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Michigan Statehouse surrounded by militia demonstrators

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A jury’s refusal late last week to convict four Michigan militiamen for plotting to kidnap and assassinate Gov. Gretchen Whitmer—with two men acquitted outright, while the jury was hung on the other two—may have come and gone from the national media radar already. But it’s a decision that will have long-term ramifications for public safety and national security, particularly law enforcement’s ability to effectively deter and prevent domestic terrorism.

The verdict was disturbing in no small part because nearly the entirety of the evidence in the case was presented by prosecutors. The defense rested after only a relative handful of witnesses, arguing throughout that the whole affair was a case of entrapment—and it was disturbing and damning, showing a group of men who not only freely indulged in violent fantasies but set about making them realities.

But the outcome did not happen in a vacuum. It was only the latest in a string of similar verdicts in which prosecutors have failed to bring right-wing extremists to justice, revealing both how deeply these beliefs and behaviors have become normalized as well as how poorly equipped law enforcement is to deal with the challenges they present.

Evidence in the trial included audio of the men setting off explosives and discussing how they hoped to hogtie Whitmer across a table and make a video. There was also abundant evidence showing the men’s real-world preparations for making their violent fantasies a reality, including creating a mockup of Whitmer’s summer house for practicing extraction, running reconnaissance on that residence, and taking preparatory steps to blow up a local bridge to cover their escape.

Defense attorney Michael Hills insisted after the verdict that this was nothing but “rough talk.” He told reporters that he considered calling a defense witness to assert that he’s “heard worse from pregnant mothers up on the Capitol.”

“If I don’t like the governor and it’s rough talk, I can do that in our country. That’s what’s beautiful about this country. That’s what’s great about it,” Hills said. “So hurrah, freedom in America. It’s still here.”

Unsurprisingly, it was celebrated widely by the right, including Donald Trump himself.

Trump talked about the verdict in his Saturday rally in Selma, North Carolina, inverting reality in his usual fashion: “And in the quite famous Michigan trial, where people were supposedly going to kidnap the very unpopular governor … two were just found not guilty and two others just ended in a hung jury,” he said. “So there is something going on down there. There is something going on. The radical Democrat party will do anything to stop our movement no matter how illegal, immoral or insane.”

Georgia Congresswoman Marjorie Taylor Green saw the verdicts as an opportunity to attack the FBI, tweeting:

Democrats voiced their concern about the consequences of the verdict. JoAnne Huls, Whitmer’s chief of staff, issued a statement decrying the outcome: “Today, Michiganders and Americans—especially our children—are living through the normalization of political violence. The plot to kidnap and kill a governor may seem like an anomaly. But we must be honest about what it really is: the result of violent, divisive rhetoric that is all too common across our country. There must be accountability and consequences for those who commit heinous crimes. Without accountability, extremists will be emboldened.”

A Democratic Michigan legislator, state Sen. Dayna Polehanki of Livonia, voiced her dismay in a tweet: “They also allegedly wanted to storm the Michigan Capitol, take out police officers, and execute my colleagues and me on live TV. Looks like I’ll be keeping my bulletproof vest under my desk on the senate floor,” she wrote.

Residents of the community near where the plotters planned to abduct Whitmer were disturbed. “My biggest concern is that a non-guilty verdict may embolden some far-right activists, and at this point at what is happening in the world, I feel as Americans we all need to come together,” said Jeffery Herman of Elk Rapids.

Herman was particularly disturbed by the plan to blow up a local bridge: “It is a shot right to the heart to me because I’ve been up here my whole life,” said Herman. “To me, that is like a strike against our own country and our state, and the amount of hatred a person must have to attack ourselves is really something as a nation we need to look at.”

However, the location of the trial in the Trumpist stronghold of Grand Rapids, with a jury comprising rural Michiganders with a record of antipathy to Whitmer—as well as a Bush-appointed judge who insisted that politics-related evidence, including any discussion of the ideology the “Boogaloo” movement to which the men subscribed, be excluded—played a powerful if not decisive role in the outcome.

Bill Swor, a veteran criminal defense attorney, observed to the Detroit Free Press: “The jurors may have known people like this, who are a lot of talk. And the jury may have decided that these guys were just running around being busy, and didn’t have any focus.”

The defendants had a lot of material to work with in constructing an entrapment defense. The FBI deployed 12 undercover informants in its investigations, and at least one of them—a man nicknamed “Big Dan”—played a key role in providing the group with paramilitary training as well as acting as a second-tier leader for the “Watchmen.” Three of the FBI agents involved in the case are no longer part of the prosecution’s witness lineup in large part because they have run afoul of the agency for behavior mostly unrelated to the militia case.

It’s just the latest in a series of failures, mostly by federal prosecutors, to deliver convictions of far-right extremists planning or perpetrating political violence, dating back at least to the 2016 acquittals of Ammon Bundy and his cohort for leading the armed standoff at the Malheur National Wildlife Refuge in Oregon by a jury of Oregonians who found credible the defendants’ insistence that they didn’t believe they were doing anything illegal.

Similarly, prosecutors in Seattle in 2019 were unable to overcome the presence of pro-Trump jurors who declined to convict a husband and wife, both alt-right Milo Yiannopoulos fans, who were charged with the January 2017 shooting of an antifascist. More recently, jurors acquitted Kyle Rittenhouse, accused of murder in the shooting deaths of two people at a Black Lives Matter protest in Kenosha, Wisconsin, in 2020.

The latter case was widely celebrated on the right as a vindication of their politics of menace. The Whitmer kidnapping verdict was also seen as evidence supporting the right-wing conspiracy theory that the FBI orchestrated the Jan. 6 insurrection: “Whitmer Kidnapping plot concocted by the FBI,” tweeted one Patriot. “Now let’s do Jan. 6th events.”

Prominent Trump supporters tried to claim the whole thing was an election-year smear of Trump. “The Whitmer ‘kidnapping’ caper was the 2020 version of Russiagate, the FBI interfering in a presidential election to sabotage Trump and help a Democratic nominee for president,” tweeted right-wing pundit Julie Kelly.

More responsible voices expressed concern that as with the Rittenhouse verdict, violent extremists will interpret it as a green light. Democratic Congresswoman Debbie Dingell of Michigan called for an end to “the hatred and division in this country,” adding that she is “deeply concerned that today’s decision in the Whitmer kidnapping trial will give people further license to choose violence and threats.”

Certainly the trend of juries seeming to bend over backwards to acquit white men in terrorism cases reflects an unfortunate reality about Americans’ susceptibility to stereotyped perceptions that struggle to conceive of such crimes being committed by someone who looks like the guy next door. Heidi Beirich, executive director of the Global Project Against Hate and Extremism, says that reality is in many ways a hangover of the “War on Terror” years of the early 2000s, when Americans were conditioned to think of terrorists as Arab radicals.

“Prosecutors should pay more attention to this, but of course the mainstreaming of antigovernment sentiments and hate ideologies could be playing a role here,” she told Daily Kos. “Large parts of the conservative, or Trump base, share the ideas now of these groups, such as the Great Replacement or Stop the Steal, etc. The frame around this type of extremism is so radically different than the beliefs of ISIS or Al Qaeda, which were never going to find a home among even a tiny fraction of Americans. But white supremacy and antigovernment ideas are deeply rooted in our history and culture, and now among many conservatives, and that can potentially affect juries. We saw it during the civil rights movement obviously.”

The War on Terror approach also infected the law enforcement handling of domestic terrorism cases, says Michael German, a national security analyst with the Brennan Center for Justice at New York University. German, a former FBI agent, had himself played a central role in a well-known case in the 1990s involving a militia group in western Washington state that also claimed entrapment after he had provided the men with a meeting space that doubled as a bomb-building classroom—and was filled with cameras that recorded everything.

Although German had scrupulously followed FBI rules, the entrapment defense had some effect in that case—several defendants walked on the conspiracy charge after a mistrial in the first round—but the central players eventually were all convicted on various charges.

He’s followed the trial of the Wolverine Watchmen closely, and told Daily Kos via email that “the Michigan case was undermined by misconduct committed by the agents assigned to the investigation, and the misuse/overuse of informants.”

More broadly, though, German is concerned that the strategies the FBI developed after 9/11 and found effective against Islamist radicals—which problematically reflected distorted priorities by federal law enforcement on domestic terrorism as they ignored and deprioritized political violence by white right-wing extremists for over two decades—no longer work.

“The tactics of an FBI undercover operation have changed significantly in that the agents and informants manufacture plots and provide the weaponry necessary to achieve them,” German explained. “In the 1990s that wasn't allowed. But the FBI had increasing success with these tactics in targeting Muslims after 9/11 and have broadened their use.”

He notes that “the Michigan case wasn't nearly as egregious as the Liberty City 7 case or the Newburgh sting, which were successful I believe because the defendants belonged to groups the public was taught to fear after 9/11. With white supremacist or far-right militant groups, the FBI has been less successful with this technique, but agents continue to use them, I think because they forgot how to do proper undercover operations.”

German says the Michigan case—particularly the heavy use of informants—reflects these misbegotten strategies. “So what the FBI seemed to have learned from the difficulty they had winning convictions in the Liberty City 7 case was that they should spice up these sting operations with more elaborate plots that could only be achieved by the government introducing and providing more dangerous weapons,” he said.

“In the Washington case the investigation focused on the criminal activity the group was already engaged in, namely possessing, manufacturing, and trafficking in illegal weapons and explosives for use in a prospective conflict with federal law enforcement,” he explained. “There wasn't a government effort to generate a more elaborate plot, and the defendants made, possessed, and transferred the illegal weapons and explosives themselves, the government didn't provide them.

“I think if the FBI agents stayed focused on investigating the crimes that were occurring, rather than trying to manufacture an elaborate plot, they would have been more successful. I think the overuse of the extreme tactics now typical of terrorism sting operations has generated some public backlash that undermined the government's credibility. The general loss of credibility for the FBI has been a growing problem as well, both because of true errors and abuse and because of the Trump administration's less factual campaign against its leadership.”

Beirich warns, however, that there is also an undeniable component involving ethnic prejudice that affects how juries behave. “Speaking generally, there is obviously a huge difference in how juries viewed the treatment of people accused of Islamic-inspired terrorism and how they view white supremacists,” she told Kos. “There were dozens of cases in the early ‘00s where entrapment by federal agents seemed more obvious of such suspects than what has happened with juries dealing with cases of antigovernment and/or white supremacist extremists. The domestic extremists seem to get more of a break from juries than folks associated with other forms of extremism, a situation that likely has a racial element or at least an ‘othered’ element to it.”

Beirich foresees a continuation of the right-wing gaslighting campaign around these issues, “as is happening right now in Congress over the domestic terrorism bill.”

“It seems that only when there is serious violence, usually with mass casualties, is this issue taken seriously on the right, which is really unfortunate,” she said. “Look how Jan. 6 is being minimized among elected officials and others on the right. It’s a tragedy that there is little consensus over what our government calls the No. 1 domestic terrorism threat: white supremacists and militia types.”

Michigan state House member Laurie Pohutsky, a Democrat, noted on Twitter that the threatening environment has long-term consequences for democracy as well.

“The next time you ask why we can’t get good people to run for office, consider today’s verdict. The man that threatened to kill me in 2020 was acquitted,” she said, adding, “This won’t be taken seriously until someone dies.”

Printed with permission from Dailykos.

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