Two Acquitted in Whitmer Case, FBI Misconduct Central

In a huge defeat for the U.S. Department of Justice, a jury today acquitted two men accused of conspiring to kidnap Michigan Governor Gretchen Whitmer in the fall of 2020 and deadlocked on a verdict for two other defendants. The verdicts were announced at the Gerald R. Ford Federal Building in Grand Rapids after more than four days of deliberations; jurors heard 13 days of testimony in a case the government considered one of its biggest domestic terrorism investigations ever.

Daniel Harris and Brandon Caserta of Michigan were found not guilty of conspiring “to unlawfully seize, confine, kidnap, abduct and carry away, and hold for ransom and reward, or otherwise, the Governor of the State of Michigan.” Jurors could not reach a unanimous decision for Adam Fox, the alleged ringleader, and Barry Croft, Jr., resulting in a mistrial.

Harris was also found not guilty on charges of conspiring to use a weapon of mass destruction for allegedly attempting to build an explosive device to use in the abduction scheme and other firearms charges.

Jurors this morning notified Chief U.S. District Court Judge Robert Jonker that they had reached a verdict on several charges but were deadlocked on others. Jonker urged the jury of six men and six women to continue deliberating under a soft “Allen charge,” which instructs jurors to keep pushing for a unanimous verdict but they later notified Jonker the outcome was the same.

Defense attorneys had argued—successfully, it would appear—that their clients were entrapped by the FBI; at least a dozen FBI confidential human sources and undercover agents working out of numerous FBI field offices were deeply embedded in the plot. 

Jonker ruled before the trial began on March 8 that defense counsel could not raise the entrapment issue until the government rested its case, but that plan was quickly scuttled when it became obvious the four defense attorneys were unable effectively to represent their clients without demonstrating the FBI’s extensive involvement. To prove entrapment, the defense had to convince the jury that the government induced the criminal behavior and the defendants lacked predisposition to carry out the kidnapping conspiracy on their own.

Against the objections of prosecutors, Jonker notified the jury last Friday they could consider entrapment. Jonker advised jurors to ask themselves whether “the agent or informant persuade[d] the defendant who is not already willing to commit a crime to do something illegal?”

A roster of FBI agents and experts took the stand during the three-week trial, which was temporarily delayed due to one participant’s COVID diagnosis; Dan Chappel, the lead informant and government’s star witness known as “Big Dan,” explained how he brought the makeshift group of alleged “militia” members together after he was hired by the FBI in March 2020. Chappel created encrypted chat groups and organized excursions for field training and surveillance of Whitmer’s cottage. (He, along with other FBI informants, posed as leaders of two “militia” groups, at least one of which was created by the FBI.)

For his work over a six-month period, Chappel, a truck driver for a U.S. Postal Service subcontractor, was compensated at least $60,000 by the FBI in cash and gifts such as a new laptop, tires, and a smart watch.

Prosecutors mostly relied on conversations secretly recorded by FBI assets as evidence of wrongdoing; two men charged in the same indictment had pleaded guilty and testified for the government in exchange for lighter prison sentences.

Jurors heard defendants make inflammatory, and on some occasions, violent comments about the Democratic governor, who is up for re-election this year. Foxl lived at the time in the dilapidated cellar of a Grand Rapids vacuum repair shop with no running water or toilet; Chappel texted Fox at least 1,000 times between June and early October, cultivating a close relationship with the otherwise friendless and sparsely-employed outcast. On at least five occasions, Chappel offered Fox a $5,000 credit card, which Fox repeatedly refused.

In his closing remarks last Friday, assistant U.S. Attorney Nils Kessler dismissed defense arguments that the evidence merely amounted to “crazy talk” by disgruntled misfits high on marijuana. “In America, there’s a lot of things you can do. You can criticize the government publicly, absolutely,” Kessler told jurors. “If you don’t like elected leaders, you can vote them out at the ballot box. What you can’t do is kidnap them, kill them, or blow them up. It wasn’t just talk.”

But defense attorneys angrily condemned the FBI’s sting operation. “When I look at what happened in this case, I am ashamed of the behavior of the leading law enforcement agency in the United States,” Joshua Blanchard, Croft’s public defender, said during his closing argument. Christopher Gibbons, Fox’s public defender, called the government’s conduct “unacceptable in America. That’s not how it works. They don’t make terrorists so we can arrest them.”

The case produced damaging headlines for Donald Trump in October 2020 just as millions of Americans were already voting for president, including in the crucial swing state of Michigan. During a dramatic speech on October 8, 2020, Whitmer blamed Trump for “stoking distrust, fomenting anger, and giving comfort to those who spread fear and hatred” and for refusing to condemn “hate groups like these two Michigan militia groups.” Joe Biden accused Trump of sending “dog whistles” to white supremacist militias, later telling reporters it was “despicable” and “beneath the office of the presidency” that Trump allegedly encouraged the would-be kidnappers.

Biden also thanked the FBI for a job well done—but the agency has been mired in scandal related to the case ever since. Richard Trask, the special agent in charge at the Detroit FBI field office, was fired last summer after he was arrested for assaulting his wife in a drunken rage following a swingers party. Reporters also found anti-Trump sentiment on Trask’s Facebook page.

Two other FBI agents who handled Chappel were removed from the government’s witness list amid accusations of unethical conduct. Stephen Robeson, a longtime FBI informant and convicted felon, also was fired for committing at least two other crimes while working on the Whitmer investigation. Known to the defendants as “Steve,” Robeson coordinated numerous events including a militia conference in Dublin, Ohio in June 2020 and training exercises in his home state of Wisconsin. After the government accused him of acting as a “double agent” and Robeson threatened to plead the Fifth, Judge Jonker denied defense counsel’s motion to compel his testimony.

Harris and Caserta, who have been incarcerated since their arrests in October 2020, were released from custody. Fox and Croft will remain in prison as the government decides its next move.

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