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On Wednesday, October 7, the Michigan Attorney General filed 19 state felony charges against seven men who are accused of being members, or associates of, an anti-government militia group calling itself the Michigan Wolverine Watchmen (Wolverines is also the name of the University of Michigan football team).
The alleged militia members stand accused of plotting to attack the Michigan State Capitol and kidnap Governor Gretchen Whitmer, in hopes, according to a state affidavit, of triggering a “civil war leading to societal collapse.”
In the late eighteenth century, these facts would have immediately brought to mind another crime — treason. One of the key offenses under English treason law was levying war against the king, and the clearest examples of this offense were armed insurrections that sought to dethrone or imprison the king or to force him to alter his decisions or remove members of his government.
When the Treason Clause of the U.S. Constitution was adopted, it defined treason, in part, as “levying war against the United States.” Many framers pointed out that the language was deliberately taken from English law and incorporated the English decisions on its meaning. When armed men sought to suppress tax collection measures in the 1790s, the Washington and Adams administrations responded with treason prosecutions.
Although largely forgotten today, treason is not limited to levying war on the federal government. Treason can also be prosecuted by the individual states. During the American Revolution, all treason cases were brought by the states because there were no federal courts with criminal jurisdiction.
Although the U.S. Constitution recognized a federal offense of treason, it did not explicitly limit the offense of treason against an individual state. Most states continued to recognize the crime, and there have been three series of noteworthy prosecutions.
In the 1840s, Rhode Island brought charges against Thomas Wilson Dorr and one other man for their role in what became known as “Dorr’s Rebellion.” In 1859, Virginia executed John Brown and Edwin Coppoc for treason against Virginia for the raid on Harpers Ferry. And in the early 1920s, West Virginia brought treason charges against labor union leaders for using military force in an attempt to rescue imprisoned coal miners.
Michigan’s Constitution declares, “Treason against the state shall consist only in levying war against it or in adhering to its enemies, giving them aid and comfort.” This language tracks the federal constitution and is typical of state treason laws. The “adhering to enemies” offense is almost certainly preempted by federal law, since the determination of foreign enemies is entrusted to the federal government. But the “levying war” offense plausibly applies to armed attempts to overthrow the state government.
A Michigan prosecutor could therefore reasonably conclude that an armed insurrection to kidnap the governor, for the purpose of altering Michigan law, is an act of treason by levying war against Michigan.
There are nonetheless substantial reasons cautioning against any such indictment in this case.
First, under English law and early American case law, a conspiracy to levy war was not treason; war had to be actually levied. Under the facts alleged so far, it appears that there were no actual acts of levying war, just a conspiracy to do so.
Second, if the conspirators could show that they intended to kill the governor, as some reports suggest, they perversely might have a stronger defense against a treason charge. Under English law, it was treason to compass the king’s death, but that provision was deliberately excluded from federal and state treason laws. Assassinations of political leaders have been treated as murders, not acts of treason. Absent some further attempt to overthrow state government, the killing of a governor is not an act of treason.
Third, the law in this area is extremely dated; no person has been charged with treason against a state in nearly a hundred years. Even if technically viable, it may be a stretch in front of a jury.
Finally, the conspiracy charges, if proven, will be more than enough to put the conspirators behind bars for many years. In most cases, persons who commit acts of treason can be charged with a variety of other offenses as well. An armed overthrow of a state government is hard to accomplish without breaking other serious laws along the way, and prosecutors will naturally pursue the charges that present the fewest legal complications.
The members of the Michigan Wolverine Watchmen militia claim to be patriots acting in defense of our eighteenth-century constitution. But the drafters of that document would surely disagree. Kidnapping a governor has nothing to do with a “well-regulated” militia (which, in most states, is under gubernatorial control). It might even be that rarest of crimes — treason against a state.
Carlton F.W. Larson is a Martin Luther King, Jr. Professor of Law at the UC Davis School of Law, and the author of On Treason: A Citizen’s Guide to the Law and The Trials of Allegiance: Treason, Juries, and the American Revolution.
