David Eggert and Kathleen Foody
GRAND RAPIDS (AP) — Prosecutors provided enough evidence to move toward trial for five Michigan men accused of plotting to kidnap the state’s governor, a federal judge ruled Friday in Grand Rapids.
A two-day preliminary hearing this week featured testimony by one of the FBI agents who ran the investigation, relying on confidential informants and undercover agents to thwart the purported scheme to abduct Democratic Gov. Gretchen Whitmer.
U.S. Magistrate Judge Sally Berens said the five men’s cases can go to a grand jury, which will determine whether to issue indictments. That is required for them to face trial.
Berens is also set to consider Friday whether two of the men, Adam Fox and Ty Garbin, should be denied bond ahead of trial. Berens on Tuesday denied bond for three other men charged in the case, saying Kaleb Franks, Daniel Harris and Brandon Caserta repeatedly participated in discussions about abducting Whitmer.
A sixth man, Barry Croft, was separately ordered on Tuesday to be transferred to Michigan from his home state of Delaware.
The preliminary hearing began Tuesday and wrapped up Friday. Agent Richard Trask testified that members of anti-government paramilitary groups from several states discussed abducting Whitmer or Virginia Democratic Gov. Ralph Northam during a June meeting in Ohio.
Fox and Croft were among those who attended that session, according to testimony and federal court documents. But it was not clear if talk of targeting Northam went beyond that meeting, and nothing from the complaint or Trask’s testimony indicated that anyone had been charged with a plot involving Northam.
The men could get up to life in prison if convicted.
Several of their defense attorneys implied during questioning on Tuesday and Friday that their clients were “big talkers” who did not intend to follow through with action.
They also questioned whether the government had proven that the men had formed an agreement and that all of them intended to participate.
“It’s loose talk,” Scott Graham, an attorney for Franks, said. “And again, the point is: What has been done to show you that there was an actual agreement?”
Assistant U.S. Attorney Nils Kessler, though, argued that the group repeatedly took steps to protect their communication by using encrypted chat tools and worried that federal authorities had infiltrated the group.
Individual defendants also participated in surveillance of Whitmer’s northern Michigan home, Kessler said, rejecting defense attorneys’ implication that the men participated in paramilitary group exercises without a specific goal or plan.
“You’re crossing a pretty serious line when you go in the middle of the night in multiple cars and stage up at a gas station and … you go to the house of the sitting governor of the state to go surveil their house at night,” Kessler said.
Berens agreed, saying prosecutors didn’t have to show the men “signed on a dotted line.”
A preliminary hearing is sometimes described as a mini-trial but requires a lower standard of proof — probable cause — than a criminal trial. Berens found that the information presented in testimony and in court documents showed the men had a unified purpose — to kidnap Whitmer — allowing the case to move forward.
“The fact that (the plan) was likely to be unsuccessful or difficult to accomplish” isn’t relevant to decide whether there is probable cause that they made a plan, she said.
Seven other men purportedly linked to an extremist paramilitary group called the Wolverine Watchmen were charged in state court last week with providing material support for terrorist acts and possession of a firearm while committing a felony. Michigan’s attorney general charged an eighth person — a Wisconsin man — in that case on Thursday.