On Friday (September 6, 2024), a Michigan District Court judge in Pontiac “bound over” Andrew Hess following the close of his preliminary examination, sending the case to the Oakland County Circuit Court for trial on the felony charge of making a “terrorist threat.”
This criminal offense carries a maximum 20-year jail sentence.
The American Freedom Law Center is representing Hess in this direct attack on the First Amendment.
Make no mistake. The purpose of this prosecution is to chill the speech of those who may want to criticize the way election officials (mostly Democrats in Michigan) are conducting elections (specifically including the upcoming general election in November).
During a contentious recount on December 15, 2023, Hess allegedly exited the recount, which was being held in the Elections Division Training Room inside the Oakland County Courthouse, and went into the empty lobby where he was overheard by a secretary making the comment, “Hang Joe for treason.”
The comment was made in conversational tone, and the secretary admitted that she was not part of the conversation. Moreover, there were no election officials in the lobby, including Joe Rozell (the “Joe” allegedly referred to in the “threat”)—the director of elections for Oakland County.
The secretary eventually reported what she overheard to the County deputy sheriffs on duty. But this was only after some delay as the secretary believed that her job as a receptionist was of greater import than immediately reporting this alleged “threat” to law enforcement.
The secretary provided a written statement in support of her complaint, and Hess was questioned by the senior deputy on duty. When confronted by the deputy, Hess unequivocally denied threating the life of Joe Rozell, and he explained that he was simply accusing Joe of a federal crime for cheating on the election.
Hess was not arrested, he was not detained, he was not even asked to leave the premises. In fact, he was allowed to go back into the recount room where Joe Rozell—the alleged target of this terrorist threat—was located, and Hess proceeded to make a speech during the public comment period.
During his speech, Hess stated that in his opinion, cheating on elections is treason under federal law and should be treated as such. Deputies stood by (arms folded) and watched Hess express his comments (i.e., exercise his First Amendment rights). Below is a picture of Hess giving his speech with the deputies in the background.
This photo was admitted as an exhibit during the preliminary examination, and so too was a video of Hess’s speech. (Note: the prosecutor conceded that there was nothing in Hess’s speech that constituted a threat nor was it the basis for this prosecution).
At no time was Hess arrested, detained, or even searched. He obviously was not carrying any rope or constructing a gallows on the premises. Law enforcement did not evacuate the building, call for reinforcements, conduct a security sweep of the building, nor provide any special security detail for Joe Rozell. Nothing. And the reason is simple, the very idea that this offhand comment, which is political hyperbole at best and protected by the First Amendment, in an empty lobby overheard by a receptionist was a terrorist threat was absurd to any reasonable person.
Unfortunately, the Oakland County Prosecutor, a radical left-wing Democrat, is not a reasonable person. She filed a felony complaint against Hess this past April. Hess’s preliminary examination on this charge began on May 30, 2024, and was finally concluded after multiple adjournments on September 6, 2024.
The prosecutor’s burden during a preliminary examination is very low. He need only establish probable cause for each element of the offense. But here, the prosecutor failed to even meet this low threshold.
While Hess’s defense had a right to cross-examine the prosecutor’s witnesses and call witnesses of his own, the judge denied Hess the right to call any of the deputies on the scene (they would have testified to the fact that there was no imminent threat of violence and that they did not take any actions a reasonable officer would have taken if anyone thought that this was a true threat), ruling that the testimony was not relevant.
The judge also denied the defense the right to play the body camera video of the deputy who confronted Hess about the alleged threat where Hess denied the accusation as “silly” and emphasized that he was simply accusing Joe Rozell of a crime, similar to if you believe someone committed murder and then expressed the belief that he should go to jail. Hess emphatically denied threatening anyone’s life. The defense offered this to show Hess’s intent—a critical element of the offense. But the judge denied it.
While the prosecutor’s burden is low, it was still his burden. And the prosecutor also had to clear the First Amendment hurdle, which is quite high.
As we argued in a previously filed motion to dismiss and during the close of the hearing on Friday, the charge should have been dismissed for at least three reasons, any of which was sufficient.
First, the prosecutor clearly failed to meet his burden on each element of the offense.
Second, “Hang Joe for treason” is political hyperbole/commentary. Consequently, this prosecution is barred by MCL 750.543z (a Michigan statute that prohibits prosecution of conduct that is “presumptively” protected by the First Amendment) and the First Amendment itself.
And finally, the “terrorist threat” statute is unconstitutional facially and as applied under the U.S. Supreme Court’s First Amendment jurisprudence.
To begin, Michigan courts have construed this threat statute to proscribe only those statements that communicate “a serious expression of an intent to commit an act of terrorism.” This interpretation was necessary to ensure that the statute complied with the U.S. Supreme Court’s First Amendment jurisprudence regarding threat crimes.
The statute defines an “act of terrorism” to require a specific intent to make a threat to “intimidate or coerce” a civilian population or government. The prosecution had a burden to present some evidence to support this element of the offense, and he utterly failed to do so because no such evidence exists.
Also, pursuant to the jury instructions for this offense, “the prosecution must prove that the threat must have been a true threat, and not have been something like idle talk, or a statement made in jest, or a political comment.” Again, this was the prosecution’s burden, and he failed to meet it.
Indeed, controlling Michigan law states: “To constitute a true threat, defendant must have made the communication ‘for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat,’ rather than merely recklessly.” In fact, during the preliminary examination the district court was required to find, based on the evidence presented, that Hess knew at the time he made his alleged “threat” that the recipient (“Joe”) would receive and feel threatened by the comment.
Joe Rozell testified under oath at the preliminary examination. And he gave the following testimony when cross-examined by AFLC Attorney Robert Muise:
Q: Sir, Mr. Hess never told you directly that he was going to hang you, correct?
A: Correct.
Q: So those words were never personally communicated to you by Mr. Hess at any time?
A: Correct.
Q: Mr. Hess never communicated to you the words, quote, “Hang Joe for treason,” correct?
A: Correct.
Q: These words, “Hang Joe for treason,” are what Ms. Howard claims she overheard Mr. Hess stating in the lobby. Are you aware of that?
A: Yes.
Q: And you were not in the lobby to hear the words, quote, “Hang Joe for treason” that were allegedly uttered by Mr. Hess; is that correct?
A: I was not in the lobby.
Q: And at no time in the election recount room with you and the other election officials did Mr. Hess state, quote, “Hang Joe for treason;” is that correct?
A: Not that I recall, correct.
Q: Okay. At no time in the election recount room with you and the other election officials did Mr. Hess state, quote, “I’m going to hang Joe Rozell,” end quote, correct?
A: Correct.
Q: At no time while in the election recount room with you and the other election officials did Mr. Hess state that he was going to hang anyone?
A: Not that I heard.
Ms. Howard, the receptionist who overheard the comment, testified during the hearing as follows:
Q: And you made a statement, I believe it’s approximately five lines long about what you had heard and saw, correct?
A: Correct.
Q: And you indicate that a person made a statement, “Hang Joe for treason.”
A: Correct.
* * * *
Q: After hearing the statement and the response, what did you do?
A: Immediately, not much. I mean I couldn’t leave my position at the front desk. I was the only one guarding it, so I had to wait a little bit until I was able to go out into the lobby and find a deputy or someone I could report what I had heard to without disrupting the recount.
* * * *
Q: When Mr. Hess made the statement, quote, “Hang Joe for treason,” per your testimony, he wasn’t having a conversation with you, correct?
A: Correct.
Q: You simply overheard that statement, correct?
A. Correct.
* * * *
Q: And, to be clear, Mr. Rozell was not in the lobby at all during the time when you heard this of this hang Joe for treason threat that you testified to, correct?
A: Correct. He was not in the lobby at that time.
Q: No member of the Board of Canvassers was there, as far as you recall?
A: As far as I recall, no.
* * * *
HALL [The Prosecutor]: I’d stipulate that it was a normal conversational tone.
In short, the evidence does not come close to satisfying the elements of the crime. Indeed, the very idea that an offhand comment overheard in an empty lobby outside of the presence and hearing of any government official was made with the specific intent of intimidating or coercing government is absurd.
Second, under Michigan statutory law and First Amendment jurisprudence, political hyperbole, even if it is perceived as being threatening, cannot be prosecuted as a matter of law. Indeed, the U.S. Supreme Court has long held on this issue as follows:
“Whatever the ‘willfulness requirement implies, the statute initially requires the Government to prove a true ‘threat.’ We do not believe the kind of political hyperbole indulged by the petitioner fits within that statutory term. For we must interpret the language . . . against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Finally, this criminal statute is unlawful on its face and as applied under U.S. Supreme Court precedent, which holds as follows:
“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Consequently, even if Hess was advocating for “Joe” to be hung in an unlawful manner, which he wasn’t, this prosecution still fails to meet the imminence requirement. Obviously, there was NO imminent threat of violence at the recount. No actions were taken by law enforcement to prevent any imminent harm because there was no threat of such harm.
At the end of the day, this prosecution is unlawful. It is a direct violation of the First Amendment.
We are representing Andrew Hess, a young farther, pro bono. Please consider supporting this worthy cause by making a donation to AFLC. All donations are tax-deductible to the fullest extent of the law as AFLC is recognized by the IRS as a 501(c)(3) organization.
Remember: when we protect the constitutional rights of Andrew Hess, we are protecting the rights of all Americans. It is always in the public interest to protect constitutional rights.