PERSPECTIVE: Prosecuting seditionsThe Last Time the Justice Department Prosecuted a Seditious Conspiracy Case

Published 26 February 2021

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 FBI had an informer inside the group, and nine of its members were charged with conspiracy, sedition, and various weapon charges. Judge Victoria Roberts acquitted the Hutaree members of the serious charges of conspiracy and sedition. Why should anyone care about the Hutaree now? Jacob Schulz writes that we should, “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.” It’s looking more and more like prosecutors might dust off the statute in response to the insurrection of Jan. 6. “The trial judge’s decision in the Hutaree case isn’t binding precedent. But the Hutaree are worth a second look.”

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. 

Jacob Schulz writes in Lawfare that the Hutaree saw themselves as soldiers to a higher power. 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.”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.

Schultz writes:

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 Sherwinhas 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.

Schulz writes that uch of why Judge Victoria A. Roberts put an end to the case has to do with things highly specific to the way the trial unfolded and to the Hutaree. 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.