According to a complaint filed Tuesday, the defendants communicated by code words and encrypted messaging platforms in an attempt to avoid detection by law enforcement. It said the co-conspirators conducted surveillance on Whitmer’s vacation home, discussed detonating explosive devices to divert police, inspected the underside of a highway bridge for places to seat an explosive, purchased a Taser and test-detonated an improvised explosive device.
The co-conspirators never carried out the kidnapping; FBI agents and Michigan State Police arrested them when they allegedly met to pool funds for explosives and exchange tactical gear.
The elements of kidnapping are twofold: the victim is unlawfully seized, and “held for ransom or reward or otherwise.” Even if a kidnapping is not carried out, the government can charge “attempted” kidnapping. It chose not to in this case.
To obtain a conviction for an “attempt” crime, the government must prove that the defendant took a “substantial step” toward the intended crime. A substantial step must be something more than mere preparation. The government can get a conviction if it shows that the defendant's conduct goes beyond “preliminary activities,” and a fragment of the crime was essentially “in progress.”
Even the federal courts acknowledge there is no easy way to separate mere preparation from a substantial step. Reasonable minds — and jurors — might disagree on whether looking at the underside of a bridge or detonating an explosive are substantial steps toward a kidnapping.
So, instead, the government opted for conspiracy to kidnap. It carries plenty of punishment by itself, without any other charges. If convicted, the defendants can be sentenced up to life in prison.
In order to prove a conspiracy to kidnap, the government must prove, beyond a reasonable doubt, that at least two people conspired to kidnap someone, and that at least one of them committed an overt act to achieve the conspiracy’s goal. The overt acts to support a conspiracy charge are less than the “substantial steps” involved in attempt crimes.
Federal appeals courts for the jurisdiction where the defendants are charged have considered well-timed phone calls, and other closely coordinated acts reflecting a common scheme enough to support a conspiracy to kidnap. Other appellate courts have inferred a defendant's membership in a kidnapping conspiracy based on evidence of any travel within the country in furtherance of the plan.
The Justice Department likes to win its criminal cases; it has well over a 90 percent conviction rate. In this case, there may have been enough for conspiracy to kidnap, but not quite enough for “attempted” kidnapping.