The five men who are accused of scheming to abduct Michigan's governor lost their bid to have the case thrown out.
The defendants argued that they were pushed into the alleged conspiracy by the FBI and their confidential sources in order to get them to cooperate.
Judge Robert A. Jonker stated that the defendants failed to show proof of their guilt before trial. Jonker said that it is rare for cases to be dismissed in this way, and that the question of entrapment should be decided by a jury.
The case against the five federal defendants can now proceed to trial after his denial, where the increasingly bitter disagreements between prosecutors and defense attorneys over matters of fact can be decided.
Attorneys for the five defendants in the federal case, which also includes weapons of mass destruction and weapons charges, could not be reached for comment, although some had previously indicated they did not expect their dismissal motion to prevail. A sixth man is expected to testify for the government. The men are in Michigan state court.
The high-profile case has taken on greater significance among those who see the defendants as examples of the rising threat of domestic terrorism on one side and those who see the prosecution as a waste of time. Political froth has begun flowing back into the legal arena.
The attorney for the accused asked for permission to raise questions about the FBI's role in the Capitol insurgency, pointing to allegations made by Sen. Ted Cruz and journalist Glenn Greenwald.
The fact remains that legislators are demanding accountability from the FBI, according to the attorney, Scott Graham.
In their response, prosecutors called the motion irrelevant and said they would ask the jury to decide the case.
The defense demanded immunity for potential witnesses at the trial, including three FBI agents and an FBI confidential source, so that they would not have to invoke their Fifth Amendment rights against self-incrimination.
In the past few months, the Justice Department said it wouldn't call three FBI agents from the investigation to testify in the wake of allegations of possible wrongdoing. The agents will not invoke the Fifth Amendment if called as witnesses, according to prosecutors.
The government attorneys said that Stephen Robeson is another story. They described him as a double agent and in their Monday filing said he might invoke the Fifth if called.
They said that Robeson didn't tell his FBI handler about a recording of suspects, that he tried to destroy recordings and that he called the man who was arrested to warn him that he was wanted by the government.
Robeson was indicted for a firearm charge in federal court last March and later pleaded guilty to a fraud charge in Wisconsin state court. Both of those cases took place while Robeson was working for the FBI.
If defendants call Robeson as a trial witness, prosecutors will refuse to grant him immunity out of concern that he could false testify that he tried to entrap the five men accused in the conspiracy. If that were to happen, the government would have no recourse but to try Steve for perjury.
Regardless of whether Robeson or the three FBI agents are called as witnesses at trial, the defense's primary goal is to convince the jury that their clients were trapped by a government desperate to make a case.
Jonker said that they would have to prove that the government caused or persuaded the defendants to act.
The second part of the case may be a challenge given the extensive library of inflammatory rhetoric prosecutors have documented in the hundreds of hours of recordings made by the FBI.
Jonker wrote that defendants were not predisposition to commit the crimes charged.
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