What's Up In The Whitmer Kidnapping Case?

We're slowly learning a bit more about a case that always seemed, how to say it, half-assed? Which isn't to say that goofballs don't commit serious crimes. Still, as soon as we began to learn more it started to seem a bit far fetched. That process continues.

One bit of news doesn't actually have anything to do with the FBI's case per se--but, then again, it really does. What do I mean?

I'm referring to the fact that the FBI case agent has screwed up in his personal life:

FBI agent in Whitmer kidnap case arrested following domestic incident

When they say "arrested following domestic incident" what they mean is this:

FBI Special Agent Richard Trask, 39, of Kalamazoo, was charged Monday with assault with intent to do great bodily harm, less than murder following a domestic incident with his wife Sunday. He was released on a $10,000 personal recognizance bond following an arraignment in 8th District Court in Kalamazoo and faces a charge punishable by up to 10 years in prison.

His arrest comes at a critical juncture in the criminal case against five men charged in federal court with plotting to kidnap Whitmer. Defense lawyers last week leveled a broad attack on the foundation of the high-profile case and suggested a second FBI agent was trying to sabotage defense teams.

Punishable by up to 10 years in prison means it's a felony, for sure. The significance of this is that this can be used at trial to challenge Trask's credibility. Normally it's difficult for the defense to discredit a LE officer's credibility, but a felony arrest is powerful ammunition. The arrest of Trask follows the earlier arrest of an FBI informant in the case (below). This is not the kind of look prosecutors like to hang a case on--it's one thing to use informants who have a criminal past but whose evidence can be corroborated by the government, but it's quite another thing when the government's own credibility is seriously undermined.

The article goes on to outline the defense strategy:

 

Court filings revealed a defense strategy that involves suppressing evidence, attacking the work of FBI agents and claiming FBI informants entrapped men accused in the conspiracy. ...

The arrest is the second potential problem in the case to emerge in recent months.

In March, prosecutors indicted an informant who sources say helped the FBI infiltrate the alleged conspiracy, a rare legal development. The indictment of Wisconsin resident Stephen Robeson after a prolonged period of cooperation suggests the relationship between Robeson and the FBI is destroyed and that prosecutors do not plan on using him at trial, legal experts said.

But defense lawyers can try to call him as a witness and attack Robeson's credibility.

...

Defense lawyers have raised questions about the other lead investigator, FBI Special Agent Henrik Impola.

Impola came under defense scrutiny earlier this month after a lawyer for co-defendant Barry Croft suggested Impola was trying to sabotage defense teams.

Croft's lawyer Joshua Blanchard revealed the existence of a recording in which Impola discussed creating "disarray and chaos" for defense lawyers, whom he labeled "paid liars."

I really don't have information to assess some of this strategy. However, there is additional information available now that gives at least some idea of the type of evidence the defense will bring to claim entrapment as a defense. One important caution: an entrapment defense depends very much on factual evidence that is specific to the case. It has to be weighed in the total context of the specific facts of the case, and those facts can be very murky. Here's what we know so far, but these general allegations by the defense almost certainly rest, in part, on recordings as well as documentary evidence:

FBI May Have Instigated Alleged Plot to Kidnap Michigan Governor Gretchen Whitmer: Report

Note in what follows that the portions I've bolded in red describe the fact patterns that need to be proven in order to establish an entrapment defense. So the question--based strictly on what we know from this report--is: Do the actions of the informants establish that, but for their actions, the plot never would have gone forward, would have remained goofy talk? Also note that one of the informants who was most involved in advancing the plot was from Wisconsin--which suggests he could be the informant who was arrested, Stephen Robeson:

A stunning new report claims that undercover agents and informants with the Federal Bureau of Investigation (FBI) may have played a significant role in instigating an alleged plot to kidnap the governor of Michigan, according to the Daily Caller.

The report, originally published by BuzzFeed, says that the defense counsel for most of the accused plotters plan to argue that their clients were “induced or persuaded” into concocting the plot by the undercover agents. Of the 14 who have been arrested and charged in the alleged scheme to kidnap Governor Gretchen Whitmer (D-Mich.), 13 have pleaded “not guilty.”

The defense says that the undercover agents, in their efforts to investigate alleged “extremism,” went out of their way to make the defendants start planning it in the first place, and that without the involvement of the undercover agents, there never would have been such plans. One of the defendants has explicitly accused the FBI of entrapment and says that he plans to fight his charges every step of the way.

One such example is an informant for the FBI from Wisconsin, who planned multiple meet-ups for right-wing militia members, and even went so far as to fully cover lodging and food to entice them to come. It was at these meetings, according to the report, where the very first mentions of the alleged plot took place. Another informant, a man named Dan, also paid for transportation costs to and from key meetings, and repeatedly encouraged the accused ringleader to go through with the planning process when he occasionally had doubts.

It's hard to say from this distance, but on the facts--when you combine the entrapment allegations with the felony arrests of the case agent and a key informant--the prosecution could be in for some tough sledding.