A defendant in the Michigan Gov. Gretchen Whitmer kidnapping case has moved to introduce evidence related to the use of federal informants in the Jan. 6, 2021, Capitol Hill breach, arguing that the FBI’s refusal to answer basic questions about such activities demonstrates a “consciousness of guilt” by the government.
“The FBI has certainly concealed the details of its use of informants and undercover agents in relation to the January 6 events and regarding its policies on their use generally,” Graham said. “Under the jury instruction’s reasoning, and the [court’s] analysis, the agency has exhibited consciousness of guilt.”
Graham said he can appreciate the sensitivity of the matter, but argued that the seriousness of the Capitol breach necessitated some transparency on the issue.
“It seems fair to expect some sort of answer from the [FBI], given the gravity of the January 6 events and the national concern about law-enforcement overreaching,” he said.
As to how Jan. 6, 2021-related evidence would build his client’s case, Graham said it would help him reach the threshold of “objective entrapment”—when the government’s actions are so egregious that charges are dismissed, regardless of the defendant’s conduct.
“If national leaders are expressing concern about FBI overreaching in the realm of informant use and deployment of undercover agents, this latter idea of 'objective' entrapment must assume a greater jurisprudential role,” he said. “Mr. Franks asks the Court to allow him to present to the jury evidence related to these national inquiries.”
Graham also made six other motions on Jan. 14, including motions to compel or exclude certain evidence, as well as one to grant immunity to the FBI agents and informants involved in the case.
“Normally, these people would testify at trial and would answer relevant questions posed by both sides to the case. ... This case, however, is different from most. It is now apparent that a number of both the agents and sources have reason to refuse to testify by invoking their Fifth Amendment rights against self-incrimination,” Graham said.
“The testimony of the people in both groups is crucial to the presentation of a defense in this case. Mr. Franks therefore asks for an order compelling the government to obtain orders for use immunity for its agents and sources.”
A motion hearing is scheduled for Jan. 18, followed by a final pretrial conference on Feb. 18 before the March 8 trial.