A Blog About Current Issues in White Collar Defense
Michigan’s High Profile Boomerang
About one month before the 2020 election, the Department of Justice proudly announced their disruption of a scheme to kidnap Michigan Governor Gretchen Whitmer. Six men were arrested and referred to as “violent extremists.” Gov. Whitmer’s surrogates indicated that the blame was not fully on the gnarly bearded men whose pictures dominated newscasts around the country, but on Donald Trump, who had whipped up crowds at Whitmer’s expense, in part over her role in draconian COVID restrictions throughout her state.
Pretrial Motions Process and Evidence
As the public attention and political drama on the case fizzled and the case wound its way through the pretrial motions process, a different story began to emerge than the one celebrated by law enforcement officials upon the arrests. Discovery materials, such as consensually recorded conversations between FBI informants and the theoretical kidnappers, began to see light of day in defense motions. Casual readers would struggle to remember which guys are the supposed bad guys, the informants or the defendants. In fact, the informants began to compete with each other to come up with the most sensational accusations that could be made. When the band of beer-drinking, angry, gun enthusiasts acted dismissive of harming the Governor, the informants injected the idea of “simply” murdering her instead—to the loud rejection of the nominal bad guys. According to the defense attorneys, every time the defendants seemingly walked away from their grandiose idea of “trying” Judge Whitmer for treason, the FBI’s informants upped the ante with promises of weapons, war and success.
The recent verdict seems to have borne out the defense contention that the FBI mishandled its over-aggressive informants, with two defendants being acquitted and the jury hanging on the other two trial defendants. Now, curiously, the Assistant U.S. Attorney who gave the government’s opening statement at trial has abruptly stepped down from the case. And Governor Whitmer’s spokespeople, eager to remind everyone that everything remains Trump’s fault, largely ignored the jury verdict in announcing that the case was “the result of violent, divisive rhetoric that is all to common across our country.”¹
Issues with Investigations
But as with a lot of criminal trials, the Devil is in the details. For example, a Michigan FBI agent who was interrogating an informant in this case remarked, “We have a saying in my office. Don’t let the facts get in the way of a good story.”² Perhaps the statement was simply glib or out of context, but maybe it goes to a greater deficiency within the criminal justice system—tunnel visioned investigations that go uncorrected by prosecutors.
To be sure, investigating extremist groups is a maddeningly delicate walk—if investigators move too soon, they are accused of simply disrupting “big talkers” who enjoy venting about their political or religious enemies, often while toting a full cooler of beers and maybe even shooting big guns in the middle of the local forest. If they wait too long, well, people might get killed. Whenever we hear that a criminal was “on the FBI watchlist,” the focus suddenly turns away from a man intent on murdering random subway passengers and on to the FBI’s investigative process. So, I am well aware that these cases are challenging, but the Whitmer Conspiracy trial exposes problems beyond the typical Goldilocks criticism of too soon or too late. Informants had the blessing of their handlers to urge the conspirators to change direction and actually murder the governor. What if any one of the listeners decided this was their ticket to become King of the Michigan Wolverines, and simply ran off and got it done? What if a listener “out-sourced” that hit job to a friend outside the immediate circle of conspirators? For the FBI in Michigan, it is better to be lucky than good, I guess.
Handling informants can be like snake handling. Long stretches where everything goes fine, if uncomfortably intertwined, and then they bite. Agents know this. Prosecutors know this. But the informants in this case had carte blanche to do crazy things, and they did so in a heavy-handed enough way for jurors to outright acquit half of the Wolverine team on trial.
The check on this recklessness by informants and agents is the prosecutors. Line Assistant U.S. Attorneys had to get this high-profile case approved by supervisors, and likely the U.S. Attorney as well. We give prosecutors discretion all the time, hoping that their judgment and experience allow them to make the right decisions. When they fail to question bad FBI behavior, when they approve an indictment that dramatically overstates criminal complicity, or when they doggedly insist on re-trying a case that never should have been brought, they risk creating a new set of rules—one that no longer trusts prosecutors to fairly and firmly seek justice –and they risk the backlash in public sentiment that was apparently felt acutely by 12 jurors in Grand Rapids, Michigan
 Chief of Staff JoAnne Huls, https://www.pbs.org/newshour/nation/following-verdict-in-whitmer-kidnapping-case-some-see-freedom-and-others-danger
 FBI SA Henrik Impola, https://www.woodtv.com/wp-content/uploads/sites/51/2021/12/Whitmer-kidnapping-trial-defense-motion.pdf#page=3