Disgraced FBI Agents Under Scrutiny in Whitmer Kidnapping Case

A federal grand jury has charged six men with conspiring to kidnap Michigan Gov. Gretchen Whitmer: from top left, Kaleb Franks, Brandon Caserta, Adam Dean Fox, and bottom left, Daniel Harris, Barry Croft, and Ty Garbin, in an indictment released Dec. 17, 2020. Kent County Sheriff via AP File

The five defendants accused of plotting to kidnap Michigan Gov. Gretchen Whitmer are pushing for more information about the wrongdoing allegedly committed by FBI agents who handled their case.

In a flurry of filings on Dec. 31, the defendants in the Whitmer case opposed a motion from federal prosecutors to exclude evidence about FBI agents involved in the investigation. The defendants—Adam Fox, Barry Croft, Kaleb Franks, Daniel Harris, and Brandon Caserta—also sought to admit as evidence 258 statements they believe will prove the FBI entrapped them.

The motions follow the dismissal of one FBI agent in the Whitmer case for beating his wife. Another agent has been accused of perjury in a separate case, and a third was pulled from testifying in the trial after it was revealed that he was operating a private intelligence business while investigating the defendants.

Federal prosecutors have painted the slew of recent motions by the defendants as a stall tactic that threatens to delay the March 8 trial date. Defense attorneys, however, say the motions are crucial to prove entrapment and protect the rights of their clients.

When it comes to the alleged wrongdoing committed by investigating FBI agents, the defendants said the Department of Justice has been stonewalling them for more information.

For example, federal prosecutors have called the perjury claims against FBI agent Henrik Impola “unfounded,” but the defense said the government hasn’t provided records proving that.

“It is of record that a local attorney has filed a complaint with the FBI Office of Professional Responsibility alleging that Mr. Impola committed perjury in another case,” the defendants said.

“It is not clear why the government won’t disclose the outcome of the investigation into allegations it characterizes as ‘unfounded,’ when a simple disclosure could very well clear Mr. Impola’s name and moot this issue in its entirety.”

Likewise, the government has allegedly refused to provide records about the private business of FBI agent Jayson Chambers. BuzzFeed News revealed that Chambers had registered a business called Exeintel, which was linked to a Twitter account that posted about the case before it became public.

In its motion to exclude evidence about Exeintel, prosecutors said Chambers’s business had nothing to do with the Whitmer case.

“The BuzzFeed story (and the defendants) implied that SA Chambers leaked confidential law enforcement information in this and/or other cases to an Exeintel-related Twitter user, to drum up business by making the company look prescient,” prosecutors said. “The defendants have produced no evidence, however, showing SA Chambers had a financial stake in the outcome of this case.”

Michigan Gov. Gretchen Whitmer (C) and legislative candidate Dan O'Neil (L) greet Rachel White in Traverse City, Mich., Oct. 9, 2020. Whitmer visited the area the day after police announced a foiled plot to kidnap the governor. John Flesher/AP Photo

But the defendants argued otherwise in their Dec. 31 response, saying that Chambers’s business entity calls into question whether he was investigating the Whitmer case in good faith.

“When an agent, like Chambers, is focused on using his active investigations on behalf of the government as a selling point to make money in his private business, it raises a serious question about whether the agent is conducting the investigations in good faith or is instead motivated to make arrests for personal financial gain,” the defendants said.

As for former agent Richard Trask, the defendants agreed with the prosecution that the conviction for beating his wife is irrelevant to anything at issue in their case.

Along with its Dec. 31 filing in response to the government, the defense also made a motion to admit as evidence 258 statements, largely comprising text messages and audio recordings. Such statements would generally be considered hearsay and inadmissible as evidence in court, but the defendants argued that the statements should be allowed because they provide a fuller context of the events leading up to their arrest.

For instance, one of the alleged co-conspirators, Ty Garbin, said in a recorded call that “Captain Autism can’t make up his mind,” referring to Fox, the alleged plot leader. The defense said this statement from Garbin—who pleaded guilty and was sentenced to six years in prison in August for his role in the plot—is important for multiple reasons.

First, Garbin’s statement shows that Fox wasn’t fully committed to the plot, the defense argued. Moreover, the statement also disproves the notion that Fox was the plot mastermind.

“The meaning of it lies in the defendants’ recognition that Adam Fox had no actual disposition toward truly committing wrongdoing ... with a true plan and viability. No one would have conspired with Adam Fox because no one believed he had any ability to form, much less carry out, a plan,” the defense said.

“This statement also demonstrates a lack of predisposition in the entrapment context—no one, even Adam Fox himself—was actually predisposed to make any decisions with regard to possible wrongdoing.”

Prosecutors haven’t responded to the defense’s motion to admit the statements as evidence, but they did oppose numerous motions in a Jan. 4 filing, including a Dec. 25 motion to dismiss, as well as a separate motion to extend filing deadlines.

“The defendants have filed a motion for more time to file more motions. They have already begun recycling the same motions previously denied, and identify no particular legal issues they expect to address given more time,” prosecutors said. “Accommodating their request would either unduly compress the pretrial briefing schedule, or necessitate a third continuance of the trial.”

A motion hearing is scheduled for Jan. 18, followed by a final pretrial conference on Feb. 18 before the March 8 trial.