Attorneys reshape arguments as testimony begins in Whitmer kidnap plot retrial

Kayla Ruble Kara Berg
The Detroit News

Grand Rapids — Testimony began Wednesday in federal court in the retrial of two men accused of a violent plot to kidnap Gov. Gretchen Whitmer with attorneys for both sides recasting and reframing their arguments four months after the first trial ended in a hung jury.

More:Feds try to salvage Whitmer kidnap case as jury selection begins

Federal prosecutors made a dramatic pivot, talking more directly from the outset of the trial about the involvement of informants and undercover agents in an effort to depict defendants Adam Fox, 39, and Barry Croft Jr., 46, as individuals with a concrete desire to overthrow the government and spark a second American Revolution. The defendants were doing so long before the COVID-19 pandemic and before they landed on the radar of the federal government, prosecutors said. 

“This case doesn’t start because of COVID-19,” said Assistant U.S. Attorney Christopher O’Connor, one of the prosecutors representing the federal government in U.S. District Court in Grand Rapids.

“It starts several years before that, because what you’ll learn is that years before law enforcement started to investigate this plot, defendants believed elected officials were tyrants.”

U.S. District Judge Robert Jonker presided over the opening arguments. The retrial is the latest saga in one of the largest domestic terrorism cases in recent history, an effort that has been rife with controversy.

Jonker also oversaw the earlier trial against Croft and Fox, when two other defendants, Daniel Harris and Brandon Caserta, were acquitted on all charges. That jury, however, could not come to an agreement on Croft and Fox, and deadlocked.

Croft and Fox have been depicted by prosecutors as the ringleaders of the alleged plot, and they face charges of kidnapping conspiracy and conspiracy to use a weapon of mass destruction. Croft faces an additional charge of possessing an unregistered destructive device.

Two others charged in connection with the plot, Ty Garbin, 26, and Kaleb Franks, 28, have pleaded guilty to federal kidnapping conspiracy charges and are expected to testify again as the government's star witnesses.

O’Connor dug deeper into the defendants' lives before they came under investigation, talking about Croft’s years-long ties to violent extremist groups and history of posting anti-government commentary on social media. He also highlighted meetings and details that took place before spring 2020, when the COVID-19 pandemic created tensions and brought anti-government extremists out into the national spotlight.

According to the prosecutors, the defendants believed that kidnapping a sitting governor would spark chaos and remove people from office who they felt were overstepping their authority. 

“They wanted to violently overthrow elected government officials because they believed those officials were tyrants constantly violating their rights,” O'Connor said.

“Fox and Croft believed the boogaloo would be accomplished through violence, not through voting.”

The defense attorneys added new emphasis on the role federal law enforcement agents played in the men’s alleged actions. 

Croft’s attorney Joshua Blanchard cast his client, a Delaware resident, as someone who came on the FBI’s radar long before the kidnapping plot, catching agents attention with inflammatory Facebook posts and “saying mean things about the FBI.” Blanchard argued that the FBI viewed Croft as a threat and they were “looking for an opportunity to charge him with a crime.”

He grew emotional talking about the more than 600 days Croft has spent in jail, away from his family, since the men were arrested in October 2020. Croft, Blanchard told the jury, is “waiting for you to tell the FBI that the truth matters.”

“In our system of justice, we rely on facts and we rely on truth and the way you do that is you return a verdict of not guilty.”

Much like the initial trial, Fox’s attorney Christopher Gibbons placed a heavy emphasis on the idea that everything his client said about committing violence and overthrowing the government was merely “big talk” by a destitute man living in the basement of a vacuum repair shop.

Gibbons said the defendants “wouldn’t hatch a plan on their own or wouldn’t reach a conspiracy on their own” and that it was the FBI that pushed them to the next steps. 

“If the big talkers weren’t willing to hatch a plan on their own, the FBI would do it for them,” said Gibbons, later adding that the initial informant, who brought the defendants to the attention of federal law enforcement, was “the beginning, middle and end of this case.” 

In their opening statement, the prosecution preemptively pushed back at those claims and any efforts by the defense to frame the case as entrapment. O’Connor reiterated that “it wasn’t just talk.”

“Entrapment is a legal standard, not a feeling that you get about this investigation,” he said.

After opening statements, prosecutors called their first witness to the stand, FBI special agent Todd Reineck, who served as a case manager for one of the individuals targeted during the investigation.

The prosecution’s line of questioning for Reineck appeared geared toward emphasizing the relationship between Croft and Fox before the investigation started. Reineck testified that the two defendants became Facebook friends in September 2019, and communicated in late 2019 and 2020, before any FBI informants or agents ever came into the picture, according to Facebook messages, videos and audio recordings.

During cross examination by the defense teams, Gibbons pushed Reineck for details about when exactly informants started interacting with the various members of the militia group, seeking to point out that there were FBI informants at an Ohio meeting that Fox and Croft attended, even if the Michigan investigation was not yet underway. Reineck confirmed to Gibbons that there were informants at the Ohio meeting but they were not working with the Fox/Croft case at that point.

Much like hearings in the previous trial, prosecutors introduced a number of audio and video clips of the defendants into evidence.

In a June 9 video played for the court, Fox called Whitmer a tyrant and said she violated their rights in past months.

“I want to make real change. I want to charge them and arrest them,” he said in the video.

Prosecutors also showed communications that sought to depict Fox and Croft were not “big talkers,” but were instead the kind of people who believed in the kind of violent actions they were discussing. 

In a group message presented in court, Fox wrote, “I know Croft is extreme and crazy but he’s in this shit for real.”

They also showed messages sent by Croft talking about the kidnapping plot and claiming Whitmer should be hanged. 

"The Michigan governor is a target of opportunity. If the opportunity presents, we’ll engage. … god knows the governor needs hung,” the message said.

Speaking to the media after the hearing, Blanchard said the government was following the same playbook as last time, claiming they were only sharing snippets of audio and video evidence that does not tell the whole story. 

“They left out a lot of details,” he said. “When you tell the truth, you’ve gotta tell the whole truth.”