeting where prosecutors say the kidnapping plot first began to materialize but who otherwise stayed away from the events prosecutors mention in their charging documents. Early last month, he said, he was served with one of those subpoenas and then, two days later, received a phone call from the FBI saying his services were no longer needed. “I wonder if they figured out I wasn’t going to say anything that would be helpful to their side.”
A spokesperson for the Justice Department, citing a standing policy not to discuss ongoing criminal matters, declined to comment for this article. For their part, attorneys representing the defendants have all repeatedly declined to comment on the case.
According to the government, frustration over COVID-19 restrictions drove the four men charged in the case — Adam Fox, Barry Croft, Daniel Harris, and Brandon Caserta — to hatch a plan to kidnap Whitmer from her lakeside vacation home. They also allegedly planned to blow up a nearby bridge to keep police from pursuing them and agreed to buy $4,000 worth of explosives from someone who turned out to be an undercover FBI agent.
To prove their case, prosecutors plan to play selections of surreptitiously recorded conversations, some of which include the defendants’ graphic descriptions of violence. They will display screenshots of text messages and social media postings, and elicit testimony from Ty Garbin and Kaleb Franks, the two cooperating defendants, as well as from a confidential informant known as Dan who gained the confidence of the defendants and facilitated their schemes.
The defendants have a very different story they’d like to tell the jury — if permitted to do so. They claim that their clients were targeted because of comments they made in private settings that are protected by the First Amendment, and that they were then entrapped by the FBI’s confidential informants, who trained them and induced them to agree to take actions they otherwise would not have. Without the intervention of the government, they say, there never would have been a conspiracy.
But after refusing their request to throw out the entire case on those grounds earlier this year, Jonker ruled last week that they could not raise entrapment at all during the first half of the trial — meaning the defendants won’t be allowed to question the prosecution’s witnesses about it (but could, in theory, call those same witnesses to testify a second time later in the case, a potentially risk strategy). Prosecutors, meanwhile, have worked hard to keep evidence that could bolster an entrapment argument out of defense counsel’s hands throughout the entire trial.
Much of that effort has focused on Stephen Robeson, a confidential informant with a long criminal record who played a key role in identifying and recruiting potential suspects, organized multiple meetings and trainings attended by the defendants, and secretly recorded untold hours of conversations at the direction of the FBI, which paid him nearly $20,000 for his contributions.
Defendants believe that his actions are evidence of just how far the government went to bring them into the alleged conspiracy, pushing them to do things they never would have done on their own. They want to question Robeson on the stand about the nature of the investigation, and would also like to ask him about the multiple felonies he appears to have committed while working for the FBI, which they think could undermine the integrity of the entire enterprise in the eyes of the jury.
But getting Robeson to talk has proven extremely difficult.
On Dec. 10, 2020, two months after the arrests in the kidnapping case, three FBI agents met with Robeson in his home state of Wisconsin, informed him a search warrant was being served on his house, and asked him to sign a “nondisclosure statement” that, according to a letter written by lead prosecutor Nils Kessler late last month, “acknowledged that disclosure of their discussions could jeopardize a sensitive investigation.” In the same conversation, one of the FBI agents told Robeson that defense attorneys were “paid liars” who “take the truth and portray it in a different sense,” court filings show.
BuzzFeed News asked four former federal prosecutors about the use of such statements. None recalled ever having seen one. Harvard Law professor Alexandra Natapoff, among the nation’s preeminent scholars on the use of confidential informants, said she had never heard of informants being asked to sign nondisclosure statements, calling the use of one “interesting.”
Three months after signing the document, Robeson was indicted by a federal grand jury for acquiring a .50-caliber sniper rifle, which he was not allowed to do because he had previously been convicted of a felony. Prosecutors presented him with a favorable plea deal that included no prison time, but this past December, he was charged in Wisconsin state court for defrauding a couple out of an automobile.
In early January, prosecutors said that Robeson had in fact been a “double agent” and could not be relied upon for truthful testimony, making it clear they would not use him as a witness at trial.
But when defense attorneys indicated that they did intend to call him to the stand, prosecutors tried an astonishing new tactic: If Robeson, whom prosecutors call “Steve” in some filings, were to testify that the government entrapped the defendants, they wrote, “the government would have no recourse but to try Steve for perjury” — even if the jury agreed with his testimony and voted to acquit.
An attorney for defendant Fox later called that a “thinly veiled threat” designed to frighten Robeson out of saying anything off-script. But the prosecutors weren’t done.
In their trial brief, filed just over two weeks ago, they questioned whether Robeson belonged in the courtroom at all.
The defendants have a very different story they’d like to tell the jury — if permitted to do so.
Presumably because of the pending fraud charge in Wisconsin, they said he was likely to invoke his Fifth Amendment right against self-incrimination if called to testify. “Trial courts should exercise their discretion to forbid parties from calling witnesses who, when called, will only invoke a privilege,” prosecutors wrote.
There has been no ruling on whether Robeson will be allowed to testify if called, but defense attorneys have noted that, under so much pressure, he has repeatedly refused to talk to them. In a hearing before a magistrate on Friday, Kessler, the lead prosecutor, called Robeson "problematic" but claimed his decision to remain silent had nothing to do with the nondisclosure agreement, which he said was "by no means a prohibition to speak to defense lawyers." Following the hearing, the magistrate denied the defense's request to look at the nondisclosure statement Robeson had signed.
“Those guys aren’t getting a damn thing to work with,” a lawyer who represents a defendant in one of two parallel Michigan state cases, which charge eight men with providing material support to terrorism, said in an interview last week. The lawyer asked not to be named, saying they feared “poking the bear” and drawing unwanted attention from federal prosecutors. “I have enough problems as it is.”
In its trial brief, the government said it anticipated calling as many as 48 witnesses to make its case, among them Garbin and Franks, the confidential informant known as Dan, and two undercover FBI agents. Last week, defendants won a rare courtroom victory when Jonker ruled that if the government called on the two undercover agents in the case to testify, it must reveal their full names rather than use pseudonyms.
“Making it crystal clear to the jury and the public that inside the Courtroom, nothing is undercover and everything is out in the open will best ensure fairness during trial,” Jonker wrote.
But in light of the ruling, it’s entirely possible the government won’t call the undercover agents at all and thus avoid having to share that information. By the same logic, there is growing speculation that prosecutors may reverse a prior announcement that they would not call the case’s two lead FBI agents, Jayson Chambers and Hank Impola, to testify due to lingering questions about their conduct in the wake of Jonker’s decision to prohibit all discussion of those matters.
Defense attorneys, meanwhile, have been scrambling to find witnesses of their own. One possibility was Frank Butler, a retired veteran in Virginia who had been a major focus of the FBI's investigation. Multiple informants, including Robeson and Dan, had contacted Butler frequently throughout much of 2020, urging him to acquire materials for a bomb and inviting him to attend training events as far away as Wisconsin, court filings show. Although his house was raided that November, he was never charged.
Late last summer, one of the defense lawyers traveled with an investigator to interview Butler and evaluate whether his testimony might prove helpful. Soon thereafter, the Justice Department wrote Butler advising him that he was the target of a criminal investigation and offering him an opportunity to make a deal and avoid indictment, according to a copy reviewed by BuzzFeed News.
An FBI agent went to the effort of delivering the letter by hand. It is not known whether Butler will appear as a witness for either side in the kidnapping case; his attorney, federal public defender Suzanne Katchmar, declined to comment.
“Those guys aren’t getting a damn thing to work with.”
Michael McDonald, a 41-year-old machinist, was also intriguing. On Oct. 7, 2020 — the same night that Fox, Croft, Harris, Caserta, and a dozen others charged in the plot were arrested — an FBI SWAT team arrived at his rowhouse on the northeast side of Baltimore. They held McDonald and his wife for six hours without charging him or explaining why he was under suspicion. It wasn’t until the next morning, when he saw news reports about the Michigan case mentioning his old friend Barry Croft, that he connected the dots.
Months earlier, he’d attended a dinner at a historic tavern in Delaware that was organized and paid for by the informant Robeson. A self-described patriot, he said he had mainly gone to spend time with Croft, a Delaware native whom prosecutors say was a ringleader in the kidnapping conspiracy. McDonald couldn’t recall anyone at the dinner discussing politics or violence except Butler, who was there as well.
During the raid, FBI agents had taken 14 of McDonald’s guns, including a family heirloom handed down to him from his grandfather, and he was indignant. Several weeks later, he appeared on an internet livestream describing what happened, questioning the government’s motives in conducting the investigation, and complaining that he hadn’t gotten his firearms back now that the investigation was over.
What McDonald didn’t know was that the government continued to keep close tabs on him. According to a sworn search warrant affidavit, over the next year, agents closely surveilled him, following him around Baltimore, monitoring his phone calls, reviewing his bank records, and scrutinizing his tax records.
After more than a year of investigation, the FBI concluded that McDonald was “a habitual user of” prescription opioids and that he routinely purchased small quantities of them from four different sources, apparently for personal use. It also suspected that he had acquired new firearms, a federal crime if he was also "an unlawful user of or addicted to any controlled substance." The IRS, meanwhile, discovered that McDonald hadn’t filed income taxes for three consecutive years and was likely a “tax denier” — someone who believes they can avoid paying taxes by exploiting “loopholes” in the tax code.
On Oct. 25, McDonald spoke on the phone for several hours about the Michigan kidnapping case with BuzzFeed News. During the call, he said he believed the investigation was “political” and an “entrapment scam.” He called the FBI's actions "disgusting" and insisted to a reporter that he wanted to speak on the record because he didn't “have anything to hide.”
According to the search warrant affidavit, the FBI had secured judicial orders that allowed it to track all incoming and outgoing calls from both of McDonald’s cell phones. On Nov. 10, less than three weeks after McDonald spoke to BuzzFeed News, a grand jury handed up a sealed indictment charging him with three counts of tax evasion and three counts of failing to file a tax return. Then, on Dec. 3, FBI agents arrived at his house again, and this time he was arrested.
McDonald faces up to 30 years in prison if convicted. Through an intermediary, he declined to talk about the Michigan case a second time.
Jessica Garrison contributed to this report.