Criminal Justice & the Rule of Law Democracy & Elections

The Last Time the Justice Department Prosecuted a Seditious Conspiracy Case

Jacob Schulz
Wednesday, February 24, 2021, 1:56 PM

It's time to take another look at the 2012 trial of the Hutaree militia.

Rioters try to scale the walls of the Capitol building, Jan. 6, 2021 (Blink O'fanaye/ BY-NC 2.0/

Published by The Lawfare Institute
in Cooperation With

Lenawee County, Michigan, had an apocalyptic Christian nationalist militia problem about a decade ago. The group called itself the Hutaree, a name that members said meant “Christian Warriors,” though the FBI said it didn’t mean anything at all. 

The Hutaree saw themselves as soldiers to a higher power. The ex-wife of the group’s founder, David Stone, characterized her former husband’s beliefs as religiosity that spiraled out of control. She told reporters during their trial that “[i]t started out as a Christian thing …. You go to church. You pray. ... I think David started to take it a little too far” and “went from handguns to big guns.” 

The group’s now-defunct website declared, “The Hutaree will one day see its enemy and meet him on the battlefield if so God wills it.” The “About Us” section skimped on the details about how the group started or where it was based, but it did talk about the “one day” arrival of “an Anti-Christ”: “All Christians must know this and prepare, just as Christ commanded.” One link led to the “BEAST WATCH,” a subpage that the sociologist Amy Cooter explained “must have been intended to have frequent updates on modern signs of the apocalypse.” Another led to the “Evil Jew Forum.”

Stone, “Captain Hutaree,” served as the group’s helmsman. Cooter explained that three of the eight other main Hutaree were related to him. That includes Stone's second wife, whom he wed at a ceremony attended by many of the group members. 

An undercover FBI agent served as Stone’s best man. 

Indeed, it turns out that when you start talking about killing police officers and about the End Times, people listen, and they don’t tend to like what they hear. Some time earlier, a neighboring militia had grown concerned about the Hutaree and went to the FBI. In March 2010, federal law enforcement arrested all nine members of the group, and the Justice Department charged them with a host of serious offenses.

Why should anyone care about the Hutaree now? Because one of those serious charges was seditious conspiracy under 18 U.S.C. § 2384. It was the last time the Justice Department would use the statute until the present day. And the fate of the Hutaree may offer some insight into why. The judge in the case threw out the seditious conspiracy charges, along with the other more serious charges on the docket. And in the end, three Hutaree members pleaded guilty to standard-fare federal weapons charges. 

It’s looking more and more like prosecutors might dust off the statute in response to the insurrection of Jan. 6. Federal prosecutors continue to pin conspiracy, though not seditious conspiracy, charges on leaders of several extremist groups in connection to the riot. And Acting U.S. Attorney for the District of Columbia Michael Sherwin has dispatched federal prosecutors to build seditious conspiracy charges against the rioters. I wrote two weeks ago about a time when seditious conspiracy charges stuck at trial and survived on appeal. But the Justice Department has also occasionally whiffed under the statute. The trial judge’s decision in the Hutaree case isn’t binding precedent. But the Hutaree are worth a second look.

Being a member of a militia isn’t itself a particularly distinguishing feature in Michigan. Andrew Arena, an FBI agent who helped to investigate the Hutaree, told the Washington Post that throughout his career probing extremist groups with the bureau, “the 64 million dollar question was always: Why Michigan? … We had representatives of every known right-wing, white supremacist, anti-government group out there.”

The Hutaree stood out even among the busy crowd. Cooter, who did fieldwork studying Michigan militias, described the Hutaree as “largely isolated from other people who were not members of the unit and were effectively withdrawn from many aspects of civil society,” a level of isolation unique among Michigan militias. She characterized the group as “very religious, more volatile, reactionary, and more like the militias of the 1990s than other Michigan groups today” and noted that in her fieldwork studying Michigan militias “[the Hutaree] were the only group [she] intentionally avoided.” And the Hutaree paired this zealotry with cartoonish amateurism. They pathologically ignored basic safety procedures; at one joint-militia training session, Cooter recounts, a Vietnam vet from the Southern Michigan Volunteer Militia (SMVM) confiscated a Hutaree member’s rifle and made him participate in the drills with just a stick. 

The occasional Hutaree collaborations got old fast for the SMVM. The SMVM’s spokesperson later told a local reporter that his group “felt that [the Hutaree] were a group that could become very radicalized very easily. That’s because of the ultra-religious nature of their leader and the whole government. They lashed out against other units and the government.” SMVM’s wariness of the Hutaree led to outright cooperation with the FBI in April 2008. The SMVM spokesperson told reporters that they blew the whistle on the Hutaree because they “struck us as potentially unstable and possibly dangerous.” Some self-interest didn’t hurt, either: “[W]e value good relations with local and federal law enforcement,” the spokesperson said. An SMVM member sent emails to the FBI with links to the Hutaree’s online presence and details about one Hutaree member, Joshua Clough, later named in the grand jury’s indictment. “Do I get my ‘Junior G-Man’ badge yet?” the SMVM member asked after ferrying over an email replete with details about the group.

The FBI sent an undercover agent to keep tabs on the group, and law enforcement swept up the nine defendants in a series of March 2010 raids. 

The U.S. attorney’s office in the Eastern District of Michigan took a big swing at the Hutaree. A grand jury in March 2010 indicted the nine Hutaree members on two counts of standard firearms charges—but also for attempted use of weapons of mass destruction and seditious conspiracy. The grand jury tacked on a teaching or demonstrating use of explosive materials charge for “Captain Hutaree” and his son. The Justice Department uses the firearms charge pretty regularly. The weapons of mass destruction provision cited in the indictment is a bigger deal, though it too sees some regular use

But the seditious conspiracy charge is a genuine rarity on federal criminal dockets. Before the Hutaree case, the Justice Department had brought seditious conspiracy charges only three times in the previous 20 years: twice for small U.S. al-Qaeda cells and once for the Blind Sheikh and other al-Qaeda operatives responsible for the 1993 World Trade Center bombing and a planned spree of terror attacks around the New York area.

The plan, as described in the indictment, was elaborate. The Hutaree wanted to “prompt a response by law enforcement” by “commit[ing] some violent act.” Maybe they would kill a police officer at a traffic stop. Maybe they would “lur[e] a member of law enforcement with a false 911 emergency call and then kill[] him or her.” Maybe they would kill a police officer’s family. 

Next, they would decamp to a “rally point” from which they would “wage war against the government and be prepared to defend in depth with trip-wired and command detonated anti-personnel Improvised Explosive Devices (IED), ambushes, and prepared fighting positions.” In the indictment’s account, the group anticipated that the melee would trigger “a more wide-spread uprising against the Government.” The indictment described one particularly sinister iteration of Stone’s plans: The group would murder a law enforcement officer, wait for “law enforcement officers from throughout the nation [to] gather in the Eastern District of Michigan for the funeral” and then spring IEDs upon the funeral party. It sounds like guerilla warfare and also like the plot of the 2018 militia film “The Standoff at Sparrow Creek.” To prep for go-time, the indictment alleged, the group conducted “military-style training” and hoarded munitions. 

The government bumped into a series of obstacles and setbacks even before the trial began. U.S. District Judge Victoria Roberts of the Eastern District of Michigan ordered the pretrial release of all nine Hutaree named in the indictment, and it took a Justice Department appeal to ensure that five of the nine remained detained until the trial started. In a separate matter, a paid FBI informant pleaded guilty to firing a weapon during a fight with his wife. This didn’t necessarily have any immediate legal consequences, but it did preclude the possibility of his becoming a crowd favorite once the trial began. 

Only seven of the Hutaree Nine made it to trial. Jacob Ware dropped from the docket after he was declared incompetent to stand trial on account of delusions and paranoia, and Joshua Clough pleaded guilty to a weapons charge at the end of 2011. 

The trial of the remaining seven Hutaree kicked off in Detroit in February 2012, with the two sides carving out radically different positions in their opening statements. Assistant U.S. Attorney Christopher Graveline told jurors that the Hutaree were willing to “go to war;” Stone’s defense attorney, by contrast, insisted that the opposing belligerent in this war was to be the Antichrist, not the government. Stone’s wife and co-defendant told reporters, “I’m going to fight tooth and nail …. People tell me, ‘good luck.’ I don’t need luck. I’ve got God on my side.”

Prosecutors deployed jarring audio clips at trial. In one clip, Hutaree members chatted among themselves about how they wouldn’t have qualms killing police officers’ families. The government paired the clips with testimony from the FBI informant and from Clough. The informant told jurors that the pending arrival of the Antichrist preoccupied Stone, who also worried “that the government was planting chips in people through flu shots.”

Defense lawyers readily accepted that their clients had a habit of saying wild stuff but asserted that the speech never crossed any criminal lines. They argued that the government had cobbled together a bunch of half-serious conversations in order to advance the false narrative that the Hutaree actually had plans to overthrow the government. The government’s audio didn’t exactly contain focused discussions of revolt, and conversations meandered from police officer murder to strippers to “drawing Hitler mustaches on photos of state troopers.” (It’s worth noting, though, that this interplay of crude jokes, sarcasm, and violent threats presages a lot of the way that extremist corners of the internet operate in 2021.) Stone’s defense lawyer pulled out the Alex Jones defense and described one speech played at trial as “no more radical, no more offensive or dangerous than anything any of the right-wing wackos on television and radio said the week before these folks were arrested.” 

Whether or not Tina Stone did indeed have God on her side, she and her co-defendants came out on top at trial. Judge Roberts put an end to the case five days after the government wrapped its presentation of evidence. She dismissed all charges against five of the seven defendants and tabled all charges against Stone and his son except for the more mundane weapons charges, to which the pair later pleaded guilty and got sentenced to time served. 

Roberts foregrounds her acquittal order by emphasizing the case law standards to prove conspiracy charges, seditious or otherwise. She invokes a Seventh Circuit ruling stemming from an appeal of the Chicago Seven conspiracy verdict. That panel held that in cases concerning “group activity” that falls “within the shadow of the first amendment,” the court ought to undertake a “[s]pecially meticulous inquiry into the sufficiency of proof.” The government’s case against the Hutaree relied largely on Stone’s whacky speeches, so Roberts emphasizes that she “takes particular care” to scrutinize the government’s case against each defendant. She also points to United States v. Lee, a 1993 case from the U.S. Court of Appeals for the Sixth Circuit, which lays out a three-pronged test required for conspiracy cases. Per Lee, the government has to prove that everyone named in the conspiracy “shared a ‘unity of purpose,’ the intent to achieve a common goal, and an agreement to work toward that goal.” And she notes that the 1944 Fifth Circuit case Pinkerton v. United States outlines a standard with particular relevance to the Hutaree case: “a conspiracy requires a specific plan.” Never mind seditious conspiracy, Roberts declares that “the Government did not provide sufficient proof of the existence of any conspiracy at all.”

And she’s no more enthusiastic about the “seditious” part of the charge than she is about the conspiracy part. Roberts sees Baldwin v. Franks, an 1887 Supreme Court case, as the key precedent for the Hutaree’s purposes. The named plaintiff in Baldwin and two others kidnapped a group of Chinese citizens from a California town, detained them for “several hours” and deposited them on a steamboat leaving upriver and out of the country. But the Supreme Court held that the facts of Baldwin’s case didn’t support a seditious conspiracy charge. The Baldwin decision spells out a high bar for seditious conspiracy: “[F]orce must be brought to resist some positive assertion of authority by the government. A mere violation of law is not enough; there must be an attempt to prevent the actual exercise of authority.” Roberts notes that she’s not the only federal judge to point to Baldwin. A 1921 Eighth Circuit decision, Anderson v. United States, also applied Baldwin to quash a seditious conspiracy charge. Roberts explains that Anderson mandates that for seditious conspiracy charges to be in order, the goal of the conspiracy has to be “the exertion of force against those charged with the duty of executing the laws of the United States.” 

The Hutaree case cleared neither the Baldwin hurdle nor the Anderson hurdle, says Roberts. Yes, she concedes, “the Government presented evidence of vile and often hateful speech, and may have even shown that certain Defendants conspired to commit some crime.” But that doesn’t suffice: “[O]ffensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy.” Even if you assume that the Hutaree prosecution did adequately check the “conspiracy” box, “[a] conspiracy to murder law enforcement is a far cry from a conspiracy to forcbily oppose the authority of the Government of the United States.” So, out go the seditious conspiracy charges. And acquitting the defendants on the seditious conspiracy charges topples the Jenga stack of the indictment; the other serious charges were derivative of or dependent on the seditious conspiracy charge. If it goes, they go too. 

Much of why Roberts put an end to the case has to do with things highly specific to the way the trial unfolded and to the Hutaree. Roberts devotes parts of the acquittal order to outlining her frustration with the way the prosecution ran its case. She lambastes prosecutors for allowing their theory of criminality to morph over the course of the trial. The indictment argues that the Hutaree imagined their actions would “be a catalyst for a more widespread uprising against the United States Government.” But the government retreated from the last claim as the trial wore on and at the motion-to-acquit hearing, arguing instead that a seditious conspiracy conviction didn’t require that the Hutaree intended their plot to “be a catalyst for a more widespread uprising with the United States government.” Roberts isn’t persuaded by the government’s new position and writes that the “inescapable conclusion” of the about-face “is that the Government recognizes that its proofs at trial failed to establish the plan described in the Indictment, so it is attempting to formulate an alternative theory of criminal liability.” 

Wholly apart from the prosecution tactics, the group’s amateurism and disorganization made it an awkward fit for the charges. Peter Henning, a professor at Wayne State University School of Law in neighboring Detroit, cautioned after the trial that militia groups shouldn’t “read[] too much into” the acquittal. The Hutaree were “almost a gang that couldn’t shoot straight.” Roberts notes, for example, that the Hutaree chat about cop murder but “never come to a consensus or agreement on ways in which to oppose federal agents by force.” Their disorganization and lack of planning made the high standards for “conspiracy” a bad match. 

But the acquittal does have some broader instructive value. For one, it tracks with a particular trend in Justice Department seditious conspiracy prosecutions. All of the government’s recent successes in these cases have come against jihadist groups. The two most high-profile acquittals, by contrast, have come in cases with white defendants who trafficked in anti-Semitic and racist beliefs. The acquittal order also sheds some light on the depth of the case law on the seditious conspiracy question. The government can pull from a decent reserve of circuit court precedent where panels affirmed seditious conspiracy convictions, but Roberts demonstrates that there’s no shortage of opinions out there limiting the scope of the statute. Baldwin and Anderson spell out modestly high bars for seditious conspiracy charges, though it’s not hard to imagine that prosecutions for some of those involved in the Jan. 6 riots would clear them. Members of Congress are most certainly “charged with the duty of executing the laws of the United States.” Storming the Capitol and trying to track them down sure seems like “an exertion of force.” 

There’s one other crucial distinction between the Hutaree and the Jan. 6 insurrectionists. Roberts wrote in her Hutaree acquittal order that the government proved, at best, that the Hutaree had strong anti-government views but that it left the court to “guess what Defendants intended to do with their animosity.” There’s no need to guess what the #StopTheSteal crew intended to do. They did it. They breached the Capitol. They might even have posted to Facebook a video of themselves doing so: “We’re in! We’re in! Derrick Evans is in the Capitol!” The “strong anti-government views” of those who stormed the Capitol left the realm of merely words and became actual violence—whereas the FBI intervened before the Hutaree did anything.

Jacob Schulz is a law student at the University of Chicago Law School. He was previously the Managing Editor of Lawfare and a legal intern with the National Security Division in the U.S. Department of Justice. All views are his own.

Subscribe to Lawfare