(CN) — After four defeats in cases in Nevada and Oregon, federal prosecutors want another try at prosecuting the ranching family at the core of two armed standoffs with the government.
The Justice Department under President Donald Trump is trying to resurrect a case against the oddball stars of a far-right movement that foreshadowed Trump’s rise as a national politician. The case has echoes in today’s armed protests at statehouses around the country, where people call for an end to government shutdowns designed to limit the spread of the Covid-19 pandemic.
In a hearing on Friday, the government argued that it can come back from a 2018 dismissal that was the most recent in a string of stunning blows.
Prosecutors have so far failed to convict the leaders of a fringe movement that uses armed standoffs to force recognition of their contention that the federal government has no right to own land for any purpose other than a handful of narrow military uses.
The case at issue stems from a 2014 standoff in Bunkerville, Nevada, where Bureau of Land Management officials tried to enforce a judicial order to round up Mormon rancher Cliven Bundy’s cattle after he refused for decades to pay grazing fees that ended up totaling over $1 million.
Bundy, his two sons, Ammon and Ryan, and militia leader Ryan Payne organized an armed standoff that successfully chased away the government.
Cliven Bundy kept ranching on federal land. Meanwhile, his sons launched another armed standoff, this time in Oregon. In 2016, Ammon and Ryan Bundy, along with Payne and some of the same militias active at Bunkerville, held a 41-day standoff at the Malheur National Wildlife Refuge that left one man dead.
The event was sparked by the sentencing of Oregon ranchers Steven and Dwight Hammond, who were found guilty of arson after setting several fires on the federal lands they leased to graze their cattle – land adjacent to the Malheur refuge. President Trump pardoned the Hammonds in 2018. They’re now back home in Oregon, fighting an environmental group that claims grazing on their federal allotment is harming sage grouse.
Ammon Bundy testified during the resulting trial that God told him to help the Hammonds, a revelation that led federal defenders in the case to joke that God himself was an unindicted co-conspirator in the case.
But prosecutors underestimated the sympathy of the jury that acquitted Ammon, Ryan and most of the other defendants in the 2017 case over the Malheur standoff. Also in 2017, two cases in Nevada against Bundy supporters related to the Bunkerville standoff resulted in acquittals and deadlocked juries.
Soon after the Oregon loss, the government prosecuted the Bundys in Nevada. The first go ended in a mistrial. The government tried again in 2018, but U.S. District Judge Gloria Navarro dismissed the case with prejudice, finding numerous instances where the government had concealed evidence that could have helped the Bundys and Payne defend themselves.
Navarro found the prosecution had engaged in a “deliberate attempt to mislead” both her and defense attorneys about evidence detailing FBI threat assessments of the 2014 standoff, and surveillance cameras and snipers that were outside the Bundy ranch just before the standoff.
The government appealed the dismissal to the Ninth Circuit Court of Appeals. And on Friday, U.S. Attorney Elizabeth White took issue with Navarro’s finding that any misleading done by the government had been deliberate.
White said the government “worked tirelessly” to review a mountain of evidence in the case, and that it shared everything it thought was relevant to the Bundys’ defense — including evidence showing that the Bundy residence was being surveilled “24/7,” and that the surveillance teams were armed with rifles. White said a new trial, with all evidence now on the table, would cure any issues of fairness.
“In undertaking an enormous task, we missed a few things,” White told a three-judge panel meeting via Zoom. “What is clear is that we fell short but falling short does not warrant the extreme measure of dismissal with prejudice.”
U.S. Circuit Judge William Fletcher pushed back on that, pointing out that Navarro found the government failed to disclose at least eight pieces of evidence that it should have handed over to Payne and the Bundys.
“You fell short on not just one, not just two, but a series of things,” Fletcher, who was appointed by Bill Clinton, told White.
The Bundys were accused of 16 charges related to an intention to harm government officers and of rallying armed supporters on social media with false claims that the family ranch was surrounded by FBI snipers.
But their attorneys say some of the evidence the government concealed would have shown they weren’t lying. For example, a government log of a surveillance camera that detailed the work of government agents who accessed the camera at night, carrying rifles and wearing tactical gear, according to Bundy attorney Amy Cleary.
“That was all evidence to show that this was not false messaging,” Cleary told the judges. “That they were accurately putting out information because they truly felt they were in danger by government overreach, by the government trying to provoke them, by the government trying to harm them and they were sincerely afraid. For the government to say, ‘We were unaware that that would have been helpful to the defense,’ when that’s actually charged in the indictment makes no sense.”
Larry Klayman, an attorney for the Bundys who was vocal in the birther movement that claimed President Barack Obama was not born in the United States, told the judges that the Justice Department had “orchestrated an entrapment” that ensnared the Bundys and their supporters.
“It’s one of the worst cases of abuse I think in the history of prosecution,” Klayman said at Friday’s hearing.
But Circuit Judge Jay Bybee, a George W. Bush appointee, pointed out that prosecutors weren’t aware that such footage existed because the thumbdrive containing it had never made it from the FBI into prosecutors’ investigative files.
“That’s the whole problem is this thing was hanging on a key chain someplace in somebody’s trailer,” Bybee said. “It wasn’t like the AUSAs or the FBI thought here it is, let’s bury it in the back of some filing cabinet and hope nobody finds it.”
Bybee and Fletcher were joined on the panel by Circuit Judge Paul Watford, an Obama appointee. The judges took the arguments under advisement and did not indicate when they might issue a ruling.