PORTLAND, Ore. (CN) – A federal judge on Tuesday allowed prosecutors to list a reporter as a potential witness in the second trial over the occupation of Oregon’s Malheur National Wildlife Refuge, despite objections that the government waited to issue a subpoena until after the confirmation of U.S. Attorney General Jeff Sessions, who is more likely to take such steps than his predecessor.
The first trial ended in humiliation for the government with the acquittal of Ammon Bundy, his brother Ryan, and five other defendants on charges of conspiracy to stop refuge employees from doing their jobs.
Fourteen of the original 26 defendants pleaded guilty, and the government dropped charges against one.
Observers were surprised when the government announced plans to move ahead with a trial on the same charges against the remaining four defendants.
They may be using the same old charges, but prosecutors are betting on a new tool.
Before opening arguments on Tuesday, the parties argued over the government’s plan to subpoena a reporter regarding his coverage of the standoff.
John Sepulvado, a former reporter for Oregon Public Broadcasting, interviewed occupation leader Ryan Bundy for a piece that aired on Jan. 9, 2016.
In the interview, Ryan Bundy claimed more than 100 ranchers lost their land to make way for the refuge, and blamed the refuge for the charges that landed local ranchers Dwight and Steven Hammond in federal prison – a saga that initially sparked the occupation.
Ryan Bundy seemed to admit to the prosecution’s basic premise: that the occupation was meant to keep the refuge employees from working in order to prevent that sort of “government tyranny” from continuing.
“From this facility right here is where the charges came from to destroy the Hammonds,” he said in the interview. “It is destroying the lives and liberties and properties, and property rights anyway, of those around. It’s being facilitated from this office. So by being here, it puts a stop to that.”
Sepulvado then replied, “But the federal government workers are still working from home. They’re still telecommuting. I mean this is the space that they meet, but they’re still doing the same jobs.”
Ryan Bundy answered, “Well perhaps. This whole system isn’t perfected yet.”
And Ryan Bundy told Sepulvado that the occupiers needed the guns that hung from their hips in order for their political claims to be taken seriously.
“Why are the weapons necessary? Why not just do all this, but without the guns?” Sepulvado asked.
“Because of the lack of seriousness, okay?” Ryan Bundy answered.
“The guns make this serious?” Sepulvado asked.
Prosecutors tried to introduce the radio segment as evidence during the first trial. But defense attorneys successfully argued that it was unfair to use the version that aired, since Sepulvado could have edited it in a way that presented Bundy’s statements out of context. OPB declined to produce the raw, unedited version.
During that trial, U.S. District Judge Anna J. Brown ruled that the only way she would allow prosecutors to introduce the edited interview would be alongside testimony from Sepulvado, who could presumably answer questions about the context of Bundy’s statements.
Oregon’s shield law does not apply to the federal criminal trial.
OPB’s Senior Vice President Morgan Holm described the organization’s general policy to one of its reporters for her story about Sepulvado’s situation.
“Our long-standing policy,” Holm said, “is that reporters’ notes are private documents; they’re not subject to subpoena. We would try to prevent those from getting out because they’re work product.”
Federal law requires prosecutors to get permission from the attorney general to subpoena reporters – permission that former Attorney General Loretta Lynch in the Obama administration was unlikely to give. The Obama administration allowed just three such subpoenas to be issued in 2014, according to court documents.
So prosecutors were unable to secure either Sepulvado’s testimony or his interview with Ryan Bundy for the first trial.
But it’s looking like things might be different this time.
On Jan. 27 – the day of its deadline – the government filed its witness list for the second trial. The list contained 90 names and 364 exhibits. While prosecutors did not list Sepulvado as a witness, they did list his interview with Bundy as an exhibit – despite the fact that no raw, unedited recording has surfaced since Brown ruled on excluding it.
Defense attorneys claim that apparent incongruity was no mistake.
The Senate confirmed Jeff Sessions as the new attorney general at 3:58 p.m. Pacific Time on Feb. 8. Barely two hours later, prosecutors emailed defense attorneys and the court to say they planned to add Sepulvado to their witness list.
That order of events is suspicious, according to Jake Ryan’s attorney Jesse Merrithew.
“The timing of the government’s disclosure that it was seeking to subpoena Mr. Sepulvado strongly suggests that the government’s reason for waiting was to await the appointment and confirmation of a new attorney general,” according to an objection filed by Ryan late on Monday. “The conduct of a criminal trial should not be subject to these types of shifting political winds. It should not amount to ‘good cause’ if the government chose to wait for a new administration that is openly hostile to the press.”
Ryan objected to adding Sepulvado to the witness list on two grounds: that it was past the deadline and that the timing was political.
At Tuesday’s hearing, Assistant U.S. Attorney Geoffrey Barrow denied that his office waited until Sessions was confirmed to seek the signature of the attorney general.
“We tried many ways to introduce this at the first trial,” Barrow told Judge Brown. “While it’s true that there was a change in administration during that time, it was not politically motivated.”
Merrithew argued that the delay in listing Sepulvado as a witness robbed the defense of its ability to investigate whether Sepulvado’s reporting may have been biased against the occupiers.
“Six days before trial started is simply too late for us to do an effective job of impeaching this witness,” Merrithew told the court.
Brown rejected the idea that the government put the defense in a difficult position, saying the availability of transcripts from the first trial gives the defendants a significant advantage.
She overruled the objections, and allowed Sepulvado to be added to the prosecution’s witness list.
“There is no evidence that the timing implicates some kind of dishonorable intent by the government,” Brown said.
It is unclear when prosecutors might call Sepulvado to the witness stand, but Brown said it would be next week at the earliest.
Sepulvado, who now hosts “The California Report” for public radio station KQED, told Courthouse News that the government was “obviously looking to benefit” from OPB’s work.
“Fundamental questions keep popping in my head,” Sepulvado said. “Would we have gotten the access to Ryan Bundy in the first place if he thought for a second that the interviewer would later testify and potentially harm him and his fellow occupiers? Would he have agreed to it?”
The threat of government subpoenas not only compromises reporters’ ability to get sources to trust them, it risks weakening a crucial democratic institution, according to Mat dos Santos, legal director of the American Civil Liberties Union of Oregon.
“The media’s purpose is to keep the public informed, which is critical to a free democracy,” dos Santos said in an interview. “The basic principles guaranteed in the First Amendment are at stake when reporters are called into the courtroom against their will.
“This fundamental freedom in the First Amendment doesn’t exist to protect the reporter or the sources, but rather exists so that we, the public, have access to correct and accurate information at all times. This is critical to a functioning democracy. And it’s especially critical when we’re trying to hold the government and other institutions accountable.”