A federal judge on Thursday ordered a new trial for two men accused of conspiring to kidnap Michigan Governor Gretchen Whitmer in 2020. In April, a Grand Rapids jury acquitted two other men charged in the scheme after defense attorneys successfully argued their clients had been entrapped by the FBI.
The jury could not reach a unanimous verdict for Adam Fox, the alleged ringleader, and Barry Croft, Jr.; the Justice Department immediately announced prosecutors planned to re-try both men. U.S. District Court Chief Judge Robert Jonker set a tentative August 9 trial date after he denied defense motions to dismiss the charges.
But one federal prosecutor will not be involved in handling the government’s case: Mark Totten, the new U.S. Attorney for the Western District of Michigan. Nominated by Joe Biden in November 2021, Totten was sworn in on May 5, one month after that office lost what the Justice Department touted as the biggest domestic terror investigation in recent history.
According to a new filing by Joshua Blanchard, Croft’s public defender, Totten has recused himself from the case—and Blanchard is suing the Justice Department to find out why. After his Freedom of Information Act requests were ignored, Blanchard filed a lawsuit on June 13 against the Justice Department seeking all documents related to Totten’s recusal. “On information and belief, a memorandum exists detailing Mr. Totten’s request to be recused because DOJ policy required Mr. Totten to draft such a memorandum to request his recusal,” Blanchard wrote.
Blanchard also wants to see a letter by Attorney General Merrick Garland authorizing the “special appointment” of three other prosecutors in Totten’s office to manage the government’s criminal case, a procedure required by law.
So, why, nearly two months after Blanchard filed his initial FOIA paperwork, is Garland’s Justice Department continuing to stonewall his request? The explanation might be fairly simple and complicated at the same time: Totten served as Whitmer’s chief legal counsel during her first two years in office. “Mark has been on my team since day one,” Whitmer said in a statement congratulating her top lawyer. “His legal advice and leadership helped us put Michiganders first. As a former prosecutor, I cannot imagine a more qualified leader to serve as U.S. Attorney for the Western District of Michigan—the place that Mark calls home. He is a passionate public servant who will do a phenomenal job as a U.S. Attorney.”
Since Whitmer was the alleged target of the kidnapping plot, perhaps it makes legal sense for Totten to recuse himself since he and the governor presumably had numerous discussions about the matter, posing an obvious conflict of interest.
But perhaps there is more to the story—and considering the number of scandals associated with the kidnapping hoax, that’s probably a good bet. In fact, Totten will join a long list of government assets disqualified from working on the Whitmer case. Richard Trask, one of the lead FBI investigators, was removed and ultimately fired by the FBI after he was arrested for assaulting his wife in a drunken rage following a swingers party last summer. Henrik Impola and Jayson Chambers, the FBI agents responsible for the main informant, also were removed from the government’s witness list amid accusations of professional misconduct. Another key informant in the ruse, Stephen Robeson, was not only removed from the case but accused of acting as a “double agent,” according to prosecutors. And a few weeks after the massive courtroom defeat, Jonathan Roth, one of the prosecutors who presented the case to the jury, withdrew his appearance.
The political nature of the caper also raises questions about Whitmer’s role. Whitmer, after all, admitted she knew about the alleged plot before law enforcement officials publicly announced the arrests of the so-called “extremist militia” men in October 2020. “In the recent weeks, it was brought to my attention,” Whitmer told CNN’s Erin Burnett the day after the arrests. The governor, up for re-election this year, has otherwise been tightlipped about her foreknowledge.
Testimony by FBI agents during the trial, however, revealed more details. The FBI installed pole cameras at Whitmer’s vacation home, the purported scene of the imaginary crime, at some point during the investigation. One agent told the jury that laser devices also were set up around her property to capture 3D images of any suspects or attempted incursions to ultimately use as evidence against the perpetrators.
But most of the perpetrators, as defense motions and the trial exposed, were FBI informants and undercover agents working at the direction of FBI handlers in numerous field offices. If Whitmer was aware of the operation, how did she know? With whom did she communicate inside the FBI or Justice Department? Did Whitmer use an intermediary, say a trusted advisor such as Totten, to relay information between her office and the government?
It is hard to imagine that Whitmer and her staff, including Totten, were not at some point in contact with the disgraced agents involved or someone like Steven D’Antuono, head of the FBI Detroit field office when the scheme went down who was then promoted to take over the D.C. FBI field office several weeks before the events of January 6.
Totten’s recusal memo would shed light on what Whitmer and her office knew and when they knew it—which is why the Justice Department appears desperate to keep it under wraps. Meanwhile, a strange case gets even stranger.