Legal experts reveal one reason Gov. Whitmer kidnap case is strong

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DETROIT — The federal criminal case against six of 13 suspects accused of plotting to abduct and possibly harm Michigan Gov. Gretchen Whitmer contains a legal nuance that former officials from the U.S. Department of Justice say make conviction more likely.

Barbara McQuade, who served the Eastern District of Michigan in Detroit as U.S. Attorney from 2010-17, told The Detroit Free Press that federal prosecutors have a tough time with “domestic terrorism” cases, unlike international terrorism, because there is no domestic terrorism statute.

But a kidnapping charge gives federal prosecutors a clear path.

“If it is a plot to engage in violence generally, it can be very difficult,” McQuade said. “But I think one thing about this (Whitmer) case that indicates to me it is likely to be very strong is that they were able to charge under the kidnapping statute instead of having to charge something that feels a little vague, like seditious conspiracy, which is sometimes all you’re left with in a domestic terrorism case.”

The seditious conspiracy charge involves plotting to overthrow the government or declare war against it or forcefully oppose authority. It can clash with free speech protections in the U.S.

“In this case, because their plan involved kidnapping, they can charge it under a very solid statute that I think most members of the public and most juries will understand — that it’s a very serious crime to commit kidnapping,” McQuade said. “I think for that reason this will be a strong case.”

Peter Henning, a former federal prosecutor who teaches law at Wayne State University, agreed. “It’s much easier to prove a kidnapping charge, so much easier.”

He cited the high-profile Hutaree militia case from 2010, when nine people from the so-called “Christian Patriot” movement were arrested after raids in Michigan, Ohio and Indiana. They faced federal charges of seditious conspiracy, along with a series of weapons charges, after, authorities said, they plotted to kill police and then attack the funerals and kill more police.

U.S. District Judge Victoria Roberts said prosecutors failed to prove a plot to overthrow the government and she threw out the seditious conspiracy charges. The case never went to the jury for a verdict, though three defendants pleaded guilty to weapons charges.

McQuade has defended criticism for pursuing the case, saying Friday, “I saw it as a case in which the judge viewed the evidence less seriously than we did. Reasonable minds can disagree, but I stand behind our decisions. The public has a greater awareness now of the threat posed by anti-government extremists.”

While the Hutaree and Whitmer kidnap cases have key similarities, federal prosecutors learned from the past. And they went a different route, legal experts said.

“When you’re looking at the First Amendment and free speech, when does that speech cross the line for criminal activity?” said Andy Arena, former FBI special agent in charge in the Detroit field office from 1988 to 2012, who oversaw criminal cases statewide. He now teaches at Western Michigan University-Cooley Law School.

“Voicing displeasure with the government is an American pastime. When you start taking action like training, gathering weapons, surveilling, building explosive devices…” Arena said. “But proving seditious conspiracy is a high hurdle.”

Experts say the kidnap charges provide an uncomplicated path to prosecution.

The U.S. Justice Department announced Thursday the arrest and federal “conspiring to kidnap” charges against Adam Fox, Barry Croft, Ty Garbin, Kaleb Franks, Daniel Harris and Brandon Caserta. All defendants are residents of Michigan except Croft, who is from Delaware. Each defendant faces life in prison if convicted. Seven other defendants are facing state charges.

Federal law enforcement officers have a narrow window between the time that’s needed to gather evidence to build a case and to foil the plan by making arrests.

“The line is whether they’re engaging in conduct that could be violent and dangerous to human life,” McQuade said. “In this case, you’ll see not just that they were saying negative things about the governor but that they were training, building improvised explosive devices, testing those devices, surveilling her home, surveilling a bridge in the area. The legal term is ‘taking a significant step in furtherance of a conspiracy.’ Did they take significant steps? In this case, there were a number of them.”

It’s challenging for federal prosecutors to decide that moment to take action and take a group down, McQuade said. “On the one hand, you want to continue long enough to build sufficient evidence to get a conviction at trial. On the other hand, you don’t want to wait too long and endanger human lives.”

One phrase the FBI frequently uses is “staying left of boom.” The word “boom” indicates the violent act.

“If you imagine placing it all on a timeline, left of boom is some moment before the bad incident occurs,” McQuade explained. “You want to disrupt a group like this left of boom, but you need to allow sufficient time for the investigation to gather evidence that you can prove that they were taking significant steps and they intended to follow through with this and it wasn’t just idle talk or blowing steam — which is often likely to be an anticipated defense in a case like this.”

International terrorism cases, in some ways, are much easier to prosecute than domestic terrorism because prosecutors are provided legal tools to make the case. And part of the reason is because the U.S. values free speech and right to free association.

“In general, it’s difficult because there’s not that domestic terrorism statute,” said McQuade, now a professor at the University of Michigan who teaches criminal law, civil liberties and national security.

“In a case involving foreign terrorism, there are many more statutes to choose from to keep you left of boom — like providing material support to a designated foreign terrorist organization,” she said. “So just providing money or providing service to something like al-Qaida or ISIS. You can charge the defendants way left of boom just when they start providing money or services.”

However, McQuade said, “because we hold so dear in this country free association and free speech, it is not a crime to support the Ku Klux Klan or some violent white supremacist group. It’s perfectly permissible. You have to look at the conduct that is violent before you can stop them or, in this case, a conspiracy to engage in violence.”

In cases over the years, federal prosecutors have had to charge conspiracy and defense attorneys effectively argued the defendants posed little threat to society, she said.

“Having a charge other than seditious conspiracy would be beneficial,” McQuade said. “I’m sure they were careful to find a statute that could be strong and the kidnapping statute is strong. In that regard, they’re better situated. … I also think that we live in a different time when perhaps people will take more seriously the threat that’s posed by militia groups. Ten years ago, people were quick to accept the defense that they were just a bunch of losers who were talking tough and enjoyed shooting and blowing things up and they weren’t really dangerous.”

In the end, the federal prosecutors will need to persuade a jury that an anti-government group is a real threat. In this case, targets for attack allegedly included not just the governor but also police officers, especially in cases involving a desire to trigger a civil war.

The conspiracy to kidnap charge creates a legal super glue, she said. To win convictions, prosecutors must prove the defendants agreed to commit a kidnapping and took some action toward making it happen.

“Many of these groups have as part of their ideology opposition to the government,” McQuade said. “So police officers are the ultimate symbol of authority of the government. Sometimes they want to attack police officers. Sometimes it’s easily dismissed as irrational talk.”

Michigan has had a “tradition” of militia activity since the 1990s. Federal authorities said domestic terrorist Tim McVeigh hatched a plan with Terry Nichols in Evergreen Township near Decker in rural Sanilac County in 1995 to blow up Oklahoma City’s Murrah Federal Building, which killed168 people. Militia activity has simmered ever since.

“I suppose when you have an area that’s known for it, people are attracted to it,” McQuade said. “The same way you have a strong sports program, people gravitate to it, if you have a strong militia program, like-minded individuals are inclined to join.”

What struck McQuade, an appointee of President Barack Obama, is that this case was the obvious bipartisan collaboration between Michigan Attorney General Dana Nessel, a Democrat, and U.S. Attorney Matthew Schneider, a Republican appointed by President Donald Trump.

“These alleged extremists undertook a plot to kidnap a sitting governor,” said Assistant Special Agent in Charge Josh Hauxhurst in a news release from the U.S. Justice Department. “Whenever extremists move into the realm of actually planning violent acts, the FBI Joint Terrorism Task Force stands ready to identify, disrupt and dismantle their operations, preventing them from following through on those plans.”

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©2020 Detroit Free Press

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Gov. Gretchen Whitmer speaks during the Aretha Franklin Memorial Highway dedication ceremony in Detroit, Monday, August 24, 2020. - Junfu Han/Detroit Free Press/TNS