BELLAIRE — Barely 48 hours after a judge ruled the public has a right to see files in the case against five men accused of supporting a plot to kidnap Michigan’s governor, the lead prosecutor is seeking a protective order to prohibit disclosure.
William Rollstin, with the Michigan Attorney General’s office, offered no objection during a pre-trial hearing Monday when 13th Circuit Court Judge Kevin Elsenheimer polled prosecutors and defense attorneys about opening the files.
“(T)he files in this case are closed, pursuant to order of Judge Stepka in district court,” Elsenheimer said. “Is there anyone who objects to the files being open here in Antrim County, in this case? Starting with the people.”
“Not on behalf of the People, Judge,” Rollstin said.
Defense attorneys for Shawn Fix, Brian Higgins, Eric Molitor, Michael Null and William Null also offered no objection.
Wednesday, however, Rollstin filed a motion in the 13th Circuit Court, asking the judge to prohibit disclosure of all discovery materials.
Court files in criminal cases may include charges filed against defendants, motions and briefs filed by prosecutors and defense attorneys, orders signed by a judge, notices of hearings, material the court agrees can be shown at trial as evidence — also called exhibits — and all written, physical or digital evidence, whether it will be shown in court or not — also called discovery.
It is this later, and arguably largest, category of case information the state is seeking, for now at least, to keep out of the public eye.
“This case, and the related state and federal cases, have received national and international media attention, and as a result, it may be difficult to find jurors who have not experienced any exposure to this case,” Rollstin said in his motion.
“Disclosure of discovery materials to reporters and other individuals risks unnecessarily tainting the pool of prospective jurors, jeopardizing every defendant’s right to a fair and impartial trial,” Rollstin said.
Rollstin also said disclosure of discovery materials would expose victims and witnesses to the risk of harm, harassment, intimidation or embarrassment, if their personal information was made public.
“Also, given that this case is the result of a domestic terrorism investigation by the Federal Bureau of Investigation and the Michigan State Police, there is need for secrecy regarding the identity of informants and law enforcement investigative techniques,” Rollstin said.
Fix, Molitor and the Null brothers, all of Michigan, are charged with one count each of providing material support or resources for an act of terrorism and one count each of possession of a firearm during the commission of a felony.
Higgins, a resident of Wisconsin, is charged with one count of providing material support or resources for an act of terrorism.
All have pleaded not guilty or stood mute to the charges.
Elsenheimer has yet to schedule a hearing or rule on Rollstin’s motion, and the Record-Eagle has filed a Freedom of Information Act request with the Attorney General’s office requesting all discovery materials, citing public interest in the case.
That request is pending.
On Tuesday, the Record-Eagle reported that, just prior to the Elsenheimer decision that the case would be open to the public, freelance videographer Eric VanDussen filed a motion to intervene in the case, seeking to have the district court’s protective order set aside.
VanDussen, as part of his plan to make a documentary film about extremism in Michigan, had on Jan. 8 conducted an in-person interview with Molitor, who told VanDussen, on camera, he had voluminous discovery materials he wanted to share but could not because of the district court’s protective order.
Molitor’s Cadillac-based attorney, William Barnett, declined to comment Thursday, citing the ongoing nature of the case.
VanDussen’s motion to intervene appeared to be moot as soon as Judge Elsenheimer opened the file to the public. The judge made that status official just after noon on Thursday, when he dismissed VanDussen’s motion.
“The court, however, has conditionally lifted the Protective Orders with regard to the court files,” Elsenheimer said. “Therefore, the Motion to Intervene and to Vacate the Hon. Michael S. Stepka’s Protective Orders filed by VanDussen is dismissed as moot.”
After Rollstin sought the protective order, however, VanDussen on Thursday filed another motion to intervene, with an objection to Rollstin’s motion for a protective order, calling it “overbroad” and “vague.”
VanDussen, who is not an attorney, is seeking to be allowed to argue his case in court on his own behalf.
The protective order, if granted, likely would not mention that some of the discovery materials the state is trying to seal were previously shown in open court during the preliminary exam, held late last summer in Traverse City.
VanDussen called Rollstin’s fair trial argument “disingenuous,” citing a Dec. 7, 2022, press release from Attorney General Dana Nessel’s office, publicly identifying the defendants as “Wolverine Watchmen.”
The press release from her office announced the bind-over to circuit court of felony charges against the men, under the heading, “Wolverine Watchmen Bound Over in Antrim County,” although it did not include any other references to the extremist militia group.
In September, FBI Special Agent Henrik Impola, a key prosecution witness, tested in Traverse City during a preliminary hearing that the men were not members of the Wolverine Watchmen.
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