Evidence showing FBI agents and paid informants entrapped two men convicted in an alleged plot to kidnap Gov. Gretchen Whitmer could become public two years after a judge excluded it at trial.

The 6th U.S. Circuit Court of Appeals is considering whether communications between FBI agents, paid informants, and key figures in the alleged plot to kidnap Whitmer in 2020 could have supported claims by Adam Fox and Barry Croft Jr. that they were entrapped, The Associated Press reports.

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During oral arguments in May, defense attorney Timothy Sweeney told the court the text messages and audio recordings excluded from evidence by Judge Robert Jonker during their 2022 trial could have led to a different outcome.

“Trials are about telling your story, giving your narrative trying to persuade,” Sweeny said, according to audio cited by the AP.

“When you’re denied the ability to use the rules of evidence where they benefit you, that is an unfair trial,” he said. “This case needs to be reversed and sent back for a new trial for that reason.”

At least one judge on the three-judge appeals panel seems to agree.

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Judge Joan Larson took issue with the government’s assertion that the evidence is not relevant, with Assistant U.S. Attorney Nils Kessler arguing Fox and Croft discussed kidnapping before the FBI got involved.

“Oh, come on,” Larson said. “Really?”

“Government informants were just pounding” the two, she said, according to the AP.

“Make a plan, make a plan, make a plan – you’re just sitting around. You’re all talk, you’re no action, make a plan,” Larson said. “Surely that’s relevant.”

Prosecutors allege Fox and Croft led a conspiracy involving 14 men to kidnap Whitmer in an effort to spark a civil war during the 2020 election. Of the 14 charged in state and federal court, five were acquitted, and the first trial for Fox and Croft resulted in a mistrial.

Others received reduced sentences for testifying against Fox and Croft during an 11-day retrial in August 2022 that resulted in convictions for felony conspiracy and weapons charges. The two were sentenced in December 2022 – Fox to 16 years in prison, and Croft to more than 19.

The case made national headlines for a variety of reasons, from the focus on Michigan as a battleground state in the 2020 election, to multiple claims of FBI entrapment, to questions about the credibility of FBI agents involved in the case.

FBI agent Richard Trask, the lead federal investigator who testified in court proceedings, was arrested near Kalamazoo in July 2021 after police allege he slammed his wife’s head against a nightstand several times during an argument following a swingers sex party, WJBK reports.

Trask was fired from the FBI in September 2021 and secured a plea deal that allowed him to avoid a 10-year felony. He was sentenced to time served on a misdemeanor assault charge in December 2021.

Ahead of Trask’s firing, prosecutors announced they would not use him as a witness at trial, pointing to social media posts in which he referred to former President Trump as a “douchebag” and “piece of shit,” according to The Detroit News.

Lawyers on both sides of Fox’s and Croft’s appeal met a Monday deadline to submit additional briefs, with defense attorneys Sweeney and Steven Nolder pointing to dozens of examples of excluded evidence. The three-judge panel is also examining potential juror bias, the AP reports.

It’s unclear when the appeals court might release an opinion.