Judge delivers blow to undercover FBI agents in Whitmer kidnap case

To this day, the defendants in the alleged plot to kidnap Gov. Gretchen Whitmer don't know who "Mark" and "Red" really are.

The two undercover FBI agents infiltrated their group, pretending to be one of them, but their real names have been kept secret.

Not for long.

Over the objections of the government, a judge ruled on Thursday that the two FBI agents will have to use their real names when they testify in the upcoming Whitmer kidnap trial.

While the case was largely built in secrecy, with undercover informants and agents spying on the accused, the judge stressed that the trial will be open and transparent.

"Making it crystal clear to the jury and the public that inside the courtroom, nothing is undercover and everything is out in the open will best ensure fairness during trial and eventual acceptance and respect for whatever the jury ultimately decides," Chief U.S. District Judge Robert Jonker wrote.

Under Jonker's ruling, the government will have to provide the names of the FBI witnesses to the defense one day before they testify.

According to court records, “Mark” posed as a resident of the Upper Peninsula, and was tasked by the defendants with — among other things — scouting out the governor’s summer home. The other undercover agent, “Red,” was introduced as a demolitions expert a few weeks before the suspects' 2020 arrests.

According to the government, the defendants had made several efforts to recruit independent bomb makers, and “Red” was offered to the group in that capacity to mitigate the likelihood of an actual bomb attack.

The judge's ruling is a blow to the government, whose case has come under fire over the alleged misbehavior of multiple FBI informants and agents, including two who have been kicked off the case.

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In the case of "Mark" and "Red," the prosecution had asked permission for the two agents to use their pseudonyms during trial and to keep their real names from the defense. The agents are involved in other antiterrorism investigations, prosecutors argued, and disclosing their identities could hinder those investigations and jeopardize their safety.

But the defense argued the defendants have a right to confront their accusers and know who they are. Additionally, they argued, concealing their identities unfairly prevents the defense from performing thorough cross examinations.

The judge agreed.

"At this point in the case, the court believes the balance of interests tips decidedly in favor of openness," Jonker wrote. "It is time for all guise and pretense to end and for the prosecution to present the evidence in an open forum with witnesses testifying using their true identity."

Jonker noted he understood the government's concern over the safety of its agents, but it didn't warrant hiding their real names.

"With respect to risk to witness safety, the court is sympathetic," Jonker wrote, "but also cognizant that such risk is inherent in an investigation model that relies on undercover agents."

The trial is scheduled to start March 8 in U.S. District Court in Grand Rapids.

Prosecutors say four men plotted to kidnap Whitmer out of anger over her pandemic orders and mask mandates, and discussed blowing up a bridge near her vacation home to slow down law enforcement. But the defense argues there was no plan to kidnap the governor, that the defendants were entrapped by the FBI and that any negative comments they made about Whitmer were merely puffery, big talkers blowing off steam.

The prosecution, however, argues the defendants did more than just talk, but actually took acts to carry out their plan, including casing Whitmer's vacation home twice, drawing maps, buying night vision goggles and communicating in secret chats to avoid law enforcement detection.

The prosecution also has two star witnesses: two defendants who previously cut deals, pleaded guilty and plan to testify against the others.

Those who will stand trial are Adam Fox, 38, of Potterville; Daniel Harris, 24, of Lake Orion; Brandon Caserta, 33, of Canton Township, and Barry Croft, 46, of Delaware.

Contact Tresa Baldas: tbaldas@freepress.com

This article originally appeared on Detroit Free Press: Undercover FBI agents must use real names in Whitmer kidnap trial