Due process saves the Bundys

The Wooten memo was a break for Cliven Bundy (below) and his entourage of fellow defendants.

The Wooten memo was a break for Cliven Bundy (below) and his entourage of fellow defendants.

The Wooten memo can be read at

U.S. District Judge Gloria Navarro last week declared a mistrial in the 2014 armed standoff case against rancher Cliven Bundy, his sons Ammon and Ryan, and co-defendant Ryan Payne, because federal prosecutors withheld evidence.

Navarro faulted prosecutors for “willful” due process violations. She pointed to more than 3,000 pages of FBI and Bureau of Land Management records that should have been shared with defense attorneys.

Paradoxically, the Bundys were rescued by the court system for which they have long shown contempt.

The action enhanced in-state beliefs that the federal departments of Interior and Justice have again bungled the Bundy case.

Though Cliven Bundy has raised various constitutional issues in earlier legal actions, the courts have largely rejected them and the case has always come down to a rancher who will not pay his bills—in his case, grazing fees for the use of federal lands that are paid by other western ranchers.

For reasons that have never been explained, the Bureau of Land Management (BLM) in the Department of the Interior did not act quickly in 1992 when Bundy stopped paying his fees. There were several legal actions as Bundy tried to block federal action, but the matter dragged on for 22 years until he owed more than a million dollars.

Finally in 2014, after the courts had ruled that Bundy had no case, BLM planned a roundup of Bundy’s trespass cattle both in lieu of some of his fees and to halt his unpaid use of the land. Bundy went on a Glenn Beck radio program, in response to which armed men from other states started arriving in Bunkerville, near Bundy’s ranch.

On April 12, an armed standoff began between federal land officials and the free lancers supporting Bundy. Republicans—including Gov. Brian Sandoval and U.S. Sen. Dean Heller—put out statements supporting Bundy. Tea Partiers, Libertarians, Oath Keepers and militia members gathered at the site.

In the years since, the office of the U.S. Attorney for Nevada has prepared a case against the Bundys and their cronies for conspiring to commit crimes against BLM agents during the standoff as well as weapons violations.

The Bundys had top defense attorneys, including Bret Whipple, who suspected they had not given everything to which they were entitled and early in the trial Judge Navarro warned she would consider a mistrial if it turned out to be true. Meanwhile, outside the courtroom a 17-page memo by BLM special agent Larry Wooten, who had been removed from the case, was circulating. Newspapers from the Wall Street Journal to High Country News reported the agent’s memo charging “bad judgment, lack of discipline, incredible bias, unprofessionalism and misconduct” in the BLM’s office of Law Enforcement and Security.

On Dec. 20 Navarro found that the failure to turn over the documents was critical and had undercut the ability to provide a defense before the jury that had been selected.

“A fair trial at this point is impossible,” she said.

Navarro said she was not by her action saying anything about the guilt or innocence of the defendants, but she didn’t need to—absent a conviction, the defendants are innocent under the law.

Nor did Navarro reference the Wooten memo.

Former prosecutors we spoke with were surprised the U.S. Attorney’s Office would let itself get caught as it did.

“That volume of records is not easy to hide,” said one. “If you read a record, there are going to be references to documents that are missing.”

The public tends to think of the jobs of defense attorneys and prosecutors as analogous—they both represent their clients.

But they are not. A prosecutor also a has an obligation to see that justice is done, even when it may assist the defense. The acting U.S. attorney did not have a choice when it came to supplying the documents to the defense.

The documents that were withheld included professional threat assessments by the FBI Joint Terrorism Task Force of the Bundys that concluded they are all talk, not genuinely dangerous—though their ability to pit their allies and adversaries against each other while standing safely apart themselves was probably not part of the assessment.

There were also documents with information that conflicted with prosecution claims about federal surveillance and armed federal agents (dubbed “snipers” by the defense) during the standoff. And there was a post-mortem of the standoff.

U.S. Attorney General Jeff sessions has ordered an inquiry into what went on in Nevada that led to the fiasco. One of the things he may well learn is that Sessions himself was part of the problem.

Nevada has not had a United States Attorney for 10 months, since Sessions requested the resignations of 46 U.S. attorneys without first lining up replacements for them. The U.S. attorney is the top federal prosecutor within a state. Not only did Sessions not have a replacement for Bogden, he still does not.

Before Sessions entered the picture, the U.S. attorney in Nevada was Daniel Bogden, who was originally appointed by George W. Bush at the recommendation of Nevada’s U.S. Sen. John Ensign. On Dec. 7, 2006, the midterm firing of Bogden and seven other U.S. attorneys set off a major national scandal. Bogden was later restored to office by Barack Obama in 2009. Except for the period of his first firing, Bogden had been a Department of Justice lawyer since 1990.

The way the U.S. Attorney’s Office dropped the ball in the case has drawn criticism from both Bundy critics and supporters. “The Government Has Screwed Up the Bundy Case Even Worse than We Realized” read a headline on a Mother Jones article.