Wisconsin judge won't block extradition of defendant in Whitmer plot

Melissa Nann Burke
The Detroit News

A Wisconsin judge on Tuesday declined to quash the extradition to Michigan of Brian Higgins, who is charged as part of the alleged plot to kidnap Gov. Gretchen Whitmer. 

But Columbia County Circuit Judge Todd Hepler also stayed his order, so that Higgins won't be removed to Michigan while he pursues an appeal in higher Wisconsin courts.

With that appeal expected to last a year or more, prosecutors warned the judge's decision would delay their case and could result in Higgins' prosecution being bifurcated from those of the other defendants charged in the alleged scheme. 

But Hepler said Higgins' defenses have arguable merit and were not frivolous. 

"I don't find any harm to the state's interest or the public interest in allowing the decision to be stayed pending appeal," Hepler said. 

Judge Hepler had earlier rejected the argument from Higgins' lawyer that Whitmer's authorization of the extradition paperwork invalidated the request because she had a conflict of interest as the named victim in the alleged crime. 

"Mr. Higgins is not being deported to some third-world kangaroo court. He will enjoy all of the constitutional rights guaranteed to every American citizen, including due process of law," Hepler said during a Tuesday hearing. 

Columbia County Circuit Judge Todd Hepler asks questions during a hearing regarding the extradition of Brian Higgins from Wisconsin on Dec. 15, 2020.

Hepler noted that Whitmer is not a complaining party and did not herself issue the indictment of Higgins, who is charged with material support of an act of terrorism for his alleged role in the kidnapping scheme.

"The court believes that any prejudice or error of impropriety that might be generated by the issue of the governor being an alleged victim is remedied in this case by three levels of separation," Hepler said. 

He pointed to the complaint being filed by the Michigan assistant attorney general, the indictment's approval by a magistrate, as well as the warrant issued by Wisconsin Gov. Tony Evers, who could have chosen to either issue it or not.

"For all those reasons, Mr. Higgins' petition for habeas corpus is hereby denied," Hepler concluded.

Brian Higgins

Higgins is among 14 conspirators charged this fall in the alleged plot, which authorities say involved training and planning by a militia-style group known as the Wolverine Watchmen to kidnap Whitmer and storm Michigan's Capitol in Lansing.

Michigan State Police in an affidavit claimed 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, he faces up to 20 years in prison and a $20,000 fine.

Higgins, who is from the town of Wisconsin Dells, had challenged the extradition paperwork was defective. His attorney, Christopher T. Van Wagner argued to the court that her requisition was void because Whitmer as the victim of the alleged crime had a conflict of interest under Michigan law.

"We clearly are in a situation where the governor is someone who stands to gain something," Van Wagner said of the prosecution. "I don't know that we value anything more than our health, our life and our security." 

He said that if Whitmer's extradition request was void with no force or effect, then the extradition warrant issued by Evers was also tainted.

"The minute we allow ethics to be characterized as not as important because the overriding concern in the case is far more important, we are not on a slippery slope, we're at the bottom of the slippery slope, and all bets are off," Van Wagner said. 

Columbia County District Attorney Brenda L. Yaskal stressed to the court that Whitmer did not prepare the requisition paperwork and that she authorized it only after a magistrate in Michigan made an independent finding of probable cause against Higgins.

She also said that the court may not judge the governor of Michigan by Wisconsin law.

Columbia County Circuit Judge Todd Hepler questions attorneys during a remote hearing Tuesday, Dec. 15, 2020, regarding the extradition of Brian Higgins.

“The defense is arguing that her actions violated Michigan law,” Yaskal said, “but the very few cases that exist in this area seem to agree that this state is not the place to challenge those laws.”

Both Yaskal and the state of Michigan contended that the Michigan Constitution requires the governor to authorize the extradition paperwork and bars her from delegating her powers.

But Van Wagner said the state constitution lays out a sequence of succession that could have been employed for the appointment of someone without a conflict in this case.

John Pallas, representing the Michigan Attorney General's Office, emphasized that Whitmer had a mere ministerial role in the extradition process, and that process makes no judgment as to the defendant's guilt or innocence.

"This is a very ministerial and very mandatory function,” Pallas said. "The case here is not 'Gretchen Whitmer, governor of Michigan, versus Brian Higgins. This is The People of the State of Michigan versus Brian Higgins. And I think that's an important point to remember here." 

Pallas has also argued that Whitmer's authorization of the paperwork wasn’t a violation of the Michigan conflict of interest statute because that provision prohibits use by public officials of state resources only for personal gain or benefit, and not the use of constitutional or statutory powers.

He said Whitmer wasn't signing the extradition paperwork for personal gain or benefit, but in exercising her constitutional and statutory powers.

Van Wagner countered that the governor herself is part of the "personnel resources" of the state of Michigan as a paid employee of the state who likely had some assistance from her staff or legal counsel in completing the paperwork.

"The governor herself is a Michigan personnel resource. She is probably the most prominent one," Van Wagner said. "And so from that perspective the statute clearly invoked."