2 Defendants in Whitmer Kidnapping Case Found Guilty in Retrial

It took two tries, but the federal government obtained guilty verdicts yesterday for two of the men accused of plotting to kidnap Democratic Michigan Gov. Gretchen Whitmer.

The Detroit Free Press reports that a jury deliberated for eight hours over two days before finding Adam Fox and Barry Croft Jr. guilty of kidnapping conspiracy and conspiracy to possess weapons of mass destruction. They face life in prison.

Fox and Croft were standing trial again after a jury deadlocked on the charges against them in April. Two of their fellow co-defendants, Daniel Harris and Brandon Caserta, were acquitted in that earlier trial—a stunning failure for federal prosecutors and the FBI’s counter-terrorism program, which have been racking up wins in similar cases for two decades.

The arrest of the Whitmer plotters a month before the 2020 presidential election grabbed national headlines and raised fears of rising right-wing extremism. The men, outraged by Whitmer’s COVID-19 policies, discussed different plots to kidnap her, blow up a bridge to slow down the police response, and hold a show trial for the governor on treason charges. Videos showed them training in tactical gear with rifles.

But the case against the plotters began to unravel as court documents and news investigations revealed that the FBI used no less than a dozen confidential informants and two undercover agents to gather intel on the group. As Reason‘s Jacob Sullum noted, “during a June 2020 meeting highlighted by the FBI, for example, it was an informant who argued that kidnapping was necessary.” One of the lead FBI agents working the case was fired after being charged in state court with assault for allegedly beating his wife after returning home from a swingers party at a hotel.

Defense attorneys argued that the alleged conspiracy was never a coherent plan, nor did their clients agree to carry it out. It was all just “rough talk” from delusional and often drunk men, transformed into a terror plot by scheming FBI agents.

The strategy worked the first time around. Not the second.

Reason subscribers can currently read my story in the latest issue of the magazine, “It’s (Almost) Always the Feds,” about the FBI’s long history, including in the Whitmer case, of using its sprawling network of paid informants to egg on would-be radicals. (If you’re not a subscriber, you’ll just have to wait for it to come out from behind the paywall and think about your poor choices.)

As I wrote in that piece, the acquittals and mistrial in the original prosecution of the Whitmer plotters was a stinging embarrassment for the feds, but it “was ultimately the decision of 12 individuals, not a public referendum on the FBI informant program. Another jury may well convict based on the same evidence put forward in the first trial.”

And so they did. Despite persistent criticisms from civil liberties groups that the FBI is manufacturing terror plots to ensnare young men with limited to no ability to carry them out, the federal government has been enormously successful in prosecuting these kinds of cases because of the high bar to prove entrapment, which requires showing not only that the government induced the crime but that the defendant was not predisposed to engage in it.

The government capitalized on this during the second trial by focusing more on the defendants’ violent rhetoric prior to contact with FBI informants.

“How could they possibly be entrapped?” Nils Kessler, a federal prosecutor, said during closing arguments, according to The New York Times. “They were obviously predisposed.”

These sorts of cases are the result of a post-9/11 rollback of Watergate-era restrictions on when the FBI can investigate people. The FBI will keep bringing these cases of government-assisted or totally invented terror plots, and federal prosecutors will keep winning convictions, as long as those policies remain in place.

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