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Wisconsin man accused in Whitmer kidnapping plot fights extradition

Melissa Nann Burke
The Detroit News

The Wisconsin man accused in the alleged plot to kidnap Gov. Gretchen Whitmer is asking a judge to toss out the request for his extradition because Whitmer, the target of the alleged scheme, signed the paperwork seeking to bring him to Michigan to face the charges.

The attorney for Brian Higgins, who is from the town of Wisconsin Dells, argues in court filings that the paperwork is void because Whitmer, the named victim of the alleged crime, signed the formal request to Wisconsin's governor seeking a warrant for extradition.

Whitmer had an "obvious and undeniable" conflict of interest that rendered her signature illegal under Michigan law, according to Higgins' attorney, Christopher T. Van Wagner, who said the issue is a novel one in the courts.

This undated photo of Brian Higgins was provided by Columbia County Jail in Wisconsin.

Van Wagner said Whitmer's decision to take an active role in Higgins' extradition was a "baffling choice," since she plainly has "'skin in the game,' with a clear, self-admitted and unequivocal state in this prosecution."

"Her decision to do so looks, smells and sounds wrong, ill-advised and improper — because it is," Van Wagner wrote in a legal brief. "Smell tests are usually right."

He suggested the prosecutors could have avoided the issue by finding someone without a conflict, such as the lieutenant governor, for the task. 

Whitmer's office declined to comment, but in court filings the states of Wisconsin and Michigan disagree with Van Wagner, arguing that the Michigan Constitution requires the governor to authorize the extradition paperwork and bars her from delegating her powers. 

They also claim that Whitmer was not taking an active role in the extradition but a ministerial one, after a magistrate in Michigan made an independent finding of probable cause against Higgins.

Columbia County District Attorney Brenda L. Yaskal said Van Wagner's smell test "is not competent evidence."

"There is nothing raised here but a vague and legally unsupported supposition that Governor Whitmer acted inappropriately," Yaskal wrote in a brief to the court.

"That accusation flies in the face of legal authority which requires action by the executive authority of the state of Michigan. And of course, Governor Whitmer is the executive authority for the state of Michigan." 

She added Whitmer's conduct is not for a Wisconsin court to judge, urging the court to deny Higgins' petition for habeas corpus and have him returned to Michigan.

A hearing on Higgins' extradition is set for Tuesday before Columbia County Circuit Court Judge Todd Hepler. 

Fourteen conspirators have been charged in the alleged kidnapping plot, which authorities say involved training and planning by a militia group known as the Wolverine Watchmen to kidnap Whitmer and storm Michigan's Capitol in Lansing.

Higgins has disputed the charge against him of material support of an act of terrorism for his alleged role in the scheme.

Prosecutors claim that Higgins participated in surveillance of Whitmer’s vacation home earlier this year, provided night-vision goggles and used a dash camera in his vehicle to record footage of the surveillance in order to aid in the kidnappers' plans. If convicted, Higgins faces up to 20 years in prison and a $20,000 fine.

Van Wagner argues that if Whitmer's requisition was void with no force or effect, then the extradition warrant issued for Higgins by Wisconsin Gov. Tony Evers was also "similarly tainted." 

Van Wagner wants Higgins be released from custody in Columbia County jail on bond while prosecutors start over in pursuing "unblemished" paperwork seeking his extradition to Michigan, he said in court filings.

Van Wagner described the situation as a "misguided attempt to allow the alleged victim of a crime to use her public office to bring her alleged victimizer to justice."

"Whether that choice was based on some political calculus (after all, she is a politician running for office every day) or simply a less-than-rigorous approach by the Michigan Attorney General to conflicts of interest and unsavory appearances, matters little," Van Wagner wrote in a separate filing. 

"What should matter, though, for this court, is that since Governor Whitmer’s actions in signing the requisition appear to have been 'prohibited conduct' under the Michigan public official ethics laws, they were void and thus of no force and effect."

The Michigan Attorney General's Office filed a friend of the court brief in the matter Friday in support of Wisconsin, referring to Higgins' position as "bluster and attacks" on Michigan and Whitmer's ethics. 

Assistant Attorney General John S. Pallas argues that Whitmer's authorization of the extradition paperwork wasn’t a violation of the state conflict of interest statute because that only prohibits use by public officials of state resources for personal gain or benefit, and not the use of constitutional or statutory powers.

Also, Whitmer wasn't signing the extradition paperwork for personal gain or benefit, Pallas said, but in exercising her constitutional and statutory powers. Pallas added that if Whitmer doing so troubles Higgins, "then perhaps he should not have criminally targeted her."

"As a party with unclean hands, Defendant/Petitioner Higgins put the Governor of the State of Michigan in this situation," Pallas wrote. 

"He should not now lament her very limited and ministerial role in his extradition to Michigan to face state charges for his conduct."

The AG's Office has said Higgins would be extradited to northern Michigan's Antrim County, where three of the other 13 suspects in the alleged kidnapping plot have been arraigned.

mburke@detroitnews.com