GOVERNOR KIDNAP CASE: State AG seeks to keep evidence under wraps

Dec. 16—BELLAIRE — A large volume of information collected by federal agents in the investigation into the Gov. Gretchen Whitmer kidnap plot is no longer under a judge's protective order.

That action prompted a state prosecutor to step in and ask defense attorneys to return multiple hard drives.

"As the Court's protective order is no longer in effect, I write to request the return of the hard drives that contained the discovery," William Rollstin, lead prosecutor in the Antrim County case, said in a Dec. 13 email to defense attorneys.

"The return of the hard drives will ensure safekeeping of the PII and significantly limit your liability for any claims of unauthorized distribution," Rollstin said in the email, in which he offers to send a courier to attorneys' offices to pick up the material.

PII refers to personal identifying information and the email acknowledges these discovery materials shared with the defense are unredacted.

Voluminous information stored on the hard drives could include personal identifying information from the five former Antrim County defendants, plus nine former defendants charged in other courts, at least 16 unindicted co-conspirators and an unknown number of interviewees, court records show.

The email was addressed to attorneys representing the defendants in the case — Shawn Fix, Brian Higgins, Eric Molitor, Michael Null and William Null — and copied to FBI agent Henrik Impola, the attorney general's prosecution team and attorney Danielle Hagaman-Clark, chief of the AG's criminal justice bureau.

Former defendants faced state terrorism-related charges in Antrim County, after prosecutors accused them of participating in a plot to kidnap Whitmer from her summer home near Elk Rapids.

Fix and Higgins accepted plea agreements with prosecutors and have been sentenced; Molitor and the Null brothers were found not guilty by a jury.

The email was provided to the Record-Eagle by a source who declined to be identified.

Defense attorneys William Barnett, Nichole Dougherty, Michael Naughton, Damian Nunzio and Thomas Siver did not return calls or emails seeking comment, and a spokesperson for Michigan Attorney General Dana Nessel's office said return of the data was appropriate.

"Discovery in this matter was quite large, terabytes of digital files," AG Press Secretary Danny Wimmer said Friday in an email to the Record-Eagle. "The protective order allowed the Department of Attorney General to provide discovery to defense counsel in a timely fashion."

Estimates stated in court put the size of the files at 8 to 12 terabytes — which AT&T's data calculator shows is equal to the storage needed to send and receive about 320,000 emails or watch about 2,800 hours of high-definition video.

"As the litigation concluded," Wimmer said, "it is appropriate for the Department to seek the return of the discovery so as to protect the personal identifying information of people that were interviewed during the investigation."

Rollstin, in his email, mentions potential liability of defense attorneys, although the AG's office did not respond to questions from the Record-Eagle regarding what specific personal information is contained in the hard drives or whether the AG's office could bear any liability if the information is made public.

During the Antrim County trial, federal officers testified about how cell phones belonging to the five former defendants were either voluntarily provided to law enforcement or acquired with search warrants.

Whether the entire contents of these phones were then copied as part of the investigation is unknown, although trial testimony by FBI Agent Impola and others drew heavily on emails, text messages, social media posts and videos contained in these devices.

Discovery is a legal term for the formal process of exchanging information between parties about witnesses and evidence that will be presented at trial. Sharing discovery allows two opposing sides to know and prepare for the evidence that will be presented to a judge or jury.

Exhibits are often a portion of this discovery, and are the evidence presented in court during a preliminary hearing, trial, or other court action.

In the Antrim County criminal case, these materials have been subject to years of legal wrangling, involving two different courts and three different judges.

To recap: In 2022, 86th Circuit Court Judge Michael Stepka bound the case over for trial, telling reporters they could request copies of exhibits, which had already been shown in open court, by filling out a form available on the court's website.

Court proceedings, and the exhibits and testimony shared during those proceedings, are generally considered public.

But, after conferring with a representative from the state court administrator's office, Stepka said the exhibits were not court documents, were not controlled by the court, but were rather the property of the attorneys who filed them.

Then-state prosecutor, Assistant Attorney General Sunita Doddamani, said during a preliminary hearing that reporters who wanted access to the exhibits should file a Freedom of Information Act request.

"And, under the FOIA law, because they're public at this point, we could release them," Doddamani, who now works for the U.S. Department of Justice, told Judge Stepka.

The Record-Eagle was among those who filed FOIA requests, as did freelance videographer Eric VanDussen, these requests were denied in whole or in part and VanDussen filed suit.

In October 2022, Stepka signed a protective order barring release of the material.

In January, state prosecutors asked a 13th Circuit Court judge to continue the lower court's order until after the trial.

Prosecutors argued releasing discovery material to the public could taint the jury pool and infringe on fair trial rights — an argument Nessel repeated during an April visit to Traverse City for an open government seminar.

"We don't know what the judge is going to rule as admissible," Nessel said at the event, expressing concern that "evidence spread all over the media" could compromise a defendant's right to a fair trial.

She characterized her actions in withholding what is considered public information "as postponing the release out of consideration of everyone's due process rights."

"Give me a break," Nessel said then. "We just want to get this right."

Judge Kevin Elsenheimer said he would not be continuing Stepka's protective order in 13th Circuit Court. Rollstin, who by then had replaced Doddamani as lead prosecutor, initially offered no objection.

Two days later, however, the prosecution changed course, filed a motion for a protective order, weeks passed and 13th Circuit Court Judge Charles Hamlyn became the case's presiding judge.

Hamlyn ruled a blanket protective order was excessive, a limited protective order more logical. "It will not include things that are already in the public domain.

"If it has been made public, it is then public. . . you can't un-ring the bell," Hamlyn said.

In August, videographer VanDussen prevailed in his FOIA lawsuit and obtained copies of exhibits from the AG's office. In September, the three men who went to trial were found not guilty by a jury. Then, on Dec. 7, the two remaining Antrim County defendants, were sentenced.

Higgins pleaded guilty to attempted providing material support for a terrorist act and was sentenced to time served — 217 days in jail — and three years of probation.

Fix pleaded guilty to providing material support for a terrorist act and was sentenced to 36 months in state prison.

Judge Hamlyn, at the sentencing hearing, ended the protective order, despite concerns expressed by Rollstin.

"At the conclusion of the sentence today, the case will be done," Hamlyn said. "And so that means the protective order will no longer exist."

Rollstin asked Hamlyn for direction, stating that nothing had yet been filed with the Court of Appeals, so it was premature to ask that court for a new protective order.

"As soon as the sentencing is done, this court's jurisdiction ends," Hamlyn said.

Six days later, Rollstin asked defense attorneys for the hard drives back.

Michigan Rules of Professional Conduct state that attorneys should preserve complete records of account funds and other property for five years after representation of a client is terminated.

The Michigan Bar Association requires attorney members to have record retention policies, and complex criminal or civil case files are generally retained longer than simple files, such as a contested traffic ticket, although the MBA lists no specific time period requirements.

An MBA ethics opinion, known as R-5, states that attorneys should retain files which may still be necessary to defend a client's position, which are not otherwise readily available to the client or which the client may reasonably expect the attorney to preserve.

These physical records, the MBA says, belong to the attorney, but the client is entitled to have access to the information which must be made available to them for copying or inspection.

Rollstin, in his email to defense attorneys, asked that the hard drives be returned before the holidays. The AG's office did not address questions about whether any defense attorneys had responded.