Michigan Gov. Gretchen Whitmer. (Image via Jeff Kowalsky/AFP/Getty Images)

The men accused of plotting to kidnap Michigan’s Democratic Gov. Gretchen Whitmer lost a motion to dismiss their indictment on Tuesday, as a federal judge found they did not meet their “heavy burden” to show entrapment.

“Domestic Terrorism”

Made public amid national turmoil in late 2020, the case of the men accused of conspiring to abduct Whitmer appeared to symbolize militant anti-government sentiment and anger over COVID-19 restrictions boiling over among far-right groups across the country.

The FBI claimed that the men surveilled Whitmer’s vacation home earlier that year, casing possible locations to detonate a bomb to distract authorities.

Federal prosecutors leveled weapons of mass destruction charges against the accused plotters Adam Fox, Barry Croft Jr., and Daniel Joseph Harris, characterizing the alleged plot as one of “domestic terrorism.” The trio were first indicted on lesser charges in December 2020, along with Kaleb Franks, Brandon Caserta, and Ty Garbin. Garbin pleaded guilty to the kidnapping plot in January 2021, receiving a more than six-year prison sentence.

Complications in the case started to surface with the publication of a BuzzFeed News article about the role of a government informant, suggesting that the government knew about the plot through the duration.

Then, late last year, their defense attorney tried to turn the case on its head, depicting it as one about the “egregious overreaching by the government’s agents.”

“The key to the government’s plan was to turn general discontent with Governor Whitmer’s COVID-19 restrictions into a crime that could be prosecuted,” their attorneys wrote late December. “The government picked what it knew would be a sensational charge: conspiracy to kidnap the governor. When the government was faced with evidence showing that the defendants had no interest in a kidnapping plot, it refused to accept failure and continued to push its plan.”

“Setting Up a Ruse”

The Western District of Michigan’s Chief U.S. District Judge Robert J. Jonker, a George W. Bush appointee, rejected the defendants’ argument — at least at this stage.

“They must show that the undisputed evidence demonstrates both government inducement and a patently clear absence of predisposition as a matter of law,” Jonker wrote. “Defendants fail to carry their burden because the evidence on both issues is decidedly disputed as it almost inevitably is at this stage of the case.”

The judge added that the defense lawyers did not furnish a “single case” in which a court dismissed an indictment on entrapment grounds during this phase of the case.

Though the men’s attorneys claimed the government “conceived and controlled every aspect of the alleged plot,” the judge wrote “simply setting up a ruse—even an extended one—or running a confidential source, or even proposing a criminal act is not enough.”

Even at a trial, criminal defendants face a high bar to launch a successful entrapment defense, which requires them to show government inducement and their lack of predisposition to commit the crime. Juries are often reluctant to acquit criminal defendants who allegedly agree to commit sensational crimes of terrorism based on allegations that a government agent goaded them to do it.

Christopher M. Gibbons, an attorney representing lead defendant Fox for the Michigan-based Gibbons & Boer firm, did not immediately respond to Law&Crime’s email requesting comment.

Read the ruling, below:

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