Five defendants accused of plotting to kidnap Michigan Gov. Gretchen Whitmer have filed a motion to dismiss the charges against them, claiming that the hand that FBI informants had in directing the failed scheme amounts to entrapment.
“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,” the motion states. A Buzzfeed News investigation from July found that the FBI used at least 12 informants involved with the kidnapping—suggesting that the scheme might not have started in the first place without the FBI.
“Because the government overreached and committed serious acts of misconduct against defendants who had repudiated the government’s suggested wrongdoing, the defense can establish entrapment as a matter of law,” the motion states.
The defendants’ 20-page motion offers numerous examples to support their claim.
For instance, multiple defendants and others were allegedly together on July 7, 2020, when someone suggested kidnapping Whitmer. According to the motion, someone in the group immediately said they were “not cool with offensive kidnapping”—a sentiment echoed by Franks and Harris.
On July 18, 2020, Garbin purportedly rebuffed an FBI informant’s suggestion of kidnapping a public official.
“Garbin said, ‘So, I think an objective to go for is not the kidnapping,'” the motion states. “Three weeks later, on August 9, 2020, defendant Daniel Harris told the lead [FBI informant] and others: ‘No snatch and grab. I swear to [expletive] God.’”
The defendants’ motion also includes testimony from an FBI agent who allegedly said during discovery that defendants had a “negative reaction” to proposals from informants to kidnap Whitmer.
Additionally, the motion included examples of what defendants say was “emotional manipulation” by FBI informants to entice them into staying involved with the scheme.
One FBI informant allegedly used his untreated hernia as a device to gain sympathy with Fox and others.
“He claimed that the V.A. [Department of Veterans Affairs] would not provide him proper treatment after his years of combat service in the Army. ... [The FBI informant] would tell Adam Fox that he was ‘waiting to die,’” the motion states.
“Feeling the emotional pull of such a confession, Adam Fox told Dan that Dan needed to get surgical treatment as a priority over any of the ‘mission plans’ Dan, in his [FBI informant] role, was pushing.”
These examples and others are more than enough to meet the entrapment threshold, the defendants argue. Their motion includes examples where other cases were dismissed.
In Jacobson v. United States, for example, the U.S. Supreme Court overturned a conviction against a man who was repeatedly solicited by government agents about child pornography in the mail over a period of 26 months.
In that case, the Supreme Court said government agents “may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.”
Defendants in the Whitmer case argued that the FBI agents’ conduct was more egregious than the Jacobson case.
“In the case at hand, in sharp contrast, informants, of course, not only contacted the defendants face to face but also coaxed, persuaded, cajoled, played on sympathies, cultivated friendships, took advantage of the defendants’ financial conditions, and suggested that the offense they proposed ‘would further a greater good,’” the motion states.
“The defendants did not engage in any activity for profit—anything they did with respect to the [FBI informants] was based on friendship and admiration and the [informants’] assiduous cultivation of a sense of patriotism and right-doing.”
The government has until Jan. 24, 2022, to respond to the defendants’ motion. A final pretrial conference is set for Feb. 18.
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