The Whitmer Prosecution and the Entrapment Defense – JONATHAN TURLEY5 min read
“The serpent beguiled me, and I did eat.” That line may be the oldest statement of a criminal defense articulated in what could be styled as Eve v. The Serpent in Genesis. Eve sought to excuse her own conduct by the inducement of the serpent. As shown by her (and Adam’s) expulsion from the Garden of Eden, it is a difficult defense to make even with the Almighty as your jury.
It appears, however, that Eve’s defense had greater success in Michigan this week after a jury failed to convict a single member of the alleged conspiracy to kidnap and execute Gov. Gretchen Whitmer in 2020. The serpent in this case, according to the defendants, was the United States government.
Just a month before the 2020 election, Gov. Whitmer stood before cameras describing her narrow escape from being kidnapped and murdered by “domestic terrorists.” However, the “serpent” in her account was not among the indicted. It was Donald Trump. Despite the fact that the Justice Department in the Trump Administration made these arrests, President Biden agreed that Trump was fostering a “civil war.” The media went into a frenzy, declaring that the case proved that “Trump’s rhetoric and policies have unleashed a second pandemic in the form of far-right domestic terrorism.” The breathless accounts of this plot by three “Boogaloo” militiamen fit like a glove with the narrative just before the election. The problem is that the case — and the narrative — quickly fell apart after the election. That collapse is now complete after a Michigan jury acquitted two of the four men tried for the conspiracy and then hung on the other two.
The problem for the jury was that it was hard to keep track of who were culprits and who were cops. While the government announced that it had foiled a large conspiracy, it turned out that most of the conspirators were actually FBI agents.
The Michigan case stands as one of the most chilling examples of entrapment techniques used by the FBI. While Whitmer declared Trump “complicit” in her planned execution, the FBI increasingly appeared more “complicit” in the creation of a government-inspired, government-funded, and largely government-staffed plot. The fact that it occurred just before the election has only magnified concerns over the motivations of some of the key players involved in the investigation.
In 1988, the Supreme Court in Mathews v. United States distinguished between “an unwary innocent” and “an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.” The question is whether there was a “predisposition” for the crime.
In 1992, the Supreme Court overturned a conviction for receiving child pornography because postal inspectors had implanted a desire to received the material through repeated contacts with the defendant.
Entrapment defenses are notoriously difficult for the defense, but there are notable exceptions. In 1984, automaker John DeLorean was acquitted in his famous trial for conspiring to sell $24 million of cocaine to fund his signature cars. He was caught on tape making the deal, but the jury was swayed that it was the FBI informant who persuaded DeLorean to become a drug dealer.
In this case, Chief U.S. District Judge Robert Jonker refused to dismiss the charges on entrapment but (like the DeLorean case) he issued a major decision in allowing the defense to present evidence of entrapment. The jury learned that there were more FBI agents and informants than conspirators in the case. As much as two-thirds of the conspirators in the plot were actually FBI informants.
While the media was still flogging the story line of white supremacist terrorists, curious facts began to emerge in the case. First, the Justice Department announced that three critical agents would not be called at trial. It was later discovered that Special Agent Jayson Chambers, who managed the FBI informant, was running a private investigative firm and allegedly leveraging his work for private contracts. Buzzfeed News found that Chambers marketed his “online undercover techniques” and reportedly posted cryptic tweets referring to the Whitmer kidnapping investigation before arrests were made.
Another special agent, Henrik Impola, was accused of perjury in an unrelated case.
The third agent was the actual lead agent in the case. Richard Trask was dropped after being charged with beating his wife after returning from a swingers party. The defense was particularly focused on Trask because he had social media postings attacking President Trump.
Trask was not the only one in the case that was not happy with Trump. It turns out that these robotic Trump terrorists were actually not thrilled with Trump, including one who posted on social media denouncing Trump.
Then there was the key informant, Stephen Robeson. He was arrested for fraud in Wisconsin. It then went from odd to unbelievable.
It turns out that the FBI’s informant was the one organizing meetings, recruiting people, and even paying for the travel for people to go to events.
The FBI taped the defendants as they discussed ideas such as tying Whitmer to a kite to transport her. The reason was that they were as high as a kite at the time. Defense counsel Joshua Blanchard objected that the secret recording in this case was taped when the FBI knew the defendants were “absolutely out-of-your-mind stoned . . . it was stoned-crazy talk and not a plan.”
The problem was that these guys seemed at points more interested in partying than conspiring. The FBI, therefore, decided to take control and get them serious about some major crimes. An informant known as “Big Dan” was paid over $50,000 to get the conspiracy going, including paying for the defendants to travel to Wisconsin to “train.”
Chambers pushed Big Dan to get the men to take violent acts against Whitmer. The defendants reportedly resisted those entreaties. Dan pushed the alleged leader to fire a round into the window of Whitmer’s home and mail the casing to the news media. On Sept. 5, 2020, Chambers texted to remind Dan “Mission is to kill the governor specifically.“
The jury has now acquitted Daniel Harris and Brandon Caserta and hanged on the verdicts against Adam Fox and Barry Croft Jr. Fox is portrayed as a ringleader of the group and leader of the conspiracy.
The Justice Department is currently able to only point to the plea of Ty Garbin, who admitted his role in the alleged scheme weeks after his arrest last year.
The FBI has long been accused of using entrapment tactics, but the Whitmer case is off the charts. The Whitmer conspiracy was a production written, funded, and largely populated by FBI agents and informants. At every point, FBI literally drove the conspirators and controlled their actions. That is worthy of investigation by Congress, but neither house seems even marginally interested.
These men are certainly not blameless. They were more than just chumps even if they were manipulated by the FBI. Yet, there is an even greater danger when crimes are the creation of our own government. The jury clearly concluded that this was a case where “The serpent beguiled me, and I did eat.”