“Progressive Prosecutors” are Invoking “Terrorism” to Expand State Power and Advance Their Political Ambitions

Oakland County Prosecutor Karen McDonald announcing charges on December 1, 2021

On November 30, a mass shooting occurred at a high school in Oxford Township, Michigan. Four students were killed and several more injured. Unfortunately, the event itself was not especially unique; while the average American schoolchild faces astronomically low risk of ever encountering a mass shooter, school shootings do still happen on occasion, and this one was the deadliest since 2018. What was genuinely unique about the event, however, flowed not from the crime itself, but from the efforts of an enterprising local prosecutor: Karen McDonald of Oakland County, MI. 

It doesn’t take a political genius to suspect that McDonald could very well have her sights set on higher elected office, and a headline-grabbing crime in the jurisdiction where she has prosecutorial authority is a perfect opportunity for heightening her public profile. Aided by a media environment which (as usual) combines just the right amount of lazy credulity and misplaced zeal, McDonald immediately set out to convince all right-minded citizens of her view that the shooting was not merely tragic and bad, but an act of “terrorism.” Respectable media outlets put out “Explainers” describing this as a “novel approach” — seeing as the shooting contained none of the hallmarks of what would ordinarily be associated with “terrorism.”

No US school shooting had ever been officially declared “terrorism” before in this manner. McDonald certainly did something “novel” then, and in fact set a brand new prosecutorial precedent — the kind of “trailblazing” action that any ambitious politician craves for their résumé. Announcing the charge, McDonald declared that it had been filed on behalf of the entire “community.” But beyond that, the stated rationale was mostly a combination of vague emotional appeals and cliches: she explained of the shooting, “if that isn’t terror, I don’t know what is.” Well, lots of things can potentially induce “terror,” but also would not be prudent for the government to prosecute as “terrorism” offenses. Ultimately, what McDonald has chosen to do is expand the punitive powers of the state in dramatic fashion.

Here’s the part of the article where I’m supposed to add the qualifier that “of course the shooting was unspeakably heinous.” But one of the luxuries of Substack is that these mandatory avowals aren’t necessary, because no sane person would deny the heinousness of a school shooting or need that to be clarified. Four kids are dead, we got it. What’s relevant for the purposes of this article is the “terrorism” designation assigned to the alleged perpetrator: a 15-year-old boy who expressed no political motives, insofar as the evidence produced has shown. He also belonged to no political organization, again according to the available evidence.

To the extent anything about the perpetrator’s motives is known, McDonald said the kid was caught drawing ominous pictures in class the morning of the shooting, including one of a murder, and also scribbled the words “help me” and “my life is useless.” A teacher spotted this, and it led to his parents being called for an emergency in-school conference. No immediate action was taken and the kid was allowed to return to class. Unbeknownst to the school officials, he had a gun — the same one his dad had purchased a few days earlier, possibly “for” him as a Christmas gift. Shortly thereafter he shot four students dead and injured multiple others. That is the gist of the current version of events as told by the local Sheriff and prosecutor.

The public was subsequently apprised by Karen McDonald that this was a crime of “terrorism,” which by extension would make the 15-year-old shooter a terrorist. In one of the more glaring examples in recent memory of extreme overnight “concept creep,” it was just taken for granted in most media coverage and commentary that the “terrorism” statute was obviously applicable in this newly-conjured context. Even though there’s no record of “terrorism” law being applied to a school shooting before anywhere in the country.

McDonald had the ability to bring this “novel” charge thanks to a “terrorism” statute that Michigan enacted after 9/11. If you go and look back at contemporaneous debate around the enactment of this law back in 2002, as I have, the idea that legislators conceived of “terrorism” in terms of school shootings is ridiculous. When people thought of “terrorism” during this period, as you might recall, they were generally thinking of spectacular Al Qaeda-type attacks. “September 11th was a wake-up call for everyone,” the now-deceased GOP state senator William Van Regenmorter declared, as he ushered the bill through the Judiciary Committee. “The issue of terrorism is real. We need to give our police agencies the powerful tools they need to protect us.” The suite of bills passed under his tutelage were kind of like a Michigan-specific version of the federal PATRIOT Act. Does anyone seriously think the late Senator Van Regenmorter had school shootings committed by 15-year-olds in mind?

So again: there is no indication that any of the elected officials who rushed to institute this law in 2002 — on a bipartisan basis, of course — ever entertained the possibility that approximately 20 years later, it could be used in the context of a school shooting. And why would they? Legislators frantically rushing to enact new policies post-9/11 thought they were dealing with waves of Islamist suicide bombers. School shootings, while bad, were generally not placed in the same conceptual category.

When these state anti-terrorism laws were being debated in 2002, the ACLU of Michigan warned: “We should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security.” They also mentioned the redundancy of a new statute criminalizing “terrorism,” when virtually any conceivable “terrorist” act that could be undertaken in Michigan was already easily-prosecutable with existing laws, such as those against “murder, conspiracy, and assault.” It would seem their prophecies have finally come to fruition, with the imposition of “terrorism” charges in this once-unforeseen school shooting scenario. 

I couldn’t get anyone from the ACLU of Michigan to comment in time for publication of this article, despite multiple requests. No materials on the topic appear on their website or social media accounts since the shooting November 30. They’ve had plenty of time to give their take on student debt as a racial justice issue, however:

The Detroit Free Press editorialized against the Michigan laws in February 2002, warning: “There are already hundreds of federal and state laws available to punish terrorists. The bills constituting the Michigan Terrorism Act would not have prevented a Sept. 11-type tragedy here, nor will they make anyone more secure than current law does… The only thing it will guarantee is a new chill on everyone’s civil liberties.”

As yet, there are no editorials from the Free Press lamenting the civil liberties implications of how the law they once condemned is currently being invoked.

Indeed, just as the former iteration of the ACLU predicted two decades ago, the 15-year-old school shooting suspect was charged (as an adult) with four counts of first degree murder, in addition to several other felonies — i.e., more than enough to lock him up for life without dubiously bringing “terrorism” into the mix. What is the purpose, then, of Karen McDonald electing to tack on a “terrorism” charge as derived from a statute allegedly passed to fight Al Qaeda after 9/11?

Some clues can be found in the ensuing media commentary. “She campaigned on a progressive prosecutor’s platform,” hailed Barbara McQuade, a former prosecutor and current MSNBC pundit, of McDonald. McQuade expressed her hope that McDonald’s decision to bring terrorism charges could become “a new way of looking at gun violence that will become the norm in the future.” It’s instructive that being a “progressive prosecutor” in this day and age apparently entails inventing new uses for “terrorism” statutes enacted during the frenzied aftermath of 9/11, while also bolstering the consensus belief within elite American liberalism that “gun violence” — however broadly construed — is such a dire problem as to be fundamentally “terroristic.”

McDonald did style herself as a “progressive prosecutor” when she ran for the Oakland County job in 2020, successfully primarying the incumbent Democrat in an unusually audacious move. This self-affixed label may have led some to mistakenly assume that McDonald would seek to limit the punitive powers of the state. Fat chance! Instead she’s moved to vigorously expand such powers, naturally in the direction of more stringently punishing offenses regarded as infringements on contemporary “progressivism.” One common “progressive” view is that gun ownership should be more strictly regulated in the US — a view McDonald has herself espoused at the very press conferences she’s held in relation to the school shooting. Notably, McDonald has also admitted that when she was running for office, she “campaigned on ‘treat kids like kids,’ and I believe that.” Meaning, back in 2020 she was campaigning on more leniency for minors in the criminal justice system. But despite this professed “belief,” McDonald opted to not only charge this 15-year-old suspect as an adult, but to slam him with the “novel” terrorism charge as well. 

McQuade, the MSNBC pundit, said of McDonald’s terrorism charge: “We may now see, at least, consideration by prosecutors for seeking these charges, because it is important, I think, to recognize the trauma that has been inflicted upon a community.”

So there you have it: here again we see the endlessly elastic jargon of “trauma” cited to justify expansions in punitive state power. Of course, no one would deny that kids subjected to a school shooting could have legitimately undergone something like “trauma” — it’s a horrific experience. And of course their families and friends could have also undergone emotional turmoil. But, sorry: there’s just no necessary link between the experience of “trauma” in this sense, and the purported need for the state to invent new criminal penalties under the auspices of “terrorism.” Without the use of the “terrorism” law, would the state of Michigan lack for methods to charge and imprison a suspected school shooter? Of course not. The point is to amplify the emotional impact of the crime — by conflating the genuine “terror” that was no doubt felt by victims, and the statutory definition of “terrorism” that was put into place as a knee-jerk reaction to 9/11.

The actual language of the state statute defines “terrorism” as “an act that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.” Clearly this definition is tailored to some cognizable political motive with which a violent crime could be committed. But the shooter here apparently had no political motive in any decipherable sense. We’re supposed to believe that a 15-year-old doodling murderous imagery had a discernible intent to “affect the conduct of government”? Was that before or after he wrote “help me” in his notebook?

Earlier this week, I was able to reach one of the original sponsors of the “terrorism” bill in 2002, former Michigan GOP state senator Dan DeGrow. Initially, he appeared a bit confused as to what I was even talking about, despite having been the primary sponsor of the bill as Majority Leader of the state senate. DeGrow seemed to think that the 2002 terrorism law had something expressly to do with curtailing school shootings, which it didn’t. As we spoke, however, his memories gradually began to flood back. When he watched McDonald on TV last week, DeGrow said, he noted that “they were dragging back a law from 20 years ago to use in this situation.” But “it didn’t bother me,” he added.

Over the course of our conversation, DeGrow (seemingly) came to agree with me about the potential pitfalls of applying “terrorism” in this “novel” context, based on the law he had personally enacted — but to which he’d apparently never given a whole lot of thought. “You don’t need the terrorism, you could just charge the kid with flat out murder,” DeGrow said. “You got your first degree murder charge, I don’t even know why you need the other stuff.” 

“The only thing I can tell you, it sounds like a great charge to throw at it,” he said. “And, you know, it sounds pretty sexy to charge him with terrorism, quite frankly.” DeGrow expressed belief that McDonald was readying herself to pursue higher office based on her enviable law enforcement position in Michigan’s second-largest county: “I’ve never met her, an attractive lady, very articulate, getting a lot of television time. I’m sure somebody’s whispering in her ear — boy, you’d be a great statewide candidate.”

However little consideration the original drafters gave their post-9/11 law, it’s now time to have a field day with its expanded application, according to those who wield prosecutorial power. NBC News quoted Matthew Schneider, a former US Attorney for the Eastern District of Michigan, who said, “Certainly, I think we’re going to see this charge used again.” No doubt Schneider was brimming with hope about the prospect for more terrorism prosecutions in new and exciting contexts. I emailed him the following question: “Do you perceive any risk in expanding the conception of terrorism to encompass school shootings, which happen on a regular basis in the US — thereby expanding the typical notion of what constitutes terrorism?” No response.

Michigan Attorney General Dana Nessel, testifying before Congress earlier this year, demanded a new federal anti-terrorism statute modeled on the one in Michigan. “While Michigan has a robust array of laws to address domestic terrorism, many states and federal prosecutors do not,” she complained. “To fully combat domestic terrorism across the country, changes to federal criminal laws must be made.” Nessel previously brought state “terrorism” charges in the madcap kidnapping plot supposedly hatched last year by right-wing “militias” against Gov. Gretchen Whitmer. But a judge tossed them out, and evidence has mounted of elaborate FBI involvement in orchestrating the entrapment-heavy scheme. 

As you might have gleaned, prosecutors generally do not mind when laws stretch well beyond their original intent, because this confers them with additional powers. It also gives them bountiful opportunities to leverage political passions. Let’s say, for example, a prosecutor would like to exhibit via state action that a school shooting was very bad. Not just first-degree murder bad, but terrorism bad. So bad, in fact, that the aftermath requires legal reforms (such as gun regulation) the prosecutor favors, which could then be turned into a plank of her forthcoming electoral campaign.

“I think it was meant to be broad back in ‘02,” DeGrow, the terrorism law’s original sponsor, told me. “The intent as I recall was to give prosecutors an additional tool — prosecutors always want as many charges as they can get.” Well, sure they do. Acquiring additional power wherever possible is second-nature for most any elected official. But when it comes to acquiring punitive prosecutorial powers, if they can do so under the supposed banner of “progressivism” — with some “trauma”-inflected emotional pleading thrown in for good measure — few seem to notice. Until it’s too late.

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