FBI Deserves Criticism Over Kidnapping Plot Against Michigan Governor, But Not All Critics Have it Right -- Part 1

Two very interesting articles out on Saturday with different opinions and points of view on the subject of the FBI’s “involvement” in the kidnapping plot against Michigan Governor Gretchen Whitmer.

Andy McCarthy, writing in the National Review makes the point that anytime federal agents investigate criminal activity while attempting to prevent a crime from being committed, there will be allegations of “entrapment” made by those charged. It goes along with having agents and informants on the “inside” which is the only way that the crime being planned can be prevented.

Glenn Greenwald focuses on what he describes as the history of the FBI in manufacturing plots to commit violence for the purpose of luring suspects to participate any time it has a suspicion about potentially hostile intentions of those persons. There is much history in that respect with regard to “radicalized” Islamists after 9/11. Whether those investigations were justified — with the benefit of 20-20 hindsight — is a matter open to debate.

Both of my descriptions of these articles are vast oversimplifications of what each author has written. Both articles were prompted by the extensive story produced by Buzzfeednews last week looking more closely at the timeline of events and participants in the Whitmer kidnapping case.

Much of what I write below is based on alleged facts as described in the Buzzfeed story, as well as various court records and other documents that are linked in the Buzzfeed story.

For clarity regarding what is set forth below, Confidential Human Source 2 (“CHS2”) is “Dan”, described as an Iraq War veteran who joined the “Wolverine Watchmen” in or around March 2020 and shortly thereafter reported to a local police friend concerns about WW maybe targeting police for violence. Dan was later contacted by the FBI and agreed to be a CHS. He was given the code name “Thor”.

The FBI Case Agent, Henrik Impola, testified in court that Dan was not cooperating because he had been arrested on other charges, he was not cooperating initially for financial gain, and he had never before been a CHS for the FBI or any other law enforcement agency. The initial payments made to Dan by the FBI were to cover expenses he was incurring out of his own pocket, to assist him in purchasing a car he could use for traveling around the state that his assistance required, to compensate him for time he took off from work to assist in the investigation, and later for assistance in relocating because of threats made against his life.

I have not finished reading all of Impola’s testimony. But the parts I have read lead me to suspect I would not have liked him as my witness when I was an AUSA. Again this is just from words on a page, but his manner in answering questions is too “preachy” and “know-if-all”. He has an expansive explanation for every point, and every detail is made to fit within a broader narrative. It all sounds like an exercise in construction, rather than a recitation of events in a timeline. He has an editorial view about what was meant by everything that happened. The nature of such testimony is that he’s simply making much of it up with the expectation that those listening will accept it as true simply because of who he is. His approach fails to account for any possibility that his commentary might be met with skepticism.

The Wolverine Watchmen (WW) is a fancy-sounding name for a group that seems to never have consistently included more than 8-10 people. Impola testified that the WW was not even on the FBI radar until Dan reported his concerns about them targeting law enforcement officers for violence. Impola testified that there 150 followers of WW’s Facebook page, and claimed on the witness stand that the WW had “vetted” and admitted approximately 40-50 members, but I can’t find anything other than his testimony that supports this claim.

According to Impola, WW was started in November 2019 by Joe Morrison, age 25. As with the rest of the WW, Morrison had no military training or experience but he enjoyed running around rural Michigan with assault-style rifles. As a group of 2A enthusiasts who liked to run around in the woods and shoot things, the WW members were drawn to the background and training of Dan who, during his time in the Army, spent nearly two months in Sadr City at the height of the fighting there. That is how Dan was quickly “elevated” to be the “second-in-command” of the WW behind Morrison.

As for the point made many times that Dan ended up as the “leader” of WW — and therefore must have been leading everyone else into the Whitmer plot — the facts are that Morrison told the group in late July that he was stepping back and reduced his participation because or marital problems over what he was doing. Dan became the de facto leader by virtue of Morrison’s withdrawal. Again — not part of some FBI plan.

CHS1 is Stephen Robeson. Robeson seems to be mostly a fringe participant who had no actual role in the Whitmer kidnapping plot. As noted below, it’s unclear if Robeson — at any point — was acting on the directions of the FBA Agents running the investigation.

What Robeson clearly did was organize the June 6 meeting in Dublin, Ohio of individuals and groups from multiple states. From this meeting, some unaffiliated groups came into contact with each other, while others who had only a slight affiliation created more solid ties. Such was the case between the WW and Adam Fox, both from Michigan. Fox and the WW first crossed paths during a rally at the Michigan State Capitol building on April 30, 2020, but there was no actual connection between the two until after the June 6 meeting.

At that meeting, Fox was bestowed with the title “Leader” of “Michigan Regiment of the Second Continental Army.” The comedy scripts almost write themselves.

On June 14, members of WW tried to call Fox but the gunfire in the background from “training exercises” on Fox’s end was so loud they could not hear him, and the WW decided to put off the call until later. Dan volunteered to make the later call to Fox — and then raced to the FBI office in Flint, Michigan so the call could be recorded.

Beginning with that call, Fox and the WW began to come together into one group — but the “merging” was not without controversy and disagreement.  Some in the WW thought Fox and his ideas were crazy. But Dan was the hub linking the two sides, and he worked hard to keep the group together.

It is these efforts by Dan that warrant the most scrutiny in terms of whether his conduct crossed the line into possible “entrapment.”

Let’s return to what Buzzfeed story tells us about how the Whitmer investigation began, and one or more unsupported conclusions that are drawn from the description Buzzfeed has given, based largely on claims made by the attorneys for the defendants:

A longtime government informant from Wisconsin, for example, helped organize a series of meetings around the country where many of the alleged plotters first met one another and the earliest notions of a plan took root, some of those people say. The Wisconsin informant even paid for some hotel rooms and food as an incentive to get people to come.

Notice anything missing? Where is the claim that Robeson was directed by the FBI to organize these meetings, particularly the one in Dublin, Ohio? I’m not saying he wasn’t — I’m merely pointing out that the Buzzfeed article does not say he was. A lot of assumptions about the FBI having “entrapped” people are built upon that claim that Robeson, as an FBI CHS organized this first meeting when there isn’t any evidence that I’ve yet seen that Robeson did that at the behest of the FBI.

The testimony by Agent Impola does not suggest in any way that the FBI worked through Robeson to arrange the Dublin, Ohio meeting. Agent Impola describes it as a “National Militia Conference.” He testified that he was aware of the conference — as were several other FBI offices in multiple states — based on information from the FBI’s “Domestic Terrorism Operations Center” in Washington.

It might very well be true that the FBI was aware the Robeson was arranging the June 6 meeting in Dublin, Ohio. But unless Robeson did so at the direction of the FBI agents, his actions are not attributable to the FBI regardless of his status as a CHS. For legal purposes, he’s an agent of the government when he is acting based on directions given to him by representatives of the government. When he acts on his own, even if he is a CHS, he does not become an agent of the government.

What is also true is that no one from the WW, including Dan, attended the Dublin meeting. Morrison was invited, but the group opted to have no one attend. They learned about the substance of the discussions at the Dublin meeting from conversations and communications with others who were there. That is how they learned of Adam Fox’s new title — ”Leader” of “Michigan Regiment of the Second Continental Army.”

Another unconfirmed claim reported as fact is that Robeson is a “longtime government informant.” Where does that come from?

He did testify for the prosecution in 1985 — 36 years ago — in a motorcycle gang murder and arson case. Robeson was 22 years old and testified that the main defendant had implicated himself in the murder when they shared a cell together after the defendant’s arrest. The Buzzfeed author links to an article from the Wisconsin State Journal newspaper dated March 5, 1985, that covered Robeson’s testimony.

But the Buzzfeed story then goes on to say:

According to court records, Robey had helped the government put people away at least three times in the 1980s and again in 2005, when he provided information about a farmer who was seeking to pay someone to kill a romantic rival or leave him “crippled for life.”

Those links are instructive in the ways reporters misrepresent facts either intentionally or out of ignorance, i.e., “According to court records…”

One of the two links takes you to an appeals court opinion in a Wisconsin case titled “State v. Heffner” from 1987 — 34 years ago. Does the “court record” say Robeson “helped the government put people away at least three times”? No. Not even close. In fact, it says the opposite.

Robeson was a fellow inmate while Heffner was awaiting trial on an assault charge. Heffner discussed trial strategy with Robeson, which Robeson communicated to the prosecution — strategy, not whether Heffner was guilty or innocent. Robeson did not testify in the case against Heffner.

After Heffner was convicted, realizing that Robeson had assisted the prosecution to prepare, Heffner asked the Court to order the prosecution to turn over all records regarding Robeson. Heffner claimed Robeson had twice before gained the confidence of fellow inmates and then provided information to the prosecution in those cases. Heffner claimed Robeson had an ongoing relationship with the state that made him the state’s agent.

But Heffner’s attorney and investigator questioned numerous police and prosecution officials and none of them confirmed the claims that Robeson was a state agent or had an ongoing relationship.

The court denied Heffner’s demand for discovery stating there was no evidence suggesting that Heffner’s claims about Robeson were true.

The trial court noted that appellant had been given everything the district attorney had relative to Robeson, that he could talk to the police officers and employees in the district attorney's office and if he could come up with any facts to substantiate his claim that Robeson was an agent of the state, he could have a hearing.

Appellant's investigator then interviewed Detectives John Summers and Merlin Ziegler, deputy district attorney Steven Tinker, and Sergeant Mark Hamele. None of these persons could substantiate appellant's theory that Robeson had an on-going relationship with the state as its agent. The trial court denied the motion for discovery.

We conclude that the trial court properly exercised its discretion in denying the motion for discovery. Appellant was unable to uncover any facts supporting his theory.

“Court records” do not establish that Robeson helped the government put people away three times in the 1980s. One defendant claimed that was the case because Robeson gave the prosecution information about how that defendant intended to defend himself at trial, putting that defendant at a tactical disadvantage. Robeson had no involvement with the facts or testimony in that case. The trial court and appeals court determined there wasn’t any evidence that was true.

Yet with the same information in hand, the Buzzfeed authors wrote: “Robey had helped the government put people away at least three times….”

Where is that established as a FACT anywhere?

It’s not been.

The second link about Robeson being a “longtime government informant” involves an episode in 2005. The link is to another newspaper article, this time from the Leader-Telegram of Eau Claire, Wisconsin.

“A 40 year old rural Boyceville man is accused of offering a hay baler to have another Dunn County man killed because he had romantic feelings for the man’s girlfriend.

Stephen J. Robeson contacted the Dunn County to report that Lemon told Robeson that he had romantic feelings for the woman who was involved with Andrew W. Dean. Robeson works for Lemon on the Lemon family farm.

And undercover agent working with the West Central Drug Task Force contacted Lemon…. Lemon told him he would like to see Dean “crippled for life” or “put out of his misery”…. Lemon gave the agent a .44 caliber hand gun from his home and promised to give him the hay baler in exchange for taking care of Dean.

That’s it — that’s the sum total of all the reported “facts” about Robeson being a “longtime government informant.” Unproven allegations made by one defendant from pre-1987, and one episode where he tipped off the police that his boss is looking to have a romantic rival killed.

This is not to say that Robeson has not been providing information to the FBI and other law enforcement agencies for years — including in connection with the Whitmer kidnapping plot. Once a person begins to travel down that road and obtains financial benefits from doing so, they tend to come back whenever an opportunity presents itself.

This brings me back to the Dublin, Ohio meeting on June 6 organized by Robeson. Robeson was able to organize this meeting because he had at some point in the past formed and led the group called the “Wisconsin Patriot Three Percenters.”

Until there is confirmation from the discovery or a court that Robeson arranged the June 6 meeting AT THE DIRECTION of the FBI, it is just as likely that he did that on his own. He might very well have considered that he might get the FBI interested in knowing it was happening after he had it planned.

But in considering whether this was a meeting engineered by the FBI through an informant, the calendar is important. The meeting happens on June 6, 2020. That is 12 days after the death of George Floyd and in the middle of riots breaking out in major cities from coast to coast. That seems like an odd time for the FBI to spend manpower and resources on a gathering in Ohio of “Patriot” and “Second Amendment Militia” groups from multiple states. I’m not saying it didn’t happen. But it’s another one of those “claims” that likely warrant confirmation before we place too much confidence in it being a “fact.”

I have already posted one lengthy criticism of the investigation and prosecution on Twitter. Specifically, Dan — the Iraq War veteran— testified in a probable cause hearing that as of August 9 the WW and Fox had not yet agreed to kidnap Gov. Whitmer.

The problem with this admission for the prosecution is that the defendants are charged with a conspiracy to kidnap Governor Whitmer, and the indictment says that conspiracy began as early as June 6 — more than two months before August 9.

If there was no agreement to kidnap Gov. Whitmer as late as August 9, as Dan testified, then there was no criminal conspiracy yet formed as late as August 9. A criminal conspiracy only comes into existence upon the agreement to commit one or more specific crimes. The government might still argue that other evidence supports the inference of the existence of an agreement to kidnap the Governor earlier than August 9 and Dan’s testimony was wrong as a matter of law and fact — which might be the case — but the testimony about the status of the plot as of August 9 by Dan will be difficult for the prosecution to get away from.

The legal implications are that “overt acts” as charged in the indictment must be “in furtherance” of the charged conspiracy — not some other crime. If there was no conspiracy as of August 9, then any acts taking place prior to August 9 are not “overt acts”. Yet the indictment alleges several actions by named defendants that happened between June 6 and August 9, and calls them “overt acts.” Those are now problematic.

Further, the Whitmer conspiracy is the only crime charged against four of the defendants. By moving the timeline closer to the date everyone was arrested — October 7 — more of the actions of the informants and undercover agents become open to claims of entrapment.

The crime of “conspiracy” is an “inchoate” offense — a type of crime completed by taking a punishable step towards the commission of another crime.  “Attempt”, “conspiracy”, and “solicitation” are “inchoate” offenses.

The crime of conspiracy is complete — a defendant can be charged, convicted, and sentenced — upon proof of an agreement and a single overt act in furtherance of that agreement. Anything that happens AFTER those two things is just more evidence of a crime that has already been committed.

You cannot “entrap” someone into a crime they have already committed. Anything done by Dan or Robeson after a conspiracy was formed and an overt act taken is not “entrapment “ for that reason.

In Part 2 I’ll take a closer look at Glenn Greenwald’s story and some of the less than well-supported claims that he makes in trying to draw analogies between the Whitmer kidnapping plot and January 6.

One final point — Special Agents Impola and the now notorious Trask (arrested for domestic violence) worked out of the FBI’s Flint Michigan Resident Agency. The Flint RA is part of the Detroit Field Office. The Detroit FO has 11 RAs like Flint which, in my experience, is a very large number.

The Flint RA covered only three Michigan counties — Genesee, Lapeer, and Shiawassee. The total population of those three counties is under 600,000. Based on my experience, I would guess the Flint RA of the FBI had fewer than 15 FBI Agents total assigned to it. As a GENERAL rule — and there are certainly exceptions everywhere — the “best and brightest” in the FBI Field Offices are not off in the RAs. Because the number of agents is so limited, those who are assigned to small RAs like Flint tend to be a “jack-of-all-trades” rather than becoming good at one particular thing.

There is no question that the Detroit Field Office upper management would have been kept fully in the loop on any investigation that had the Governor of a state as a possible victim. An RA like Flint is not where “big” cases in the FBI get worked.