Despite a humiliating defeat in what the Justice Department considered one of its biggest domestic terror investigations in recent history, federal prosecutors announced they will re-try two men who were not acquitted last week on charges of conspiring to kidnap Michigan Governor Gretchen Whitmer in 2020.
Chief District Court Judge Robert Jonker declared a mistrial on April 8 after a jury in western Michigan could not agree on the guilt of Adam Fox, the so-called ringleader, and Barry Croft, Jr. related to the alleged plot; two other men, Daniel Harris and Brandon Caserta, were found not guilty on all charges and went home last Friday night after spending 18 months in jail.
Defense attorneys argued the men were entrapped by the FBI, which the jury presumably believed in the case of Harris and Caserta. Numerous FBI experts and agents took the stand for the government, as did Dan Chappel, the lead informant and one of his FBI handlers. The three-week trial exposed a wide-ranging operation inside the FBI and Justice Department to target the men—who did not know each other until the FBI got involved—infiltrate the group with informants and undercover agents, create encrypted group chats monitored by the FBI, plan and fund excursions including a surveillance trip to Whitmer’s summer cottage, secretly record every conversation including when the targets were high on marijuana, and drive several defendants to the arrest site in October 2020 under a phony pretense.
Nonetheless, Andrew Birge, assistant U.S. Attorney for Western Michigan, confirmed this week his office plans to again prosecute Fox and Croft; Birge’s office told a Grand Rapids television station on Monday that charges will be refiled.
But Birge’s prosecutors will have an uphill battle for the next trial. To prove the “conspiracy” to kidnap offense, the government now must prove that Fox, Croft, and the two men who pleaded guilty created the plot. Fox and Croft live nearly 1,000 miles apart and had little interaction aside from meetings organized by FBI informants; the testimony of Kaleb Franks and Ty Garbin, the defendants who pleaded guilty in exchange for sentencing leniency, backfired on the government and failed to convince the jury the kidnapping “conspiracy” was legitimate.
Further, Jonker’s pre-trial rulings heavily favored the government. Hundreds of statements between FBI agents and informants were kept from the jury after Jonker ruled the conversations were “hearsay.” Jonker also denied a motion to compel testimony from another key informant, a convicted felon and longtime FBI source, who said he would plead the Fifth after Birge’s office threatened him with additional charges. The jury also never heard that Richard Trask, the FBI agent who signed the initial criminal complaint against the defendants, was fired by the agency after he was arrested for assaulting his wife in a drunken rage following a swingers party last summer, or alleged misconduct by the two agents managing Chappel.
BuzzFeed reporter Ken Bensinger noted the one-sided trial in a post-verdict column: “Over and over during the course of the trial, the prosecution objected to any attempts by defendants to provide context for the often shocking soundbites and text messages shown in court—objections sustained by a judge who agreed that such material risked confusing the jury,” Bensinger, who has reported on the case in detail since last year, wrote on April 8. “The result was, at least from the defense’s point of view, a stunningly one-sided presentation that left the preponderance of evidence out of court and gave jurors precious little to balance against the Justice Department’s claims.”
It’s unclear whether prosecutors will have the same good fortune in the next round. Meanwhile, the stunning verdict has caught the attention of congressional Republicans, now promising to investigate the investigators. Linking to reports at American Greatness, Republicans on the House Judiciary committee promised the government perpetrators would be held “accountable” for the scheme.
No word on when the Justice Department will refile charges against Fox and Croft.