Harmless potheads, or violent extremists? Second Whitmer kidnap case now in jury's hands

UPDATE: The jury has since convicted Adam Fox and Barry Croft Jr. in the Whitmer kidnapping plot.

With one side trying to save a historic case, the other trying to save their clients, lawyers in the Gov. Gretchen Whitmer kidnap retrial got all riled up as they pitched their arguments one last time to the jury Monday.

They got angry, sarcastic and visibly frustrated — one lawyer almost cried — as they left jurors with a tough question to answer: Were these men merely big-talking potheads set up by the FBI, as the defense claims, or violent militia members who were willing and eager to kidnap the governor, as the prosecution argues.

Hoping to salvage one of the highest-profile domestic terrorism cases in U.S. history, the prosecution left jurors with one final image to remember as they deliberate: a group of men casing the governor's house in the middle of the night.

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'Look at how close they got' to Whitmer

"These defendants were outside a woman's house in the middle of the night with night vision goggles, and guns, and a plan to kidnap her. And they made a bomb. That’s real enough, isn't it?" Assistant U.S. Attorney Nils Kessler said in his closing arguments, which focused heavily on attacking defense claims that the men's actions were just make-believe, and the FBI entrapped them.

"Look at how close they got," Kessler said. "Yards away from her house — where she stayed with her family — casing her house."

Kessler argued repeatedly in U.S. District Court in Grand Rapids that Adam Fox and Barry Croft Jr. were willing participants in the kidnapping scheme and portrayed them as angry militiamen who wanted to set off a second civil war.

"And they wanted to do it long before they set sights on Whitmer," said Kessler. "They didn’t want to just kidnap her. … They wanted to execute her.”

The defense lawyers urged the jury to buy none of it, maintaining their clients were set up by rogue FBI agents hellbent on railroading their clients to push a narrative that wasn't true.

More importantly, argued one defense lawyer, the FBI went after men because they didn't like what they were saying — and the men could go to prison for life because of it.

"This isn’t Russia. This isn’t how our country works. You don’t get to lock them away for things they didn’t actually do," argued Joshua Blanchard, who is representing Delaware trucker Croft Jr.in his second conspiracy trial in Michigan.

'Remember what they said'

Fox and Croft are being retried on charges they plotted to kidnap the governor and schemed to blow up a bridge near her vacation house to slow down the cops.

The first trial in April ended in no convictions. Two men were acquitted and the jury deadlocked on charges against Fox and Croft, whose lawyers have long maintained their clients were set up by rogue FBI agents who enticed them into saying and doing things they wouldn't have otherwise.

Not quite, countered the prosecution, which urged the jury to remember comments that Fox and Croft made in the spring of 2020, before the FBI infiltrated their group.

"Remember what they said ... 'Which governor is going to be dragged off and hung first? ... God knows the governor needs hung. .... Take the governor, we have to do something bold for once in our lives. ... If we can get to her, we can get to you.' "

They were talking about Whitmer, Kessler said, telling jurors that Croft recruited Fox to be part of a national militia movement that involved targeting governors and law enforcement with the hopes of sparking a second civil war.

"Adam Fox is totally on board," Kessler said. "He wants you to believe he’s just some poor sap who got suckered into this."

But he wasn't, Kessler said, arguing that Fox was a willing participant who in the summer of 2020 told an undercover FBI informant the following:

"'We’re gonna kidnap the bitch. We need a seven- to eight-member team. We’re gonna go up to her house and take a look at it ... and we’re going as low-profile tourists, pure Michigan bro.' "

They didn't just talk about it, Kessler said, stressing that Fox, Croft and their cohorts also took overt action to carry out the kidnapping plan, including:

• Fox cased Whitmer's house in the middle of the day to scope out the place and its surroundings, saying as they passed: "That’s it, dude, that’s it. Let's turn around and see it again."

• Fox, Croft and two codefendants cased Whitmer's vacation house a second time at night with a crew of three cars, and Fox gave orders to each person on who would do what. His job was to stay at a boat launch with Croft and wait for a flashing signal from two codefendants, whose job was to find the house. Those codefendants testified at trial, during which the jurors saw video of the men driving in a van at night down Whitmer's street, looking for her house.

• Fox drew a map of the area around Whitmer's house, and took photos of a bridge, where he had stopped to look for a good location to place a bomb.

• Fox held a meeting with militia members in the basement of a vacuum shop, where he lived, to discuss the kidnapping plan, and made everyone leave their phones upstairs because he didn't want anyone to record the meeting or law enforcement to know what they were doing.

• Croft built explosives made of fireworks, BBs and pennies, said the pennies can tear through skin, and is heard telling his daughter at a training exercise: "Honey ... I'm building explosives."

Even if kidnapping Whitmer wasn't a realistic possibility, Kessler said, the threat was still present.

"They would've killed somebody," he said. "How far do you let something like this go?"

'Send this show packing'

Fox was not the terrorist mastermind the prosecution made him out to be, but a broke, pot-smoking loser who was led into a plot to kidnap Whitmer by rogue FBI agents and informants who wanted to use him to advance their careers, Fox's lawyer Christopher Gibbons argued during closing arguments.

"The FBI turned up the heat in early June by putting big talkers together at meetings," Gibbons said, noting that Fox came into contact with numerous undercover FBI informants and agents.

An informant known as Big Dan was particularly overwhelming to Fox, Gibbons argued, saying Big Dan, in constant contact with Fox beginning in early June 2020, tried to get him to join the Wolverine Watchmen militia, and pressed Fox "for an objective."

"Adam's admiration for Dan was so intense it intervened in his relationship with his girlfriend," Gibbons added.

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"The government, in their opening, told you Adam Fox was the leader. Leader of what?" Gibbons asked.

Gibbons closed his 40-minute argument by imploring jurors to grant Fox's freedom nearly two years after he was first arrested.

"Adam Fox was never predisposed to the crime of kidnapping Gov. Whitmer. He talked a big game, but talk is just talk," Gibbons said. "It's time to end this debacle."

'The FBI has told us that the truth doesn’t matter to them'

Croft Jr.'s lawyer also lambasted the government during his closing and urged the jury to acquit, arguing repeatedly that his client was set up by the FBI because they didn't like what he said.

"They want to lock him up in a cage … because they’re afraid of things that came out of his mouth,” attorney Joshua Blanchard told the jury.

Blanchard argued that Croft Jr., a trucker from Delaware, was never part of any plan to kidnap Whitmer, but instead was set up by undercover FBI informants and agents who, he maintains, hatched the scheme and ran the whole show.

Croft, he said, was just a citizen angry with his government who said bad things about politicians. But he never took any action, he said, maintaining it was all talk.

"You don’t have to agree with Barry’s politics — I certainly don’t. But we should all agree that the principles of truth and justice are the foundation that our country was built upon," Blanchard said. "The FBI has told us that the truth doesn’t matter to them … you have the power to put a stop to that today ... you can tell the government that half-truths are not enough."

Feds: Defense is 'absurd ... over the top'

In his rebuttal, the prosecutor — who gets the final word during closing arguments — blasted the defense's entrapment claims, calling them "absurd."

"So everybody's liars? The FBI is corrupt? ... That is so over the top," Assistant U.S. Attorney Nils Kessler said. "And the whole notion that we live in Russia? Do you think this is some fantasy revenge plot? C'mon."

Kessler also defended the credibility of Big Dan, a paid FBI informant who the defense alleges set up the defendants to build a career with the FBI, and called him the "beginning, middle and end" of the FBI's made-up kidnapping plan.

Not quite, countered Kessler, who referred to Big Dan as "a wounded combat veteran who risked everything to go undercover" after hearing members of the militia he had joined talk about killing cops.

"He didn’t do it for the money," Kessler said. "He did it because it was the right thing to do. These guys were wanting to kill law enforcement. And he was not OK with that."

'Who needs a silencer?'

Kessler also told the jury to recall Fox saying: “We need to practice. Get her in her sleep. I’ll get some regular f------ handcuffs so we can practice.”

The group also talked about needing body armor and silencers for the operation.

“Ask yourself, who needs a silencer?” Kessler said. “These guys did. And you know what for."

After Fox’s arrest, the FBI searched his home and found a so-called go bag, filled with the following: duct tape. Rope. Flex cuffs. A knife and a gas mask.

The defense suggested this was camping gear. The prosecutor disagreed.

“When you go camping, you don’t need a gas mask. You don’t need flex cuffs. That’s part of the kidnapping kit,” Kessler said.

'I'm on board man'

Here is how the prosecution laid out its case, one last time, for the jury:

In 2017, Croft appeared on the government's radar when he started talking about starting a revolution. By 2020, Croft launched a call to action: He wanted to kick off his revolution by hanging a governor.

Croft would eventually meet Fox on social media and tell him about his plan. The two set their sights on Whitmer and hatched a plan to kidnap her, with Fox agreeing to recruit members.

"I’m on board man. I’m going to actively begin recruiting, I can’t wait. … we’re going to put together a group to go snatch a motherf-----," Fox tells Croft in an audio message that was played for the jury.

This was before the FBI infiltrated their group. 

In April 2020, government informant Big Dan went undercover for the FBI. 

The defense claims Big Dan manipulated Fox. But the prosecution says Fox was willing and eager to kidnap the governor, and that two weeks before Fox even met Big Dan, he he had talked about a plan to “take the governor … we have to do something bold for once in our lives”

Meeting in the Vac shack

On June 18, 2020, came a Second Amendment rally at the state Capitol, as public outrage over lockdowns and masks built. Fox met members of the Wolverine Watchmen militia at the rally, and invited them back to his place for a meeting to discuss plans to kidnap Whitmer.

It was held in the basement of a vacuum shop in the Grand Rapids area, where Fox lived, and Fox made all the invitees leave their cellphones upstairs, concerned one might be a spy and he didn’t want the session recorded.

Unbeknownst to Fox, Big Dan was wired, and recording the whole thing.

After the vacuum shop meeting, Fox reported back to Croft, told him he had rounded up militia members, and that he would bring them to a meeting in Cambria, Wisconsin, where Croft made the following comments: “Governors are destroying the nation … we need to clean out the rubbish … if we get her in custody, treason is a hanging offense.”

He was referring to Whitmer, and called for “a quick precise grab on that f------ governor. Whitmer. Whitmer.”

The first cottage surveillance: 'That's it dude'

Two weeks after the Wisconsin meeting, Fox told Big Dan the group would kidnap Whitmer.

In late August, Fox and Big Dan headed up to Eagle Rapids to find Whitmer’s lakefront cottage. 

“That’s it, dude. That’s it. Let’s turn around and see it again,” Fox is heard saying.

During that trip, Fox also discovered a boat launch, drove by the police station to see how far it was, then drew a map of the area marked with Elk Rapids Police Department, 3 miles.

In September, the group started ramping up for another training exercise, with Fox saying: “We need a hood for our asset. I have flex cuffs.”

The nighttime surveillance

On Sept. 12, 2020, came the nighttime surveillance. Three cars set out and Fox says: “We already put eyes on our f------ cottage up there. We’re going to take a look tonight. It’s perfect. There’s a boat launch concealed by trees.”

Croft was in the same car as Fox that night. His lawyer argued during trial that Croft didn’t know where he was going.

“Do you think it’s a coincidence that ‘Mr. Let’s-hang-a-governor’ ends up yards away from Gov. Whitmer’s house in the middle of the night? Do you really think he didn’t know where they were going?” Kessler asked the jury.

But Croft did know where he was going, Kessler argued.

"If he didn’t know what they were doing, he may have stayed silent, or said, ‘What are we doing here?' " Kessler said, adding that Croft instead was looking for his accomplices on the other side of a lake as they drove past Whitmer’s house.

"He says, ‘She should be right around where those three lights are,' " Kessler said, referring to Croft’s comments that night. "The defense suggests he might be doing land navigation. But he says 'she.' That’s Governor Whitmer who he’s talking about right there.”

Kessler then asked the jury to consider what Croft said after the nighttime surveillance: "Taking her out by the big lake is the best option."

Bombs. Pennies. A baker Up North.

Fox and Croft are also charged with conspiring to use a weapon of mass destruction to blow up a bridge.

The defense has denied the claim, maintaining the men experimented with benign fireworks in the woods and had no plan to blow anything up.

But the prosecution cited some of Croft’s comments like, “I’m going to blow s--- up. I’m going to terrorize people." It also showed jurors videos of Croft trying to detonate his homemade bombs, but they didn’t work.

That’s when Fox told his cohorts, "I have a baker Up North."

"Baker" is code for bomb builder. In this case, the baker was a man named Matt Keepers, who testified at trial that Fox reached out to him and asked him to join his militia and build a bomb. But the man told the jury he wanted no part in it.

According to the prosecution, the FBI was fearful that the group would obtain explosives on their own, so they placed an undercover agent in the group who pretended to be a bomb builder.

His cover name was Red. He gave the group a menu of explosives and said, “This is what I can build for you.”

A $4,000 bomb

“What kind of price tag are we looking at?” Fox allegedly asks.

"It’s not, 'Whoa, I don’t want to do that,’ ” the prosecutor told the jury. "It’s, 'How much is it going to cost?' "

According to the prosecution, Red said the bomb would cost $4,000. Fox gathered the group on Sept. 13, 2020, and told them they needed to raise $4,000, and another $600 for flash-bangs.

On Oct. 7, Fox and four cohorts traveled to Ypsilanti to make a down payment on the explosives and pick up free military gear that Red promised.

But when they got there, the FBI was waiting with handcuffs and arrested the men. Croft was arrested at a gas station in New Jersey.

Fox had $360 on him when he was arrested. After the sting, Fox shared a jail cell with one of his codefendants, who said Fox told him: "'I’ve got another 600 toward the bomb back at the vac shack."

The FBI searched the vacuum shop, Kessler told the jury, "and that’s exactly what they found" — $600 in cash.

Kessler urged the jury to consider the testimony of Kaleb Franks and Ty Garbin — the two codefendants who pleaded guilty early on and agreed to testify against the others at trial in exchange for leniency.

“They pled guilty. They knew it was real. It wasn’t costume play,” Kessler said before asking the jury to consider Garbin and Franks' outfits on the stand. “And those orange jumpsuits aren’t costume either. They went to prison.”

The jury concluded deliberations for the day and will resume work Tuesday.

Contact Tresa Baldas: tbaldas@freepress.com.

This article originally appeared on Detroit Free Press: Jury deliberations begin in second Whitmer kidnap trial