Man charged in kidnap plot to remain in Wisconsin
The argument against extraditing a Wisconsin Dells man to Michigan might make for very interesting law school discussion or exam question — or appellate court ruling.
Brian Higgins lost one battle Tuesday in his extradition challenge, but won the right to remain in Wisconsin for the next legal fight over whether and when he must go face charges he helped plot to kidnap Michigan Gov. Gretchen Whitmer.
Columbia County Circuit Judge Todd Hepler denied Higgins’ petition efforts to halt his extradition on the grounds that Whitmer, as the victim, has a conflict of interest that invalidates her request that Higgins be sent to her state.
But Hepler stayed his order to allow Higgins to appeal the ruling on what his attorney called a very novel legal issue.
“It’s important because the minute we allow ethics to be characterized as not important because the overriding case is more important, we’re already at the bottom of the slippery slope,” said Higgins’ attorney, Christopher Van Wagner of Madison.
Higgins, 51, is among more than a dozen men, most from Michigan, charged with conspiracy, supporting terrorism and other counts related to what the FBI calls a thwarted plot to kidnap Whitmer and take her to Wisconsin to be tried for treason. The group was upset with restrictions she ordered to fight the spread of COVID-19.
Authorities say Higgins took part in a nighttime surveillance of Whitmer’s vacation home near Traverse City in September and provided a dash camera recorder and night vision goggles to the mission.
Higgins was free on $10,000 bail after his October arrest until Hepler found that papers were all in order to extradite him to Michigan and ordered him held without bail while he prepared to challenge the extradition.
Van Wagner argued that the paperwork was not valid because Whitmer — as a personal victim — should not have signed the request for Higgins’ extradition, and the taint of doing so infected and invalidated the rest of the process.
Michigan’s conflict of interest law prohibits a public official from using staff, property or funds under her control for personal gain or benefit. Van Wagner cites Whitmer’s interviews in the wake of the arrest explaining the threat the men presented to her and her family.
“There are few more valued things than one’s safety and security,” Van Wagner wrote in a pleading prior to Tuesday’s hearing, noting a very similar provision in Wisconsin law would prohibit Gov. Tony Evers from signing an extradition request for someone charged with victimizing Evers or his family.
An assistant attorney general from Michigan joined Tuesday’s hearing via Zoom to argue that Whitmer’s signature was more ministerial, after others in government had issued a complaint and found probable cause.
States routinely extradite people to face charges in other states, and most defendants don’t even challenge the process. It is considered a summary proceeding, with no room for a defendant to raise claims of innocence until he’s in the charging state.
But the process does allow challenges about the validity and particulars of the paperwork among the two governors involved.
Kepler noted that Wisconsin’s extradition law says the governor may investigate another state’s demand for someone’s arrest and transport, suggesting there is more discretion involved. Van Wagner noted that the state routinely does not extradite its residents to face certain drunken driving charges in neighboring states.
But in the end, Kepler was satisfied that Whitmer’s request was, at least on on its face, lawful and that any further challenge of whether it violated Michigan’s ethics law should be conducted in Michigan.
Van Wagner argued it would be too late to challenge the extradition once his client is taken to Michigan.
“It’s an issue of first impression for sure,” Van Wagner said. “It’s not likely to recur in our lifetime, but it’s here. And there will be no review if it ends here.”
Even if Higgins were to win on appeal, he is likely to ultimately be extradited. Van Wagner has pointed out that Michigan’s laws provide for others to act in place of the the governor when he or she is absent or unable to perform duties, and suggested that if Michigan had recognized Whitmer’s conflict and had someone else begin the extradition process, Higgins could not have challenged it on the same grounds.
Once Hepler granted the stay of extradition pending appeal, Van Wagner said he may, at a future date, again request bail for his client, who has been held without it at the Columbia County Jail.