Analysis: Strategy shift led to convictions in Whitmer kidnapping plot, but door open for appeal
A federal jury in Grand Rapids found two men accused of plotting to kidnap Governor Gretchen Whitmer guilty on all the counts against them on Tuesday. Adam Fox and Barry Croft were on trial for the second time.
For analysis of the verdict and what it could mean for future cases, Michigan Radio Morning Edition host Doug Tribou talked to Matthew Schneider. Schneider is a former U.S. Attorney for the Eastern District of Michigan. He’s now a partner at the law firm Honigman.
Doug Tribou: Croft and Fox were convicted of conspiracy to kidnap and conspiracy to use a weapon of mass destruction. Croft was also convicted of another explosives charge. They could receive life sentences. What stands out to you about the jury’s verdict?
Matthew Schneider: Well, the case here is a bit different from the first one. In the first trial, there were acquittals and a hung jury. And you can obviously tell from how this case was put in by the government that the prosecution really sharpened its swords and changed its strategy approach to handling the case. What they really did is they focused more on the case as it relates to these defendants and what they did in the case prior to ever meeting the FBI.
The defense was that the FBI forced this upon them, there was an entrapment and the FBI was really behind it. But the government took the wind out of the defense's sails by explaining the fact that prior to these defendants ever meeting with an FBI undercover informant, they were already beginning the plot and they had Governor Whitmer in mind and they had violence in mind. That really rebutted the defense from the get-go.
DT: The attorneys for Croft and Fox claimed the men were just “big talkers” goaded into action by undercover FBI agents, as you mentioned. In cases based on FBI investigations, that debate over “was this entrapment” is often central to a trial. If agents believe there’s a dangerous plot unfolding, how is that decision made about the dividing line between making an arrest to keep people safe - in this case Gov. Whitmer - and gathering evidence that will eventually hold up in court?
MS: That's an excellent point, because I think that it is central to perhaps why we had a mistrial in the first place. Maybe if they would have gathered additional evidence, the case would have been stronger. The jury would have been more convinced than the two acquitted defendants. But then again, there are often reasons for officer safety. And why do you have to take down the case? Might not be precisely what you want to do it at the time, but nobody wants to get hurt in an investigation. And the government here felt that they had to do it then. But I think they'll always be second guessing on this and future cases about the appropriate time to end the investigation and begin a prosecution.
"The government took the wind out of the defense's sails by explaining the fact that prior to these defendants ever meeting with an FBI undercover informant, they were already beginning the plot, and they had Governor Whitmer in mind, and they had violence in mind."Former U.S. Attorney Matthew Schneider
DT: Do you see any avenue for Croft and Fox to make an appeal of their convictions?
MS: Yes, they certainly do [have an argument]. As a matter of fact, one of the most serious things that happened in this case was the fact that the judge severely limited the cross-examination of the defendants when they tried to cross-examine the cooperating witnesses in the case.
I recognize that the judge does have extraordinary power, and the federal rules give him that because he can control the mode and order of cross-examination and judges can set time limits. But in this particular case, the defense set a very good record out which explained the fact that they didn't have time to question the cooperators about their prior criminal history or their plea agreement, as to why they were testifying in the first place.
I think a court of appeals will look at that with with great concern. And that certainly is a troubling issue and a court of appeals might even find that it's reversible.
DT: In a current terrorism threat summary, the U.S. Department of Homeland Security says in this midterm election year, “calls for violence by domestic violent extremists directed at democratic institutions, political candidates, party offices, election events, and election workers will likely increase.” Based on that, it seems possible we - sadly - could see more cases like this. How might this trial change the handling of these types of investigations?
MS: Well, I think those statistics are a little bit off because what you're saying is it's likely to increase, but it already has. If you look at the stats from the U.S. Capitol Police, the acts of violence that are directed toward members of Congress have tripled in the last year. And it's quite plain that acts of violence and threats to members of Congress, members of state legislatures and elected officials have increased across the board.
I think we see now that the government is aware of that and willing to take action against these types of cases to bring people to justice. And it's a trickle effect. It takes time. It takes time for people to realize if they do this, they will eventually get arrested and they will be prosecuted. In this case, for example, there is a very heavy prison sentence that will go along with it.
DT: There are still two state-level trials yet to come with other defendants in Antrim and Jackson counties. Do you expect this result to have any effect on those cases?
MS: It shouldn't, just like the first jury trial in this case did not have an effect because the jury pool and the jurors who were empaneled are told that there were proceedings before it. But they are also cautioned that you're only to look at the facts and evidence in this case in front of you.
I've found in my many years of experience in trying jury trials that that is the case. Jurors look at the facts and evidence in front of them and what is presented to them, and they're not entirely concerned with what happened in other cases.
Editor's note: Quotes in this article have been edited for length and clarity. You can hear the full interview near the top of this page.