Whitmer kidnap suspect Adam Fox wants text messages, info about FBI agent in retrial

In the first Gov. Gretchen Whitmer kidnap plot trial, the jury didn't get to hear any statements or text messages that a paid FBI undercover informant known as Big Dan made to the suspects while spying on them.

Nor was the jury allowed to hear about a private side internet security business that an FBI agent ran while investigating the Whitmer case.

Adam Fox is trying to change that this go-around.

The man accused of being the ringleader is facing a retrial, and argues jurors needs to hear what Big Dan said to him and others in text messages and in person so they can understand what he claims really happened — that Big Dan and the FBI ran the whole show and concocted the kidnapping plan.

Fox also wants jurors to know about FBI Special Agent Jayson Chambers' side businesses — a cyber intelligence firm called Exeintel that he started in 2019 and oversaw while investigating the Whitmer case. Fox's lawyer alleges Chambers used the kidnapping case to drum up business for his firm, arguing "the successful disruption of a domestic terrorism plot to kidnap the governor of Michigan would most certainly benefit" his company.

"(A) jury should be permitted to decide if his unauthorized outside business interest impacted the investigation in this case," defense attorney Christopher Gibbons argues in a new court filing, stressing that argument is neither time consuming nor complex to explain to a jury.

"It is simple and it is plausible," Gibbons argues. "In fact, it is more plausible than the argument that a homeless man living in the basement of a vacuum repair shop without a working toilet was the leader of a domestic terrorist cell with a "kill squad” at his command preparing to storm the home of a sitting governor."

Gibbons was referring to Fox.

In a late Tuesday court filing, Fox's lawyer filed multiple motions and exhibits urging the judge to allow him to make arguments that were off-limits in the first trial, in which four men were accused of plotting to kidnap Whitmer out of anger over her COVID-19 orders. Two others pleaded guilty early on and testified against the four at trial. 

Meanwhile, Gibbons now wants to focus more attention on the words and actions of Big Dan — a paid FBI informant who received $54,000 from the FBI for embedding himself in the defendants' militia group for nearly seven months in 2020.

It was Big Dan, the defense alleges, who came up with the idea of casing Whitmer's vacation cottage, who set up the surveillance, scheduled meetings, encouraged people to go, and repeatedly offered prepaid Visa gift cards to Fox, who was broke yet refused the offers.

But the jury didn't get to see any of Big Dan's texts or audio recording transcripts on a big screen in the courtroom, as it did for the suspects, because the prosecutors argued it was hearsay and Chief U.S. District Judge Robert Jonker agreed. Nor was the defense allowed to play any audio recordings of Big Dan talking to their clients.

That can't and shouldn't happen again, Fox's lawyer argues.

"The FBI should not be permitted to hire civilians to do what they cannot do and then be permitted to exclude it from scrutiny in a courtroom by calling it 'hearsay,' " Gibbons argues in his court filing. "The Government should not to be able to hide the work of its informants behind the rules of evidence, whether that work be "good" or "bad." The public and the charged defendant have an interest in transparency."

More: Feds reveal how 'double agent' in Whitmer kidnap plot got himself fired

More: Family reveals inside life of Adam Fox, alleged mastermind in Whitmer kidnapping plot

Big Dan was a key government witness in the government's historic domestic terrorism trial that ended in April with no convictions. Two defendants, 24-year-old Daniel Harris of Lake Orion — the only one who testified at the trial — and  Brandon Caserta, 33, of Canton, were acquitted. The jury deadlocked on the charges against Fox and co-defendant Barry Croft, triggering a mistrial.

A retrial is tentatively scheduled for Aug. 9 in U.S. District Court in Grand Rapids.

During the first trial, Big Dan was among the government's key witnesses, and testified about his role in the case. He told jurors he was a postal worker and former Army sergeant who joined the Wolverine Watchmen militia largely to protect gun rights, but he quickly left the group after hearing members talk about killing police officers. He then went undercover for the FBI.

The defense argues that Big Dan was only trying to build his resume, and entrapped the defendants along the way.

Fox's lawyer did not identify which text messages or statements from Big Dan to Fox he wants admitted — only that he wants to use them. But he did cite some text messages that he wants to show between Big Dan and his FBI handler Chambers. The two exchanged 3,236 messages over a nearly seven-month period in 2020 — or an average of about 16 messages a day.

The defense claims Big Dan and Chambers were both trying to pad their resumes with the Whitmer case.

The government opted not to use Chambers as a witness at trial. Chambers was among four rogue actors in the Whitmer investigation who were kicked off the case over misdeeds that the defense hoped to use to derail the government's case.

Specifically, the defense wanted jurors to know that while Chambers was overseeing the Whitmer case, he was also busy marketing his new security business that he had formed in the summer of 2019 in New Mexico. This was months before he recruited Big Dan, to infiltrate the Wolverine Watchmen,  and more than a year before the Whitmer kidnap suspects were arrested.

The defense sought to tell the jury that Chambers was financially motivated to get arrests in the Whitmer case, arguing that he once tried to to secure a $6-million deal for his private security firm while working another FBI case.

But the judge didn't let the defense bring any of that up at trial.

Prosecutors convinced the judge that Chambers' business and actions had nothing to do with the suspects' crimes, that he never made any money off Exeintel, and that he wasn't  going to be used as a witness anyway.

According to court and public records,  Chambers didn’t dissolve Exeintel LLC until Oct. 29, 2021 — more than one year after the Whitmer kidnap plot suspects had been arrested.

Big Dan, meanwhile took the stand, though the defense was limited as to what it could present to the jury about the informant.

During the  trial, the jury got to see some texts sent from the FBI agent to Big Dan — but Big Dan's responding texts were regarded as inadmissible hearsay.

Among the texts the defense wants the next jury to see are conversations between Big Dan and his handler about the nighttime surveillance of Whitmer's home.

FBI agent: "If Adam is out of town this weekend, we should reschedule the North Trip."

Big Dan: "Good call."

Two days later came another text.

FBI agent: "Try to get as many as possible to go with for Saturday ... Also include a drive-by of location 1."

Big Dan: "Would you want 2 trips or wait til we get more guys."

The next day the FBI agent wrote: "Have him post pictures."

Big Dan: "Roger that."

FBI agent: Is Adam good to be telling people about the nighttime recon a head of time?"

Big Dan: "I'll ask."

According to trial testimony, Fox, Croft, Big Dan and others cased Whitmer's house twice. During one trip, Fox took pictures of a bridge that prosecutors said the suspects planned to blow up to slow down law enforcement during the kidnapping.  Big Dan was with Fox under the bridge, though the defense argues it was Big Dan who drove him to the spot, and suggested Fox get out and take the pictures.

On Sept. 19, 2020, Chambers texted Big Dan to remind him about the photos.

FBI agent: "Hey quick thought. We should bug Adam for the pics from last weekend. Surveillance. Bridge and such."

Big Dan: "Roger that."

Fox's photo of the bridge, and pictures of him looking over a lake through a set of binoculars, were shown to the jury during trial. But the jury could not unanimously agree on any of the charges against Fox.

Prosecutors argued throughout the trial that Fox and his cohorts were armed, ready and willing to carry out a kidnapping of the governor, and that they did more than just talk about it — as the defense had claimed. The government argued that the defendants took actual steps to make it happen, including casing Whitmer's home, drawing up maps, building and testing explosives, and buying night vision goggles.

Gibbons argues that Big Dan was prodded by his handling agent with directions like: "good to suggest a group conversation on wire with Adam as well" and "got to get Adam focused" and "get him in a leadership chat."

Gibbons also argues that while Big Dan did not have independent authority to act on his own, he once texted his handler about a group event: "I'm kind of spearheading this. Is that cool?"

"That is cool, no worries," the FBI agent texted back.

Big Dan's FBI handler also frequently expressed his approval of Dan with texts such as "excellent work," "great job asking relevant questions," awesome" and "#crushingit."

If convicted, Fox and Croft — a Delaware trucker also labeled a leader in the case by prosecutors — faces up to life in prison on terrorism and kidnapping conspiracy charges.

Contact Tresa Baldas: tbaldas@freepress.com.

This article originally appeared on Detroit Free Press: Whitmer kidnap suspect Adam Fox wants text messages in retrial