Alleged kidnap plotters weren't entrapped, prosecutors argue as second trial begins
"This wasn't just talk."
Federal prosecutors began their second attempt Tuesday at convicting two men they say plotted and trained to kidnap Governor Gretchen Whitmer in 2020. A previous jury couldn't reach agreement on the charges against Barry Croft and Adam Fox during a month-long trial that ended in April. Two other men who faced charges in that trial were acquitted.
Tuesday morning in federal court in Grand Rapids, prosecutors took a different approach than in the previous trial, highlighting for jurors the statements from Fox and Croft that began in 2019, before the start of COVID-19 restrictions that provoked protests.
"This case doesn't start because of COVID-19," said Christopher O'Connor, the assistant U.S. attorney who gave the opening statements Tuesday morning. O'Connor was not one of the attorneys who presented for the prosecution at the last trial. His presence on Tuesday was one indication of the different approach this time around.
O'Connor offered a visual projection of the timeline of statements and actions Fox and Croft took dating back to the fall of 2019, including Facebook posts made before the start of the pandemic.
"All it would take to start the revolution is to hang a Governor," read one post from Barry Croft from 2019.
"Adam Fox accepted Barry Croft's call to action," O'Connor said.
Prosecutors presented records showing that Fox and Croft became Facebook friends in September of 2019, before the alleged kidnapping plot took shape.
But defense attorneys said there was nothing illegal about the communications between the two men.
"He has a big mouth, that is for sure," attorney Christopher Gibbons said of Fox, his client in the case. "But the FBI manipulates him."
Gibbons told jurors Fox was essentially homeless and living in the basement of a vacuum repair shop in Grand Rapids when the FBI first took an interest in him.
"Adam Fox has never led a thing in his life," Gibbons said.
In the summer of 2020, Fox was declared the leader of a Michigan militia that was part of a network of militias that Gibbons said was "entirely a federal fabrication."
The leaders of two other statewide militias in the network were both FBI informants, Gibbons told jurors.
"Adams' militia is not real," Gibbons said.
And it was another FBI informant, Dan Chappel — known as "Big Dan" among some of the alleged conspirators in the group — who repeatedly pushed Fox to further plans to kidnap the governor, Gibbons said.
"Big Dan is the beginning, the middle, and the end of this case," Gibbons said.
Chappel was a combat veteran who testified in the first trial that he initially joined a militia group in southeast Michigan to practice shooting exercises. When he heard what the other men in that group, the Wolverine Watchmen, were discussing, he went to the FBI and became an informant. Gibbons told jurors that Chappel eventually met up with Fox, sending him thousands of text messages throughout the course of the investigation.
And Fox, who had no military experience himself, looked up to Chappel, Gibbons said.
"He worships the guy," Gibbons told jurors.
It was Chappel who convinced Fox to take the first trip to visit the governor's vacation home in Elk Rapids in the summer of 2020, Gibbons said. For that trip, Chappel set the date, made the itinerary, and drove the truck from Grand Rapids to Elk Rapids, according to Gibbons. And when Fox got mixed up about where the governor's home actually was, Gibbons said Chappel looked it up for him.
"It's their trip," Gibbons said of the FBI's involvement. "Not Adam. He's not leading anything."
But prosecutors said Chappel was primarily there to listen to the plans, not making them himself.
"You will not hear evidence that the FBI came up with this plan," O'Connor told jurors. "You won't hear Dan proposing to kidnap the governor."
Those plans, O'Connor said, came from Fox and Croft themselves. They discussed it on Facebook messages in the spring of 2020, and at a meeting in Dublin, Ohio on June 6th, 2020.
The discussions, O'Connor said, showed that both Fox and Croft were predisposed to commit the kidnapping before they ever met an informant. And while the FBI used both undercover agents and informants in the case, their involvement didn't amount to entrapment, O'Connor said.
"If the defendant was already willing to do that crime, it's not entrapment," O'Connor said.
The judge in the case, Robert Jonker, told jurors the case could take up to three weeks to present. Prosecutors say they expect to present about 300 pieces of evidence.