Victor Wynne

Muzzling the defense

Ken Bensinger:

Back on Oct. 8, 2020, when the government announced that the FBI had broken up a violent plot against a sitting governor, the case seemed like a sure thing. In addition to the men accused of kidnapping conspiracy in federal court, Michigan’s attorney general had charged eight additional individuals for providing material assistance to terrorism for their role in aiding the scheme. Months later, the Justice Department tacked on weapons of mass destruction charges, elevating it to a terrorism case as well.

But over the next 17 months, a different and more nuanced version of events began to emerge.

Defense attorneys in both the state and federal cases contended, in a series of court filings and pretrial hearings, that their clients may have been loudmouths, or even anti-government cranks, but they never actually intended to hurt anyone — and couldn’t have pulled off a kidnapping to save their own lives. Fox, the lawyers noted, was so hapless he lived in the basement of a vacuum cleaner store and was forced to go to the Mexican restaurant next door when he needed to use the bathroom. Croft, for his part, ranted about shooting down airships, cutting down every tree on the border between Ohio and Michigan, and setting off electromagnetic pulse weapons that his lawyer, Joshua Blanchard, characterized at trial as “movie stuff.”

Their statements, however nasty they might sound, were just talk, the defense said, and therefore protected by the First Amendment. To the degree that there was any actual plan to kidnap Whitmer, they added, it was the FBI that had cooked it up, while the government’s minions — as many as a dozen confidential informants — lured the defendants into half-heartedly playing along.

They said it was a case of entrapment and that they had hundreds of recordings, text messages, and Facebook posts that would shine a very different light on the government’s narrative. They included exhibits showing informants smoking cannabis with the defendants, plying them with offers of cash, and working them up into a lather with anti-government talk of their own. There was evidence of informants and FBI agents discussing ways to lure more suspects into the case, and extensive audio of defendants discussing absurd schemes involving stolen Blackhawk helicopters, 300-strong armies, and newly minted silver currencies that the defense believed showed the men were simply fantasizing.

But on Feb. 2, Judge Robert J. Jonker ruled that most of the evidence the defense hoped to present could not even be mentioned in court, let alone shown to the jury. Though the exhibits were direct audio recordings or transcriptions, just like much of the prosecution’s evidence, the judge dismissed the material as irrelevant hearsay.

He also ruled that defendants could not inquire about the past conduct of several FBI agents, though the government would be allowed to question the defendants about episodes in their own past.

What a one-sided shit show.